CONSTI LAW II I ACJUCO 1
EMINENT DOMAIN
G.R. No. 78742 July 14, 1989
ASSOCIATION OF SMALL LANDOWNERS IN THE
PHILIPPINES, INC., JUANITO D. GOMEZ, GERARDO B.
ALARCIO, FELIPE A. GUICO, JR., BERNARDO M. ALMONTE,
CANUTO RAMIR B. CABRITO, ISIDRO T. GUICO, FELISA I.
LLAMIDO, FAUSTO J. SALVA, REYNALDO G. ESTRADA,
FELISA C. BAUTISTA, ESMENIA J. CABE, TEODORO B.
MADRIAGA, AUREA J. PRESTOSA, EMERENCIANA J. ISLA,
FELICISIMA C. ARRESTO, CONSUELO M. MORALES,
BENJAMIN R. SEGISMUNDO, CIRILA A. JOSE & NAPOLEON S.
FERRER, petitioners,
vs.
HONORABLE SECRETARY OF AGRARIAN REFORM,
respondent.
G.R. No. 79310 July 14, 1989
ARSENIO AL. ACUNA, NEWTON JISON, VICTORINO
FERRARIS, DENNIS JEREZA, HERMINIGILDO GUSTILO,
PAULINO D. TOLENTINO and PLANTERS' COMMITTEE, INC.,
Victorias Mill District, Victorias, Negros Occidental, petitioners,
vs.
JOKER ARROYO, PHILIP E. JUICO and PRESIDENTIAL
AGRARIAN REFORM COUNCIL, respondents.
G.R. No. 79744 July 14, 1989
INOCENTES PABICO, petitioner,
vs.
HON. PHILIP E. JUICO, SECRETARY OF THE DEPARTMENT OF
AGRARIAN REFORM, HON. JOKER ARROYO, EXECUTIVE
SECRETARY OF THE OFFICE OF THE PRESIDENT, and
Messrs. SALVADOR TALENTO, JAIME ABOGADO, CONRADO
AVANCENA and ROBERTO TAAY, respondents.
G.R. No. 79777 July 14, 1989
NICOLAS S. MANAAY and AGUSTIN HERMANO, JR.,
petitioners,
vs.
HON. PHILIP ELLA JUICO, as Secretary of Agrarian Reform,
and LAND BANK OF THE PHILIPPINES, respondents.
CRUZ, J.:
In ancient mythology, Antaeus was a terrible giant who blocked and
challenged Hercules for his life on his way to Mycenae after
performing his eleventh labor. The two wrestled mightily and
Hercules flung his adversary to the ground thinking him dead, but
Antaeus rose even stronger to resume their struggle. This happened
several times to Hercules' increasing amazement. Finally, as they
continued grappling, it dawned on Hercules that Antaeus was the
son of Gaea and could never die as long as any part of his body was
touching his Mother Earth. Thus forewarned, Hercules then held
Antaeus up in the air, beyond the reach of the sustaining soil, and
crushed him to death.
Mother Earth. The sustaining soil. The giver of life, without whose
invigorating touch even the powerful Antaeus weakened and died.
The cases before us are not as fanciful as the foregoing tale. But
they also tell of the elemental forces of life and death, of men and
women who, like Antaeus need the sustaining strength of the
precious earth to stay alive.
"Land for the Landless" is a slogan that underscores the acute
imbalance in the distribution of this precious resource among our
people. But it is more than a slogan. Through the brooding centuries,
it has become a battle-cry dramatizing the increasingly urgent
demand of the dispossessed among us for a plot of earth as their
place in the sun.
Recognizing this need, the Constitution in 1935 mandated the policy
of social justice to "insure the well-being and economic security of
all the people," 1 especially the less privileged. In 1973, the new
Constitution affirmed this goal adding specifically that "the State
shall regulate the acquisition, ownership, use, enjoyment and
disposition of private property and equitably diffuse property
ownership and profits." 2 Significantly, there was also the specific
injunction to "formulate and implement an agrarian reform program
aimed at emancipating the tenant from the bondage of the soil." 3
The Constitution of 1987 was not to be outdone. Besides echoing
these sentiments, it also adopted one whole and separate Article
XIII on Social Justice and Human Rights, containing grandiose but
undoubtedly sincere provisions for the uplift of the common people.
These include a call in the following words for the adoption by the
State of an agrarian reform program:
SEC. 4. The State shall, by law, undertake an agrarian reform
program founded on the right of farmers and regular farmworkers,
who are landless, to own directly or collectively the lands they till or,
in the case of other farmworkers, to receive a just share of the fruits
thereof. To this end, the State shall encourage and undertake the
just distribution of all agricultural lands, subject to such priorities and
reasonable retention limits as the Congress may prescribe, taking
into account ecological, developmental, or equity considerations
and subject to the payment of just compensation. In determining
retention limits, the State shall respect the right of small landowners.
The State shall further provide incentives for voluntary land-sharing.
Earlier, in fact, R.A. No. 3844, otherwise known as the Agricultural
Land Reform Code, had already been enacted by the Congress of
the Philippines on August 8, 1963, in line with the above-stated
principles. This was substantially superseded almost a decade later
by P.D. No. 27, which was promulgated on October 21, 1972, along
with martial law, to provide for the compulsory acquisition of private
lands for distribution among tenant-farmers and to specify maximum
retention limits for landowners.
The people power revolution of 1986 did not change and indeed
even energized the thrust for agrarian reform. Thus, on July 17,
1987, President Corazon C. Aquino issued E.O. No. 228, declaring
full land ownership in favor of the beneficiaries of P.D. No. 27 and
providing for the valuation of still unvalued lands covered by the
decree as well as the manner of their payment. This was followed
on July 22, 1987 by Presidential Proclamation No. 131, instituting a
comprehensive agrarian reform program (CARP), and E.O. No. 229,
providing the mechanics for its implementation.
Subsequently, with its formal organization, the revived Congress of
the Philippines took over legislative power from the President and
started its own deliberations, including extensive public hearings, on
the improvement of the interests of farmers. The result, after almost
a year of spirited debate, was the enactment of R.A. No. 6657,
otherwise known as the Comprehensive Agrarian Reform Law of
1988, which President Aquino signed on June 10, 1988. This law,
while considerably changing the earlier mentioned enactments,
nevertheless gives them suppletory effect insofar as they are not
inconsistent with its provisions. 4
The above-captioned cases have been consolidated because they
involve common legal questions, including serious challenges to the
constitutionality of the several measures mentioned above. They will
be the subject of one common discussion and resolution, The
different antecedents of each case will require separate treatment,
however, and will first be explained hereunder.

G.R. No. 79777
Squarely raised in this petition is the constitutionality of P.D. No. 27,
E.O. Nos. 228 and 229, and R.A. No. 6657.
The subjects of this petition are a 9-hectare riceland worked by four
tenants and owned by petitioner Nicolas Manaay and his wife and a
5-hectare riceland worked by four tenants and owned by petitioner
Augustin Hermano, Jr. The tenants were declared full owners of
these lands by E.O. No. 228 as qualified farmers under P.D. No. 27.
The petitioners are questioning P.D. No. 27 and E.O. Nos. 228 and
229 on grounds inter alia of separation of powers, due process,
equal protection and the constitutional limitation that no private
property shall be taken for public use without just compensation.
They contend that President Aquino usurped legislative power when
she promulgated E.O. No. 228. The said measure is invalid also for
violation of Article XIII, Section 4, of the Constitution, for failure to
provide for retention limits for small landowners. Moreover, it does
not conform to Article VI, Section 25(4) and the other requisites of a
valid appropriation.
In connection with the determination of just compensation, the
petitioners argue that the same may be made only by a court of
justice and not by the President of the Philippines. They invoke the
recent cases of EPZA v. Dulay 5 and Manotok v. National Food
Authority. 6 Moreover, the just compensation contemplated by the
Bill of Rights is payable in money or in cash and not in the form of
bonds or other things of value.
In considering the rentals as advance payment on the land, the
executive order also deprives the petitioners of their property rights
as protected by due process. The equal protection clause is also
violated because the order places the burden of solving the agrarian
problems on the owners only of agricultural lands. No similar
obligation is imposed on the owners of other properties.
The petitioners also maintain that in declaring the beneficiaries
under P.D. No. 27 to be the owners of the lands occupied by them,
E.O. No. 228 ignored judicial prerogatives and so violated due
process. Worse, the measure would not solve the agrarian problem
because even the small farmers are deprived of their lands and the
retention rights guaranteed by the Constitution.
In his Comment, the Solicitor General stresses that P.D. No. 27 has
already been upheld in the earlier cases of Chavez v. Zobel, 7
Gonzales v. Estrella, 8 and Association of Rice and Corn Producers
of the Philippines, Inc. v. The National Land Reform Council. 9 The
determination of just compensation by the executive authorities
conformably to the formula prescribed under the questioned order
is at best initial or preliminary only. It does not foreclose judicial
intervention whenever sought or warranted. At any rate, the
challenge to the order is premature because no valuation of their
property has as yet been made by the Department of Agrarian
Reform. The petitioners are also not proper parties because the
lands owned by them do not exceed the maximum retention limit of
7 hectares.
Replying, the petitioners insist they are proper parties because P.D.
No. 27 does not provide for retention limits on tenanted lands and
that in any event their petition is a class suit brought in behalf of
landowners with landholdings below 24 hectares. They maintain
that the determination of just compensation by the administrative
authorities is a final ascertainment. As for the cases invoked by the
public respondent, the constitutionality of P.D. No. 27 was merely
assumed in Chavez, while what was decided in Gonzales was the
validity of the imposition of martial law.
In the amended petition dated November 22, 1588, it is contended
that P.D. No. 27, E.O. Nos. 228 and 229 (except Sections 20 and
CONSTI LAW II I ACJUCO 2
21) have been impliedly repealed by R.A. No. 6657. Nevertheless,
this statute should itself also be declared unconstitutional because
it suffers from substantially the same infirmities as the earlier
measures.
A petition for intervention was filed with leave of court on June 1,
1988 by Vicente Cruz, owner of a 1. 83- hectare land, who
complained that the DAR was insisting on the implementation of
P.D. No. 27 and E.O. No. 228 despite a compromise agreement he
had reached with his tenant on the payment of rentals. In a
subsequent motion dated April 10, 1989, he adopted the allegations
in the basic amended petition that the above- mentioned
enactments have been impliedly repealed by R.A. No. 6657.
G.R. No. 79310
The petitioners herein are landowners and sugar planters in the
Victorias Mill District, Victorias, Negros Occidental. Co-petitioner
Planters' Committee, Inc. is an organization composed of 1,400
planter-members. This petition seeks to prohibit the implementation
of Proc. No. 131 and E.O. No. 229.
The petitioners claim that the power to provide for a Comprehensive
Agrarian Reform Program as decreed by the Constitution belongs
to Congress and not the President. Although they agree that the
President could exercise legislative power until the Congress was
convened, she could do so only to enact emergency measures
during the transition period. At that, even assuming that the interim
legislative power of the President was properly exercised, Proc. No.
131 and E.O. No. 229 would still have to be annulled for violating
the constitutional provisions on just compensation, due process,
and equal protection.
They also argue that under Section 2 of Proc. No. 131 which
provides:
Agrarian Reform Fund.-There is hereby created a special fund, to
be known as the Agrarian Reform Fund, an initial amount of FIFTY
BILLION PESOS (P50,000,000,000.00) to cover the estimated cost
of the Comprehensive Agrarian Reform Program from 1987 to 1992
which shall be sourced from the receipts of the sale of the assets of
the Asset Privatization Trust and Receipts of sale of ill-gotten wealth
received through the Presidential Commission on Good
Government and such other sources as government may deem
appropriate. The amounts collected and accruing to this special fund
shall be considered automatically appropriated for the purpose
authorized in this Proclamation the amount appropriated is in futuro,
not in esse. The money needed to cover the cost of the
contemplated expropriation has yet to be raised and cannot be
appropriated at this time.
Furthermore, they contend that taking must be simultaneous with
payment of just compensation as it is traditionally understood, i.e.,
with money and in full, but no such payment is contemplated in
Section 5 of the E.O. No. 229. On the contrary, Section 6, thereof
provides that the Land Bank of the Philippines "shall compensate
the landowner in an amount to be established by the government,
which shall be based on the owner's declaration of current fair
market value as provided in Section 4 hereof, but subject to certain
controls to be defined and promulgated by the Presidential Agrarian
Reform Council." This compensation may not be paid fully in money
but in any of several modes that may consist of part cash and part
bond, with interest, maturing periodically, or direct payment in cash
or bond as may be mutually agreed upon by the beneficiary and the
landowner or as may be prescribed or approved by the PARC.
The petitioners also argue that in the issuance of the two measures,
no effort was made to make a careful study of the sugar planters'
situation. There is no tenancy problem in the sugar areas that can
justify the application of the CARP to them. To the extent that the
sugar planters have been lumped in the same legislation with other

farmers, although they are a separate group with problems
exclusively their own, their right to equal protection has been
violated.
A motion for intervention was filed on August 27,1987 by the
National Federation of Sugarcane Planters (NASP) which claims a
membership of at least 20,000 individual sugar planters all over the
country. On September 10, 1987, another motion for intervention
was filed, this time by Manuel Barcelona, et al., representing
coconut and riceland owners. Both motions were granted by the
Court.
NASP alleges that President Aquino had no authority to fund the
Agrarian Reform Program and that, in any event, the appropriation
is invalid because of uncertainty in the amount appropriated.
Section 2 of Proc. No. 131 and Sections 20 and 21 of E.O. No. 229
provide for an initial appropriation of fifty billion pesos and thus
specifies the minimum rather than the maximum authorized amount.
This is not allowed. Furthermore, the stated initial amount has not
been certified to by the National Treasurer as actually available.
Two additional arguments are made by Barcelona, to wit, the failure
to establish by clear and convincing evidence the necessity for the
exercise of the powers of eminent domain, and the violation of the
fundamental right to own property.
The petitioners also decry the penalty for non-registration of the
lands, which is the expropriation of the said land for an amount equal
to the government assessor's valuation of the land for tax purposes.
On the other hand, if the landowner declares his own valuation he
is unjustly required to immediately pay the corresponding taxes on
the land, in violation of the uniformity rule.
In his consolidated Comment, the Solicitor General first invokes the
presumption of constitutionality in favor of Proc. No. 131 and E.O.
No. 229. He also justifies the necessity for the expropriation as
explained in the "whereas" clauses of the Proclamation and submits
that, contrary to the petitioner's contention, a pilot project to
determine the feasibility of CARP and a general survey on the
people's opinion thereon are not indispensable prerequisites to its
promulgation.
On the alleged violation of the equal protection clause, the sugar
planters have failed to show that they belong to a different class and
should be differently treated. The Comment also suggests the
possibility of Congress first distributing public agricultural lands and
scheduling the expropriation of private agricultural lands later. From
this viewpoint, the petition for prohibition would be premature.
The public respondent also points out that the constitutional
prohibition is against the payment of public money without the
corresponding appropriation. There is no rule that only money
already in existence can be the subject of an appropriation law.
Finally, the earmarking of fifty billion pesos as Agrarian Reform
Fund, although denominated as an initial amount, is actually the
maximum sum appropriated. The word "initial" simply means that
additional amounts may be appropriated later when necessary.
On April 11, 1988, Prudencio Serrano, a coconut planter, filed a
petition on his own behalf, assailing the constitutionality of E.O. No.
229. In addition to the arguments already raised, Serrano contends
that the measure is unconstitutional because:
(1) Only public lands should be included in the CARP;
(2) E.O. No. 229 embraces more than one subject which is not
expressed in the title;
(3) The power of the President to legislate was terminated on July
2, 1987; and
CONSTI LAW II I ACJUCO 3
(4) The appropriation of a P50 billion special fund from the National
Treasury did not originate from the House of Representatives.
G.R. No. 79744
The petitioner alleges that the then Secretary of Department of
Agrarian Reform, in violation of due process and the requirement for
just compensation, placed his landholding under the coverage of
Operation Land Transfer. Certificates of Land Transfer were
subsequently issued to the private respondents, who then refused
payment of lease rentals to him.
On September 3, 1986, the petitioner protested the erroneous
inclusion of his small landholding under Operation Land transfer and
asked for the recall and cancellation of the Certificates of Land
Transfer in the name of the private respondents. He claims that on
December 24, 1986, his petition was denied without hearing. On
February 17, 1987, he filed a motion for reconsideration, which had
not been acted upon when E.O. Nos. 228 and 229 were issued.
These orders rendered his motion moot and academic because they
directly effected the transfer of his land to the private respondents.
The petitioner now argues that:
(1) E.O. Nos. 228 and 229 were invalidly issued by the President of
the Philippines.
(2) The said executive orders are violative of the constitutional
provision that no private property shall be taken without due process
or just compensation.
(3) The petitioner is denied the right of maximum retention provided
for under the 1987 Constitution.
The petitioner contends that the issuance of E.0. Nos. 228 and 229
shortly before Congress convened is anomalous and arbitrary,
besides violating the doctrine of separation of powers. The
legislative power granted to the President under the Transitory
Provisions refers only to emergency measures that may be
promulgated in the proper exercise of the police power.
The petitioner also invokes his rights not to be deprived of his
property without due process of law and to the retention of his small
parcels of riceholding as guaranteed under Article XIII, Section 4 of
the Constitution. He likewise argues that, besides denying him just
compensation for his land, the provisions of E.O. No. 228 declaring
that:
Lease rentals paid to the landowner by the farmer-beneficiary after
October 21, 1972 shall be considered as advance payment for the
land.
is an unconstitutional taking of a vested property right. It is also his
contention that the inclusion of even small landowners in the
program along with other landowners with lands consisting of seven
hectares or more is undemocratic.
In his Comment, the Solicitor General submits that the petition is
premature because the motion for reconsideration filed with the
Minister of Agrarian Reform is still unresolved. As for the validity of
the issuance of E.O. Nos. 228 and 229, he argues that they were
enacted pursuant to Section 6, Article XVIII of the Transitory
Provisions of the 1987 Constitution which reads:
The incumbent president shall continue to exercise legislative
powers until the first Congress is convened.
On the issue of just compensation, his position is that when P.D. No.
27 was promulgated on October 21. 1972, the tenant-farmer of
agricultural land was deemed the owner of the land he was tilling.

The leasehold rentals paid after that date should therefore be
considered amortization payments.
In his Reply to the public respondents, the petitioner maintains that
the motion he filed was resolved on December 14, 1987. An appeal
to the Office of the President would be useless with the promulgation
of E.O. Nos. 228 and 229, which in effect sanctioned the validity of
the public respondent's acts.
G.R. No. 78742
The petitioners in this case invoke the right of retention granted by
P.D. No. 27 to owners of rice and corn lands not exceeding seven
hectares as long as they are cultivating or intend to cultivate the
same. Their respective lands do not exceed the statutory limit but
are occupied by tenants who are actually cultivating such lands.
According to P.D. No. 316, which was promulgated in
implementation of P.D. No. 27:
No tenant-farmer in agricultural lands primarily devoted to rice and
corn shall be ejected or removed from his farmholding until such
time as the respective rights of the tenant- farmers and the
landowner shall have been determined in accordance with the rules
and regulations implementing P.D. No. 27.
The petitioners claim they cannot eject their tenants and so are
unable to enjoy their right of retention because the Department of
Agrarian Reform has so far not issued the implementing rules
required under the above-quoted decree. They therefore ask the
Court for a writ of mandamus to compel the respondent to issue the
said rules.
In his Comment, the public respondent argues that P.D. No. 27 has
been amended by LOI 474 removing any right of retention from
persons who own other agricultural lands of more than 7 hectares
in aggregate area or lands used for residential, commercial,
industrial or other purposes from which they derive adequate
income for their family. And even assuming that the petitioners do
not fall under its terms, the regulations implementing P.D. No. 27
have already been issued, to wit, the Memorandum dated July 10,
1975 (Interim Guidelines on Retention by Small Landowners, with
an accompanying Retention Guide Table), Memorandum Circular
No. 11 dated April 21, 1978, (Implementation Guidelines of LOI No.
474), Memorandum Circular No. 18-81 dated December 29,1981
(Clarificatory Guidelines on Coverage of P.D. No. 27 and Retention
by Small Landowners), and DAR Administrative Order No. 1, series
of 1985 (Providing for a Cut-off Date for Landowners to Apply for
Retention and/or to Protest the Coverage of their Landholdings
under Operation Land Transfer pursuant to P.D. No. 27). For failure
to file the corresponding applications for retention under these
measures, the petitioners are now barred from invoking this right.
The public respondent also stresses that the petitioners have
prematurely initiated this case notwithstanding the pendency of their
appeal to the President of the Philippines. Moreover, the issuance
of the implementing rules, assuming this has not yet been done,
involves the exercise of discretion which cannot be controlled
through the writ of mandamus. This is especially true if this function
is entrusted, as in this case, to a separate department of the
government.
In their Reply, the petitioners insist that the above-cited measures
are not applicable to them because they do not own more than
seven hectares of agricultural land. Moreover, assuming arguendo
that the rules were intended to cover them also, the said measures
are nevertheless not in force because they have not been published
as required by law and the ruling of this Court in Tanada v.
Tuvera.10 As for LOI 474, the same is ineffective for the additional
reason that a mere letter of instruction could not have repealed the
presidential decree.
CONSTI LAW II I ACJUCO 4
I
Although holding neither purse nor sword and so regarded as the
weakest of the three departments of the government, the judiciary
is nonetheless vested with the power to annul the acts of either the
legislative or the executive or of both when not conformable to the
fundamental law. This is the reason for what some quarters call the
doctrine of judicial supremacy. Even so, this power is not lightly
assumed or readily exercised. The doctrine of separation of powers
imposes upon the courts a proper restraint, born of the nature of
their functions and of their respect for the other departments, in
striking down the acts of the legislative and the executive as
unconstitutional. The policy, indeed, is a blend of courtesy and
caution. To doubt is to sustain. The theory is that before the act was
done or the law was enacted, earnest studies were made by
Congress or the President, or both, to insure that the Constitution
would not be breached.
In addition, the Constitution itself lays down stringent conditions for
a declaration of unconstitutionality, requiring therefor the
concurrence of a majority of the members of the Supreme Court
who took part in the deliberations and voted on the issue during their
session en banc.11 And as established by judge made doctrine, the
Court will assume jurisdiction over a constitutional question only if it
is shown that the essential requisites of a judicial inquiry into such a
question are first satisfied. Thus, there must be an actual case or
controversy involving a conflict of legal rights susceptible of judicial
determination, the constitutional question must have been
opportunely raised by the proper party, and the resolution of the
question is unavoidably necessary to the decision of the case itself.
12
With particular regard to the requirement of proper party as applied
in the cases before us, we hold that the same is satisfied by the
petitioners and intervenors because each of them has sustained or
is in danger of sustaining an immediate injury as a result of the acts
or measures complained of. 13 And even if, strictly speaking, they
are not covered by the definition, it is still within the wide discretion
of the Court to waive the requirement and so remove the
impediment to its addressing and resolving the serious
constitutional questions raised.
In the first Emergency Powers Cases, 14 ordinary citizens and
taxpayers were allowed to question the constitutionality of several
executive orders issued by President Quirino although they were
invoking only an indirect and general interest shared in common
with the public. The Court dismissed the objection that they were not
proper parties and ruled that "the transcendental importance to the
public of these cases demands that they be settled promptly and
definitely, brushing aside, if we must, technicalities of procedure."
We have since then applied this exception in many other cases. 15
The other above-mentioned requisites have also been met in the
present petitions.
In must be stressed that despite the inhibitions pressing upon the
Court when confronted with constitutional issues like the ones now
before it, it will not hesitate to declare a law or act invalid when it is
convinced that this must be done. In arriving at this conclusion, its
only criterion will be the Constitution as God and its conscience give
it the light to probe its meaning and discover its purpose. Personal
motives and political considerations are irrelevancies that cannot
influence its decision. Blandishment is as ineffectual as intimidation.
For all the awesome power of the Congress and the Executive, the
Court will not hesitate to "make the hammer fall, and heavily," to use
Justice Laurel's pithy language, where the acts of these
departments, or of any public official, betray the people's will as
expressed in the Constitution.

It need only be added, to borrow again the words of Justice Laurel,
that —
... when the judiciary mediates to allocate constitutional boundaries,
it does not assert any superiority over the other departments; it does
not in reality nullify or invalidate an act of the Legislature, but only
asserts the solemn and sacred obligation assigned to it by the
Constitution to determine conflicting claims of authority under the
Constitution and to establish for the parties in an actual controversy
the rights which that instrument secures and guarantees to them.
This is in truth all that is involved in what is termed "judicial
supremacy" which properly is the power of judicial review under the
Constitution. 16
The cases before us categorically raise constitutional questions that
this Court must categorically resolve. And so we shall.
II
We proceed first to the examination of the preliminary issues before
resolving the more serious challenges to the constitutionality of the
several measures involved in these petitions.
The promulgation of P.D. No. 27 by President Marcos in the
exercise of his powers under martial law has already been sustained
in Gonzales v. Estrella and we find no reason to modify or reverse
it on that issue. As for the power of President Aquino to promulgate
Proc. No. 131 and E.O. Nos. 228 and 229, the same was authorized
under Section 6 of the Transitory Provisions of the 1987
Constitution, quoted above.
The said measures were issued by President Aquino before July 27,
1987, when the Congress of the Philippines was formally convened
and took over legislative power from her. They are not "midnight"
enactments intended to pre-empt the legislature because E.O. No.
228 was issued on July 17, 1987, and the other measures, i.e., Proc.
No. 131 and E.O. No. 229, were both issued on July 22, 1987.
Neither is it correct to say that these measures ceased to be valid
when she lost her legislative power for, like any statute, they
continue to be in force unless modified or repealed by subsequent
law or declared invalid by the courts. A statute does not ipso facto
become inoperative simply because of the dissolution of the
legislature that enacted it. By the same token, President Aquino's
loss of legislative power did not have the effect of invalidating all the
measures enacted by her when and as long as she possessed it.
Significantly, the Congress she is alleged to have undercut has not
rejected but in fact substantially affirmed the challenged measures
and has specifically provided that they shall be suppletory to R.A.
No. 6657 whenever not inconsistent with its provisions. 17 Indeed,
some portions of the said measures, like the creation of the P50
billion fund in Section 2 of Proc. No. 131, and Sections 20 and 21 of
E.O. No. 229, have been incorporated by reference in the CARP
Law. 18
That fund, as earlier noted, is itself being questioned on the ground
that it does not conform to the requirements of a valid appropriation
as specified in the Constitution. Clearly, however, Proc. No. 131 is
not an appropriation measure even if it does provide for the creation
of said fund, for that is not its principal purpose. An appropriation
law is one the primary and specific purpose of which is to authorize
the release of public funds from the treasury. 19 The creation of the
fund is only incidental to the main objective of the proclamation,
which is agrarian reform.
It should follow that the specific constitutional provisions invoked, to
wit, Section 24 and Section 25(4) of Article VI, are not applicable.
With particular reference to Section 24, this obviously could not
have been complied with for the simple reason that the House of
Representatives, which now has the exclusive power to initiate
appropriation measures, had not yet been convened when the
CONSTI LAW II I ACJUCO 5
proclamation was issued. The legislative power was then solely
vested in the President of the Philippines, who embodied, as it were,
both houses of Congress.
The argument of some of the petitioners that Proc. No. 131 and E.O.
No. 229 should be invalidated because they do not provide for
retention limits as required by Article XIII, Section 4 of the
Constitution is no longer tenable. R.A. No. 6657 does provide for
such limits now in Section 6 of the law, which in fact is one of its
most controversial provisions. This section declares:
Retention Limits. — Except as otherwise provided in this Act, no
person may own or retain, directly or indirectly, any public or private
agricultural land, the size of which shall vary according to factors
governing a viable family-sized farm, such as commodity produced,
terrain, infrastructure, and soil fertility as determined by the
Presidential Agrarian Reform Council (PARC) created hereunder,
but in no case shall retention by the landowner exceed five (5)
hectares. Three (3) hectares may be awarded to each child of the
landowner, subject to the following qualifications: (1) that he is at
least fifteen (15) years of age; and (2) that he is actually tilling the
land or directly managing the farm; Provided, That landowners
whose lands have been covered by Presidential Decree No. 27 shall
be allowed to keep the area originally retained by them thereunder,
further, That original homestead grantees or direct compulsory heirs
who still own the original homestead at the time of the approval of
this Act shall retain the same areas as long as they continue to
cultivate said homestead.
The argument that E.O. No. 229 violates the constitutional
requirement that a bill shall have only one subject, to be expressed
in its title, deserves only short attention. It is settled that the title of
the bill does not have to be a catalogue of its contents and will
suffice if the matters embodied in the text are relevant to each other
and may be inferred from the title. 20
The Court wryly observes that during the past dictatorship, every
presidential issuance, by whatever name it was called, had the force
and effect of law because it came from President Marcos. Such are
the ways of despots. Hence, it is futile to argue, as the petitioners
do in G.R. No. 79744, that LOI 474 could not have repealed P.D.
No. 27 because the former was only a letter of instruction. The
important thing is that it was issued by President Marcos, whose
word was law during that time.
But for all their peremptoriness, these issuances from the President
Marcos still had to comply with the requirement for publication as
this Court held in Tanada v. Tuvera. 21 Hence, unless published in
the Official Gazette in accordance with Article 2 of the Civil Code,
they could not have any force and effect if they were among those
enactments successfully challenged in that case. LOI 474 was
published, though, in the Official Gazette dated November 29,1976.)
Finally, there is the contention of the public respondent in G.R. No.
78742 that the writ of mandamus cannot issue to compel the
performance of a discretionary act, especially by a specific
department of the government. That is true as a general proposition
but is subject to one important qualification. Correctly and
categorically stated, the rule is that mandamus will lie to compel the
discharge of the discretionary duty itself but not to control the
discretion to be exercised. In other words, mandamus can issue to
require action only but not specific action.
Whenever a duty is imposed upon a public official and an
unnecessary and unreasonable delay in the exercise of such duty
occurs, if it is a clear duty imposed by law, the courts will intervene
by the extraordinary legal remedy of mandamus to compel action. If
the duty is purely ministerial, the courts will require specific action.
If the duty is purely discretionary, the courts by mandamus will
require action only. For example, if an inferior court, public official,
or board should, for an unreasonable length of time, fail to decide a

particular question to the great detriment of all parties concerned, or
a court should refuse to take jurisdiction of a cause when the law
clearly gave it jurisdiction mandamus will issue, in the first case to
require a decision, and in the second to require that jurisdiction be
taken of the cause. 22
And while it is true that as a rule the writ will not be proper as long
as there is still a plain, speedy and adequate remedy available from
the administrative authorities, resort to the courts may still be
permitted if the issue raised is a question of law. 23
III
There are traditional distinctions between the police power and the
power of eminent domain that logically preclude the application of
both powers at the same time on the same subject. In the case of
City of Baguio v. NAWASA, 24 for example, where a law required
the transfer of all municipal waterworks systems to the NAWASA in
exchange for its assets of equivalent value, the Court held that the
power being exercised was eminent domain because the property
involved was wholesome and intended for a public use. Property
condemned under the police power is noxious or intended for a
noxious purpose, such as a building on the verge of collapse, which
should be demolished for the public safety, or obscene materials,
which should be destroyed in the interest of public morals. The
confiscation of such property is not compensable, unlike the taking
of property under the power of expropriation, which requires the
payment of just compensation to the owner.
In the case of Pennsylvania Coal Co. v. Mahon, 25 Justice Holmes
laid down the limits of the police power in a famous aphorism: "The
general rule at least is that while property may be regulated to a
certain extent, if regulation goes too far it will be recognized as a
taking." The regulation that went "too far" was a law prohibiting
mining which might cause the subsidence of structures for human
habitation constructed on the land surface. This was resisted by a
coal company which had earlier granted a deed to the land over its
mine but reserved all mining rights thereunder, with the grantee
assuming all risks and waiving any damage claim. The Court held
the law could not be sustained without compensating the grantor.
Justice Brandeis filed a lone dissent in which he argued that there
was a valid exercise of the police power. He said:
Every restriction upon the use of property imposed in the exercise
of the police power deprives the owner of some right theretofore
enjoyed, and is, in that sense, an abridgment by the State of rights
in property without making compensation. But restriction imposed to
protect the public health, safety or morals from dangers threatened
is not a taking. The restriction here in question is merely the
prohibition of a noxious use. The property so restricted remains in
the possession of its owner. The state does not appropriate it or
make any use of it. The state merely prevents the owner from
making a use which interferes with paramount rights of the public.
Whenever the use prohibited ceases to be noxious — as it may
because of further changes in local or social conditions — the
restriction will have to be removed and the owner will again be free
to enjoy his property as heretofore.
Recent trends, however, would indicate not a polarization but a
mingling of the police power and the power of eminent domain, with
the latter being used as an implement of the former like the power
of taxation. The employment of the taxing power to achieve a police
purpose has long been accepted. 26 As for the power of
expropriation, Prof. John J. Costonis of the University of Illinois
College of Law (referring to the earlier case of Euclid v. Ambler
Realty Co., 272 US 365, which sustained a zoning law under the
police power) makes the following significant remarks:
Euclid, moreover, was decided in an era when judges located the
Police and eminent domain powers on different planets. Generally
speaking, they viewed eminent domain as encompassing public
CONSTI LAW II I ACJUCO 6
acquisition of private property for improvements that would be
available for public use," literally construed. To the police power, on
the other hand, they assigned the less intrusive task of preventing
harmful externalities a point reflected in the Euclid opinion's reliance
on an analogy to nuisance law to bolster its support of zoning. So
long as suppression of a privately authored harm bore a plausible
relation to some legitimate "public purpose," the pertinent measure
need have afforded no compensation whatever. With the
progressive growth of government's involvement in land use, the
distance between the two powers has contracted considerably.
Today government often employs eminent domain interchangeably
with or as a useful complement to the police power-- a trend
expressly approved in the Supreme Court's 1954 decision in
Berman v. Parker, which broadened the reach of eminent domain's
"public use" test to match that of the police power's standard of
"public purpose." 27
The Berman case sustained a redevelopment project and the
improvement of blighted areas in the District of Columbia as a
proper exercise of the police power. On the role of eminent domain
in the attainment of this purpose, Justice Douglas declared:
If those who govern the District of Columbia decide that the Nation's
Capital should be beautiful as well as sanitary, there is nothing in
the Fifth Amendment that stands in the way.
Once the object is within the authority of Congress, the right to
realize it through the exercise of eminent domain is clear.
For the power of eminent domain is merely the means to the end.
28
In Penn Central Transportation Co. v. New York City, 29 decided by
a 6-3 vote in 1978, the U.S Supreme Court sustained the
respondent's Landmarks Preservation Law under which the owners
of the Grand Central Terminal had not been allowed to construct a
multi-story office building over the Terminal, which had been
designated a historic landmark. Preservation of the landmark was
held to be a valid objective of the police power. The problem,
however, was that the owners of the Terminal would be deprived of
the right to use the airspace above it although other landowners in
the area could do so over their respective properties. While insisting
that there was here no taking, the Court nonetheless recognized
certain compensatory rights accruing to Grand Central Terminal
which it said would "undoubtedly mitigate" the loss caused by the
regulation. This "fair compensation," as he called it, was explained
by Prof. Costonis in this wise:
In return for retaining the Terminal site in its pristine landmark status,
Penn Central was authorized to transfer to neighboring properties
the authorized but unused rights accruing to the site prior to the
Terminal's designation as a landmark — the rights which would
have been exhausted by the 59-story building that the city refused
to countenance atop the Terminal. Prevailing bulk restrictions on
neighboring sites were proportionately relaxed, theoretically
enabling Penn Central to recoup its losses at the Terminal site by
constructing or selling to others the right to construct larger, hence
more profitable buildings on the transferee sites. 30
The cases before us present no knotty complication insofar as the
question of compensable taking is concerned. To the extent that the
measures under challenge merely prescribe retention limits for
landowners, there is an exercise of the police power for the
regulation of private property in accordance with the Constitution.
But where, to carry out such regulation, it becomes necessary to
deprive such owners of whatever lands they may own in excess of
the maximum area allowed, there is definitely a taking under the
power of eminent domain for which payment of just compensation
is imperative. The taking contemplated is not a mere limitation of the
use of the land. What is required is the surrender of the title to and
the physical possession of the said excess and all beneficial rights

accruing to the owner in favor of the farmer-beneficiary. This is
definitely an exercise not of the police power but of the power of
eminent domain.
Whether as an exercise of the police power or of the power of
eminent domain, the several measures before us are challenged as
violative of the due process and equal protection clauses.
The challenge to Proc. No. 131 and E.O. Nos. 228 and 299 on the
ground that no retention limits are prescribed has already been
discussed and dismissed. It is noted that although they excited
many bitter exchanges during the deliberation of the CARP Law in
Congress, the retention limits finally agreed upon are, curiously
enough, not being questioned in these petitions. We therefore do
not discuss them here. The Court will come to the other claimed
violations of due process in connection with our examination of the
adequacy of just compensation as required under the power of
expropriation.
The argument of the small farmers that they have been denied equal
protection because of the absence of retention limits has also
become academic under Section 6 of R.A. No. 6657. Significantly,
they too have not questioned the area of such limits. There is also
the complaint that they should not be made to share the burden of
agrarian reform, an objection also made by the sugar planters on
the ground that they belong to a particular class with particular
interests of their own. However, no evidence has been submitted to
the Court that the requisites of a valid classification have been
violated.
Classification has been defined as the grouping of persons or things
similar to each other in certain particulars and different from each
other in these same particulars. 31 To be valid, it must conform to
the following requirements: (1) it must be based on substantial
distinctions; (2) it must be germane to the purposes of the law; (3) it
must not be limited to existing conditions only; and (4) it must apply
equally to all the members of the class. 32 The Court finds that all
these requisites have been met by the measures here challenged
as arbitrary and discriminatory.
Equal protection simply means that all persons or things similarly
situated must be treated alike both as to the rights conferred and
the liabilities imposed. 33 The petitioners have not shown that they
belong to a different class and entitled to a different treatment. The
argument that not only landowners but also owners of other
properties must be made to share the burden of implementing land
reform must be rejected. There is a substantial distinction between
these two classes of owners that is clearly visible except to those
who will not see. There is no need to elaborate on this matter. In any
event, the Congress is allowed a wide leeway in providing for a valid
classification. Its decision is accorded recognition and respect by
the courts of justice except only where its discretion is abused to the
detriment of the Bill of Rights.
It is worth remarking at this juncture that a statute may be sustained
under the police power only if there is a concurrence of the lawful
subject and the lawful method. Put otherwise, the interests of the
public generally as distinguished from those of a particular class
require the interference of the State and, no less important, the
means employed are reasonably necessary for the attainment of the
purpose sought to be achieved and not unduly oppressive upon
individuals. 34 As the subject and purpose of agrarian reform have
been laid down by the Constitution itself, we may say that the first
requirement has been satisfied. What remains to be examined is the
validity of the method employed to achieve the constitutional goal.
One of the basic principles of the democratic system is that where
the rights of the individual are concerned, the end does not justify
the means. It is not enough that there be a valid objective; it is also
necessary that the means employed to pursue it be in keeping with
the Constitution. Mere expediency will not excuse constitutional
CONSTI LAW II I ACJUCO 7
shortcuts. There is no question that not even the strongest moral
conviction or the most urgent public need, subject only to a few
notable exceptions, will excuse the bypassing of an individual's
rights. It is no exaggeration to say that a, person invoking a right
guaranteed under Article III of the Constitution is a majority of one
even as against the rest of the nation who would deny him that right.
That right covers the person's life, his liberty and his property under
Section 1 of Article III of the Constitution. With regard to his property,
the owner enjoys the added protection of Section 9, which reaffirms
the familiar rule that private property shall not be taken for public
use without just compensation.
This brings us now to the power of eminent domain.
IV
Eminent domain is an inherent power of the State that enables it to
forcibly acquire private lands intended for public use upon payment
of just compensation to the owner. Obviously, there is no need to
expropriate where the owner is willing to sell under terms also
acceptable to the purchaser, in which case an ordinary deed of sale
may be agreed upon by the parties. 35 It is only where the owner is
unwilling to sell, or cannot accept the price or other conditions
offered by the vendee, that the power of eminent domain will come
into play to assert the paramount authority of the State over the
interests of the property owner. Private rights must then yield to the
irresistible demands of the public interest on the time-honored
justification, as in the case of the police power, that the welfare of
the people is the supreme law.
But for all its primacy and urgency, the power of expropriation is by
no means absolute (as indeed no power is absolute). The limitation
is found in the constitutional injunction that "private property shall
not be taken for public use without just compensation" and in the
abundant jurisprudence that has evolved from the interpretation of
this principle. Basically, the requirements for a proper exercise of
the power are: (1) public use and (2) just compensation.
Let us dispose first of the argument raised by the petitioners in G.R.
No. 79310 that the State should first distribute public agricultural
lands in the pursuit of agrarian reform instead of immediately
disturbing property rights by forcibly acquiring private agricultural
lands. Parenthetically, it is not correct to say that only public
agricultural lands may be covered by the CARP as the Constitution
calls for "the just distribution of all agricultural lands." In any event,
the decision to redistribute private agricultural lands in the manner
prescribed by the CARP was made by the legislative and executive
departments in the exercise of their discretion. We are not justified
in reviewing that discretion in the absence of a clear showing that it
has been abused.
A becoming courtesy admonishes us to respect the decisions of the
political departments when they decide what is known as the
political question. As explained by Chief Justice Concepcion in the
case of Tañada v. Cuenco: 36
The term "political question" connotes what it means in ordinary
parlance, namely, a question of policy. It refers to "those questions
which, under the Constitution, are to be decided by the people in
their sovereign capacity; or in regard to which full discretionary
authority has been delegated to the legislative or executive branch
of the government." It is concerned with issues dependent upon the
wisdom, not legality, of a particular measure.
It is true that the concept of the political question has been
constricted with the enlargement of judicial power, which now
includes the authority of the courts "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." 37 Even so, this should not be construed as a

license for us to reverse the other departments simply because their
views may not coincide with ours.
The legislature and the executive have been seen fit, in their
wisdom, to include in the CARP the redistribution of private
landholdings (even as the distribution of public agricultural lands is
first provided for, while also continuing apace under the Public Land
Act and other cognate laws). The Court sees no justification to
interpose its authority, which we may assert only if we believe that
the political decision is not unwise, but illegal. We do not find it to be
so.
In U.S. v. Chandler-Dunbar Water Power Company,38 it was held:
Congress having determined, as it did by the Act of March 3,1909
that the entire St. Mary's river between the American bank and the
international line, as well as all of the upland north of the present
ship canal, throughout its entire length, was "necessary for the
purpose of navigation of said waters, and the waters connected
therewith," that determination is conclusive in condemnation
proceedings instituted by the United States under that Act, and there
is no room for judicial review of the judgment of Congress ... .
As earlier observed, the requirement for public use has already
been settled for us by the Constitution itself No less than the 1987
Charter calls for agrarian reform, which is the reason why private
agricultural lands are to be taken from their owners, subject to the
prescribed maximum retention limits. The purposes specified in P.D.
No. 27, Proc. No. 131 and R.A. No. 6657 are only an elaboration of
the constitutional injunction that the State adopt the necessary
measures "to encourage and undertake the just distribution of all
agricultural lands to enable farmers who are landless to own directly
or collectively the lands they till." That public use, as pronounced by
the fundamental law itself, must be binding on us.
The second requirement, i.e., the payment of just compensation,
needs a longer and more thoughtful examination.
Just compensation is defined as the full and fair equivalent of the
property taken from its owner by the expropriator. 39 It has been
repeatedly stressed by this Court that the measure is not the taker's
gain but the owner's loss. 40 The word "just" is used to intensify the
meaning of the word "compensation" to convey the idea that the
equivalent to be rendered for the property to be taken shall be real,
substantial, full, ample. 41
It bears repeating that the measures challenged in these petitions
contemplate more than a mere regulation of the use of private lands
under the police power. We deal here with an actual taking of private
agricultural lands that has dispossessed the owners of their property
and deprived them of all its beneficial use and enjoyment, to entitle
them to the just compensation mandated by the Constitution.
As held in Republic of the Philippines v. Castellvi, 42 there is
compensable taking when the following conditions concur: (1) the
expropriator must enter a private property; (2) the entry must be for
more than a momentary period; (3) the entry must be under warrant
or color of legal authority; (4) the property must be devoted to public
use or otherwise informally appropriated or injuriously affected; and
(5) the utilization of the property for public use must be in such a
way as to oust the owner and deprive him of beneficial enjoyment
of the property. All these requisites are envisioned in the measures
before us.
Where the State itself is the expropriator, it is not necessary for it to
make a deposit upon its taking possession of the condemned
property, as "the compensation is a public charge, the good faith of
the public is pledged for its payment, and all the resources of
taxation may be employed in raising the amount." 43 Nevertheless,
Section 16(e) of the CARP Law provides that:
CONSTI LAW II I ACJUCO 8
Upon receipt by the landowner of the corresponding payment or, in
case of rejection or no response from the landowner, upon the
deposit with an accessible bank designated by the DAR of the
compensation in cash or in LBP bonds in accordance with this Act,
the DAR shall take immediate possession of the land and shall
request the proper Register of Deeds to issue a Transfer Certificate
of Title (TCT) in the name of the Republic of the Philippines. The
DAR shall thereafter proceed with the redistribution of the land to
the qualified beneficiaries.
Objection is raised, however, to the manner of fixing the just
compensation, which it is claimed is entrusted to the administrative
authorities in violation of judicial prerogatives. Specific reference is
made to Section 16(d), which provides that in case of the rejection
or disregard by the owner of the offer of the government to buy his
land-
... the DAR shall conduct summary administrative proceedings to
determine the compensation for the land by requiring the landowner,
the LBP and other interested parties to submit evidence as to the
just compensation for the land, within fifteen (15) days from the
receipt of the notice. After the expiration of the above period, the
matter is deemed submitted for decision. The DAR shall decide the
case within thirty (30) days after it is submitted for decision.
To be sure, the determination of just compensation is a function
addressed to the courts of justice and may not be usurped by any
other branch or official of the government. EPZA v. Dulay 44
resolved a challenge to several decrees promulgated by President
Marcos providing that the just compensation for property under
expropriation should be either the assessment of the property by the
government or the sworn valuation thereof by the owner, whichever
was lower. In declaring these decrees unconstitutional, the Court
held through Mr. Justice Hugo E. Gutierrez, Jr.:
The method of ascertaining just compensation under the aforecited
decrees constitutes impermissible encroachment on judicial
prerogatives. It tends to render this Court inutile in a matter which
under this Constitution is reserved to it for final determination.
Thus, although in an expropriation proceeding the court technically
would still have the power to determine the just compensation for
the property, following the applicable decrees, its task would be
relegated to simply stating the lower value of the property as
declared either by the owner or the assessor. As a necessary
consequence, it would be useless for the court to appoint
commissioners under Rule 67 of the Rules of Court. Moreover, the
need to satisfy the due process clause in the taking of private
property is seemingly fulfilled since it cannot be said that a judicial
proceeding was not had before the actual taking. However, the strict
application of the decrees during the proceedings would be nothing
short of a mere formality or charade as the court has only to choose
between the valuation of the owner and that of the assessor, and its
choice is always limited to the lower of the two. The court cannot
exercise its discretion or independence in determining what is just
or fair. Even a grade school pupil could substitute for the judge
insofar as the determination of constitutional just compensation is
concerned.
xxx
In the present petition, we are once again confronted with the same
question of whether the courts under P.D. No. 1533, which contains
the same provision on just compensation as its predecessor
decrees, still have the power and authority to determine just
compensation, independent of what is stated by the decree and to
this effect, to appoint commissioners for such purpose.
This time, we answer in the affirmative.
xxx

It is violative of due process to deny the owner the opportunity to
prove that the valuation in the tax documents is unfair or wrong. And
it is repulsive to the basic concepts of justice and fairness to allow
the haphazard work of a minor bureaucrat or clerk to absolutely
prevail over the judgment of a court promulgated only after expert
commissioners have actually viewed the property, after evidence
and arguments pro and con have been presented, and after all
factors and considerations essential to a fair and just determination
have been judiciously evaluated.
A reading of the aforecited Section 16(d) will readily show that it
does not suffer from the arbitrariness that rendered the challenged
decrees constitutionally objectionable. Although the proceedings
are described as summary, the landowner and other interested
parties are nevertheless allowed an opportunity to submit evidence
on the real value of the property. But more importantly, the
determination of the just compensation by the DAR is not by any
means final and conclusive upon the landowner or any other
interested party, for Section 16(f) clearly provides:
Any party who disagrees with the decision may bring the matter to
the court of proper jurisdiction for final determination of just
compensation.
The determination made by the DAR is only preliminary unless
accepted by all parties concerned. Otherwise, the courts of justice
will still have the right to review with finality the said determination
in the exercise of what is admittedly a judicial function.
The second and more serious objection to the provisions on just
compensation is not as easily resolved.
This refers to Section 18 of the CARP Law providing in full as
follows:
SEC. 18. Valuation and Mode of Compensation. — The LBP shall
compensate the landowner in such amount as may be agreed upon
by the landowner and the DAR and the LBP, in accordance with the
criteria provided for in Sections 16 and 17, and other pertinent
provisions hereof, or as may be finally determined by the court, as
the just compensation for the land.
The compensation shall be paid in one of the following modes, at
the option of the landowner:
(1) Cash payment, under the following terms and conditions:
(a) For lands above fifty (50) hectares, insofar as the excess
hectarage is concerned — Twenty-five percent (25%) cash, the
balance to be paid in government financial instruments negotiable
at any time.
(b) For lands above twenty-four (24) hectares and up to fifty
(50) hectares — Thirty percent (30%) cash, the balance to be paid
in government financial instruments negotiable at any time.
(c) For lands twenty-four (24) hectares and below — Thirty-
five percent (35%) cash, the balance to be paid in government
financial instruments negotiable at any time.
(2) Shares of stock in government-owned or controlled
corporations, LBP preferred shares, physical assets or other
qualified investments in accordance with guidelines set by the
PARC;
(3) Tax credits which can be used against any tax liability;
(4) LBP bonds, which shall have the following features:
CONSTI LAW II I ACJUCO 9
(a) Market interest rates aligned with 91-day treasury bill
rates. Ten percent (10%) of the face value of the bonds shall mature
every year from the date of issuance until the tenth (10th) year:
Provided, That should the landowner choose to forego the cash
portion, whether in full or in part, he shall be paid correspondingly in
LBP bonds;
(b) Transferability and negotiability. Such LBP bonds may be
used by the landowner, his successors-in- interest or his assigns,
up to the amount of their face value, for any of the following:
(i) Acquisition of land or other real properties of the
government, including assets under the Asset Privatization Program
and other assets foreclosed by government financial institutions in
the same province or region where the lands for which the bonds
were paid are situated;
(ii) Acquisition of shares of stock of government-owned or
controlled corporations or shares of stock owned by the government
in private corporations;
(iii) Substitution for surety or bail bonds for the provisional
release of accused persons, or for performance bonds;
(iv) Security for loans with any government financial
institution, provided the proceeds of the loans shall be invested in
an economic enterprise, preferably in a small and medium- scale
industry, in the same province or region as the land for which the
bonds are paid;
(v) Payment for various taxes and fees to government:
Provided, That the use of these bonds for these purposes will be
limited to a certain percentage of the outstanding balance of the
financial instruments; Provided, further, That the PARC shall
determine the percentages mentioned above;
(vi) Payment for tuition fees of the immediate family of the
original bondholder in government universities, colleges, trade
schools, and other institutions;
(vii) Payment for fees of the immediate family of the original
bondholder in government hospitals; and
(viii) Such other uses as the PARC may from time to time allow.
The contention of the petitioners in G.R. No. 79777 is that the above
provision is unconstitutional insofar as it requires the owners of the
expropriated properties to accept just compensation therefor in less
than money, which is the only medium of payment allowed. In
support of this contention, they cite jurisprudence holding that:
The fundamental rule in expropriation matters is that the owner of
the property expropriated is entitled to a just compensation, which
should be neither more nor less, whenever it is possible to make the
assessment, than the money equivalent of said property. Just
compensation has always been understood to be the just and
complete equivalent of the loss which the owner of the thing
expropriated has to suffer by reason of the expropriation . 45
(Emphasis supplied.)
In J.M. Tuazon Co. v. Land Tenure Administration, 46 this Court
held:
It is well-settled that just compensation means the equivalent for the
value of the property at the time of its taking. Anything beyond that
is more, and anything short of that is less, than just compensation.
It means a fair and full equivalent for the loss sustained, which is the
measure of the indemnity, not whatever gain would accrue to the
expropriating entity. The market value of the land taken is the just
compensation to which the owner of condemned property is entitled,
the market value being that sum of money which a person desirous,

but not compelled to buy, and an owner, willing, but not compelled
to sell, would agree on as a price to be given and received for such
property. (Emphasis supplied.)
In the United States, where much of our jurisprudence on the subject
has been derived, the weight of authority is also to the effect that
just compensation for property expropriated is payable only in
money and not otherwise. Thus —
The medium of payment of compensation is ready money or cash.
The condemnor cannot compel the owner to accept anything but
money, nor can the owner compel or require the condemnor to pay
him on any other basis than the value of the property in money at
the time and in the manner prescribed by the Constitution and the
statutes. When the power of eminent domain is resorted to, there
must be a standard medium of payment, binding upon both parties,
and the law has fixed that standard as money in cash. 47 (Emphasis
supplied.)
Part cash and deferred payments are not and cannot, in the nature
of things, be regarded as a reliable and constant standard of
compensation. 48
"Just compensation" for property taken by condemnation means a
fair equivalent in money, which must be paid at least within a
reasonable time after the taking, and it is not within the power of the
Legislature to substitute for such payment future obligations, bonds,
or other valuable advantage. 49 (Emphasis supplied.)
It cannot be denied from these cases that the traditional medium for
the payment of just compensation is money and no other. And so,
conformably, has just compensation been paid in the past solely in
that medium. However, we do not deal here with the traditional
excercise of the power of eminent domain. This is not an ordinary
expropriation where only a specific property of relatively limited area
is sought to be taken by the State from its owner for a specific and
perhaps local purpose.
What we deal with here is a revolutionary kind of expropriation.
The expropriation before us affects all private agricultural lands
whenever found and of whatever kind as long as they are in excess
of the maximum retention limits allowed their owners. This kind of
expropriation is intended for the benefit not only of a particular
community or of a small segment of the population but of the entire
Filipino nation, from all levels of our society, from the impoverished
farmer to the land-glutted owner. Its purpose does not cover only
the whole territory of this country but goes beyond in time to the
foreseeable future, which it hopes to secure and edify with the vision
and the sacrifice of the present generation of Filipinos. Generations
yet to come are as involved in this program as we are today,
although hopefully only as beneficiaries of a richer and more fulfilling
life we will guarantee to them tomorrow through our thoughtfulness
today. And, finally, let it not be forgotten that it is no less than the
Constitution itself that has ordained this revolution in the farms,
calling for "a just distribution" among the farmers of lands that have
heretofore been the prison of their dreams but can now become the
key at least to their deliverance.
Such a program will involve not mere millions of pesos. The cost will
be tremendous. Considering the vast areas of land subject to
expropriation under the laws before us, we estimate that hundreds
of billions of pesos will be needed, far more indeed than the amount
of P50 billion initially appropriated, which is already staggering as it
is by our present standards. Such amount is in fact not even fully
available at this time.
We assume that the framers of the Constitution were aware of this
difficulty when they called for agrarian reform as a top priority project
of the government. It is a part of this assumption that when they
envisioned the expropriation that would be needed, they also
CONSTI LAW II I ACJUCO 10
intended that the just compensation would have to be paid not in the
orthodox way but a less conventional if more practical method.
There can be no doubt that they were aware of the financial
limitations of the government and had no illusions that there would
be enough money to pay in cash and in full for the lands they wanted
to be distributed among the farmers. We may therefore assume that
their intention was to allow such manner of payment as is now
provided for by the CARP Law, particularly the payment of the
balance (if the owner cannot be paid fully with money), or indeed of
the entire amount of the just compensation, with other things of
value. We may also suppose that what they had in mind was a
similar scheme of payment as that prescribed in P.D. No. 27, which
was the law in force at the time they deliberated on the new Charter
and with which they presumably agreed in principle.
The Court has not found in the records of the Constitutional
Commission any categorical agreement among the members
regarding the meaning to be given the concept of just compensation
as applied to the comprehensive agrarian reform program being
contemplated. There was the suggestion to "fine tune" the
requirement to suit the demands of the project even as it was also
felt that they should "leave it to Congress" to determine how
payment should be made to the landowner and reimbursement
required from the farmer-beneficiaries. Such innovations as
"progressive compensation" and "State-subsidized compensation"
were also proposed. In the end, however, no special definition of the
just compensation for the lands to be expropriated was reached by
the Commission. 50
On the other hand, there is nothing in the records either that militates
against the assumptions we are making of the general sentiments
and intention of the members on the content and manner of the
payment to be made to the landowner in the light of the magnitude
of the expenditure and the limitations of the expropriator.
With these assumptions, the Court hereby declares that the content
and manner of the just compensation provided for in the afore-
quoted Section 18 of the CARP Law is not violative of the
Constitution. We do not mind admitting that a certain degree of
pragmatism has influenced our decision on this issue, but after all
this Court is not a cloistered institution removed from the realities
and demands of society or oblivious to the need for its
enhancement. The Court is as acutely anxious as the rest of our
people to see the goal of agrarian reform achieved at last after the
frustrations and deprivations of our peasant masses during all these
disappointing decades. We are aware that invalidation of the said
section will result in the nullification of the entire program, killing the
farmer's hopes even as they approach realization and resurrecting
the spectre of discontent and dissent in the restless countryside.
That is not in our view the intention of the Constitution, and that is
not what we shall decree today.
Accepting the theory that payment of the just compensation is not
always required to be made fully in money, we find further that the
proportion of cash payment to the other things of value constituting
the total payment, as determined on the basis of the areas of the
lands expropriated, is not unduly oppressive upon the landowner. It
is noted that the smaller the land, the bigger the payment in money,
primarily because the small landowner will be needing it more than
the big landowners, who can afford a bigger balance in bonds and
other things of value. No less importantly, the government financial
instruments making up the balance of the payment are "negotiable
at any time." The other modes, which are likewise available to the
landowner at his option, are also not unreasonable because
payment is made in shares of stock, LBP bonds, other properties or
assets, tax credits, and other things of value equivalent to the
amount of just compensation.
Admittedly, the compensation contemplated in the law will cause the
landowners, big and small, not a little inconvenience. As already
remarked, this cannot be avoided. Nevertheless, it is devoutly

hoped that these countrymen of ours, conscious as we know they
are of the need for their forebearance and even sacrifice, will not
begrudge us their indispensable share in the attainment of the ideal
of agrarian reform. Otherwise, our pursuit of this elusive goal will be
like the quest for the Holy Grail.
The complaint against the effects of non-registration of the land
under E.O. No. 229 does not seem to be viable any more as it
appears that Section 4 of the said Order has been superseded by
Section 14 of the CARP Law. This repeats the requisites of
registration as embodied in the earlier measure but does not
provide, as the latter did, that in case of failure or refusal to register
the land, the valuation thereof shall be that given by the provincial
or city assessor for tax purposes. On the contrary, the CARP Law
says that the just compensation shall be ascertained on the basis of
the factors mentioned in its Section 17 and in the manner provided
for in Section 16.
The last major challenge to CARP is that the landowner is divested
of his property even before actual payment to him in full of just
compensation, in contravention of a well- accepted principle of
eminent domain.
The recognized rule, indeed, is that title to the property expropriated
shall pass from the owner to the expropriator only upon full payment
of the just compensation. Jurisprudence on this settled principle is
consistent both here and in other democratic jurisdictions. Thus:
Title to property which is the subject of condemnation proceedings
does not vest the condemnor until the judgment fixing just
compensation is entered and paid, but the condemnor's title relates
back to the date on which the petition under the Eminent Domain
Act, or the commissioner's report under the Local Improvement Act,
is filed. 51
... although the right to appropriate and use land taken for a canal is
complete at the time of entry, title to the property taken remains in
the owner until payment is actually made. 52 (Emphasis supplied.)
In Kennedy v. Indianapolis, 53 the US Supreme Court cited several
cases holding that title to property does not pass to the condemnor
until just compensation had actually been made. In fact, the
decisions appear to be uniformly to this effect. As early as 1838, in
Rubottom v. McLure, 54 it was held that "actual payment to the
owner of the condemned property was a condition precedent to the
investment of the title to the property in the State" albeit "not to the
appropriation of it to public use." In Rexford v. Knight, 55 the Court
of Appeals of New York said that the construction upon the statutes
was that the fee did not vest in the State until the payment of the
compensation although the authority to enter upon and appropriate
the land was complete prior to the payment. Kennedy further said
that "both on principle and authority the rule is ... that the right to
enter on and use the property is complete, as soon as the property
is actually appropriated under the authority of law for a public use,
but that the title does not pass from the owner without his consent,
until just compensation has been made to him."
Our own Supreme Court has held in Visayan Refining Co. v. Camus
and Paredes, 56 that:
If the laws which we have exhibited or cited in the preceding
discussion are attentively examined it will be apparent that the
method of expropriation adopted in this jurisdiction is such as to
afford absolute reassurance that no piece of land can be finally and
irrevocably taken from an unwilling owner until compensation is paid
... . (Emphasis supplied.)
It is true that P.D. No. 27 expressly ordered the emancipation of
tenant-farmer as October 21, 1972 and declared that he shall "be
deemed the owner" of a portion of land consisting of a family-sized
farm except that "no title to the land owned by him was to be actually
CONSTI LAW II I ACJUCO 11
issued to him unless and until he had become a full-fledged member
of a duly recognized farmers' cooperative." It was understood,
however, that full payment of the just compensation also had to be
made first, conformably to the constitutional requirement.
When E.O. No. 228, categorically stated in its Section 1 that:
All qualified farmer-beneficiaries are now deemed full owners as of
October 21, 1972 of the land they acquired by virtue of Presidential
Decree No. 27. (Emphasis supplied.)
it was obviously referring to lands already validly acquired under the
said decree, after proof of full-fledged membership in the farmers'
cooperatives and full payment of just compensation. Hence, it was
also perfectly proper for the Order to also provide in its Section 2
that the "lease rentals paid to the landowner by the farmer-
beneficiary after October 21, 1972 (pending transfer of ownership
after full payment of just compensation), shall be considered as
advance payment for the land."
The CARP Law, for its part, conditions the transfer of possession
and ownership of the land to the government on receipt by the
landowner of the corresponding payment or the deposit by the DAR
of the compensation in cash or LBP bonds with an accessible bank.
Until then, title also remains with the landowner. 57 No outright
change of ownership is contemplated either.
Hence, the argument that the assailed measures violate due
process by arbitrarily transferring title before the land is fully paid for
must also be rejected.
It is worth stressing at this point that all rights acquired by the tenant-
farmer under P.D. No. 27, as recognized under E.O. No. 228, are
retained by him even now under R.A. No. 6657. This should counter-
balance the express provision in Section 6 of the said law that "the
landowners whose lands have been covered by Presidential Decree
No. 27 shall be allowed to keep the area originally retained by them
thereunder, further, That original homestead grantees or direct
compulsory heirs who still own the original homestead at the time of
the approval of this Act shall retain the same areas as long as they
continue to cultivate said homestead."
In connection with these retained rights, it does not appear in G.R.
No. 78742 that the appeal filed by the petitioners with the Office of
the President has already been resolved. Although we have said
that the doctrine of exhaustion of administrative remedies need not
preclude immediate resort to judicial action, there are factual issues
that have yet to be examined on the administrative level, especially
the claim that the petitioners are not covered by LOI 474 because
they do not own other agricultural lands than the subjects of their
petition.
Obviously, the Court cannot resolve these issues. In any event,
assuming that the petitioners have not yet exercised their retention
rights, if any, under P.D. No. 27, the Court holds that they are
entitled to the new retention rights provided for by R.A. No. 6657,
which in fact are on the whole more liberal than those granted by
the decree.
V
The CARP Law and the other enactments also involved in these
cases have been the subject of bitter attack from those who point to
the shortcomings of these measures and ask that they be scrapped
entirely. To be sure, these enactments are less than perfect; indeed,
they should be continuously re-examined and rehoned, that they
may be sharper instruments for the better protection of the farmer's
rights. But we have to start somewhere. In the pursuit of agrarian
reform, we do not tread on familiar ground but grope on terrain
fraught with pitfalls and expected difficulties. This is inevitable. The
CARP Law is not a tried and tested project. On the contrary, to use
 CONSTI LAW II I ACJUCO 12

Justice Holmes's words, "it is an experiment, as all life is an

experiment," and so we learn as we venture forward, and, if
necessary, by our own mistakes. We cannot expect perfection
although we should strive for it by all means. Meantime, we struggle
as best we can in freeing the farmer from the iron shackles that have
unconscionably, and for so long, fettered his soul to the soil.

By the decision we reach today, all major legal obstacles to the

comprehensive agrarian reform program are removed, to clear the
way for the true freedom of the farmer. We may now glimpse the
day he will be released not only from want but also from the
exploitation and disdain of the past and from his own feelings of
inadequacy and helplessness. At last his servitude will be ended
forever. At last the farm on which he toils will be his farm. It will be
his portion of the Mother Earth that will give him not only the staff of
life but also the joy of living. And where once it bred for him only
deep despair, now can he see in it the fruition of his hopes for a
more fulfilling future. Now at last can he banish from his small plot
of earth his insecurities and dark resentments and "rebuild in it the
music and the dream."

WHEREFORE, the Court holds as follows:

1. R.A. No. 6657, P.D. No. 27, Proc. No. 131, and E.O. Nos.
228 and 229 are SUSTAINED against all the constitutional
objections raised in the herein petitions.

2. Title to all expropriated properties shall be transferred to the State

only upon full payment of compensation to their respective owners.

3. All rights previously acquired by the tenant- farmers under P.D.

No. 27 are retained and recognized.

4. Landowners who were unable to exercise their rights of retention

under P.D. No. 27 shall enjoy the retention rights granted by R.A.
No. 6657 under the conditions therein prescribed.

5. Subject to the above-mentioned rulings all the petitions are

DISMISSED, without pronouncement as to costs.

SO ORDERED.

[G.R. No. 147511. January 20, 2003]
MARINA Z. REYES; ALFREDO A. FRANCISCO; ANGELITA Z.
GARCIA; ALFREDO Z. FRANCISCO, JR; ARMANDO Z.
FRANCISCO; ALMA C. FRANCISCO; EUGENIA Z. LUNA;
CLARITA Z. ZABALLERO, LEONARDO Z. ZABALLERO, JR,
and TEODORO Z. ZABALLERO, in substitution of LEONARDO
M. ZABALLERO; AUGUSTO M. ZABALLERO; FRINE A.
ZABALLERO; ELENA FRONDA ZABALLERO; VICTOR
GREGORIO F. ZABALLERO; MARIA ELENA F. ZABALLERO;
LOURDES ZABALLERO-LAVA; SOCORRO EMILIA
ZABALLERO-YAP; and TERESITA F. ZABALLERO,
petitioners, vs. NATIONAL HOUSING AUTHORITY,
respondent.
DECISION
PUNO, J.:
This is an appeal by certiorari from the decision of the Court of
Appeals in CA-GR CV No. 51641 dated September 29, 2000[1]
affirming the judgment of the Regional Trial Court of Quezon City,
Branch 79 which dismissed the complaint for forfeiture of rights filed
by herein petitioners, as well as the Resolution dated March 13,
2001 denying petitioners motion for reconsideration.
Records show that in 1977, respondent National Housing Authority
(NHA) filed separate complaints for the expropriation of sugarcane
lands, particularly Lot Nos. 6450, 6448-E, 6198-A and 6199 of the
cadastral survey of Dasmarias, Cavite belonging to the petitioners,
before the then Court of First Instance of Cavite, and docketed as
Civil Case Nos. T.G.-392, T.G.-396 and T.G.-417. The stated public
purpose of the expropriation was the expansion of the Dasmarias
Resettlement Project to accommodate the squatters who were
relocated from the Metropolitan Manila area. The trial court
rendered judgment ordering the expropriation of these lots and the
payment of just compensation. This was affirmed by the Supreme
Court in a decision rendered on October 29, 1987 in the case of
NHA vs. Zaballero[2] and which became final on November 26,
1987.[3]
On February 24, 1989, the expropriation court (now Branch 18,
Regional Trial Court of Tagaytay City) issued an Order[4] the
dispositive portion of which reads:
WHEREFORE, and resolving thus, let an Alias Writ of Execution be
immediately issued and that:
(1) The Register of Deeds of the Province of Cavite is hereby
ordered to transfer, in the name of the plaintiff National Housing
Authority, the following:
(a) Transfer Certificate No. RT-638 containing an area of 79,167
square meters situated in Barrio Bangkal, Dasmarias, Cavite;
(b) Transfer Certificate of Title No. T-55702 containing an area of
20,872 square meters situated in Barrio Bangkal, Dasmarias,
Cavite;
(c) Transfer Certificate of Title No. RT-639 and RT-4641 covering
Lot Nos. 6198-A and 6199 with an aggregate area of 159,985
square meters also situated in Barrio Bangkal, Dasmarias, Cavite.
(2) Plaintiff National Housing Authority is likewise hereby ordered,
under pain of contempt, to immediately pay the defendants, the
amounts stated in the Writ of Execution as the adjudicated
compensation of their expropriated properties, which process was
received by it according to the records, on September 26, 1988,
segregating therefrom, and in separate check, the lawyers fees in
favor of Atty. Bobby P. Yuseco, in the amount of P322,123.05, as
sustained by their contract as gleaned from the records, with no
CONSTI LAW II I ACJUCO 13
other deduction, paying on its own (NHA) account, the necessary
legal expenses incident to the registration or issuance of new
certificates of title, pursuant to the provisions of the Property
Registration Law (PD 1529);
(3) Defendants, however, are directed to pay the corresponding
capital gains tax on the subject properties, directing them
additionally, to coordinate with the plaintiff NHA in this regard, in
order to facilitate the termination of this case, put an end to this
controversy and consign the same to its final rest.
For the alleged failure of respondent NHA to comply with the above
order, petitioners filed on April 28, 1992 a complaint[5] for forfeiture
of rights before the Regional Trial Court of Quezon City, Branch 79,
in Civil Case No. Q-92-12093. They alleged that respondent NHA
had not relocated squatters from the Metropolitan Manila area on
the expropriated lands in violation of the stated public purpose for
expropriation and had not paid the just compensation fixed by the
court. They prayed that respondent NHA be enjoined from disposing
and alienating the expropriated properties and that judgment be
rendered forfeiting all its rights and interests under the expropriation
judgment. In its Answer,[6] respondent NHA averred that it had
already paid a substantial amount to herein petitioners and that the
expropriation judgment could not be executed in view of several
issues raised by respondent NHA before the expropriation court
(now Branch 18, RTC, Tagaytay City) concerning capital gains tax,
registration fees and other expenses for the transfer of title to
respondent NHA, as well as the claims for attorneys fees of Atty.
Joaquin Yuseco, Jr., collaborating counsel for petitioners.
Ocular inspections[7] conducted by the trial court on the subject
properties show that:
1. 80% of Lot No. 6198-A with an area of 120,146 square meters is
already occupied by relocatees whose houses are made of light
materials with very few houses partly made of hollow blocks. The
relocatees were relocated only on (sic) March of 1994;
2. Most of the area covered by Lot No. 2075 is almost occupied by
houses and structures, most of which are made of concrete
materials. These houses are not being occupied by squatters
relocated to the said lot by the defendant NHA;
3. Lot No. 6199 is also occupied by concrete houses and structures
but likewise there are no relocatees in said lot. A large area of the
same is still unoccupied.
On September 29, 1995, the trial court rendered judgment
dismissing the complaint. Finding that the failure of respondent NHA
to pay just compensation and of petitioners to pay capital gains tax
are both unjustified and unreasonable, the trial court held that: (1)
respondent NHA is not deemed to have abandoned the public
purpose for which the subject properties were expropriated because
the relocation of squatters involves a long and tedious process. It
ruled that respondent NHA actually pursued the public purpose of
the expropriation when it entered into a contract with Arceo C. Cruz
involving the construction of low cost housing on the expropriated
lots to be sold to qualified low income beneficiaries; (2) there is no
condition imposed in the expropriation judgment that the subject
properties shall revert back to its original owners in case the purpose
of expropriation is terminated or abandoned; (3) the payment of just
compensation is independent of the obligation of herein petitioners
to pay capital gains tax; and (4) in the payment of just compensation,
the basis should be the value at the time the property was taken. On
appeal, the Court of Appeals affirmed the decision of the trial court.
Petitioners are now before us raising the following assignment of
errors:
1. The Honorable Court of Appeals had decided a question of
substance not in accord with justice and equity when it ruled that,

as the judgment of the expropriation court did not contain a condition
that should the expropriated property be not used for the intended
purpose it would revert to the condemnee, the action to declare the
forfeiture of rights under the expropriation judgment can not prosper;
2. The Honorable Court of Appeals decided a question of substance
not in accord with jurisprudence, justice and equity when it ruled that
the non-payment is not a ground for forfeiture;
3. The Honorable Court of Appeals erred in not declaring the
judgment of expropriation forfeited in light of the failure of
respondent to use the expropriated property for the intended
purpose but for a totally different purpose.
The petition is not impressed with merit.
Petitioners contend that respondent NHA violated the stated public
purpose for the expansion of the Dasmarias Resettlement Project
when it failed to relocate the squatters from the Metro Manila area,
as borne out by the ocular inspection conducted by the trial court
which showed that most of the expropriated properties remain
unoccupied. Petitioners likewise question the public nature of the
use by respondent NHA when it entered into a contract for the
construction of low cost housing units, which is allegedly different
from the stated public purpose in the expropriation proceedings.
Hence, it is claimed that respondent NHA has forfeited its rights and
interests by virtue of the expropriation judgment and the
expropriated properties should now be returned to herein
petitioners. We are not persuaded.
The 1987 Constitution explicitly provides for the exercise of the
power of eminent domain over private properties upon payment of
just compensation. More specifically, section 9, Article III states that
private property shall not be taken for public use without just
compensation. The constitutional restraints are public use and just
compensation.
Petitioners cannot insist on a restrictive view of the eminent domain
provision of the Constitution by contending that the contract for low
cost housing is a deviation from the stated public use. It is now
settled doctrine that the concept of public use is no longer limited to
traditional purposes. Here, as elsewhere, the idea that public use is
strictly limited to clear cases of use by the public has been
abandoned. The term public use has now been held to be
synonymous with public interest, public benefit, public welfare, and
public convenience.[8] The rationale for this new approach is well
explained in the case of Heirs of Juancho Ardona, et al. vs. Reyes,
et al.,[9] to wit:
The restrictive view of public use may be appropriate for a nation
which circumscribes the scope of government activities and public
concerns and which possesses big and correctly located public
lands that obviate the need to take private property for public
purposes. Neither circumstance applies to the Philippines. We have
never been a laissez faire State. And the necessities which impel
the exertion of sovereign power are all too often found in areas of
scarce public land or limited government resources.
xxxxxxxxx
The taking to be valid must be for public use. There was a time when
it was felt that a literal meaning should be attached to such a
requirement. Whatever project is undertaken must be for the public
to enjoy, as in the case of streets or parks. Otherwise, expropriation
is not allowable. It is not anymore. As long as the purpose of the
taking is public, then the power of eminent domain comes into play.
As just noted, the constitution in at least two cases, to remove any
doubt, determines what is public use. One is the expropriation of
lands to be subdivided into small lots for resale at cost to individuals.
The other is in the transfer, through the exercise of this power, of
utilities and other private enterprise to the government. It is accurate
CONSTI LAW II I ACJUCO 14
to state then that at present whatever may be beneficially employed
for the general welfare satisfies the requirement of public use.
(emphasis supplied)
The act of respondent NHA in entering into a contract with a real
estate developer for the construction of low cost housing on the
expropriated lots to be sold to qualified low income beneficiaries
cannot be taken to mean as a deviation from the stated public
purpose of their taking. Jurisprudence has it that the expropriation
of private land for slum clearance and urban development is for a
public purpose even if the developed area is later sold to private
homeowners, commercials firms, entertainment and service
companies, and other private concerns.[10]
Moreover, the Constitution itself allows the State to undertake, for
the common good and in cooperation with the private sector, a
continuing program of urban land reform and housing which will
make at affordable cost decent housing and basic services to
underprivileged and homeless citizens in urban centers and
resettlement areas.[11] The expropriation of private property for the
purpose of socialized housing for the marginalized sector is in
furtherance of the social justice provision under Section 1, Article
XIII of the Constitution which provides that:
SECTION 1. The Congress shall give highest priority to the
enactment of measures that protect and enhance the right of all the
people to human dignity, reduce social, economic, and political
inequalities, and remove cultural inequities by equitably diffusing
wealth and political power for the common good.
To this end, the State shall require the acquisition, ownership, use
and disposition of property and its increments.
It follows that the low cost housing project of respondent NHA on
the expropriated lots is compliant with the public use requirement.
We likewise do not subscribe to petitioners contention that the
stated public purpose was abandoned when respondent NHA failed
to occupy the expropriated lots by relocating squatters from the
Metro Manila area. The expropriation judgment declared that
respondent NHA has a lawful right to take petitioners properties for
the public use or purpose of expanding the Dasmarias Resettlement
Project. The taking here is absolute, without any condition,
restriction or qualification. Contrary to petitioners submission, the
ruling enunciated in the early case of Fery vs. Municipality of
Cabanatuan,[12] is still good and sound doctrine, viz.:
x x x If, for example, land is expropriated for a particular purpose,
with the condition that when that purpose is ended or abandoned
the property shall return to its former owner, then, of course, when
the purpose is terminated or abandoned the former owner
reacquires the property so expropriated. x x x If, upon the contrary,
however, the decree of expropriation gives to the entity a fee simple
title, then, of course, the land becomes the absolute property of the
expropriator x x x.
When land has been acquired for public use in fee simple
unconditionally, either by the exercise of eminent domain or by
purchase, the former owner retains no rights in the land, and the
public use may be abandoned, or the land may be devoted to a
different use, without any impairment of the estate or title acquired,
or any reversion to the former owner.
Petitioners further aver that the continued failure of respondent NHA
to pay just compensation for a long period of time justifies the
forfeiture of its rights and interests over the expropriated lots. They
demand the return of the expropriated lots. Respondent NHA
justifies the delay to pay just compensation by reason of the failure
of petitioners to pay the capital gains tax and to surrender the
owners duplicate certificates of title.

In the recent case of Republic of the Philippines vs. Court of
Appeals, et al.,[13] the Court ruled that non-payment of just
compensation does not entitle the private landowners to recover
possession of their expropriated lots. Thus:
Thus, in Valdehueza vs. Republic where the private landowners had
remained unpaid ten years after the termination of the expropriation
proceedings, this Court ruled
The points in dispute are whether such payment can still be made
and, if so, in what amount. Said lots have been the subject of
expropriation proceedings. By final and executory judgment in said
proceedings, they were condemned for public use, as part of an
airport, and ordered sold to the government. x x x. It follows that
both by virtue of the judgment, long final, in the expropriation suit,
as well as the annotations upon their title certificates, plaintiffs are
not entitled to recover possession of their expropriated lots which
are still devoted to the public use for which they were expropriated
but only to demand the market value of the same.
Said relief may be granted under plaintiffs prayer for such other
remedies, which may be deemed just and equitable under the
premises.
The Court proceeded to reiterate its pronouncement in Alfonso vs.
Pasay City where the recovery of possession of property taken for
public use prayed for by the unpaid landowner was denied even
while no requisite expropriation proceedings were first instituted.
The landowner was merely given the relief of recovering
compensation for his property computed at its market value at the
time it was taken and appropriated by the State.
The judgment rendered by the Bulacan RTC in 1979 on the
expropriation proceedings provides not only for the payment of just
compensation to herein respondents but likewise adjudges the
property condemned in favor of petitioner over which parties, as well
as their privies, are bound. Petitioner has occupied, utilized and, for
all intents and purposes, exercised dominion over the property
pursuant to the judgment. The exercise of such rights vested to it as
the condemnee indeed has amounted to at least a partial
compliance or satisfaction of the 1979 judgment, thereby
preempting any claim of bar by prescription on grounds of non-
execution. In arguing for the return of their property on the basis of
non-payment, respondents ignore the fact that the right of the
expropriating authority is far from that of an unpaid seller in ordinary
sales, to which the remedy of rescission might perhaps apply. An in
rem proceeding, condemnation acts upon the property. After
condemnation, the paramount title is in the public under a new and
independent title; thus, by giving notice to all claimants to a disputed
title, condemnation proceedings provide a judicial process for
securing better title against all the world than may be obtained by
voluntary conveyance. (emphasis supplied)
We, however, likewise find the refusal of respondent NHA to pay
just compensation, allegedly for failure of petitioners to pay capital
gains tax and surrender the owners duplicate certificates of title, to
be unfounded and unjustified.
First, under the expropriation judgment the payment of just
compensation is not subject to any condition. Second, it is a
recognized rule that although the right to enter upon and appropriate
the land to public use is completed prior to payment, title to the
property expropriated shall pass from the owner to the expropriator
only upon full payment of the just compensation. In the case of
Association of Small Landowners in the Phils., Inc., et al. vs.
Secretary of Agrarian Reform,[14] it was held that:
Title to property which is the subject of condemnation proceedings
does not vest the condemnor until the judgment fixing just
compensation is entered and paid, but the condemnors title relates
back to the date on which the petition under the Eminent Domain
CONSTI LAW II I ACJUCO 15
Act, or the commissioners report under the Local Improvement Act,
is filed.
x x x Although the right to appropriate and use land taken for a canal
is complete at the time of entry, title to the property taken remains
in the owner until payment is actually made.
In Kennedy v. Indianapolis, the US Supreme Court cited several
cases holding that title to property does not pass to the condemnor
until just compensation had actually been made. In fact, the
decisions appear to be uniformly to this effect. As early as 1838, in
Rubottom v. McLure, it was held that actual payment to the owner
of the condemned property was a condition precedent to the
investment of the title to the property in the State albeit not to the
appropriation of it to public use. In Rexford v. Knight, the Court of
Appeals of New York said that the construction upon the statutes
was that the fee did not vest in the State until the payment of the
compensation although the authority to enter upon and appropriate
the land was complete prior to the payment. Kennedy further said
that both on principle and authority the rule is x x x that the right to
enter on and use the property is complete, as soon as the property
is actually appropriated under the authority of law for a public use,
but that the title does not pass from the owner without his consent,
until just compensation has been made to him.
Our own Supreme Court has held in Visayan Refining Co. v. Camus
and Paredes, that:
If the laws which we have exhibited or cited in the preceding
discussion are attentively examined it will be apparent that the
method of expropriation adopted in this jurisdiction is such as to
afford absolute reassurance that no piece of land can be finally and
irrevocably taken from an unwilling owner until compensation is
paid. x x x. (emphasis supplied)
With respect to the amount of the just compensation still due and
demandable from respondent NHA, the lower courts erred in not
awarding interest computed from the time the property is actually
taken to the time when compensation is actually paid or deposited
in court. In Republic, et al. vs. Court of Appeals, et al.,[15] the Court
imposed interest at 12% per annum in order to help eliminate the
issue of the constant fluctuation and inflation of the value of the
currency over time, thus:
The constitutional limitation of just compensation is considered to
be the sum equivalent to the market value of the property, broadly
described to be the price fixed by the seller in open market in the
usual and ordinary course of legal action and competition or the fair
value of the property as between one who receives, and one who
desires to sell, it being fixed at the time of the actual taking by the
government. Thus, if property is taken for public use before
compensation is deposited with the court having jurisdiction over the
case, the final compensation must include interests on its just value
to be computed from the time the property is taken to the time when
compensation is actually paid or deposited with the court. In fine,
between the taking of the property and the actual payment, legal
interests accrue in order to place the owner in a position as good as
(but not better than) the position he was in before the taking
occurred.
x x x This allowance of interest on the amount found to be the value
of the property as of the time of the taking computed, being an
effective forbearance, at 12% per annum should help eliminate the
issue of the constant fluctuation and inflation of the value of the
currency over time. Article 1250 of the Civil Code, providing that, in
case of extraordinary inflation or deflation, the value of the currency
at the time of the establishment of the obligation shall be the basis
for the payment when no agreement to the contrary is stipulated,
has strict application only to contractual obligations. In other words,
a contractual agreement is needed for the effects of extraordinary
inflation to be taken into account to alter the value of the currency.
 CONSTI LAW II I ACJUCO 16

Records show that there is an outstanding balance of

P1,218,574.35 that ought to be paid to petitioners.[16] It is not
disputed that respondent NHA took actual possession of the
expropriated properties in 1977.[17] Perforce, while petitioners are
not entitled to the return of the expropriated property, they are
entitled to be paid the balance of P1,218,574.35 with legal interest
thereon at 12% per annum computed from the taking of the property
in 1977 until the due amount shall have been fully paid.

WHEREFORE, the appealed judgment is modified as follows:

1. Ordering respondent National Housing Authority to pay

petitioners the amount of P1,218,574.35 with legal interest thereon
at 12% per annum computed from the taking of the expropriated
properties in 1997 until the amount due shall have been fully paid;

2. Ordering petitioners to pay the capital gains tax; and

3. Ordering petitioners to surrender to respondent National Housing

Authority the owners duplicate certificates of title of the expropriated
properties upon full payment of just compensation.

SO ORDERED.

G.R. No. 137152 January 29, 2001
CITY OF MANDALUYONG, petitioner,
vs.
ANTONIO N., FRANCISCO N., THELMA N., EUSEBIO N.,
RODOLFO N., all surnamed AGUILAR, respondents.
PUNO, J.:
This is a petition for review under Rule 45 of the Rules of Court of
the Orders dated September 17, 1998 and December 29, 1998 of
the Regional Trial Court, Branch 168, Pasig City1 dismissing the
petitioner's Amended Complaint in SCA No. 1427 for expropriation
of two (2) parcels of land in Mandaluyong City. 1âwphi1.nêt
The antecedent facts are as follows:
On August 4, 1997, petitioner filed with the Regional Trial Court,
Branch 168, Pasig City a complaint for expropriation entitled "City of
Mandaluyong, plaintiff v. Antonio N., Francisco N, Thelma N,
Eusebio N, Rodolfo N., all surnamed Aguilar, defendants."
Petitioner sought to expropriate three (3) adjoining parcels of land
with an aggregate area of 1,847 square meters registered under
Transfer Certificates of Title Nos. 59780, 63766 and 63767 in the
names of the defendants, herein respondents, located at 9 de
Febrero Street, Barangay Mauwag, City of Mandaluyong; on a
portion of the 3 lots, respondents constructed residential houses
several decades ago which they had since leased out to tenants
until the present; on the vacant portion of the lots, other families
constructed residential structures which they likewise occupied; in
1983, the lots were classified by Resolution No. 125 of the Board of
the Housing and Urban Development Coordinating Council as an
Area for Priority Development for urban land reform under
Proclamation Nos. 1967 and 2284 of then President Marcos; as a
result of this classification, the tenants and occupants of the lots
offered to purchase the land from respondents, but the latter refused
to sell; on November 7, 1996, the Sangguniang Panlungsod of
petitioner, upon petition of the Kapitbisig, an association of tenants
and occupants of the subject land, adopted Resolution No. 516,
Series of 1996 authorizing Mayor Benjamin Abalos of the City of
Mandaluyong to initiate action for the expropriation of the subject
lots and construction of a medium-rise condominium for qualified
occupants of the land; on January 10, 1996, Mayor Abalos sent a
letter to respondents offering to purchase the said property at
P3,000.00 per square meter; respondents did not answer the letter.
Petitioner thus prayed for the expropriation of the said lots and the
fixing of just compensation at the fair market value of P3,000.00 per
square meter.2
In their answer, respondents, except Eusebio N. Aguilar who died in
1995, denied having received a copy of Mayor Abalos' offer to
purchase their lots. They alleged that the expropriation of their land
is arbitrary and capricious, and is not for a public purpose; the
subject lots are their only real property and are too small for
expropriation, while petitioner has several properties inventoried for
socialized housing; the fair market value of P3,000.00 per square
meter is arbitrary because the zonal valuation set by the Bureau of
Internal Revenue is P7,000.00 per square meter. As counterclaim,
respondents prayed for damages of P21 million.3
Respondents filed a "Motion for Preliminary Hearing" claiming that
the defenses alleged in their Answer are valid grounds for dismissal
of the complaint for lack of jurisdiction over the person of the
defendants and lack of cause of action. Respondents prayed that
the affirmative defenses be set for preliminary hearing and that the
complaint be dismissed.4 Petitioner replied.
On November 5, 1997, petitioner filed an Amended Complaint and
named as an additional defendant Virginia N. Aguilar and, at the
same time, substituted Eusebio Aguilar with his heirs. Petitioner also
excluded from expropriation TCT No. 59870 and thereby reduced
CONSTI LAW II I ACJUCO 17
the area sought to be expropriated from three (3) parcels of land to
two (2) parcels totalling 1,636 square meters under TCT Nos. 63766
and 63767.5
The Amended Complaint was admitted by the trial court on
December 18, 1997. Respondents, who, with the exception of
Virginia Aguilar and the Heirs of Eusebio Aguilar had yet to be
served with summons and copies of the Amended Complaint, filed
a "Manifestation and Motion" adopting their "Answer with
Counterclaim" and "Motion for Preliminary Hearing" as their answer
to the Amended Complaint.6
The motion was granted. At the hearing of February 25, 1998,
respondents presented Antonio Aguilar who testified and identified
several documentary evidence. Petitioner did not present any
evidence. Thereafter, both parties filed their respective
memoranda.7
On September 17, 1998, the trial court issued an order dismissing
the Amended Complaint after declaring respondents as "small
property owners" whose land is exempt from expropriation under
Republic Act No. 7279. The court also found that the expropriation
was not for a public purpose for petitioner's failure to present any
evidence that the intended beneficiaries of the expropriation are
landless and homeless residents of Mandaluyong. The court thus
disposed of as follows:
"WHEREFORE, the Amended Complaint is hereby ordered
dismissed without pronouncement as to cost.
SO ORDERED."8
Petitioner moved for reconsideration. On December 29, 1998, the
court denied the motion. Hence this petition.
Petitioner claims that the trial court erred
"IN UPHOLDING RESPONDENT'S CONTENTION THAT THEY
QUALIFY AS SMALL PROPERTY OWNERS AND ARE THUS
EXEMPT FROM EXPROPRIATION."9
Petitioner mainly claims that the size of the lots in litigation does not
exempt the same from expropriation in view of the fact that the said
lots have been declared to be within the Area for Priority
Development (APD) No. 5 of Mandaluyong by virtue of Proclamation
No. 1967, as amended by Proclamation No. 2284 in relation to
Presidential Decree No. 1517.10 This declaration allegedly
authorizes petitioner to expropriate the property, ipso facto,
regardless of the area of the land.
Presidential Decree (P.D.) No. 1517, the Urban Land Reform Act,
was issued by then President Marcos in 1978. The decree adopted
as a State policy the liberation of human communities from blight,
congestion and hazard, and promotion of their development and
modernization, the optimum use of land as a national resource for
public welfare.11 Pursuant to this law, Proclamation No. 1893 was
issued in 1979 declaring the entire Metro Manila as Urban Land
Reform Zone for purposes of urban land reform. This was amended
in 1980 by Proclamation No. 1967 and in 1983 by Proclamation No.
2284 which identified and specified 245 sites in Metro Manila as
Areas for Priority Development and Urban Land Reform Zones.
In 1992, the Congress of the Philippines passed Republic Act No.
7279, the "Urban Development and Housing Act of 1992." The law
lays down as a policy that the state, in cooperation with the private
sector, undertake a comprehensive and continuing Urban
Development and Housing Program; uplift the conditions of the
underprivileged and homeless citizens in urban, areas and
resettlement areas by making available to them decent housing at
affordable cost, basic services and employment opportunities and
provide for the rational use and development of urban land to bring

about, among others, equitable utilization of residential lands;
encourage more effective people's participation in the urban
development process and improve the capability of local
government units in undertaking urban development and housing
programs and projects.12 Towards this end, all city and municipal
governments are mandated to conduct an inventory of all lands and
improvements within their respective localities, and in coordination
with the National Housing Authority, the Housing and Land Use
Regulatory Board, the National Mapping Resource Information
Authority, and the Land Management Bureau, identify lands for
socialized housing and resettlement areas for the immediate and
future needs of the underprivileged and homeless in the urban
areas, acquire the lands, and dispose of said lands to the
beneficiaries of the program.13
The acquisition of lands for socialized housing is governed by
several provisions in the law. Section 9 of R.A. 7279 provides:
"Sec. 9. Priorities in the Acquisition of Land. — Lands for socialized
housing shall be acquired in the following order:
(a) Those owned by the Government or any of its subdivisions,
instrumentalities, or agencies, including government-owned or
controlled corporations and their subsidiaries;
(b) Alienable lands of the public domain;
(c) Unregistered or abandoned and idle lands;
(d) Those within the declared Areas for Priority Development, Zonal
Improvement Program sites, and Slum Improvement and
Resettlement Program sites which have not yet been acquired;
(e) Bagong Lipunan Improvement of Sites and Services or BLISS
Sites which have not yet been acquired;
(f) Privately-owned lands.
Where on-site development is found more practicable and
advantageous to the beneficiaries, the priorities mentioned in this
section shall not apply. The local government units shall give
budgetary priority to on-site development of government lands."
Lands for socialized housing are to be acquired in the following
order: (1) government lands; (2) alienable lands of the public
domain; (3) unregistered or abandoned or idle lands; (4) lands within
the declared Areas for Priority Development (APD), Zonal
Improvement Program (ZIP) sites, Slum Improvement and
Resettlement (SIR) sites which have not yet been acquired; (5)
BLISS sites which have not yet been acquired; and (6) privately-
owned lands.
There is no dispute that the two lots in litigation are privately-owned
and therefore last in the order of priority acquisition. However, the
law also provides that lands within the declared APD's which have
not yet been acquired by the government are fourth in the order of
priority. According to petitioner, since the subject lots lie within the
declared APD, this fact mandates that the lots be given priority in
acquisition.14
Section 9, however, is not a single provision that can be read
separate from the other provisions of the law. It must be read
together with Section 10 of R.A. 7279 which also provides:
"Section 10. Modes of Land Acquisition. — The modes of acquiring
lands for purposes of this Act shall include, among others,
community mortgage, land swapping, land assembly or
consolidation, land banking, donation to the Government, joint-
venture agreement, negotiated purchase, and expropriation:
Provided, however, That expropriation shall be resorted to only
when other modes of acquisition have been exhausted: Provided,
CONSTI LAW II I ACJUCO 18
further, That where expropriation is resorted to, parcels of land
owned by small property owners shall be exempted for purposes of
this Act: Provided, finally, That abandoned property, as herein
defined, shall be reverted and escheated to the State in a
proceeding analogous to the procedure laid down in Rule 91 of the
Rules of Court.15
For the purposes of socialized housing, government-owned and
foreclosed properties shall be acquired by the local government
units, or by the National Housing Authority primarily through
negotiated purchase: Provided, That qualified beneficiaries who are
actual occupants of the land shall be given the right of first refusal."
Lands for socialized housing under R.A. 7279 are to be acquired in
several modes. Among these modes are the following: (1)
community mortgage; (2) land swapping, (3) land assembly or
consolidation; (4) land banking; (5) donation to the government; (6)
joint venture agreement; (7) negotiated purchase; and (8)
expropriation. The mode of expropriation is subject to two
conditions: (a) it shall be resorted to only when the other modes of
acquisition have been exhausted; (b) parcels of land owned by small
property owners are exempt from such acquisition.
Section 9 of R.A. 7279 speaks of priorities in the acquisition of lands.
It enumerates the type of lands to be acquired and the heirarchy in
their acquisition. Section 10 deals with the modes of land acquisition
or the process of acquiring lands for socialized housing. These are
two different things. They mean that the type of lands that may be
acquired in the order of priority in Section 9 are to be acquired only
in the modes authorized under Section 10. The acquisition of the
lands in the priority list must be made subject to the modes and
conditions set forth in the next provision. In other words, land that
lies within the APD, such as in the instant case, may be acquired
only in the modes under, and subject to the conditions of, Section
10.
Petitioner claims that it had faithfully observed the different modes
of land acquisition for socialized housing under R.A. 7279 and
adhered to the priorities in the acquisition for socialized housing
under said law.16 It, however, did not state with particularity whether
it exhausted the other modes of acquisition in Section 9 of the law
before it decided to expropriate the subject lots. The law states
"expropriation shall be resorted to when other modes of acquisition
have been exhausted." Petitioner alleged only one mode of
acquisition, i.e., by negotiated purchase. Petitioner, through the City
Mayor, tried to purchase the lots from respondents but the latter
refused to sell.17 As to the other modes of acquisition, no mention
has been made. Not even Resolution No. 516, Series of 1996 of the
Sangguniang Panlungsod authorizing the Mayor of Mandaluyong to
effect the expropriation of the subject property states whether the
city government tried to acquire the same by community mortgage,
land swapping, land assembly or consolidation, land banking,
donation to the government, or joint venture agreement under
Section 9 of the law.
Section 9 also exempts from expropriation parcels of land owned by
small property owners.18 Petitioner argues that the exercise of the
power of eminent domain is not anymore conditioned on the size of
the land sought to be expropriated.19 By the expanded notion of
public use, present jurisprudence has established the concept that
expropriation is not anymore confined to the vast tracts of land and
landed estates, but also covers small parcels of land.20 That only a
few could actually benefit from the expropriation of the property
does not diminish its public use character.21 It simply is not possible
to provide, in one instance, land and shelter for all who need
them.22
While we adhere to the expanded notion of public use, the passage
of R.A. No. 7279, the "Urban Development and Housing Act of
1992" introduced a limitation on the size of the land sought to be
expropriated for socialized housing. The law expressly exempted

"small property owners" from expropriation of their land for urban
land reform. R.A. No. 7279 originated as Senate Bill No. 234
authored by Senator Joey Lina23 and House Bill No. 34310. Senate
Bill No. 234 then provided that one of those lands not covered by
the urban land reform and housing program was "land actually used
by small property owners within the just and equitable retention limit
as provided under this Act."24 "Small property owners" were defined
in Senate Bill No. 234 as:
"4. Small Property Owners — are those whose rights are protected
under Section 9, Article XIII of the Constitution of the Philippines,
who own small parcels of land within the fair and just retention limit
provided under this Act and which are adequate to meet the
reasonable needs of the small property owner's family and their
means of livelihood.25
The exemption from expropriation of lands of small-property owners
was never questioned on the Senate floor.26 This exemption,
although with a modified definition, was actually retained in the
consolidation of Senate Bill No. 234 and House Bill No. 34310 which
became R.A. No. 7279.27
The question now is whether respondents qualify as "small property
owners" as defined in Section 3 (q) of R.A. 7279. Section 3 (q)
provides:
"Section 3 x x x (q). "Small property owners" refers to those whose
only real property consists of residential lands not exceeding three
hundred square meters (300 sq.m.) in highly urbanized cities and
eight hundred square meters (800 sq.m.) in other urban areas."
"Small-property owners" are defined by two elements: (1) those
owners of real property whose property consists of residential lands
with an area of not more than 300 square meters in highly urbanized
cities and 800 square meters in other urban areas; and (2) that they
do not own real property other than the same.
The case at bar involves two (2) residential lots in Mandaluyong
City, a highly urbanized city. The lot under TCT No. 63766 is 687
square meters in area and the second under TCT No. 63767 is 949
square meters, both totalling 1,636 square meters in area. TCT No.
63766 was issued in the names of herein five (5) respondents, viz:
"FRANCISCO N. AGUILAR, widower; THELMA N. AGUILAR,
single; EUSEBIO N. AGUILAR, JR., widower; RODOLFO N.
AGUILAR, single and ANTONIO N. AGUILAR, married to Teresita
Puig; all of legal age, Filipinos."28
TCT No. 63767 was issued in the names of the five (5) respondents
plus Virginia Aguilar, thus:
"FRANCISCO N. AGUILAR, widower; THELMA N. AGUILAR,
single; EUSEBIO N. AGUILAR, JR., widower; RODOLFO N.
AGUILAR, single and ANTONIO N. AGUILAR, married to Teresita
Puig; and VIRGINIA N. AGUILAR, single, all of legal age,
Filipinos."29
Respondent Antonio Aguilar testified that he and the other
registered owners are all siblings who inherited the subject property
by intestate succession from their parents.30 Their father died in
1945 and their mother in 1976.31 Both TCT's were issued in the
siblings' names on September 2, 1987.31 In 1986, however, the
siblings agreed to extrajudicially partition the lots among
themselves, but no action was taken by them to this end. It was only
eleven (11) years later, on November 28, 1997 that a survey of the
two lots was made33 and on February 10, 1998, a consolidation
subdivision plan was approved by the Lands Management Service
of the Department of Environment and Natural Resources.34 The
co-owners signed a Partition Agreement on February 24, 199835
and on May 21, 1998, TCT Nos. 63766 and 63767 were cancelled
CONSTI LAW II I ACJUCO 19
and new titles issued in the names of the individual owners pursuant
to the Partition Agreement.
Petitioner argues that the consolidation of the subject lots and their
partition was made more than six (6) months after the complaint for
expropriation was filed on August 4, 1997, hence, the partition was
made in bad faith, for the purpose of circumventing the provisions
of R.A. 7279.36
At the time of filing of the complaint for expropriation, the lots subject
of this case were owned in common by respondents; Under a co-
ownership, the ownership of an undivided thing or right belongs to
different persons.37 During the existence of the co-ownership, no
individual can claim title to any definite portion of the community
property until the partition thereof; and prior to the partition, all that
the co-owner has is an ideal or abstract quota or proportionate share
in the entire land or thing.38 Article 493 of the Civil Code however
provides that:
"Art. 493. Each co-owner shall have the full ownership of his part
and of the fruits and benefits pertaining thereto, and he may
therefore alienate, assign or mortgage it, and even substitute
another person in its enjoyment, except when personal rights are
involved. But the effect of the alienation or the mortgage, with
respect to the co-owners shall be limited to the portion which may
be allotted to him in the division upon termination of the co-
ownership.39
Before partition in a co-ownership, every co-owner has the absolute
ownership of his undivided interest in the common property. The co-
owner is free to alienate, assign or mortgage his interest, except as
to purely personal rights.40 He may also validly lease his undivided
interest to a third party independently of the other co-owners.41 The
effect of any such transfer is limited to the portion which may be
awarded to him upon the partition of the property.42
Article 493 therefore gives the owner of an undivided interest in the
property the right to freely sell and dispose of his undivided
interest.43 The co-owner, however, has no right to sell or alienate a
concrete specific or determinate part of the thing owned in common,
because his right over the thing is represented by a quota or ideal
portion without any physical adjudication.44 If the co-owner sells a
concrete portion, this, nonetheless, does not render the sale void.
Such a sale affects only his own share, subject to the results of the
partition but not those of the other co-owners who did not consent
to the sale.45
In the instant case, the titles to the subject lots were issued in
respondents' names as co-owners in 1987—ten (10) years before
the expropriation case was filed in 1997. As co-owners, all that the
respondents had was an ideal or abstract quota or proportionate
share in the lots. This, however, did not mean that they could not
separately exercise any rights over the lots. Each respondent had
the full ownership of his undivided interest in the property. He could
freely sell or dispose of his interest independently of the other co-
owners. And this interest could have even been attached by his
creditors.46 The partition in 1998, six (6) months after the filing of
the expropriation case, terminated the co-ownership by converting
into certain and definite parts the respective undivided shares of the
co-owners.47 The subject property is not a thing essentially
indivisible. The rights of the co-owners to have the property
partitioned and their share in the same delivered to them cannot be
questioned for "[n]o co-owner shall be obliged to remain in the co-
ownership."48 The partition was merely a necessary incident of the
co-ownership;49 and absent any evidence to the contrary, this
partition is presumed to have been done in good faith.
Upon partition, four (4) co-owners, namely, Francisco, Thelma,
Rodolfo and Antonio Aguilar each had a share of 300 square meters
under TCT Nos. 13849, 13852, 13850, 13851.50 Eusebio Aguilar's
 CONSTI LAW II I ACJUCO 20

share was 347 square meters under TCT No. 1385351 while
Virginia Aguilar's was 89 square meters under TCT No. 13854.52

It is noted that Virginia Aguilar, although granted 89 square meters

only of the subject lots, is, at the same time, the sole registered
owner of TCT No. 59780, one of the three (3) titles initially sought to
be expropriated in the original complaint. TCT No. 59780, with a
land area of 211 square meters, was dropped in the amended
complaint. Eusebio Aguilar was granted 347 square meters, which
is 47 square meters more than the maximum of 300 square meters
set by R.A. 7279 for small property owners. In TCT No. 13853,
Eusebio's title, however, appears the following annotation:

"... subject to x x x, and to the prov. of Sec. 4 Rule 74 of the Rules

of Court with respect to the inheritance left by the deceased Eusebio
N. Aguilar."53

Eusebio died on March 23, 1995,54 and, according to Antonio's

testimony, the former was survived by five (5) children.55 Where
there are several co-owners, and some of them die, the heirs of
those who die, with respect to that part belonging to the deceased,
become also co-owners of the property together with those who
survive.56 After Eusebio died, his five heirs became co-owners of
his 347 square-meter portion. Dividing the 347 square meters
among the five entitled each heir to 69.4 square meters of the land
subject of litigation.

Consequently, the share of each co-owner did not exceed the 300
square meter limit set in R.A. 7279. The second question, however,
is whether the subject property is the only real property of
respondents for them to comply with the second requisite for small
property owners.

Antonio Aguilar testified that he and most of the original co-owners

do not reside on the subject property but in their ancestral home in
Paco, Manila.57 Respondents therefore appear to own real property
other than the lots in litigation. Nonetheless, the records do not show
that the ancestral home in Paco, Manila and the land on which it
stands are owned by respondents or anyone of them. Petitioner did
not present any title or proof of this fact despite Antonio Aguilar's
testimony.

On the other hand, respondents claim that the subject lots are their
only real property58 and that they, particularly two of the five heirs
of Eusebio Aguilar, are merely renting their houses and therefore do
not own any other real property in Metro Manila.59 To prove this,
they submitted certifications from the offices of the City and
Municipal Assessors in Metro Manila attesting to the fact that they
have no registered real property declared for taxation purposes in
the respective cities. Respondents were certified by the City
Assessor of Manila;60 Quezon City;61 Makati City;62 Pasay City;63
Paranaque;64 Caloocan City;65 Pasig City;66 Muntinlupa;67
Marikina;68 and the then municipality of Las Piñas69 and the
municipality of San Juan del Monte70 as having no real property
registered for taxation in their individual names.1âwphi1.nêt

Finally, this court notes that the subject lots are now in the
possession of respondents. Antonio Aguilar testified that he and the
other co-owners filed ejectment cases against the occupants of the
land before the Metropolitan Trial Court, Mandaluyong, Branches 59
and 60. Orders of eviction were issued and executed on September
17, 1997 which resulted in the eviction of the tenants and other
occupants from the land in question.71

IN VIEW WHEREOF, the petition is DENIED and the orders dated

September 17. 1998 and December 29, 1998 of the Regional Trial
Court, Branch 168, Pasig City in SCA No. 1427 are AFFIRMED.

SO ORDERED.

G.R. No. 155746 October 13, 2004
DIOSDADO LAGCAO, DOROTEO LAGCAO and URSULA
LAGCAO, petitioners,
vs.
JUDGE GENEROSA G. LABRA, Branch 23, Regional Trial
Court, Cebu, and the CITY OF CEBU, respondent.
DECISION
CORONA, J.:
Before us is a petition for review of the decision dated July 1, 2002
of the Regional Trial Court, Branch 23, Cebu City1 upholding the
validity of the City of Cebu’s Ordinance No. 1843, as well as the
lower court’s order dated August 26, 2002 denying petitioner’s
motion for reconsideration.
In 1964, the Province of Cebu donated 210 lots to the City of Cebu.
One of these lots was Lot 1029, situated in Capitol Hills, Cebu City,
with an area of 4,048 square meters. In 1965, petitioners purchased
Lot 1029 on installment basis. But then, in late 1965, the 210 lots,
including Lot 1029, reverted to the Province of Cebu.2
Consequently, the province tried to annul the sale of Lot 1029 by
the City of Cebu to the petitioners. This prompted the latter to sue
the province for specific performance and damages in the then
Court of First Instance.
On July 9, 1986, the court a quo ruled in favor of petitioners and
ordered the Province of Cebu to execute the final deed of sale in
favor of petitioners. On June 11, 1992, the Court of Appeals affirmed
the decision of the trial court. Pursuant to the ruling of the appellate
court, the Province of Cebu executed on June 17, 1994 a deed of
absolute sale over Lot 1029 in favor of petitioners. Thereafter,
Transfer Certificate of Title (TCT) No. 129306 was issued in the
name of petitioners and Crispina Lagcao.3
After acquiring title, petitioners tried to take possession of the lot
only to discover that it was already occupied by squatters. Thus, on
June 15, 1997, petitioners instituted ejectment proceedings against
the squatters. The Municipal Trial Court in Cities (MTCC), Branch 1,
Cebu City, rendered a decision on April 1, 1998, ordering the
squatters to vacate the lot. On appeal, the RTC affirmed the MTCC’s
decision and issued a writ of execution and order of
demolition.1avvphi1
However, when the demolition order was about to be implemented,
Cebu City Mayor Alvin Garcia wrote two letters4 to the MTCC,
requesting the deferment of the demolition on the ground that the
City was still looking for a relocation site for the squatters. Acting on
the mayor’s request, the MTCC issued two orders suspending the
demolition for a period of 120 days from February 22, 1999.
Unfortunately for petitioners, during the suspension period, the
Sangguniang Panlungsod (SP) of Cebu City passed a resolution
which identified Lot 1029 as a socialized housing site pursuant to
RA 7279.5 Then, on June 30, 1999, the SP of Cebu City passed
Ordinance No. 17726 which included Lot 1029 among the identified
sites for socialized housing. On July, 19, 2000, Ordinance No.
18437 was enacted by the SP of Cebu City authorizing the mayor
of Cebu City to initiate expropriation proceedings for the acquisition
of Lot 1029 which was registered in the name of petitioners. The
intended acquisition was to be used for the benefit of the homeless
after its subdivision and sale to the actual occupants thereof. For
this purpose, the ordinance appropriated the amount of ₱6,881,600
for the payment of the subject lot. This ordinance was approved by
Mayor Garcia on August 2, 2000.
On August 29, 2000, petitioners filed with the RTC an action for
declaration of nullity of Ordinance No. 1843 for being
unconstitutional. The trial court rendered its decision on July 1, 2002
CONSTI LAW II I ACJUCO 21
dismissing the complaint filed by petitioners whose subsequent
motion for reconsideration was likewise denied on August 26, 2002.
In this appeal, petitioners argue that Ordinance No. 1843 is
unconstitutional as it sanctions the expropriation of their property for
the purpose of selling it to the squatters, an endeavor contrary to
the concept of "public use" contemplated in the Constitution.8 They
allege that it will benefit only a handful of people. The ordinance,
according to petitioners, was obviously passed for politicking, the
squatters undeniably being a big source of votes.1avvphi1
In sum, this Court is being asked to resolve whether or not the
intended expropriation by the City of Cebu of a 4,048-square-meter
parcel of land owned by petitioners contravenes the Constitution
and applicable laws.
Under Section 48 of RA 7160,9 otherwise known as the Local
Government Code of 1991,10 local legislative power shall be
exercised by the Sangguniang Panlungsod of the city. The
legislative acts of the Sangguniang Panlungsod in the exercise of
its lawmaking authority are denominated ordinances.
Local government units have no inherent power of eminent domain
and can exercise it only when expressly authorized by the
legislature.11 By virtue of RA 7160, Congress conferred upon local
government units the power to expropriate. Ordinance No. 1843
was enacted pursuant to Section 19 of RA 7160:
SEC. 19. Eminent Domain. − A local government unit may, through
its chief executive and acting pursuant to an ordinance, exercise the
power of eminent domain for public use, or purpose, or welfare for
the benefit of the poor and the landless, upon payment of just
compensation, pursuant to the provisions of the Constitution and
pertinent laws xxx. (italics supplied).
Ordinance No. 1843 which authorized the expropriation of
petitioners’ lot was enacted by the SP of Cebu City to provide
socialized housing for the homeless and low-income residents of the
City.
However, while we recognize that housing is one of the most serious
social problems of the country, local government units do not
possess unbridled authority to exercise their power of eminent
domain in seeking solutions to this problem.
There are two legal provisions which limit the exercise of this power:
(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;12 and (2) private property shall not be taken
for public use without just compensation.13 Thus, the exercise by
local government units of the power of eminent domain is not
absolute. In fact, Section 19 of RA 7160 itself explicitly states that
such exercise must comply with the provisions of the Constitution
and pertinent laws.
The exercise of the power of eminent domain drastically affects a
landowner’s right to private property, which is as much a
constitutionally-protected right necessary for the preservation and
enhancement of personal dignity and intimately connected with the
rights to life and liberty.14 Whether directly exercised by the State
or by its authorized agents, the exercise of eminent domain is
necessarily in derogation of private rights.15 For this reason, the
need for a painstaking scrutiny cannot be overemphasized.
The due process clause cannot be trampled upon each time an
ordinance orders the expropriation of a private individual’s property.
The courts cannot even adopt a hands-off policy simply because
public use or public purpose is invoked by an ordinance, or just
compensation has been fixed and determined. In De Knecht vs.
Bautista,16 we said:

It is obvious then that a land-owner is covered by the mantle of
protection due process affords. It is a mandate of reason. It frowns
on arbitrariness, it is the antithesis of any governmental act that
smacks of whim or caprice. It negates state power to act in an
oppressive manner. It is, as had been stressed so often, the
embodiment of the sporting idea of fair play. In that sense, it stands
as a guaranty of justice. That is the standard that must be met by
any governmental agency in the exercise of whatever competence
is entrusted to it. As was so emphatically stressed by the present
Chief Justice, "Acts of Congress, as well as those of the Executive,
can deny due process only under pain of nullity. xxx.
The foundation of the right to exercise eminent domain is genuine
necessity and that necessity must be of public character.17
Government may not capriciously or arbitrarily choose which private
property should be expropriated. In this case, there was no showing
at all why petitioners’ property was singled out for expropriation by
the city ordinance or what necessity impelled the particular choice
or selection. Ordinance No. 1843 stated no reason for the choice of
petitioners’ property as the site of a socialized housing project.
Condemnation of private lands in an irrational or piecemeal fashion
or the random expropriation of small lots to accommodate no more
than a few tenants or squatters is certainly not the condemnation for
public use contemplated by the Constitution. This is depriving a
citizen of his property for the convenience of a few without
perceptible benefit to the public.18
RA 7279 is the law that governs the local expropriation of property
for purposes of urban land reform and housing. Sections 9 and 10
thereof provide:
SEC 9. Priorities in the Acquisition of Land. − Lands for socialized
housing shall be acquired in the following order:
(a) Those owned by the Government or any of its subdivisions,
instrumentalities, or agencies, including government-owned or
controlled corporations and their subsidiaries;
(b) Alienable lands of the public domain;
(c) Unregistered or abandoned and idle lands;
(d) Those within the declared Areas or Priority Development, Zonal
Improvement Program sites, and Slum Improvement and
Resettlement Program sites which have not yet been acquired;
(e) Bagong Lipunan Improvement of Sites and Services or BLISS
which have not yet been acquired; and
(f) Privately-owned lands.
Where on-site development is found more practicable and
advantageous to the beneficiaries, the priorities mentioned in this
section shall not apply. The local government units shall give
budgetary priority to on-site development of government lands.
(Emphasis supplied).
SEC. 10. Modes of Land Acquisition. − The modes of acquiring
lands for purposes of this Act shall include, among others,
community mortgage, land swapping, land assembly or
consolidation, land banking, donation to the Government, joint
venture agreement, negotiated purchase, and expropriation:
Provided, however, That expropriation shall be resorted to only
when other modes of acquisition have been exhausted: Provided
further, That where expropriation is resorted to, parcels of land
owned by small property owners shall be exempted for purposes of
this Act: xxx. (Emphasis supplied).
In the recent case of Estate or Heirs of the Late Ex-Justice Jose B.L.
Reyes et al. vs. City of Manila,19 we ruled that the above-quoted
CONSTI LAW II I ACJUCO 22
provisions are strict limitations on the exercise of the power of
eminent domain by local government units, especially with respect
to (1) the order of priority in acquiring land for socialized housing
and (2) the resort to expropriation proceedings as a means to
acquiring it. Private lands rank last in the order of priority for
purposes of socialized housing. In the same vein, expropriation
proceedings may be resorted to only after the other modes of
acquisition are exhausted. Compliance with these conditions is
mandatory because these are the only safeguards of oftentimes
helpless owners of private property against what may be a
tyrannical violation of due process when their property is forcibly
taken from them allegedly for public use.
We have found nothing in the records indicating that the City of
Cebu complied strictly with Sections 9 and 10 of RA 7279.
Ordinance No. 1843 sought to expropriate petitioners’ property
without any attempt to first acquire the lands listed in (a) to (e) of
Section 9 of RA 7279. Likewise, Cebu City failed to establish that
the other modes of acquisition in Section 10 of RA 7279 were first
exhausted. Moreover, prior to the passage of Ordinance No. 1843,
there was no evidence of a valid and definite offer to buy petitioners’
property as required by Section 19 of RA 7160.20 We therefore find
Ordinance No. 1843 to be constitutionally infirm for being violative
of the petitioners’ right to due process.
It should also be noted that, as early as 1998, petitioners had
already obtained a favorable judgment of eviction against the illegal
occupants of their property. The judgment in this ejectment case
had, in fact, already attained finality, with a writ of execution and an
order of demolition. But Mayor Garcia requested the trial court to
suspend the demolition on the pretext that the City was still
searching for a relocation site for the squatters. However, instead of
looking for a relocation site during the suspension period, the city
council suddenly enacted Ordinance No. 1843 for the expropriation
of petitioners’ lot. It was trickery and bad faith, pure and simple. The
unconscionable manner in which the questioned ordinance was
passed clearly indicated that respondent City transgressed the
Constitution, RA 7160 and RA 7279.
For an ordinance to be valid, it must not only be within the corporate
powers of the city or municipality to enact but must also be passed
according to the procedure prescribed by law. It must be in
accordance with certain well-established basic principles of a
substantive nature. These principles require that an ordinance (1)
must not contravene the Constitution or any statute (2) must not be
unfair or oppressive (3) must not be partial or discriminatory (4) must
not prohibit but may regulate trade (5) must be general and
consistent with public policy, and (6) must not be unreasonable.21
Ordinance No. 1843 failed to comply with the foregoing substantive
requirements. A clear case of constitutional infirmity having been
thus established, this Court is constrained to nullify the subject
ordinance. We recapitulate:
first, as earlier discussed, the questioned ordinance is repugnant to
the pertinent provisions of the Constitution, RA 7279 and RA 7160;
second, the precipitate manner in which it was enacted was plain
oppression masquerading as a pro-poor ordinance;
third, the fact that petitioners’ small property was singled out for
expropriation for the purpose of awarding it to no more than a few
squatters indicated manifest partiality against petitioners, and
fourth, the ordinance failed to show that there was a reasonable
relation between the end sought and the means adopted. While the
objective of the City of Cebu was to provide adequate housing to
slum dwellers, the means it employed in pursuit of such objective
fell short of what was legal, sensible and called for by the
circumstances.
 CONSTI LAW II I ACJUCO 23

Indeed, experience has shown that the disregard of basic liberties

and the use of short-sighted methods in expropriation proceedings
have not achieved the desired results. Over the years, the
government has tried to remedy the worsening squatter problem.
Far from solving it, however, government’s kid-glove approach has
only resulted in the multiplication and proliferation of squatter
colonies and blighted areas. A pro-poor program that is well-studied,
adequately funded, genuinely sincere and truly respectful of
everyone’s basic rights is what this problem calls for, not the
improvident enactment of politics-based ordinances targeting small
private lots in no rational fashion.

WHEREFORE, the petition is hereby GRANTED. The July 1, 2002

decision of Branch 23 of the Regional Trial Court of Cebu City is
REVERSED and SET ASIDE.

SO ORDERED.

TAXATION
G.R. No. L-59431 July 25, 1984
ANTERO M. SISON, JR., petitioner,
vs.
RUBEN B. ANCHETA, Acting Commissioner, Bureau of
Internal Revenue; ROMULO VILLA, Deputy Commissioner,
Bureau of Internal Revenue; TOMAS TOLEDO Deputy
Commissioner, Bureau of Internal Revenue; MANUEL ALBA,
Minister of Budget, FRANCISCO TANTUICO, Chairman,
Commissioner on Audit, and CESAR E. A. VIRATA, Minister of
Finance, respondents.
Antero Sison for petitioner and for his own behalf.
The Solicitor General for respondents.
FERNANDO, C.J.:
The success of the challenge posed in this suit for declaratory relief
or prohibition proceeding 1 on the validity of Section I of Batas
Pambansa Blg. 135 depends upon a showing of its constitutional
infirmity. The assailed provision further amends Section 21 of the
National Internal Revenue Code of 1977, which provides for rates
of tax on citizens or residents on (a) taxable compensation income,
(b) taxable net income, (c) royalties, prizes, and other winnings, (d)
interest from bank deposits and yield or any other monetary benefit
from deposit substitutes and from trust fund and similar
arrangements, (e) dividends and share of individual partner in the
net profits of taxable partnership, (f) adjusted gross income. 2
Petitioner 3 as taxpayer alleges that by virtue thereof, "he would be
unduly discriminated against by the imposition of higher rates of tax
upon his income arising from the exercise of his profession vis-a-vis
those which are imposed upon fixed income or salaried individual
taxpayers. 4 He characterizes the above sction as arbitrary
amounting to class legislation, oppressive and capricious in
character 5 For petitioner, therefore, there is a transgression of both
the equal protection and due process clauses 6 of the Constitution
as well as of the rule requiring uniformity in taxation. 7
The Court, in a resolution of January 26, 1982, required
respondents to file an answer within 10 days from notice. Such an
answer, after two extensions were granted the Office of the Solicitor
General, was filed on May 28, 1982. 8 The facts as alleged were
admitted but not the allegations which to their mind are "mere
arguments, opinions or conclusions on the part of the petitioner, the
truth [for them] being those stated [in their] Special and Affirmative
Defenses." 9 The answer then affirmed: "Batas Pambansa Big. 135
is a valid exercise of the State's power to tax. The authorities and
cases cited while correctly quoted or paraghraph do not support
petitioner's stand." 10 The prayer is for the dismissal of the petition
for lack of merit.
This Court finds such a plea more than justified. The petition must
be dismissed.
1. It is manifest that the field of state activity has assumed a
much wider scope, The reason was so clearly set forth by retired
Chief Justice Makalintal thus: "The areas which used to be left to
private enterprise and initiative and which the government was
called upon to enter optionally, and only 'because it was better
equipped to administer for the public welfare than is any private
individual or group of individuals,' continue to lose their well-defined
boundaries and to be absorbed within activities that the government
must undertake in its sovereign capacity if it is to meet the increasing
social challenges of the times." 11 Hence the need for more
revenues. The power to tax, an inherent prerogative, has to be
availed of to assure the performance of vital state functions. It is the
source of the bulk of public funds. To praphrase a recent decision,
CONSTI LAW II I ACJUCO 24
taxes being the lifeblood of the government, their prompt and certain
availability is of the essence. 12
2. The power to tax moreover, to borrow from Justice
Malcolm, "is an attribute of sovereignty. It is the strongest of all the
powers of of government." 13 It is, of course, to be admitted that for
all its plenitude 'the power to tax is not unconfined. There are
restrictions. The Constitution sets forth such limits . Adversely
affecting as it does properly rights, both the due process and equal
protection clauses inay properly be invoked, all petitioner does, to
invalidate in appropriate cases a revenue measure. if it were
otherwise, there would -be truth to the 1803 dictum of Chief Justice
Marshall that "the power to tax involves the power to destroy." 14 In
a separate opinion in Graves v. New York, 15 Justice Frankfurter,
after referring to it as an 1, unfortunate remark characterized it as "a
flourish of rhetoric [attributable to] the intellectual fashion of the
times following] a free use of absolutes." 16 This is merely to
emphasize that it is riot and there cannot be such a constitutional
mandate. Justice Frankfurter could rightfully conclude: "The web of
unreality spun from Marshall's famous dictum was brushed away by
one stroke of Mr. Justice Holmess pen: 'The power to tax is not the
power to destroy while this Court sits." 17 So it is in the Philippines.
3. This Court then is left with no choice. The Constitution as
the fundamental law overrides any legislative or executive, act that
runs counter to it. In any case therefore where it can be
demonstrated that the challenged statutory provision — as
petitioner here alleges — fails to abide by its command, then this
Court must so declare and adjudge it null. The injury thus is centered
on the question of whether the imposition of a higher tax rate on
taxable net income derived from business or profession than on
compensation is constitutionally infirm.
4, The difficulty confronting petitioner is thus apparent. He
alleges arbitrariness. A mere allegation, as here. does not suffice.
There must be a factual foundation of such unconstitutional taint.
Considering that petitioner here would condemn such a provision as
void or its face, he has not made out a case. This is merely to adhere
to the authoritative doctrine that were the due process and equal
protection clauses are invoked, considering that they arc not fixed
rules but rather broad standards, there is a need for of such
persuasive character as would lead to such a conclusion. Absent
such a showing, the presumption of validity must prevail. 18
5. It is undoubted that the due process clause may be
invoked where a taxing statute is so arbitrary that it finds no support
in the Constitution. An obvious example is where it can be shown to
amount to the confiscation of property. That would be a clear abuse
of power. It then becomes the duty of this Court to say that such an
arbitrary act amounted to the exercise of an authority not conferred.
That properly calls for the application of the Holmes dictum. It has
also been held that where the assailed tax measure is beyond the
jurisdiction of the state, or is not for a public purpose, or, in case of
a retroactive statute is so harsh and unreasonable, it is subject to
attack on due process grounds. 19
6. Now for equal protection. The applicable standard to avoid
the charge that there is a denial of this constitutional mandate
whether the assailed act is in the exercise of the lice power or the
power of eminent domain is to demonstrated that the governmental
act assailed, far from being inspired by the attainment of the
common weal was prompted by the spirit of hostility, or at the very
least, discrimination that finds no support in reason. It suffices then
that the laws operate equally and uniformly on all persons under
similar circumstances or that all persons must be treated in the
same manner, the conditions not being different, both in the
privileges conferred and the liabilities imposed. Favoritism and
undue preference cannot be allowed. For the principle is that equal
protection and security shall be given to every person under
circumtances which if not Identical are analogous. If law be looked
upon in terms of burden or charges, those that fall within a class
 CONSTI LAW II I ACJUCO 25

should be treated in the same fashion, whatever restrictions cast on

some in the group equally binding on the rest." 20 That same 9. Nothing can be clearer, therefore, than that the petition is
formulation applies as well to taxation measures. The equal without merit, considering the (1) lack of factual foundation to show
protection clause is, of course, inspired by the noble concept of the arbitrary character of the assailed provision; 31 (2) the force of
approximating the Ideal of the laws benefits being available to all controlling doctrines on due process, equal protection, and
and the affairs of men being governed by that serene and impartial uniformity in taxation and (3) the reasonableness of the distinction
uniformity, which is of the very essence of the Idea of law. There is, between compensation and taxable net income of professionals and
however, wisdom, as well as realism in these words of Justice businessman certainly not a suspect classification,
Frankfurter: "The equality at which the 'equal protection' clause aims
is not a disembodied equality. The Fourteenth Amendment enjoins WHEREFORE, the petition is dismissed. Costs against petitioner.
'the equal protection of the laws,' and laws are not abstract
propositions. They do not relate to abstract units A, B and C, but are
expressions of policy arising out of specific difficulties, address to
the attainment of specific ends by the use of specific remedies. The
Constitution does not require things which are different in fact or
opinion to be treated in law as though they were the same." 21
Hence the constant reiteration of the view that classification if
rational in character is allowable. As a matter of fact, in a leading
case of Lutz V. Araneta, 22 this Court, through Justice J.B.L. Reyes,
went so far as to hold "at any rate, it is inherent in the power to tax
that a state be free to select the subjects of taxation, and it has been
repeatedly held that 'inequalities which result from a singling out of
one particular class for taxation, or exemption infringe no
constitutional limitation.'" 23

7. Petitioner likewise invoked the kindred concept of

uniformity. According to the Constitution: "The rule of taxation shag
be uniform and equitable." 24 This requirement is met according to
Justice Laurel in Philippine Trust Company v. Yatco,25 decided in
1940, when the tax "operates with the same force and effect in every
place where the subject may be found. " 26 He likewise added: "The
rule of uniformity does not call for perfect uniformity or perfect
equality, because this is hardly attainable." 27 The problem of
classification did not present itself in that case. It did not arise until
nine years later, when the Supreme Court held: "Equality and
uniformity in taxation means that all taxable articles or kinds of
property of the same class shall be taxed at the same rate. The
taxing power has the authority to make reasonable and natural
classifications for purposes of taxation, ... . 28 As clarified by Justice
Tuason, where "the differentiation" complained of "conforms to the
practical dictates of justice and equity" it "is not discriminatory within
the meaning of this clause and is therefore uniform." 29 There is
quite a similarity then to the standard of equal protection for all that
is required is that the tax "applies equally to all persons, firms and
corporations placed in similar situation."30

8. Further on this point. Apparently, what misled petitioner is

his failure to take into consideration the distinction between a tax
rate and a tax base. There is no legal objection to a broader tax
base or taxable income by eliminating all deductible items and at
the same time reducing the applicable tax rate. Taxpayers may be
classified into different categories. To repeat, it. is enough that the
classification must rest upon substantial distinctions that make real
differences. In the case of the gross income taxation embodied in
Batas Pambansa Blg. 135, the, discernible basis of classification is
the susceptibility of the income to the application of generalized
rules removing all deductible items for all taxpayers within the class
and fixing a set of reduced tax rates to be applied to all of them.
Taxpayers who are recipients of compensation income are set apart
as a class. As there is practically no overhead expense, these
taxpayers are e not entitled to make deductions for income tax
purposes because they are in the same situation more or less. On
the other hand, in the case of professionals in the practice of their
calling and businessmen, there is no uniformity in the costs or
expenses necessary to produce their income. It would not be just
then to disregard the disparities by giving all of them zero deduction
and indiscriminately impose on all alike the same tax rates on the
basis of gross income. There is ample justification then for the
Batasang Pambansa to adopt the gross system of income taxation
to compensation income, while continuing the system of net income
taxation as regards professional and business income.

G.R. Nos. L-49839-46 April 26, 1991
JOSE B. L. REYES and EDMUNDO A. REYES, petitioners,
vs.
PEDRO ALMANZOR, VICENTE ABAD SANTOS, JOSE ROÑO,
in their capacities as appointed and Acting Members of the
CENTRAL BOARD OF ASSESSMENT APPEALS; TERESITA H.
NOBLEJAS, ROMULO M. DEL ROSARIO, RAUL C. FLORES, in
their capacities as appointed and Acting Members of the
BOARD OF ASSESSMENT APPEALS of Manila; and NICOLAS
CATIIL in his capacity as City Assessor of Manila,
respondents.
Barcelona, Perlas, Joven & Academia Law Offices for petitioners.
PARAS, J.:
This is a petition for review on certiorari to reverse the June 10, 1977
decision of the Central Board of Assessment Appeals1 in CBAA
Cases Nos. 72-79 entitled "J.B.L. Reyes, Edmundo Reyes, et al. v.
Board of Assessment Appeals of Manila and City Assessor of
Manila" which affirmed the March 29, 1976 decision of the Board of
Tax Assessment Appeals2 in BTAA Cases Nos. 614, 614-A-J, 615,
615-A, B, E, "Jose Reyes, et al. v. City Assessor of Manila" and
"Edmundo Reyes and Milagros Reyes v. City Assessor of Manila"
upholding the classification and assessments made by the City
Assessor of Manila.
The facts of the case are as follows:
Petitioners J.B.L. Reyes, Edmundo and Milagros Reyes are owners
of parcels of land situated in Tondo and Sta. Cruz Districts, City of
Manila, which are leased and entirely occupied as dwelling sites by
tenants. Said tenants were paying monthly rentals not exceeding
three hundred pesos (P300.00) in July, 1971. On July 14, 1971, the
National Legislature enacted Republic Act No. 6359 prohibiting for
one year from its effectivity, an increase in monthly rentals of
dwelling units or of lands on which another's dwelling is located,
where such rentals do not exceed three hundred pesos (P300.00) a
month but allowing an increase in rent by not more than 10%
thereafter. The said Act also suspended paragraph (1) of Article
1673 of the Civil Code for two years from its effectivity thereby
disallowing the ejectment of lessees upon the expiration of the usual
legal period of lease. On October 12, 1972, Presidential Decree No.
20 amended R.A. No. 6359 by making absolute the prohibition to
increase monthly rentals below P300.00 and by indefinitely
suspending the aforementioned provision of the Civil Code,
excepting leases with a definite period. Consequently, the Reyeses,
petitioners herein, were precluded from raising the rentals and from
ejecting the tenants. In 1973, respondent City Assessor of Manila
re-classified and reassessed the value of the subject properties
based on the schedule of market values duly reviewed by the
Secretary of Finance. The revision, as expected, entailed an
increase in the corresponding tax rates prompting petitioners to file
a Memorandum of Disagreement with the Board of Tax Assessment
Appeals. They averred that the reassessments made were
"excessive, unwarranted, inequitable, confiscatory and
unconstitutional" considering that the taxes imposed upon them
greatly exceeded the annual income derived from their properties.
They argued that the income approach should have been used in
determining the land values instead of the comparable sales
approach which the City Assessor adopted (Rollo, pp. 9-10-A). The
Board of Tax Assessment Appeals, however, considered the
assessments valid, holding thus:
WHEREFORE, and considering that the appellants have failed to
submit concrete evidence which could overcome the presumptive
regularity of the classification and assessments appear to be in
accordance with the base schedule of market values and of the base
CONSTI LAW II I ACJUCO 26
schedule of building unit values, as approved by the Secretary of
Finance, the cases should be, as they are hereby, upheld.
SO ORDERED. (Decision of the Board of Tax Assessment Appeals,
Rollo, p. 22).
The Reyeses appealed to the Central Board of Assessment
Appeals.1âwphi1 They submitted, among others, the summary of
the yearly rentals to show the income derived from the properties.
Respondent City Assessor, on the other hand, submitted three (3)
deeds of sale showing the different market values of the real
property situated in the same vicinity where the subject properties
of petitioners are located. To better appreciate the locational and
physical features of the land, the Board of Hearing Commissioners
conducted an ocular inspection with the presence of two
representatives of the City Assessor prior to the healing of the case.
Neither the owners nor their authorized representatives were
present during the said ocular inspection despite proper notices
served them. It was found that certain parcels of land were below
street level and were affected by the tides (Rollo, pp. 24-25).
On June 10, 1977, the Central Board of Assessment Appeals
rendered its decision, the dispositive portion of which reads:
WHEREFORE, the appealed decision insofar as the valuation and
assessment of the lots covered by Tax Declaration Nos. (5835) PD-
5847, (5839), (5831) PD-5844 and PD-3824 is affirmed.
For the lots covered by Tax Declaration Nos. (1430) PD-1432, PD-
1509, 146 and (1) PD-266, the appealed Decision is modified by
allowing a 20% reduction in their respective market values and
applying therein the assessment level of 30% to arrive at the
corresponding assessed value.
SO ORDERED. (Decision of the Central Board of Assessment
Appeals, Rollo, p. 27)
Petitioner's subsequent motion for reconsideration was denied,
hence, this petition.
The Reyeses assigned the following error:
THE HONORABLE BOARD ERRED IN ADOPTING THE
"COMPARABLE SALES APPROACH" METHOD IN FIXING THE
ASSESSED VALUE OF APPELLANTS' PROPERTIES.
The petition is impressed with merit.
The crux of the controversy is in the method used in tax assessment
of the properties in question. Petitioners maintain that the "Income
Approach" method would have been more realistic for in
disregarding the effect of the restrictions imposed by P.D. 20 on the
market value of the properties affected, respondent Assessor of the
City of Manila unlawfully and unjustifiably set increased new
assessed values at levels so high and successive that the resulting
annual real estate taxes would admittedly exceed the sum total of
the yearly rentals paid or payable by the dweller tenants under P.D.
20. Hence, petitioners protested against the levels of the values
assigned to their properties as revised and increased on the ground
that they were arbitrarily excessive, unwarranted, inequitable,
confiscatory and unconstitutional (Rollo, p. 10-A).
On the other hand, while respondent Board of Tax Assessment
Appeals admits in its decision that the income approach is used in
determining land values in some vicinities, it maintains that when
income is affected by some sort of price control, the same is rejected
in the consideration and study of land values as in the case of
properties affected by the Rent Control Law for they do not project
the true market value in the open market (Rollo, p. 21). Thus,
respondents opted instead for the "Comparable Sales Approach" on
the ground that the value estimate of the properties predicated upon

prices paid in actual, market transactions would be a uniform and a
more credible standards to use especially in case of mass appraisal
of properties (Ibid.). Otherwise stated, public respondents would
have this Court completely ignore the effects of the restrictions of
P.D. No. 20 on the market value of properties within its coverage. In
any event, it is unquestionable that both the "Comparable Sales
Approach" and the "Income Approach" are generally acceptable
methods of appraisal for taxation purposes (The Law on Transfer
and Business Taxation by Hector S. De Leon, 1988 Edition).
However, it is conceded that the propriety of one as against the
other would of course depend on several factors. Hence, as early
as 1923 in the case of Army & Navy Club, Manila v. Wenceslao
Trinidad, G.R. No. 19297 (44 Phil. 383), it has been stressed that
the assessors, in finding the value of the property, have to consider
all the circumstances and elements of value and must exercise a
prudent discretion in reaching conclusions.
Under Art. VIII, Sec. 17 (1) of the 1973 Constitution, then enforced,
the rule of taxation must not only be uniform, but must also be
equitable and progressive.
Uniformity has been defined as that principle by which all taxable
articles or kinds of property of the same class shall be taxed at the
same rate (Churchill v. Concepcion, 34 Phil. 969 [1916]).
Notably in the 1935 Constitution, there was no mention of the
equitable or progressive aspects of taxation required in the 1973
Charter (Fernando "The Constitution of the Philippines", p. 221,
Second Edition). Thus, the need to examine closely and determine
the specific mandate of the Constitution.
Taxation is said to be equitable when its burden falls on those better
able to pay. Taxation is progressive when its rate goes up
depending on the resources of the person affected (Ibid.).
The power to tax "is an attribute of sovereignty". In fact, it is the
strongest of all the powers of government. But for all its plenitude
the power to tax is not unconfined as there are restrictions.
Adversely effecting as it does property rights, both the due process
and equal protection clauses of the Constitution may properly be
invoked to invalidate in appropriate cases a revenue measure. If it
were otherwise, there would be truth to the 1903 dictum of Chief
Justice Marshall that "the power to tax involves the power to
destroy." The web or unreality spun from Marshall's famous dictum
was brushed away by one stroke of Mr. Justice Holmes pen, thus:
"The power to tax is not the power to destroy while this Court sits.
So it is in the Philippines " (Sison, Jr. v. Ancheta, 130 SCRA 655
[1984]; Obillos, Jr. v. Commissioner of Internal Revenue, 139 SCRA
439 [1985]).
In the same vein, the due process clause may be invoked where a
taxing statute is so arbitrary that it finds no support in the
Constitution. An obvious example is where it can be shown to
amount to confiscation of property. That would be a clear abuse of
power (Sison v. Ancheta, supra).
The taxing power has the authority to make a reasonable and
natural classification for purposes of taxation but the government's
act must not be prompted by a spirit of hostility, or at the very least
discrimination that finds no support in reason. It suffices then that
the laws operate equally and uniformly on all persons under similar
circumstances or that all persons must be treated in the same
manner, the conditions not being different both in the privileges
conferred and the liabilities imposed (Ibid., p. 662).
Finally under the Real Property Tax Code (P.D. 464 as amended),
it is declared that the first Fundamental Principle to guide the
appraisal and assessment of real property for taxation purposes is
that the property must be "appraised at its current and fair market
value."
CONSTI LAW II I ACJUCO 27
By no strength of the imagination can the market value of properties
covered by P.D. No. 20 be equated with the market value of
properties not so covered. The former has naturally a much lesser
market value in view of the rental restrictions.
Ironically, in the case at bar, not even the factors determinant of the
assessed value of subject properties under the "comparable sales
approach" were presented by the public respondents, namely: (1)
that the sale must represent a bonafide arm's length transaction
between a willing seller and a willing buyer and (2) the property must
be comparable property (Rollo, p. 27). Nothing can justify or support
their view as it is of judicial notice that for properties covered by P.D.
20 especially during the time in question, there were hardly any
willing buyers. As a general rule, there were no takers so that there
can be no reasonable basis for the conclusion that these properties
were comparable with other residential properties not burdened by
P.D. 20. Neither can the given circumstances be nonchalantly
dismissed by public respondents as imposed under distressed
conditions clearly implying that the same were merely temporary in
character. At this point in time, the falsity of such premises cannot
be more convincingly demonstrated by the fact that the law has
existed for around twenty (20) years with no end to it in sight.
Verily, taxes are the lifeblood of the government and so should be
collected without unnecessary hindrance. However, such collection
should be made in accordance with law as any arbitrariness will
negate the very reason for government itself It is therefore
necessary to reconcile the apparently conflicting interests of the
authorities and the taxpayers so that the real purpose of taxations,
which is the promotion of the common good, may be achieved
(Commissioner of Internal Revenue v. Algue Inc., et al., 158 SCRA
9 [1988]). Consequently, it stands to reason that petitioners who are
burdened by the government by its Rental Freezing Laws (then R.A.
No. 6359 and P.D. 20) under the principle of social justice should
not now be penalized by the same government by the imposition of
excessive taxes petitioners can ill afford and eventually result in the
forfeiture of their properties.
By the public respondents' own computation the assessment by
income approach would amount to only P10.00 per sq. meter at the
time in question.
PREMISES CONSIDERED, (a) the petition is GRANTED; (b) the
assailed decisions of public respondents are REVERSED and SET
ASIDE; and (e) the respondent Board of Assessment Appeals of
Manila and the City Assessor of Manila are ordered to make a new
assessment by the income approach method to guarantee a fairer
and more realistic basis of computation (Rollo, p. 71).
SO ORDERED.

G.R. No. 148191 November 25, 2003
COMMISSIONER OF INTERNAL REVENUE, petitioner,
vs.
SOLIDBANK CORPORATION, respondent.
DECISION
PANGANIBAN, J.:
Under the Tax Code, the earnings of banks from "passive" income
are subject to a twenty percent final withholding tax (20% FWT).
This tax is withheld at source and is thus not actually and physically
received by the banks, because it is paid directly to the government
by the entities from which the banks derived the income. Apart from
the 20% FWT, banks are also subject to a five percent gross
receipts tax (5% GRT) which is imposed by the Tax Code on their
gross receipts, including the "passive" income.
Since the 20% FWT is constructively received by the banks and
forms part of their gross receipts or earnings, it follows that it is
subject to the 5% GRT. After all, the amount withheld is paid to the
government on their behalf, in satisfaction of their withholding taxes.
That they do not actually receive the amount does not alter the fact
that it is remitted for their benefit in satisfaction of their tax
obligations.
Stated otherwise, the fact is that if there were no withholding tax
system in place in this country, this 20 percent portion of the
"passive" income of banks would actually be paid to the banks and
then remitted by them to the government in payment of their income
tax. The institution of the withholding tax system does not alter the
fact that the 20 percent portion of their "passive" income constitutes
part of their actual earnings, except that it is paid directly to the
government on their behalf in satisfaction of the 20 percent final
income tax due on their "passive" incomes.
The Case
Before us is a Petition for Review1 under Rule 45 of the Rules of
Court, seeking to annul the July 18, 2000 Decision2 and the May 8,
2001 Resolution3 of the Court of Appeals4 (CA) in CA-GR SP No.
54599. The decretal portion of the assailed Decision reads as
follows:
"WHEREFORE, we AFFIRM in toto the assailed decision and
resolution of the Court of Tax Appeals."5
The challenged Resolution denied petitioner’s Motion for
Reconsideration.
The Facts
Quoting petitioner, the CA6 summarized the facts of this case as
follows:
"For the calendar year 1995, [respondent] seasonably filed its
Quarterly Percentage Tax Returns reflecting gross receipts
(pertaining to 5% [Gross Receipts Tax] rate) in the total amount of
₱1,474,691,693.44 with corresponding gross receipts tax payments
in the sum of ₱73,734,584.60, broken down as follows:
Period Covered Gross Receipts Gross Receipts Tax
January to March 1994 ₱ 188,406,061.95 ₱ 9,420,303.10
April to June 1994 370,913,832.70 18,545,691.63
July to September 1994 481,501,838.98 24,075,091.95
October to December 1994 433,869,959.81 21,693,497.98
Total ₱ 1,474,691,693.44 ₱ 73,734,584.60
"[Respondent] alleges that the total gross receipts in the amount of
₱1,474,691,693.44 included the sum of ₱350,807,875.15
CONSTI LAW II I ACJUCO 28
representing gross receipts from passive income which was already
subjected to 20% final withholding tax.
"On January 30, 1996, [the Court of Tax Appeals] rendered a
decision in CTA Case No. 4720 entitled Asian Bank Corporation vs.
Commissioner of Internal Revenue[,] wherein it was held that the
20% final withholding tax on [a] bank’s interest income should not
form part of its taxable gross receipts for purposes of computing the
gross receipts tax.
"On June 19, 1997, on the strength of the aforementioned decision,
[respondent] filed with the Bureau of Internal Revenue [BIR] a letter-
request for the refund or issuance of [a] tax credit certificate in the
aggregate amount of ₱3,508,078.75, representing allegedly
overpaid gross receipts tax for the year 1995, computed as follows:
Gross Receipts Subjected to the Final Tax
Derived from Passive [Income] ₱ 350,807,875.15
Multiply by Final Tax rate 20%
20% Final Tax Withheld at Source ₱ 70,161,575.03
Multiply by [Gross Receipts Tax] rate 5%
Overpaid [Gross Receipts Tax] ₱ 3,508,078.75
"Without waiting for an action from the [petitioner], [respondent] on
the same day filed [a] petition for review [with the Court of Tax
Appeals] in order to toll the running of the two-year prescriptive
period to judicially claim for the refund of [any] overpaid internal
revenue tax[,] pursuant to Section 230 [now 229] of the Tax Code
[also ‘National Internal Revenue Code’] x x x.
xxx xxx xxx
"After trial on the merits, the [Court of Tax Appeals], on August 6,
1999, rendered its decision ordering x x x petitioner to refund in favor
of x x x respondent the reduced amount of ₱1,555,749.65 as
overpaid [gross receipts tax] for the year 1995. The legal issue x x
x was resolved by the [Court of Tax Appeals], with Hon. Amancio Q.
Saga dissenting, on the strength of its earlier pronouncement in x x
x Asian Bank Corporation vs. Commissioner of Internal Revenue x
x x, wherein it was held that the 20% [final withholding tax] on [a]
bank’s interest income should not form part of its taxable gross
receipts for purposes of computing the [gross receipts tax]."7
Ruling of the CA
The CA held that the 20% FWT on a bank’s interest income did not
form part of the taxable gross receipts in computing the 5% GRT,
because the FWT was not actually received by the bank but was
directly remitted to the government. The appellate court curtly said
that while the Tax Code "does not specifically state any exemption,
x x x the statute must receive a sensible construction such as will
give effect to the legislative intention, and so as to avoid an unjust
or absurd conclusion."8
Hence, this appeal.9
Issue
Petitioner raises this lone issue for our consideration:
"Whether or not the 20% final withholding tax on [a] bank’s interest
income forms part of the taxable gross receipts in computing the 5%
gross receipts tax."10
The Court’s Ruling
The Petition is meritorious.
Sole Issue:
Whether the 20% FWT Forms Part
of the Taxable Gross Receipts

Petitioner claims that although the 20% FWT on respondent’s
interest income was not actually received by respondent because it
was remitted directly to the government, the fact that the amount
redounded to the bank’s benefit makes it part of the taxable gross
receipts in computing the 5% GRT. Respondent, on the other hand,
maintains that the CA correctly ruled otherwise.
We agree with petitioner. In fact, the same issue has been raised
recently in China Banking Corporation v. CA,11 where this Court
held that the amount of interest income withheld in payment of the
20% FWT forms part of gross receipts in computing for the GRT on
banks.
The FWT and the GRT:
Two Different Taxes
The 5% GRT is imposed by Section 11912 of the Tax Code,13
which provides:
"SEC. 119. Tax on banks and non-bank financial intermediaries. –
There shall be collected a tax on gross receipts derived from
sources within the Philippines by all banks and non-bank financial
intermediaries in accordance with the following schedule:
"(a) On interest, commissions and discounts from lending activities
as well as income from financial leasing, on the basis of remaining
maturities of instruments from which such receipts are derived.
Short-term maturity not in excess of two
years……………………5%
Medium-term maturity – over two (2) years
but not exceeding four
years………………………………….…...3%
Long-term maturity:
(i) Over four (4) years but not exceeding
seven (7) years……………………………………………1%
(ii) Over seven (7) years………………………………….….0%
"(b) On dividends……………………………….……..0%
"(c) On royalties, rentals of property, real or personal, profits from
exchange and all other items treated as gross income under Section
2814 of
Code………....................................................................5%
Provided, however, That in case the maturity period referred to in
paragraph (a) is shortened thru pretermination, then the maturity
period shall be reckoned to end as of the date of pretermination for
purposes of classifying the transaction as short, medium or long
term and the correct rate of tax shall be applied accordingly.
"Nothing in this Code shall preclude the Commissioner from
imposing the same tax herein provided on persons performing
similar banking activities."
The 5% GRT15 is included under "Title V. Other Percentage Taxes"
of the Tax Code and is not subject to withholding. The banks and
non-bank financial intermediaries liable therefor shall, under Section
125(a)(1),16 file quarterly returns on the amount of gross receipts
and pay the taxes due thereon within twenty (20)17 days after the
end of each taxable quarter.
CONSTI LAW II I ACJUCO 29
The 20% FWT,18 on the other hand, falls under Section 24(e)(1)19
of "Title II. Tax on Income." It is a tax on passive income, deducted
and withheld at source by the payor-corporation and/or person as
withholding agent pursuant to Section 50,20 and paid in the same
manner and subject to the same conditions as provided for in
Section 51.21
A perusal of these provisions clearly shows that two types of taxes
are involved in the present controversy: (1) the GRT, which is a
percentage tax; and (2) the FWT, which is an income tax. As a bank,
petitioner is covered by both taxes.
A percentage tax is a national tax measured by a certain percentage
of the gross selling price or gross value in money of goods sold,
bartered or imported; or of the gross receipts or earnings derived by
any person engaged in the sale of services.22 It is not subject to
withholding.
An income tax, on the other hand, is a national tax imposed on the
net or the gross income realized in a taxable year.23 It is subject to
withholding.
In a withholding tax system, the payee is the taxpayer, the person
on whom the tax is imposed; the payor, a separate entity, acts as
no more than an agent of the government for the collection of the
tax in order to ensure its payment. Obviously, this amount that is
used to settle the tax liability is deemed sourced from the proceeds
constitutive of the tax base.24 These proceeds are either actual or
constructive. Both parties herein agree that there is no actual receipt
by the bank of the amount withheld. What needs to be determined
(2) is if there is constructive receipt thereof. Since the payee -- not the
payor -- is the real taxpayer, the rule on constructive receipt can be
easily rationalized, if not made clearly manifest.25
Constructive Receipt
(4) Versus Actual Receipt
Applying Section 7 of Revenue Regulations (RR) No. 17-84,26
petitioner contends that there is constructive receipt of the interest
on deposits and yield on deposit substitutes.27 Respondent,
however, claims that even if there is, it is Section 4(e) of RR 12-
8028 that nevertheless governs the situation.
Section 7 of RR 17-84 states:
"SEC. 7. Nature and Treatment of Interest on Deposits and Yield on
Deposit Substitutes. –
‘(a) The interest earned on Philippine Currency bank deposits and
yield from deposit substitutes subjected to the withholding taxes in
this accordance with these regulations need not be included in the gross
income in computing the depositor’s/investor’s income tax liability in
accordance with the provision of Section 29(b),29 (c)30 and (d) of
the National Internal Revenue Code, as amended.
‘(b) Only interest paid or accrued on bank deposits, or yield from
deposit substitutes declared for purposes of imposing the
withholding taxes in accordance with these regulations shall be
allowed as interest expense deductible for purposes of computing
taxable net income of the payor.
‘(c) If the recipient of the above-mentioned items of income are
financial institutions, the same shall be included as part of the tax
base upon which the gross receipt[s] tax is imposed.’"
Section 4(e) of RR 12-80, on the other hand, states that the tax rates
to be imposed on the gross receipts of banks, non-bank financial
intermediaries, financing companies, and other non-bank financial
intermediaries not performing quasi-banking activities shall be
based on all items of income actually received. This provision reads:

"SEC. 4. x x x x x x x x x
"(e) Gross receipts tax on banks, non-bank financial intermediaries,
financing companies, and other non-bank financial intermediaries
not performing quasi-banking activities. – The rates of tax to be
imposed on the gross receipts of such financial institutions shall be
based on all items of income actually received. Mere accrual shall
not be considered, but once payment is received on such accrual or
in cases of prepayment, then the amount actually received shall be
included in the tax base of such financial institutions, as provided
hereunder x x x."
Respondent argues that the above-quoted provision is plain and
clear: since there is no actual receipt, the FWT is not to be included
in the tax base for computing the GRT. There is supposedly no
pecuniary benefit or advantage accruing to the bank from the FWT,
because the income is subjected to a tax burden immediately upon
receipt through the withholding process. Moreover, the earlier RR
12-80 covered matters not falling under the later RR 17-84.31
We are not persuaded.
By analogy, we apply to the receipt of income the rules on actual
and constructive possession provided in Articles 531 and 532 of our
Civil Code.
Under Article 531:32
"Possession is acquired by the material occupation of a thing or the
exercise of a right, or by the fact that it is subject to the action of our
will, or by the proper acts and legal formalities established for
acquiring such right."
Article 532 states:
"Possession may be acquired by the same person who is to enjoy
it, by his legal representative, by his agent, or by any person without
any power whatever; but in the last case, the possession shall not
be considered as acquired until the person in whose name the act
of possession was executed has ratified the same, without prejudice
to the juridical consequences of negotiorum gestio in a proper
case."33
The last means of acquiring possession under Article 531 refers to
juridical acts -- the acquisition of possession by sufficient title – to
which the law gives the force of acts of possession.34 Respondent
argues that only items of income actually received should be
included in its gross receipts. It claims that since the amount had
already been withheld at source, it did not have actual receipt
thereof.
We clarify. Article 531 of the Civil Code clearly provides that the
acquisition of the right of possession is through the proper acts and
legal formalities established therefor. The withholding process is
one such act. There may not be actual receipt of the income
withheld; however, as provided for in Article 532, possession by any
person without any power whatsoever shall be considered as
acquired when ratified by the person in whose name the act of
possession is executed.
In our withholding tax system, possession is acquired by the payor
as the withholding agent of the government, because the taxpayer
ratifies the very act of possession for the government. There is thus
constructive receipt. The processes of bookkeeping and accounting
for interest on deposits and yield on deposit substitutes that are
subjected to FWT are indeed -- for legal purposes -- tantamount to
delivery, receipt or remittance.35 Besides, respondent itself admits
that its income is subjected to a tax burden immediately upon
"receipt," although it claims that it derives no pecuniary benefit or
advantage through the withholding process. There being
constructive receipt of such income -- part of which is withheld -- RR
CONSTI LAW II I ACJUCO 30
17-84 applies, and that income is included as part of the tax base
upon which the GRT is imposed.
RR 12-80 Superseded by RR 17-84
We now come to the effect of the revenue regulations on interest
income constructively received.
In general, rules and regulations issued by administrative or
executive officers pursuant to the procedure or authority conferred
by law upon the administrative agency have the force and effect, or
partake of the nature, of a statute.36 The reason is that statutes
express the policies, purposes, objectives, remedies and sanctions
intended by the legislature in general terms. The details and manner
of carrying them out are oftentimes left to the administrative agency
entrusted with their enforcement.
In the present case, it is the finance secretary who promulgates the
revenue regulations, upon recommendation of the BIR
commissioner. These regulations are the consequences of a
delegated power to issue legal provisions that have the effect of
law.37
A revenue regulation is binding on the courts as long as the
procedure fixed for its promulgation is followed. Even if the courts
may not be in agreement with its stated policy or innate wisdom, it
is nonetheless valid, provided that its scope is within the statutory
authority or standard granted by the legislature.38 Specifically, the
regulation must (1) be germane to the object and purpose of the
law;39 (2) not contradict, but conform to, the standards the law
prescribes;40 and (3) be issued for the sole purpose of carrying into
effect the general provisions of our tax laws.41
In the present case, there is no question about the regularity in the
performance of official duty. What needs to be determined is
whether RR 12-80 has been repealed by RR 17-84.
A repeal may be express or implied. It is express when there is a
declaration in a regulation -- usually in its repealing clause -- that
another regulation, identified by its number or title, is repealed. All
others are implied repeals.42 An example of the latter is a general
provision that predicates the intended repeal on a substantial
conflict between the existing and the prior regulations.43
As stated in Section 11 of RR 17-84, all regulations, rules, orders or
portions thereof that are inconsistent with the provisions of the said
RR are thereby repealed. This declaration proceeds on the premise
that RR 17-84 clearly reveals such an intention on the part of the
Department of Finance. Otherwise, later RRs are to be construed
as a continuation of, and not a substitute for, earlier RRs; and will
continue to speak, so far as the subject matter is the same, from the
time of the first promulgation.44
There are two well-settled categories of implied repeals: (1) in case
the provisions are in irreconcilable conflict, the later regulation, to
the extent of the conflict, constitutes an implied repeal of an earlier
one; and (2) if the later regulation covers the whole subject of an
earlier one and is clearly intended as a substitute, it will similarly
operate as a repeal of the earlier one.45 There is no implied repeal
of an earlier RR by the mere fact that its subject matter is related to
a later RR, which may simply be a cumulation or continuation of the
earlier one.46
Where a part of an earlier regulation embracing the same subject
as a later one may not be enforced without nullifying the pertinent
provision of the latter, the earlier regulation is deemed impliedly
amended or modified to the extent of the repugnancy.47 The
unaffected provisions or portions of the earlier regulation remain in
force, while its omitted portions are deemed repealed.48 An
exception therein that is amended by its subsequent elimination

shall now cease to be so and instead be included within the scope
of the general rule.49
Section 4(e) of the earlier RR 12-80 provides that only items of
income actually received shall be included in the tax base for
computing the GRT, but Section 7(c) of the later RR 17-84 makes
no such distinction and provides that all interests earned shall be
included. The exception having been eliminated, the clear intent is
that the later RR 17-84 includes the exception within the scope of
the general rule.
Repeals by implication are not favored and will not be indulged,
unless it is manifest that the administrative agency intended them.
As a regulation is presumed to have been made with deliberation
and full knowledge of all existing rules on the subject, it may
reasonably be concluded that its promulgation was not intended to
interfere with or abrogate any earlier rule relating to the same
subject, unless it is either repugnant to or fully inclusive of the
subject matter of an earlier one, or unless the reason for the earlier
one is "beyond peradventure removed."50 Every effort must be
exerted to make all regulations stand -- and a later rule will not
operate as a repeal of an earlier one, if by any reasonable
construction, the two can be reconciled.51
RR 12-80 imposes the GRT only on all items of income actually
received, as opposed to their mere accrual, while RR 17-84 includes
all interest income in computing the GRT. RR 12-80 is superseded
by the later rule, because Section 4(e) thereof is not restated in RR
17-84. Clearly therefore, as petitioner correctly states, this particular
provision was impliedly repealed when the later regulations took
effect.52
Reconciling the Two Regulations
Granting that the two regulations can be reconciled, respondent’s
reliance on Section 4(e) of RR 12-80 is misplaced and deceptive.
The "accrual" referred to therein should not be equated with the
determination of the amount to be used as tax base in computing
the GRT. Such accrual merely refers to an accounting method that
recognizes income as earned although not received, and expenses
as incurred although not yet paid.
Accrual should not be confused with the concept of constructive
possession or receipt as earlier discussed. Petitioner correctly
points out that income that is merely accrued -- earned, but not yet
received -- does not form part of the taxable gross receipts; income
that has been received, albeit constructively, does.53
The word "actually," used confusingly in Section 4(e), will be clearer
if removed entirely. Besides, if actually is that important, accrual
should have been eliminated for being a mere surplusage. The
inclusion of accrual stresses the fact that Section 4(e) does not
distinguish between actual and constructive receipt. It merely
focuses on the method of accounting known as the accrual system.
Under this system, income is accrued or earned in the year in which
the taxpayer’s right thereto becomes fixed and definite, even though
it may not be actually received until a later year; while a deduction
for a liability is to be accrued or incurred and taken when the liability
becomes fixed and certain, even though it may not be actually paid
until later.54
Under any system of accounting, no duty or liability to pay an income
tax upon a transaction arises until the taxable year in which the
event constituting the condition precedent occurs.55 The liability to
pay a tax may thus arise at a certain time and the tax paid within
another given time.56
In reconciling these two regulations, the earlier one includes in the
tax base for GRT all income, whether actually or constructively
received, while the later one includes specifically interest income. In
CONSTI LAW II I ACJUCO 31
computing the income tax liability, the only exception cited in the
later regulations is the exclusion from gross income of interest
income, which is already subjected to withholding. This exception,
however, refers to a different tax altogether. To extend
mischievously such exception to the GRT will certainly lead to
results not contemplated by the legislators and the administrative
body promulgating the regulations.
Manila Jockey Club
Inapplicable
In Commissioner of Internal Revenue v. Manila Jockey Club,57 we
held that the term "gross receipts" shall not include money which,
although delivered, has been especially earmarked by law or
regulation for some person other than the taxpayer.58
To begin, we have to nuance the definition of gross receipts59 to
determine what it is exactly. In this regard, we note that US cases
have persuasive effect in our jurisdiction, because Philippine
income tax law is patterned after its US counterpart.60
"‘[G]ross receipts’ with respect to any period means the sum of: (a)
The total amount received or accrued during such period from the
sale, exchange, or other disposition of x x x other property of a kind
which would properly be included in the inventory of the taxpayer if
on hand at the close of the taxable year, or property held by the
taxpayer primarily for sale to customers in the ordinary course of its
trade or business, and (b) The gross income, attributable to a trade
or business, regularly carried on by the taxpayer, received or
accrued during such period x x x."61
"x x x [B]y gross earnings from operations x x x was intended all
operations xxx including incidental, subordinate, and subsidiary
operations, as well as principal operations."62
"When we speak of the ‘gross earnings’ of a person or corporation,
we mean the entire earnings or receipts of such person or
corporation from the business or operations to which we refer."63
From these cases, "gross receipts"64 refer to the total, as opposed
to the net, income.65 These are therefore the total receipts before
any deduction66 for the expenses of management.67 Webster’s
New International Dictionary, in fact, defines gross as "whole or
entire."
Statutes taxing the gross "receipts," "earnings," or "income" of
particular corporations are found in many jurisdictions.68 Tax
thereon is generally held to be within the power of a state to impose;
or constitutional, unless it interferes with interstate commerce or
violates the requirement as to uniformity of taxation.69
Moreover, we have emphasized that the BIR has consistently ruled
that "gross receipts" does not admit of any deduction.70 Following
the principle of legislative approval by reenactment,71 this
interpretation has been adopted by the legislature throughout the
various reenactments of then Section 119 of the Tax Code.72
Given that a tax is imposed upon total receipts and not upon net
earnings,73 shall the income withheld be included in the tax base
upon which such tax is imposed? In other words, shall interest
income constructively received still be included in the tax base for
computing the GRT?
We rule in the affirmative.
Manila Jockey Club does not apply to this case. Earmarking is not
the same as withholding. Amounts earmarked do not form part of
gross receipts, because, although delivered or received, these are
by law or regulation reserved for some person other than the
taxpayer. On the contrary, amounts withheld form part of gross
receipts, because these are in constructive possession and not

subject to any reservation, the withholding agent being merely a
conduit in the collection process.
The Manila Jockey Club had to deliver to the Board on Races, horse
owners and jockeys amounts that never became the property of the
race track.74 Unlike these amounts, the interest income that had
been withheld for the government became property of the financial
institutions upon constructive possession thereof. Possession was
indeed acquired, since it was ratified by the financial institutions in
whose name the act of possession had been executed. The money
indeed belonged to the taxpayers; merely holding it in trust was not
enough.75
The government subsequently becomes the owner of the money
when the financial institutions pay the FWT to extinguish their
obligation to the government. As this Court has held before, this is
the consideration for the transfer of ownership of the FWT from
these institutions to the government.76 It is ownership that
determines whether interest income forms part of taxable gross
receipts.77 Being originally owned by these financial institutions as
part of their interest income, the FWT should form part of their
taxable gross receipts.
Besides, these amounts withheld are in payment of an income tax
liability, which is different from a percentage tax liability.
Commissioner of Internal Revenue v. Tours Specialists, Inc. aptly
held thus:78
"x x x [G]ross receipts subject to tax under the Tax Code do not
include monies or receipts entrusted to the taxpayer which do not
belong to them and do not redound to the taxpayer’s benefit; and it
is not necessary that there must be a law or regulation which would
exempt such monies and receipts within the meaning of gross
receipts under the Tax Code."79
In the construction and interpretation of tax statutes and of statutes
in general, the primary consideration is to ascertain and give effect
to the intention of the legislature.80 We ought to impute to the
lawmaking body the intent to obey the constitutional mandate, as
long as its enactments fairly admit of such construction.81 In fact, "x
x x no tax can be levied without express authority of law, but the
statutes are to receive a reasonable construction with a view to
carrying out their purpose and intent."82
Looking again into Sections 24(e)(1) and 119 of the Tax Code, we
find that the first imposes an income tax; the second, a percentage
tax. The legislature clearly intended two different taxes. The FWT is
a tax on passive income, while the GRT is on business.83 The
withholding of one is not equivalent to the payment of the other.
Non-Exemption of FWT from GRT:
Neither Unjust nor Absurd
Taxing the people and their property is essential to the very
existence of government. Certainly, one of the highest attributes of
sovereignty is the power of taxation,84 which may legitimately be
exercised on the objects to which it is applicable to the utmost extent
as the government may choose.85 Being an incident of sovereignty,
such power is coextensive with that to which it is an incident.86 The
interest on deposits and yield on deposit substitutes of financial
institutions, on the one hand, and their business as such, on the
other, are the two objects over which the State has chosen to extend
its sovereign power. Those not so chosen are, upon the soundest
principles, exempt from taxation.87
While courts will not enlarge by construction the government’s
power of taxation,88 neither will they place upon tax laws so loose
a construction as to permit evasions, merely on the basis of fanciful
and insubstantial distinctions.89 When the legislature imposes a tax
on income and another on business, the imposition must be
CONSTI LAW II I ACJUCO 32
respected. The Tax Code should be so construed, if need be, as to
avoid empty declarations or possibilities of crafty tax evasion
schemes. We have consistently ruled thus:
"x x x [I]t is upon taxation that the [g]overnment chiefly relies to
obtain the means to carry on its operations, and it is of the utmost
importance that the modes adopted to enforce the collection of the
taxes levied should be summary and interfered with as little as
possible. x x x."90
"Any delay in the proceedings of the officers, upon whom the duty
is devolved of collecting the taxes, may derange the operations of
government, and thereby cause serious detriment to the public."91
"No government could exist if all litigants were permitted to delay
the collection of its taxes."92
A taxing act will be construed, and the intent and meaning of the
legislature ascertained, from its language.93 Its clarity and implied
intent must exist to uphold the taxes as against a taxpayer in whose
favor doubts will be resolved.94 No such doubts exist with respect
to the Tax Code, because the income and percentage taxes we
have cited earlier have been imposed in clear and express language
for that purpose.95
This Court has steadfastly adhered to the doctrine that its first and
fundamental duty is the application of the law according to its
express terms -- construction and interpretation being called for only
when such literal application is impossible or inadequate without
them.96 In Quijano v. Development Bank of the Philippines,97 we
stressed as follows:
"No process of interpretation or construction need be resorted to
where a provision of law peremptorily calls for application." 98
A literal application of any part of a statute is to be rejected if it will
operate unjustly, lead to absurd results, or contradict the evident
meaning of the statute taken as a whole.99 Unlike the CA, we find
that the literal application of the aforesaid sections of the Tax Code
and its implementing regulations does not operate unjustly or
contradict the evident meaning of the statute taken as a whole.
Neither does it lead to absurd results. Indeed, our courts are not to
give words meanings that would lead to absurd or unreasonable
consequences.100 We have repeatedly held thus:
"x x x [S]tatutes should receive a sensible construction, such as will
give effect to the legislative intention and so as to avoid an unjust or
an absurd conclusion."101
"While it is true that the contemporaneous construction placed upon
a statute by executive officers whose duty is to enforce it should be
given great weight by the courts, still if such construction is so
erroneous, x x x the same must be declared as null and void."102
It does not even matter that the CTA, like in China Banking
Corporation,103 relied erroneously on Manila Jockey Club. Under
our tax system, the CTA acts as a highly specialized body
specifically created for the purpose of reviewing tax cases.104
Because of its recognized expertise, its findings of fact will ordinarily
not be reviewed, absent any showing of gross error or abuse on its
part.105 Such findings are binding on the Court and, absent strong
reasons for us to delve into facts, only questions of law are open for
determination.106
Respondent claims that it is entitled to a refund on the basis of
excess GRT payments. We disagree.
Tax refunds are in the nature of tax exemptions.107 Such
exemptions are strictly construed against the taxpayer, being highly
disfavored108 and almost said "to be odious to the law." Hence,
those who claim to be exempt from the payment of a particular tax
 CONSTI LAW II I ACJUCO 33

must do so under clear and unmistakable terms found in the statute. Third, these two taxes are of different kinds or characters. The FWT
They must be able to point to some positive provision, not merely a is an income tax subject to withholding, while the GRT is a
vague implication,109 of the law creating that right.110 percentage tax not subject to withholding.

The right of taxation will not be surrendered, except in words too In short, there is no double taxation, because there is no taxing
plain to be mistaken.1âwphi1 The reason is that the State cannot twice, by the same taxing authority, within the same jurisdiction, for
strip itself of this highest attribute of sovereignty -- its most essential the same purpose, in different taxing periods, some of the property
power of taxation -- by vague or ambiguous language. Since tax in the territory.125 Subjecting interest income to a 20% FWT and
refunds are in the nature of tax exemptions, these are deemed to be including it in the computation of the 5% GRT is clearly not double
"in derogation of sovereign authority and to be construed strictissimi taxation.
juris against the person or entity claiming the exemption."111
WHEREFORE, the Petition is GRANTED. The assailed Decision
No less than our 1987 Constitution provides for the mechanism for and Resolution of the Court of Appeals are hereby REVERSED and
granting tax exemptions.112 They certainly cannot be granted by SET ASIDE. No costs.
implication or mere administrative regulation. Thus, when an
exemption is claimed, it must indubitably be shown to exist, for every SO ORDERED.
presumption is against it,113 and a well-founded doubt is fatal to the
claim.114 In the instant case, respondent has not been able to
satisfactorily show that its FWT on interest income is exempt from
the GRT. Like China Banking Corporation, its argument creates a
tax exemption where none exists.115

No exemptions are normally allowed when a GRT is imposed. It is

precisely designed to maintain simplicity in the tax collection effort
of the government and to assure its steady source of revenue even
during an economic slump.116

No Double Taxation

We have repeatedly said that the two taxes, subject of this litigation,
are different from each other. The basis of their imposition may be
the same, but their natures are different, thus leading us to a final
point. Is there double taxation?

The Court finds none.

Double taxation means taxing the same property twice when it

should be taxed only once; that is, "x x x taxing the same person
twice by the same jurisdiction for the same thing."117 It is obnoxious
when the taxpayer is taxed twice, when it should be but once.118
Otherwise described as "direct duplicate taxation,"119 the two taxes
must be imposed on the same subject matter, for the same purpose,
by the same taxing authority, within the same jurisdiction, during the
same taxing period; and they must be of the same kind or
character.120

First, the taxes herein are imposed on two different subject matters.
The subject matter of the FWT is the passive income generated in
the form of interest on deposits and yield on deposit substitutes,
while the subject matter of the GRT is the privilege of engaging in
the business of banking.

A tax based on receipts is a tax on business rather than on the

property; hence, it is an excise121 rather than a property tax.122 It
is not an income tax, unlike the FWT. In fact, we have already held
that one can be taxed for engaging in business and further taxed
differently for the income derived therefrom.123 Akin to our ruling in
Velilla v. Posadas,124 these two taxes are entirely distinct and are
assessed under different provisions.

Second, although both taxes are national in scope because they are
imposed by the same taxing authority -- the national government
under the Tax Code -- and operate within the same Philippine
jurisdiction for the same purpose of raising revenues, the taxing
periods they affect are different. The FWT is deducted and withheld
as soon as the income is earned, and is paid after every calendar
quarter in which it is earned. On the other hand, the GRT is neither
deducted nor withheld, but is paid only after every taxable quarter in
which it is earned.

G.R. No. 144104 June 29, 2004
LUNG CENTER OF THE PHILIPPINES, petitioner,
vs.
QUEZON CITY and CONSTANTINO P. ROSAS, in his capacity
as City Assessor of Quezon City, respondents.
DECISION
CALLEJO, SR., J.:
This is a petition for review on certiorari under Rule 45 of the Rules
of Court, as amended, of the Decision1 dated July 17, 2000 of the
Court of Appeals in CA-G.R. SP No. 57014 which affirmed the
decision of the Central Board of Assessment Appeals holding that
the lot owned by the petitioner and its hospital building constructed
thereon are subject to assessment for purposes of real property tax.
The Antecedents
The petitioner Lung Center of the Philippines is a non-stock and
non-profit entity established on January 16, 1981 by virtue of
Presidential Decree No. 1823.2 It is the registered owner of a parcel
of land, particularly described as Lot No. RP-3-B-3A-1-B-1, SWO-
04-000495, located at Quezon Avenue corner Elliptical Road,
Central District, Quezon City. The lot has an area of 121,463 square
meters and is covered by Transfer Certificate of Title (TCT) No.
261320 of the Registry of Deeds of Quezon City. Erected in the
middle of the aforesaid lot is a hospital known as the Lung Center
of the Philippines. A big space at the ground floor is being leased to
private parties, for canteen and small store spaces, and to medical
or professional practitioners who use the same as their private
clinics for their patients whom they charge for their professional
services. Almost one-half of the entire area on the left side of the
building along Quezon Avenue is vacant and idle, while a big portion
on the right side, at the corner of Quezon Avenue and Elliptical
Road, is being leased for commercial purposes to a private
enterprise known as the Elliptical Orchids and Garden Center.
The petitioner accepts paying and non-paying patients. It also
renders medical services to out-patients, both paying and non-
paying. Aside from its income from paying patients, the petitioner
receives annual subsidies from the government.
On June 7, 1993, both the land and the hospital building of the
petitioner were assessed for real property taxes in the amount of
₱4,554,860 by the City Assessor of Quezon City.3 Accordingly, Tax
Declaration Nos. C-021-01226 (16-2518) and C-021-01231 (15-
2518-A) were issued for the land and the hospital building,
respectively.4 On August 25, 1993, the petitioner filed a Claim for
Exemption5 from real property taxes with the City Assessor,
predicated on its claim that it is a charitable institution. The
petitioner’s request was denied, and a petition was, thereafter, filed
before the Local Board of Assessment Appeals of Quezon City (QC-
LBAA, for brevity) for the reversal of the resolution of the City
Assessor. The petitioner alleged that under Section 28, paragraph
3 of the 1987 Constitution, the property is exempt from real property
taxes. It averred that a minimum of 60% of its hospital beds are
exclusively used for charity patients and that the major thrust of its
hospital operation is to serve charity patients. The petitioner
contends that it is a charitable institution and, as such, is exempt
from real property taxes. The QC-LBAA rendered judgment
dismissing the petition and holding the petitioner liable for real
property taxes.6
The QC-LBAA’s decision was, likewise, affirmed on appeal by the
Central Board of Assessment Appeals of Quezon City (CBAA, for
brevity)7 which ruled that the petitioner was not a charitable
institution and that its real properties were not actually, directly and
exclusively used for charitable purposes; hence, it was not entitled
to real property tax exemption under the constitution and the law.
CONSTI LAW II I ACJUCO 34
The petitioner sought relief from the Court of Appeals, which
rendered judgment affirming the decision of the CBAA.8
Undaunted, the petitioner filed its petition in this Court contending
that:
A. THE COURT A QUO ERRED IN DECLARING PETITIONER AS
NOT ENTITLED TO REALTY TAX EXEMPTIONS ON THE
GROUND THAT ITS LAND, BUILDING AND IMPROVEMENTS,
SUBJECT OF ASSESSMENT, ARE NOT ACTUALLY, DIRECTLY
AND EXCLUSIVELY DEVOTED FOR CHARITABLE PURPOSES.
B. WHILE PETITIONER IS NOT DECLARED AS REAL
PROPERTY TAX EXEMPT UNDER ITS CHARTER, PD 1823,
SAID EXEMPTION MAY NEVERTHELESS BE EXTENDED UPON
PROPER APPLICATION.
The petitioner avers that it is a charitable institution within the
context of Section 28(3), Article VI of the 1987 Constitution. It
asserts that its character as a charitable institution is not altered by
the fact that it admits paying patients and renders medical services
to them, leases portions of the land to private parties, and rents out
portions of the hospital to private medical practitioners from which it
derives income to be used for operational expenses. The petitioner
points out that for the years 1995 to 1999, 100% of its out-patients
were charity patients and of the hospital’s 282-bed capacity, 60%
thereof, or 170 beds, is allotted to charity patients. It asserts that the
fact that it receives subsidies from the government attests to its
character as a charitable institution. It contends that the "exclusivity"
required in the Constitution does not necessarily mean "solely."
Hence, even if a portion of its real estate is leased out to private
individuals from whom it derives income, it does not lose its
character as a charitable institution, and its exemption from the
payment of real estate taxes on its real property. The petitioner cited
our ruling in Herrera v. QC-BAA9 to bolster its pose. The petitioner
further contends that even if P.D. No. 1823 does not exempt it from
the payment of real estate taxes, it is not precluded from seeking
tax exemption under the 1987 Constitution.
In their comment on the petition, the respondents aver that the
petitioner is not a charitable entity. The petitioner’s real property is
not exempt from the payment of real estate taxes under P.D. No.
1823 and even under the 1987 Constitution because it failed to
prove that it is a charitable institution and that the said property is
actually, directly and exclusively used for charitable purposes. The
respondents noted that in a newspaper report, it appears that graft
charges were filed with the Sandiganbayan against the director of
the petitioner, its administrative officer, and Zenaida Rivera, the
proprietress of the Elliptical Orchids and Garden Center, for entering
into a lease contract over 7,663.13 square meters of the property in
1990 for only ₱20,000 a month, when the monthly rental should be
₱357,000 a month as determined by the Commission on Audit; and
that instead of complying with the directive of the COA for the
cancellation of the contract for being grossly prejudicial to the
government, the petitioner renewed the same on March 13, 1995
for a monthly rental of only ₱24,000. They assert that the petitioner
uses the subsidies granted by the government for charity patients
and uses the rest of its income from the property for the benefit of
paying patients, among other purposes. They aver that the
petitioner failed to adduce substantial evidence that 100% of its out-
patients and 170 beds in the hospital are reserved for indigent
patients. The respondents further assert, thus:
13. That the claims/allegations of the Petitioner LCP do not speak
well of its record of service. That before a patient is admitted for
treatment in the Center, first impression is that it is pay-patient and
required to pay a certain amount as deposit. That even if a patient
is living below the poverty line, he is charged with high hospital bills.
And, without these bills being first settled, the poor patient cannot
be allowed to leave the hospital or be discharged without first paying
the hospital bills or issue a promissory note guaranteed and

indorsed by an influential agency or person known only to the
Center; that even the remains of deceased poor patients suffered
the same fate. Moreover, before a patient is admitted for treatment
as free or charity patient, one must undergo a series of interviews
and must submit all the requirements needed by the Center, usually
accompanied by endorsement by an influential agency or person
known only to the Center. These facts were heard and admitted by
the Petitioner LCP during the hearings before the Honorable QC-
BAA and Honorable CBAA. These are the reasons of indigent
patients, instead of seeking treatment with the Center, they prefer
to be treated at the Quezon Institute. Can such practice by the
Center be called charitable?10
The Issues
The issues for resolution are the following: (a) whether the petitioner
is a charitable institution within the context of Presidential Decree
No. 1823 and the 1973 and 1987 Constitutions and Section 234(b)
of Republic Act No. 7160; and (b) whether the real properties of the
petitioner are exempt from real property taxes.
The Court’s Ruling
The petition is partially granted.
On the first issue, we hold that the petitioner is a charitable institution
within the context of the 1973 and 1987 Constitutions. To determine
whether an enterprise is a charitable institution/entity or not, the
elements which should be considered include the statute creating
the enterprise, its corporate purposes, its constitution and by-laws,
the methods of administration, the nature of the actual work
performed, the character of the services rendered, the
indefiniteness of the beneficiaries, and the use and occupation of
the properties.11
In the legal sense, a charity may be fully defined as a gift, to be
applied consistently with existing laws, for the benefit of an indefinite
number of persons, either by bringing their minds and hearts under
the influence of education or religion, by assisting them to establish
themselves in life or otherwise lessening the burden of
government.12 It may be applied to almost anything that tend to
promote the well-doing and well-being of social man. It embraces
the improvement and promotion of the happiness of man.13 The
word "charitable" is not restricted to relief of the poor or sick.14 The
test of a charity and a charitable organization are in law the same.
The test whether an enterprise is charitable or not is whether it exists
to carry out a purpose reorganized in law as charitable or whether it
is maintained for gain, profit, or private advantage.
Under P.D. No. 1823, the petitioner is a non-profit and non-stock
corporation which, subject to the provisions of the decree, is to be
administered by the Office of the President of the Philippines with
the Ministry of Health and the Ministry of Human Settlements. It was
organized for the welfare and benefit of the Filipino people
principally to help combat the high incidence of lung and pulmonary
diseases in the Philippines. The raison d’etre for the creation of the
petitioner is stated in the decree, viz:
Whereas, for decades, respiratory diseases have been a priority
concern, having been the leading cause of illness and death in the
Philippines, comprising more than 45% of the total annual deaths
from all causes, thus, exacting a tremendous toll on human
resources, which ailments are likely to increase and degenerate into
serious lung diseases on account of unabated pollution,
industrialization and unchecked cigarette smoking in the
country;lavvph!l.net
Whereas, the more common lung diseases are, to a great extent,
preventable, and curable with early and adequate medical care,
immunization and through prompt and intensive prevention and
health education programs;
CONSTI LAW II I ACJUCO 35
Whereas, there is an urgent need to consolidate and reinforce
existing programs, strategies and efforts at preventing, treating and
rehabilitating people affected by lung diseases, and to undertake
research and training on the cure and prevention of lung diseases,
through a Lung Center which will house and nurture the above and
related activities and provide tertiary-level care for more difficult and
problematical cases;
Whereas, to achieve this purpose, the Government intends to
provide material and financial support towards the establishment
and maintenance of a Lung Center for the welfare and benefit of the
Filipino people.15
The purposes for which the petitioner was created are spelled out in
its Articles of Incorporation, thus:
SECOND: That the purposes for which such corporation is formed
are as follows:
1. To construct, establish, equip, maintain, administer and conduct
an integrated medical institution which shall specialize in the
treatment, care, rehabilitation and/or relief of lung and allied
diseases in line with the concern of the government to assist and
provide material and financial support in the establishment and
maintenance of a lung center primarily to benefit the people of the
Philippines and in pursuance of the policy of the State to secure the
well-being of the people by providing them specialized health and
medical services and by minimizing the incidence of lung diseases
in the country and elsewhere.
2. To promote the noble undertaking of scientific research related to
the prevention of lung or pulmonary ailments and the care of lung
patients, including the holding of a series of relevant congresses,
conventions, seminars and conferences;
3. To stimulate and, whenever possible, underwrite scientific
researches on the biological, demographic, social, economic,
eugenic and physiological aspects of lung or pulmonary diseases
and their control; and to collect and publish the findings of such
research for public consumption;
4. To facilitate the dissemination of ideas and public acceptance of
information on lung consciousness or awareness, and the
development of fact-finding, information and reporting facilities for
and in aid of the general purposes or objects aforesaid, especially
in human lung requirements, general health and physical fitness,
and other relevant or related fields;
5. To encourage the training of physicians, nurses, health officers,
social workers and medical and technical personnel in the practical
and scientific implementation of services to lung patients;
6. To assist universities and research institutions in their studies
about lung diseases, to encourage advanced training in matters of
the lung and related fields and to support educational programs of
value to general health;
7. To encourage the formation of other organizations on the
national, provincial and/or city and local levels; and to coordinate
their various efforts and activities for the purpose of achieving a
more effective programmatic approach on the common problems
relative to the objectives enumerated herein;
8. To seek and obtain assistance in any form from both international
and local foundations and organizations; and to administer grants
and funds that may be given to the organization;
9. To extend, whenever possible and expedient, medical services to
the public and, in general, to promote and protect the health of the

masses of our people, which has long been recognized as an
economic asset and a social blessing;
10. To help prevent, relieve and alleviate the lung or pulmonary
afflictions and maladies of the people in any and all walks of life,
including those who are poor and needy, all without regard to or
discrimination, because of race, creed, color or political belief of the
persons helped; and to enable them to obtain treatment when such
disorders occur;
11. To participate, as circumstances may warrant, in any activity
designed and carried on to promote the general health of the
community;
12. To acquire and/or borrow funds and to own all funds or
equipment, educational materials and supplies by purchase,
donation, or otherwise and to dispose of and distribute the same in
such manner, and, on such basis as the Center shall, from time to
time, deem proper and best, under the particular circumstances, to
serve its general and non-profit purposes and objectives;lavvphil.net
13. To buy, purchase, acquire, own, lease, hold, sell, exchange,
transfer and dispose of properties, whether real or personal, for
purposes herein mentioned; and
14. To do everything necessary, proper, advisable or convenient for
the accomplishment of any of the powers herein set forth and to do
every other act and thing incidental thereto or connected
therewith.16
Hence, the medical services of the petitioner are to be rendered to
the public in general in any and all walks of life including those who
are poor and the needy without discrimination. After all, any person,
the rich as well as the poor, may fall sick or be injured or wounded
and become a subject of charity.17
As a general principle, a charitable institution does not lose its
character as such and its exemption from taxes simply because it
derives income from paying patients, whether out-patient, or
confined in the hospital, or receives subsidies from the government,
so long as the money received is devoted or used altogether to the
charitable object which it is intended to achieve; and no money
inures to the private benefit of the persons managing or operating
the institution.18 In Congregational Sunday School, etc. v. Board of
Review,19 the State Supreme Court of Illinois held, thus:
… [A]n institution does not lose its charitable character, and
consequent exemption from taxation, by reason of the fact that
those recipients of its benefits who are able to pay are required to
do so, where no profit is made by the institution and the amounts so
received are applied in furthering its charitable purposes, and those
benefits are refused to none on account of inability to pay therefor.
The fundamental ground upon which all exemptions in favor of
charitable institutions are based is the benefit conferred upon the
public by them, and a consequent relief, to some extent, of the
burden upon the state to care for and advance the interests of its
citizens.20
As aptly stated by the State Supreme Court of South Dakota in
Lutheran Hospital Association of South Dakota v. Baker:21
… [T]he fact that paying patients are taken, the profits derived from
attendance upon these patients being exclusively devoted to the
maintenance of the charity, seems rather to enhance the usefulness
of the institution to the poor; for it is a matter of common observation
amongst those who have gone about at all amongst the suffering
classes, that the deserving poor can with difficulty be persuaded to
enter an asylum of any kind confined to the reception of objects of
charity; and that their honest pride is much less wounded by being
placed in an institution in which paying patients are also received.
The fact of receiving money from some of the patients does not, we
CONSTI LAW II I ACJUCO 36
think, at all impair the character of the charity, so long as the money
thus received is devoted altogether to the charitable object which
the institution is intended to further.22
The money received by the petitioner becomes a part of the trust
fund and must be devoted to public trust purposes and cannot be
diverted to private profit or benefit.23
Under P.D. No. 1823, the petitioner is entitled to receive donations.
The petitioner does not lose its character as a charitable institution
simply because the gift or donation is in the form of subsidies
granted by the government. As held by the State Supreme Court of
Utah in Yorgason v. County Board of Equalization of Salt Lake
County:24
Second, the … government subsidy payments are provided to the
project. Thus, those payments are like a gift or donation of any other
kind except they come from the government. In both Intermountain
Health Care and the present case, the crux is the presence or
absence of material reciprocity. It is entirely irrelevant to this
analysis that the government, rather than a private benefactor,
chose to make up the deficit resulting from the exchange between
St. Mark’s Tower and the tenants by making a contribution to the
landlord, just as it would have been irrelevant in Intermountain
Health Care if the patients’ income supplements had come from
private individuals rather than the government.
Therefore, the fact that subsidization of part of the cost of furnishing
such housing is by the government rather than private charitable
contributions does not dictate the denial of a charitable exemption if
the facts otherwise support such an exemption, as they do here.25
In this case, the petitioner adduced substantial evidence that it spent
its income, including the subsidies from the government for 1991
and 1992 for its patients and for the operation of the hospital. It even
incurred a net loss in 1991 and 1992 from its operations.
Even as we find that the petitioner is a charitable institution, we hold,
anent the second issue, that those portions of its real property that
are leased to private entities are not exempt from real property taxes
as these are not actually, directly and exclusively used for charitable
purposes.
The settled rule in this jurisdiction is that laws granting exemption
from tax are construed strictissimi juris against the taxpayer and
liberally in favor of the taxing power. Taxation is the rule and
exemption is the exception. The effect of an exemption is equivalent
to an appropriation. Hence, a claim for exemption from tax
payments must be clearly shown and based on language in the law
too plain to be mistaken.26 As held in Salvation Army v. Hoehn:27
An intention on the part of the legislature to grant an exemption from
the taxing power of the state will never be implied from language
which will admit of any other reasonable construction. Such an
intention must be expressed in clear and unmistakable terms, or
must appear by necessary implication from the language used, for
it is a well settled principle that, when a special privilege or
exemption is claimed under a statute, charter or act of incorporation,
it is to be construed strictly against the property owner and in favor
of the public. This principle applies with peculiar force to a claim of
exemption from taxation . …28
Section 2 of Presidential Decree No. 1823, relied upon by the
petitioner, specifically provides that the petitioner shall enjoy the tax
exemptions and privileges:
SEC. 2. TAX EXEMPTIONS AND PRIVILEGES. Being a non-profit,
non-stock corporation organized primarily to help combat the high
incidence of lung and pulmonary diseases in the Philippines, all
donations, contributions, endowments and equipment and supplies
to be imported by authorized entities or persons and by the Board

of Trustees of the Lung Center of the Philippines, Inc., for the actual
use and benefit of the Lung Center, shall be exempt from income
and gift taxes, the same further deductible in full for the purpose of
determining the maximum deductible amount under Section 30,
paragraph (h), of the National Internal Revenue Code, as amended.
The Lung Center of the Philippines shall be exempt from the
payment of taxes, charges and fees imposed by the Government or
any political subdivision or instrumentality thereof with respect to
equipment purchases made by, or for the Lung Center.29
It is plain as day that under the decree, the petitioner does not enjoy
any property tax exemption privileges for its real properties as well
as the building constructed thereon. If the intentions were otherwise,
the same should have been among the enumeration of tax exempt
privileges under Section 2:
It is a settled rule of statutory construction that the express mention
of one person, thing, or consequence implies the exclusion of all
others. The rule is expressed in the familiar maxim, expressio unius
est exclusio alterius.
The rule of expressio unius est exclusio alterius is formulated in a
number of ways. One variation of the rule is the principle that what
is expressed puts an end to that which is implied. Expressium facit
cessare tacitum. Thus, where a statute, by its terms, is expressly
limited to certain matters, it may not, by interpretation or
construction, be extended to other matters.
...
The rule of expressio unius est exclusio alterius and its variations
are canons of restrictive interpretation. They are based on the rules
of logic and the natural workings of the human mind. They are
predicated upon one’s own voluntary act and not upon that of others.
They proceed from the premise that the legislature would not have
made specified enumeration in a statute had the intention been not
to restrict its meaning and confine its terms to those expressly
mentioned.30
The exemption must not be so enlarged by construction since the
reasonable presumption is that the State has granted in express
terms all it intended to grant at all, and that unless the privilege is
limited to the very terms of the statute the favor would be intended
beyond what was meant.31
Section 28(3), Article VI of the 1987 Philippine Constitution
provides, thus:
(3) Charitable institutions, churches and parsonages or convents
appurtenant thereto, mosques, non-profit cemeteries, and all lands,
buildings, and improvements, actually, directly and exclusively used
for religious, charitable or educational purposes shall be exempt
from taxation.32
The tax exemption under this constitutional provision covers
property taxes only.33 As Chief Justice Hilario G. Davide, Jr., then
a member of the 1986 Constitutional Commission, explained: ". . .
what is exempted is not the institution itself . . .; those exempted
from real estate taxes are lands, buildings and improvements
actually, directly and exclusively used for religious, charitable or
educational purposes."34
Consequently, the constitutional provision is implemented by
Section 234(b) of Republic Act No. 7160 (otherwise known as the
Local Government Code of 1991) as follows:
SECTION 234. Exemptions from Real Property Tax. – The following
are exempted from payment of the real property tax:
...
CONSTI LAW II I ACJUCO 37
(b) Charitable institutions, churches, parsonages or convents
appurtenant thereto, mosques, non-profit or religious cemeteries
and all lands, buildings, and improvements actually, directly, and
exclusively used for religious, charitable or educational purposes.35
We note that under the 1935 Constitution, "... all lands, buildings,
and improvements used ‘exclusively’ for … charitable … purposes
shall be exempt from taxation."36 However, under the 1973 and the
present Constitutions, for "lands, buildings, and improvements" of
the charitable institution to be considered exempt, the same should
not only be "exclusively" used for charitable purposes; it is required
that such property be used "actually" and "directly" for such
purposes.37
In light of the foregoing substantial changes in the Constitution, the
petitioner cannot rely on our ruling in Herrera v. Quezon City Board
of Assessment Appeals which was promulgated on September 30,
1961 before the 1973 and 1987 Constitutions took effect.38 As this
Court held in Province of Abra v. Hernando:39
… Under the 1935 Constitution: "Cemeteries, churches, and
parsonages or convents appurtenant thereto, and all lands,
buildings, and improvements used exclusively for religious,
charitable, or educational purposes shall be exempt from taxation."
The present Constitution added "charitable institutions, mosques,
and non-profit cemeteries" and required that for the exemption of
"lands, buildings, and improvements," they should not only be
"exclusively" but also "actually" and "directly" used for religious or
charitable purposes. The Constitution is worded differently. The
change should not be ignored. It must be duly taken into
consideration. Reliance on past decisions would have sufficed were
the words "actually" as well as "directly" not added. There must be
proof therefore of the actual and direct use of the lands, buildings,
and improvements for religious or charitable purposes to be exempt
from taxation. …
Under the 1973 and 1987 Constitutions and Rep. Act No. 7160 in
order to be entitled to the exemption, the petitioner is burdened to
prove, by clear and unequivocal proof, that (a) it is a charitable
institution; and (b) its real properties are ACTUALLY, DIRECTLY
and EXCLUSIVELY used for charitable purposes. "Exclusive" is
defined as possessed and enjoyed to the exclusion of others;
debarred from participation or enjoyment; and "exclusively" is
defined, "in a manner to exclude; as enjoying a privilege
exclusively."40 If real property is used for one or more commercial
purposes, it is not exclusively used for the exempted purposes but
is subject to taxation.41 The words "dominant use" or "principal use"
cannot be substituted for the words "used exclusively" without doing
violence to the Constitutions and the law.42 Solely is synonymous
with exclusively.43
What is meant by actual, direct and exclusive use of the property for
charitable purposes is the direct and immediate and actual
application of the property itself to the purposes for which the
charitable institution is organized. It is not the use of the income from
the real property that is determinative of whether the property is
used for tax-exempt purposes.44
The petitioner failed to discharge its burden to prove that the entirety
of its real property is actually, directly and exclusively used for
charitable purposes. While portions of the hospital are used for the
treatment of patients and the dispensation of medical services to
them, whether paying or non-paying, other portions thereof are
being leased to private individuals for their clinics and a canteen.
Further, a portion of the land is being leased to a private individual
for her business enterprise under the business name "Elliptical
Orchids and Garden Center." Indeed, the petitioner’s evidence
shows that it collected ₱1,136,483.45 as rentals in 1991 and
₱1,679,999.28 for 1992 from the said lessees.
 CONSTI LAW II I ACJUCO 38

Accordingly, we hold that the portions of the land leased to private

entities as well as those parts of the hospital leased to private
individuals are not exempt from such taxes.45 On the other hand,
the portions of the land occupied by the hospital and portions of the
hospital used for its patients, whether paying or non-paying, are
exempt from real property taxes.

IN LIGHT OF ALL THE FOREGOING, the petition is PARTIALLY

GRANTED. The respondent Quezon City Assessor is hereby
DIRECTED to determine, after due hearing, the precise portions of
the land and the area thereof which are leased to private persons,
and to compute the real property taxes due thereon as provided for
by law.

SO ORDERED.

G.R. No. 149110 April 9, 2003
NATIONAL POWER CORPORATION, petitioner,
vs.
CITY OF CABANATUAN, respondent.
PUNO, J.:
This is a petition for review1 of the Decision2 and the Resolution3
of the Court of Appeals dated March 12, 2001 and July 10, 2001,
respectively, finding petitioner National Power Corporation (NPC)
liable to pay franchise tax to respondent City of Cabanatuan.
Petitioner is a government-owned and controlled corporation
created under Commonwealth Act No. 120, as amended.4 It is
tasked to undertake the "development of hydroelectric generations
of power and the production of electricity from nuclear, geothermal
and other sources, as well as, the transmission of electric power on
a nationwide basis."5 Concomitant to its mandated duty, petitioner
has, among others, the power to construct, operate and maintain
power plants, auxiliary plants, power stations and substations for the
purpose of developing hydraulic power and supplying such power
to the inhabitants.6
For many years now, petitioner sells electric power to the residents
of Cabanatuan City, posting a gross income of P107,814,187.96 in
1992.7 Pursuant to section 37 of Ordinance No. 165-92,8 the
respondent assessed the petitioner a franchise tax amounting to
P808,606.41, representing 75% of 1% of the latter's gross receipts
for the preceding year.9
Petitioner, whose capital stock was subscribed and paid wholly by
the Philippine Government,10 refused to pay the tax assessment. It
argued that the respondent has no authority to impose tax on
government entities. Petitioner also contended that as a non-profit
organization, it is exempted from the payment of all forms of taxes,
charges, duties or fees11 in accordance with sec. 13 of Rep. Act
No. 6395, as amended, viz:
"Sec.13. Non-profit Character of the Corporation; Exemption from
all Taxes, Duties, Fees, Imposts and Other Charges by Government
and Governmental Instrumentalities.- The Corporation shall be non-
profit and shall devote all its return from its capital investment, as
well as excess revenues from its operation, for expansion. To
enable the Corporation to pay its indebtedness and obligations and
in furtherance and effective implementation of the policy enunciated
in Section one of this Act, the Corporation is hereby exempt:
(a) From the payment of all taxes, duties, fees, imposts, charges,
costs and service fees in any court or administrative proceedings in
which it may be a party, restrictions and duties to the Republic of
the Philippines, its provinces, cities, municipalities and other
government agencies and instrumentalities;
(b) From all income taxes, franchise taxes and realty taxes to be
paid to the National Government, its provinces, cities, municipalities
and other government agencies and instrumentalities;
(c) From all import duties, compensating taxes and advanced sales
tax, and wharfage fees on import of foreign goods required for its
operations and projects; and
(d) From all taxes, duties, fees, imposts, and all other charges
imposed by the Republic of the Philippines, its provinces, cities,
municipalities and other government agencies and
instrumentalities, on all petroleum products used by the Corporation
in the generation, transmission, utilization, and sale of electric
power."12
The respondent filed a collection suit in the Regional Trial Court of
Cabanatuan City, demanding that petitioner pay the assessed tax
CONSTI LAW II I ACJUCO 39
due, plus a surcharge equivalent to 25% of the amount of tax, and
2% monthly interest.13 Respondent alleged that petitioner's
exemption from local taxes has been repealed by section 193 of
Rep. Act No. 7160,14 which reads as follows:
"Sec. 193. Withdrawal of Tax Exemption Privileges.- Unless
otherwise provided in this Code, tax exemptions or incentives
granted to, or presently enjoyed by all persons, whether natural or
juridical, including government owned or controlled corporations,
except local water districts, cooperatives duly registered under R.A.
No. 6938, non-stock and non-profit hospitals and educational
institutions, are hereby withdrawn upon the effectivity of this Code."
On January 25, 1996, the trial court issued an Order15 dismissing
the case. It ruled that the tax exemption privileges granted to
petitioner subsist despite the passage of Rep. Act No. 7160 for the
following reasons: (1) Rep. Act No. 6395 is a particular law and it
may not be repealed by Rep. Act No. 7160 which is a general law;
(2) section 193 of Rep. Act No. 7160 is in the nature of an implied
repeal which is not favored; and (3) local governments have no
power to tax instrumentalities of the national government. Pertinent
portion of the Order reads:
"The question of whether a particular law has been repealed or not
by a subsequent law is a matter of legislative intent. The lawmakers
may expressly repeal a law by incorporating therein repealing
provisions which expressly and specifically cite(s) the particular law
or laws, and portions thereof, that are intended to be repealed. A
declaration in a statute, usually in its repealing clause, that a
particular and specific law, identified by its number or title is
repealed is an express repeal; all others are implied repeal. Sec.
193 of R.A. No. 7160 is an implied repealing clause because it fails
to identify the act or acts that are intended to be repealed. It is a
well-settled rule of statutory construction that repeals of statutes by
implication are not favored. The presumption is against
inconsistency and repugnancy for the legislative is presumed to
know the existing laws on the subject and not to have enacted
inconsistent or conflicting statutes. It is also a well-settled rule that,
generally, general law does not repeal a special law unless it clearly
appears that the legislative has intended by the latter general act to
modify or repeal the earlier special law. Thus, despite the passage
of R.A. No. 7160 from which the questioned Ordinance No. 165-92
was based, the tax exemption privileges of defendant NPC remain.
Another point going against plaintiff in this case is the ruling of the
Supreme Court in the case of Basco vs. Philippine Amusement and
Gaming Corporation, 197 SCRA 52, where it was held that:
'Local governments have no power to tax instrumentalities of the
National Government. PAGCOR is a government owned or
controlled corporation with an original charter, PD 1869. All of its
shares of stocks are owned by the National Government. xxx Being
an instrumentality of the government, PAGCOR should be and
actually is exempt from local taxes. Otherwise, its operation might
be burdened, impeded or subjected to control by mere local
government.'
Like PAGCOR, NPC, being a government owned and controlled
corporation with an original charter and its shares of stocks owned
by the National Government, is beyond the taxing power of the Local
Government. Corollary to this, it should be noted here that in the
NPC Charter's declaration of Policy, Congress declared that: 'xxx
(2) the total electrification of the Philippines through the
development of power from all services to meet the needs of
industrial development and dispersal and needs of rural
electrification are primary objectives of the nations which shall be
pursued coordinately and supported by all instrumentalities and
agencies of the government, including its financial institutions.'
(underscoring supplied). To allow plaintiff to subject defendant to its
tax-ordinance would be to impede the avowed goal of this
government instrumentality.

Unlike the State, a city or municipality has no inherent power of
taxation. Its taxing power is limited to that which is provided for in its
charter or other statute. Any grant of taxing power is to be construed
strictly, with doubts resolved against its existence.
From the existing law and the rulings of the Supreme Court itself, it
is very clear that the plaintiff could not impose the subject tax on the
defendant."16
On appeal, the Court of Appeals reversed the trial court's Order17
on the ground that section 193, in relation to sections 137 and 151
of the LGC, expressly withdrew the exemptions granted to the
petitioner.18 It ordered the petitioner to pay the respondent city
government the following: (a) the sum of P808,606.41 representing
the franchise tax due based on gross receipts for the year 1992, (b)
the tax due every year thereafter based in the gross receipts earned
by NPC, (c) in all cases, to pay a surcharge of 25% of the tax due
and unpaid, and (d) the sum of P 10,000.00 as litigation expense.19
On April 4, 2001, the petitioner filed a Motion for Reconsideration on
the Court of Appeal's Decision. This was denied by the appellate
court, viz:
"The Court finds no merit in NPC's motion for reconsideration. Its
arguments reiterated therein that the taxing power of the province
under Art. 137 (sic) of the Local Government Code refers merely to
private persons or corporations in which category it (NPC) does not
belong, and that the LGC (RA 7160) which is a general law may not
impliedly repeal the NPC Charter which is a special law—finds the
answer in Section 193 of the LGC to the effect that 'tax exemptions
or incentives granted to, or presently enjoyed by all persons,
whether natural or juridical, including government-owned or
controlled corporations except local water districts xxx are hereby
withdrawn.' The repeal is direct and unequivocal, not implied.
IN VIEW WHEREOF, the motion for reconsideration is hereby
DENIED.
SO ORDERED."20
In this petition for review, petitioner raises the following issues:
"A. THE COURT OF APPEALS GRAVELY ERRED IN HOLDING
THAT NPC, A PUBLIC NON-PROFIT CORPORATION, IS LIABLE
TO PAY A FRANCHISE TAX AS IT FAILED TO CONSIDER THAT
SECTION 137 OF THE LOCAL GOVERNMENT CODE IN
RELATION TO SECTION 131 APPLIES ONLY TO PRIVATE
PERSONS OR CORPORATIONS ENJOYING A FRANCHISE.
B. THE COURT OF APPEALS GRAVELY ERRED IN HOLDING
THAT NPC'S EXEMPTION FROM ALL FORMS OF TAXES HAS
BEEN REPEALED BY THE PROVISION OF THE LOCAL
GOVERNMENT CODE AS THE ENACTMENT OF A LATER
LEGISLATION, WHICH IS A GENERAL LAW, CANNOT BE
CONSTRUED TO HAVE REPEALED A SPECIAL LAW.
C. THE COURT OF APPEALS GRAVELY ERRED IN NOT
CONSIDERING THAT AN EXERCISE OF POLICE POWER
THROUGH TAX EXEMPTION SHOULD PREVAIL OVER THE
LOCAL GOVERNMENT CODE."21
It is beyond dispute that the respondent city government has the
authority to issue Ordinance No. 165-92 and impose an annual tax
on "businesses enjoying a franchise," pursuant to section 151 in
relation to section 137 of the LGC, viz:
"Sec. 137. Franchise Tax. - Notwithstanding any exemption granted
by any law or other special law, the province may impose a tax on
businesses enjoying a franchise, at a rate not exceeding fifty
percent (50%) of one percent (1%) of the gross annual receipts for
CONSTI LAW II I ACJUCO 40
the preceding calendar year based on the incoming receipt, or
realized, within its territorial jurisdiction.
In the case of a newly started business, the tax shall not exceed
one-twentieth (1/20) of one percent (1%) of the capital investment.
In the succeeding calendar year, regardless of when the business
started to operate, the tax shall be based on the gross receipts for
the preceding calendar year, or any fraction thereof, as provided
herein." (emphasis supplied)
x x x
Sec. 151. Scope of Taxing Powers.- Except as otherwise provided
in this Code, the city, may levy the taxes, fees, and charges which
the province or municipality may impose: Provided, however, That
the taxes, fees and charges levied and collected by highly urbanized
and independent component cities shall accrue to them and
distributed in accordance with the provisions of this Code.
The rates of taxes that the city may levy may exceed the maximum
rates allowed for the province or municipality by not more than fifty
percent (50%) except the rates of professional and amusement
taxes."
Petitioner, however, submits that it is not liable to pay an annual
franchise tax to the respondent city government. It contends that
sections 137 and 151 of the LGC in relation to section 131, limit the
taxing power of the respondent city government to private entities
that are engaged in trade or occupation for profit.22
Section 131 (m) of the LGC defines a "franchise" as "a right or
privilege, affected with public interest which is conferred upon
private persons or corporations, under such terms and conditions as
the government and its political subdivisions may impose in the
interest of the public welfare, security and safety." From the
phraseology of this provision, the petitioner claims that the word
"private" modifies the terms "persons" and "corporations." Hence,
when the LGC uses the term "franchise," petitioner submits that it
should refer specifically to franchises granted to private natural
persons and to private corporations.23 Ergo, its charter should not
be considered a "franchise" for the purpose of imposing the
franchise tax in question.
On the other hand, section 131 (d) of the LGC defines "business" as
"trade or commercial activity regularly engaged in as means of
livelihood or with a view to profit." Petitioner claims that it is not
engaged in an activity for profit, in as much as its charter specifically
provides that it is a "non-profit organization." In any case, petitioner
argues that the accumulation of profit is merely incidental to its
operation; all these profits are required by law to be channeled for
expansion and improvement of its facilities and services.24
Petitioner also alleges that it is an instrumentality of the National
Government,25 and as such, may not be taxed by the respondent
city government. It cites the doctrine in Basco vs. Philippine
Amusement and Gaming Corporation26 where this Court held that
local governments have no power to tax instrumentalities of the
National Government, viz:
"Local governments have no power to tax instrumentalities of the
National Government.
PAGCOR has a dual role, to operate and regulate gambling
casinos. The latter role is governmental, which places it in the
category of an agency or instrumentality of the Government. Being
an instrumentality of the Government, PAGCOR should be and
actually is exempt from local taxes. Otherwise, its operation might
be burdened, impeded or subjected to control by a mere local
government.

'The states have no power by taxation or otherwise, to retard,
impede, burden or in any manner control the operation of
constitutional laws enacted by Congress to carry into execution the
powers vested in the federal government. (MC Culloch v. Maryland,
4 Wheat 316, 4 L Ed. 579)'
This doctrine emanates from the 'supremacy' of the National
Government over local governments.
'Justice Holmes, speaking for the Supreme Court, made reference
to the entire absence of power on the part of the States to touch, in
that way (taxation) at least, the instrumentalities of the United States
(Johnson v. Maryland, 254 US 51) and it can be agreed that no state
or political subdivision can regulate a federal instrumentality in such
a way as to prevent it from consummating its federal responsibilities,
or even seriously burden it from accomplishment of them.' (Antieau,
Modern Constitutional Law, Vol. 2, p. 140, italics supplied)
Otherwise, mere creatures of the State can defeat National policies
thru extermination of what local authorities may perceive to be
undesirable activities or enterprise using the power to tax as ' a tool
regulation' (U.S. v. Sanchez, 340 US 42).
The power to tax which was called by Justice Marshall as the 'power
to destroy' (Mc Culloch v. Maryland, supra) cannot be allowed to
defeat an instrumentality or creation of the very entity which has the
inherent power to wield it."27
Petitioner contends that section 193 of Rep. Act No. 7160,
withdrawing the tax privileges of government-owned or controlled
corporations, is in the nature of an implied repeal. A special law, its
charter cannot be amended or modified impliedly by the local
government code which is a general law. Consequently, petitioner
claims that its exemption from all taxes, fees or charges under its
charter subsists despite the passage of the LGC, viz:
"It is a well-settled rule of statutory construction that repeals of
statutes by implication are not favored and as much as possible,
effect must be given to all enactments of the legislature. Moreover,
it has to be conceded that the charter of the NPC constitutes a
special law. Republic Act No. 7160, is a general law. It is a basic
rule in statutory construction that the enactment of a later legislation
which is a general law cannot be construed to have repealed a
special law. Where there is a conflict between a general law and a
special statute, the special statute should prevail since it evinces the
legislative intent more clearly than the general statute."28
Finally, petitioner submits that the charter of the NPC, being a valid
exercise of police power, should prevail over the LGC. It alleges that
the power of the local government to impose franchise tax is
subordinate to petitioner's exemption from taxation; "police power
being the most pervasive, the least limitable and most demanding
of all powers, including the power of taxation."29
The petition is without merit.
Taxes are the lifeblood of the government,30 for without taxes, the
government can neither exist nor endure. A principal attribute of
sovereignty,31 the exercise of taxing power derives its source from
the very existence of the state whose social contract with its citizens
obliges it to promote public interest and common good. The theory
behind the exercise of the power to tax emanates from necessity;32
without taxes, government cannot fulfill its mandate of promoting the
general welfare and well-being of the people.
In recent years, the increasing social challenges of the times
expanded the scope of state activity, and taxation has become a
tool to realize social justice and the equitable distribution of wealth,
economic progress and the protection of local industries as well as
public welfare and similar objectives.33 Taxation assumes even
greater significance with the ratification of the 1987 Constitution.
CONSTI LAW II I ACJUCO 41
Thenceforth, the power to tax is no longer vested exclusively on
Congress; local legislative bodies are now given direct authority to
levy taxes, fees and other charges34 pursuant to Article X, section
5 of the 1987 Constitution, viz:
"Section 5.- Each Local Government unit shall have the power to
create its own sources of revenue, to levy taxes, fees and charges
subject to such guidelines and limitations as the Congress may
provide, consistent with the basic policy of local autonomy. Such
taxes, fees and charges shall accrue exclusively to the Local
Governments."
This paradigm shift results from the realization that genuine
development can be achieved only by strengthening local autonomy
and promoting decentralization of governance. For a long time, the
country's highly centralized government structure has bred a culture
of dependence among local government leaders upon the national
leadership. It has also "dampened the spirit of initiative, innovation
and imaginative resilience in matters of local development on the
part of local government leaders."35 The only way to shatter this
culture of dependence is to give the LGUs a wider role in the delivery
of basic services, and confer them sufficient powers to generate
their own sources for the purpose. To achieve this goal, section 3 of
Article X of the 1987 Constitution mandates Congress to enact a
local government code that will, consistent with the basic policy of
local autonomy, set the guidelines and limitations to this grant of
taxing powers, viz:
"Section 3. The Congress shall enact a local government code
which shall provide for a more responsive and accountable local
government structure instituted through a system of decentralization
with effective mechanisms of recall, initiative, and referendum,
allocate among the different local government units their powers,
responsibilities, and resources, and provide for the qualifications,
election, appointment and removal, term, salaries, powers and
functions and duties of local officials, and all other matters relating
to the organization and operation of the local units."
To recall, prior to the enactment of the Rep. Act No. 7160,36 also
known as the Local Government Code of 1991 (LGC), various
measures have been enacted to promote local autonomy. These
include the Barrio Charter of 1959,37 the Local Autonomy Act of
1959,38 the Decentralization Act of 196739 and the Local
Government Code of 1983.40 Despite these initiatives, however,
the shackles of dependence on the national government remained.
Local government units were faced with the same problems that
hamper their capabilities to participate effectively in the national
development efforts, among which are: (a) inadequate tax base, (b)
lack of fiscal control over external sources of income, (c) limited
authority to prioritize and approve development projects, (d) heavy
dependence on external sources of income, and (e) limited
supervisory control over personnel of national line agencies.41
Considered as the most revolutionary piece of legislation on local
autonomy,42 the LGC effectively deals with the fiscal constraints
faced by LGUs. It widens the tax base of LGUs to include taxes
which were prohibited by previous laws such as the imposition of
taxes on forest products, forest concessionaires, mineral products,
mining operations, and the like. The LGC likewise provides enough
flexibility to impose tax rates in accordance with their needs and
capabilities. It does not prescribe graduated fixed rates but merely
specifies the minimum and maximum tax rates and leaves the
determination of the actual rates to the respective sanggunian.43
One of the most significant provisions of the LGC is the removal of
the blanket exclusion of instrumentalities and agencies of the
national government from the coverage of local taxation. Although
as a general rule, LGUs cannot impose taxes, fees or charges of
any kind on the National Government, its agencies and
instrumentalities, this rule now admits an exception, i.e., when

specific provisions of the LGC authorize the LGUs to impose taxes,
fees or charges on the aforementioned entities, viz:
"Section 133. Common Limitations on the Taxing Powers of the
Local Government Units.- Unless otherwise provided herein, the
exercise of the taxing powers of provinces, cities, municipalities, and
barangays shall not extend to the levy of the following:
x x x requisites should concur: (1) that petitioner has a "franchise" in the
(o) Taxes, fees, or charges of any kind on the National Government,
its agencies and instrumentalities, and local government units."
(emphasis supplied)
In view of the afore-quoted provision of the LGC, the doctrine in
Basco vs. Philippine Amusement and Gaming Corporation44 relied
upon by the petitioner to support its claim no longer applies. To
emphasize, the Basco case was decided prior to the effectivity of
the LGC, when no law empowering the local government units to
tax instrumentalities of the National Government was in effect.
However, as this Court ruled in the case of Mactan Cebu
International Airport Authority (MCIAA) vs. Marcos,45 nothing
prevents Congress from decreeing that even instrumentalities or
agencies of the government performing governmental functions
may be subject to tax.46 In enacting the LGC, Congress exercised
its prerogative to tax instrumentalities and agencies of government
as it sees fit. Thus, after reviewing the specific provisions of the
LGC, this Court held that MCIAA, although an instrumentality of the
national government, was subject to real property tax, viz:
"Thus, reading together sections 133, 232, and 234 of the LGC, we
conclude that as a general rule, as laid down in section 133, the
taxing power of local governments cannot extend to the levy of inter
alia, 'taxes, fees and charges of any kind on the national
government, its agencies and instrumentalities, and local
government units'; however, pursuant to section 232, provinces,
cities and municipalities in the Metropolitan Manila Area may
impose the real property tax except on, inter alia, 'real property
owned by the Republic of the Philippines or any of its political
subdivisions except when the beneficial use thereof has been
granted for consideration or otherwise, to a taxable person as
provided in the item (a) of the first paragraph of section 12.'"47
In the case at bar, section 151 in relation to section 137 of the LGC
clearly authorizes the respondent city government to impose on the
petitioner the franchise tax in question.
In its general signification, a franchise is a privilege conferred by
government authority, which does not belong to citizens of the
country generally as a matter of common right.48 In its specific
sense, a franchise may refer to a general or primary franchise, or to
a special or secondary franchise. The former relates to the right to
exist as a corporation, by virtue of duly approved articles of
incorporation, or a charter pursuant to a special law creating the
corporation.49 The right under a primary or general franchise is
vested in the individuals who compose the corporation and not in
the corporation itself.50 On the other hand, the latter refers to the
right or privileges conferred upon an existing corporation such as
the right to use the streets of a municipality to lay pipes of tracks,
erect poles or string wires.51 The rights under a secondary or
special franchise are vested in the corporation and may ordinarily
be conveyed or mortgaged under a general power granted to a
corporation to dispose of its property, except such special or
secondary franchises as are charged with a public use.52
In section 131 (m) of the LGC, Congress unmistakably defined a
franchise in the sense of a secondary or special franchise. This is to
avoid any confusion when the word franchise is used in the context
of taxation. As commonly used, a franchise tax is "a tax on the
privilege of transacting business in the state and exercising
corporate franchises granted by the state."53 It is not levied on the
CONSTI LAW II I ACJUCO 42
corporation simply for existing as a corporation, upon its property54
or its income,55 but on its exercise of the rights or privileges granted
to it by the government. Hence, a corporation need not pay franchise
tax from the time it ceased to do business and exercise its
franchise.56 It is within this context that the phrase "tax on
businesses enjoying a franchise" in section 137 of the LGC should
be interpreted and understood. Verily, to determine whether the
petitioner is covered by the franchise tax in question, the following
sense of a secondary or special franchise; and (2) that it is
exercising its rights or privileges under this franchise within the
territory of the respondent city government.
Petitioner fulfills the first requisite. Commonwealth Act No. 120, as
amended by Rep. Act No. 7395, constitutes petitioner's primary and
secondary franchises. It serves as the petitioner's charter, defining
its composition, capitalization, the appointment and the specific
duties of its corporate officers, and its corporate life span.57 As its
secondary franchise, Commonwealth Act No. 120, as amended,
vests the petitioner the following powers which are not available to
ordinary corporations, viz:
"x x x
(e) To conduct investigations and surveys for the development of
water power in any part of the Philippines;
(f) To take water from any public stream, river, creek, lake, spring or
waterfall in the Philippines, for the purposes specified in this Act; to
intercept and divert the flow of waters from lands of riparian owners
and from persons owning or interested in waters which are or may
be necessary for said purposes, upon payment of just compensation
therefor; to alter, straighten, obstruct or increase the flow of water in
streams or water channels intersecting or connecting therewith or
contiguous to its works or any part thereof: Provided, That just
compensation shall be paid to any person or persons whose
property is, directly or indirectly, adversely affected or damaged
thereby;
(g) To construct, operate and maintain power plants, auxiliary
plants, dams, reservoirs, pipes, mains, transmission lines, power
stations and substations, and other works for the purpose of
developing hydraulic power from any river, creek, lake, spring and
waterfall in the Philippines and supplying such power to the
inhabitants thereof; to acquire, construct, install, maintain, operate,
and improve gas, oil, or steam engines, and/or other prime movers,
generators and machinery in plants and/or auxiliary plants for the
production of electric power; to establish, develop, operate, maintain
and administer power and lighting systems for the transmission and
utilization of its power generation; to sell electric power in bulk to (1)
industrial enterprises, (2) city, municipal or provincial systems and
other government institutions, (3) electric cooperatives, (4) franchise
holders, and (5) real estate subdivisions x x x;
(h) To acquire, promote, hold, transfer, sell, lease, rent, mortgage,
encumber and otherwise dispose of property incident to, or
necessary, convenient or proper to carry out the purposes for which
the Corporation was created: Provided, That in case a right of way
is necessary for its transmission lines, easement of right of way shall
only be sought: Provided, however, That in case the property itself
shall be acquired by purchase, the cost thereof shall be the fair
market value at the time of the taking of such property;
(i) To construct works across, or otherwise, any stream,
watercourse, canal, ditch, flume, street, avenue, highway or railway
of private and public ownership, as the location of said works may
require xxx;
(j) To exercise the right of eminent domain for the purpose of this
Act in the manner provided by law for instituting condemnation
proceedings by the national, provincial and municipal governments;

x x x that are undertaken only by way of advancing the general interest
(m) To cooperate with, and to coordinate its operations with those
of the National Electrification Administration and public service
entities;
(n) To exercise complete jurisdiction and control over watersheds
surrounding the reservoirs of plants and/or projects constructed or
proposed to be constructed by the Corporation. Upon determination
by the Corporation of the areas required for watersheds for a
specific project, the Bureau of Forestry, the Reforestation
Administration and the Bureau of Lands shall, upon written advice
by the Corporation, forthwith surrender jurisdiction to the
Corporation of all areas embraced within the watersheds, subject to
existing private rights, the needs of waterworks systems, and the
requirements of domestic water supply;
(o) In the prosecution and maintenance of its projects, the
Corporation shall adopt measures to prevent environmental
pollution and promote the conservation, development and maximum
utilization of natural resources xxx "58
With these powers, petitioner eventually had the monopoly in the
generation and distribution of electricity. This monopoly was
strengthened with the issuance of Pres. Decree No. 40,59
nationalizing the electric power industry. Although Exec. Order No.
21560 thereafter allowed private sector participation in the
generation of electricity, the transmission of electricity remains the
monopoly of the petitioner.
Petitioner also fulfills the second requisite. It is operating within the
respondent city government's territorial jurisdiction pursuant to the
powers granted to it by Commonwealth Act No. 120, as amended.
From its operations in the City of Cabanatuan, petitioner realized a
gross income of P107,814,187.96 in 1992. Fulfilling both requisites,
petitioner is, and ought to be, subject of the franchise tax in question.
Petitioner, however, insists that it is excluded from the coverage of
the franchise tax simply because its stocks are wholly owned by the
National Government, and its charter characterized it as a "non-
profit" organization.
These contentions must necessarily fail.
To stress, a franchise tax is imposed based not on the ownership
but on the exercise by the corporation of a privilege to do business.
The taxable entity is the corporation which exercises the franchise,
and not the individual stockholders. By virtue of its charter, petitioner
was created as a separate and distinct entity from the National
Government. It can sue and be sued under its own name,61 and
can exercise all the powers of a corporation under the Corporation
Code.62
To be sure, the ownership by the National Government of its entire
capital stock does not necessarily imply that petitioner is not
engaged in business. Section 2 of Pres. Decree No. 202963
classifies government-owned or controlled corporations (GOCCs)
into those performing governmental functions and those performing
proprietary functions, viz:
"A government-owned or controlled corporation is a stock or a non-
stock corporation, whether performing governmental or proprietary
functions, which is directly chartered by special law or if organized
under the general corporation law is owned or controlled by the
government directly, or indirectly through a parent corporation or
subsidiary corporation, to the extent of at least a majority of its
outstanding voting capital stock x x x." (emphases supplied)
Governmental functions are those pertaining to the administration
of government, and as such, are treated as absolute obligation on
CONSTI LAW II I ACJUCO 43
the part of the state to perform while proprietary functions are those
of society, and are merely optional on the government.64 Included
in the class of GOCCs performing proprietary functions are
"business-like" entities such as the National Steel Corporation
(NSC), the National Development Corporation (NDC), the Social
Security System (SSS), the Government Service Insurance System
(GSIS), and the National Water Sewerage Authority (NAWASA),65
among others.
Petitioner was created to "undertake the development of
hydroelectric generation of power and the production of electricity
from nuclear, geothermal and other sources, as well as the
transmission of electric power on a nationwide basis."66 Pursuant
to this mandate, petitioner generates power and sells electricity in
bulk. Certainly, these activities do not partake of the sovereign
functions of the government. They are purely private and
commercial undertakings, albeit imbued with public interest. The
public interest involved in its activities, however, does not distract
from the true nature of the petitioner as a commercial enterprise, in
the same league with similar public utilities like telephone and
telegraph companies, railroad companies, water supply and
irrigation companies, gas, coal or light companies, power plants, ice
plant among others; all of which are declared by this Court as
ministrant or proprietary functions of government aimed at
advancing the general interest of society.67
A closer reading of its charter reveals that even the legislature treats
the character of the petitioner's enterprise as a "business," although
it limits petitioner's profits to twelve percent (12%), viz:68
"(n) When essential to the proper administration of its corporate
affairs or necessary for the proper transaction of its business or to
carry out the purposes for which it was organized, to contract
indebtedness and issue bonds subject to approval of the President
upon recommendation of the Secretary of Finance;
(o) To exercise such powers and do such things as may be
reasonably necessary to carry out the business and purposes for
which it was organized, or which, from time to time, may be declared
by the Board to be necessary, useful, incidental or auxiliary to
accomplish the said purpose xxx."(emphases supplied)
It is worthy to note that all other private franchise holders receiving
at least sixty percent (60%) of its electricity requirement from the
petitioner are likewise imposed the cap of twelve percent (12%) on
profits.69 The main difference is that the petitioner is mandated to
devote "all its returns from its capital investment, as well as excess
revenues from its operation, for expansion"70 while other franchise
holders have the option to distribute their profits to its stockholders
by declaring dividends. We do not see why this fact can be a source
of difference in tax treatment. In both instances, the taxable entity is
the corporation, which exercises the franchise, and not the
individual stockholders.
We also do not find merit in the petitioner's contention that its tax
exemptions under its charter subsist despite the passage of the
LGC.
As a rule, tax exemptions are construed strongly against the
claimant. Exemptions must be shown to exist clearly and
categorically, and supported by clear legal provisions.71 In the case
at bar, the petitioner's sole refuge is section 13 of Rep. Act No. 6395
exempting from, among others, "all income taxes, franchise taxes
and realty taxes to be paid to the National Government, its
provinces, cities, municipalities and other government agencies and
instrumentalities." However, section 193 of the LGC withdrew,
subject to limited exceptions, the sweeping tax privileges previously
enjoyed by private and public corporations. Contrary to the
contention of petitioner, section 193 of the LGC is an express, albeit
 CONSTI LAW II I ACJUCO 44

general, repeal of all statutes granting tax exemptions from local privileges. No more unequivocal language could have been
taxes.72 It reads: used."76 (emphases supplied).

"Sec. 193. Withdrawal of Tax Exemption Privileges.- Unless
otherwise provided in this Code, tax exemptions or incentives
granted to, or presently enjoyed by all persons, whether natural or
juridical, including government-owned or controlled corporations,
except local water districts, cooperatives duly registered under R.A.
No. 6938, non-stock and non-profit hospitals and educational
institutions, are hereby withdrawn upon the effectivity of this Code."
(emphases supplied)
It is a basic precept of statutory construction that the express
mention of one person, thing, act, or consequence excludes all
others as expressed in the familiar maxim expressio unius est
exclusio alterius.73 Not being a local water district, a cooperative
registered under R.A. No. 6938, or a non-stock and non-profit
hospital or educational institution, petitioner clearly does not belong
to the exception. It is therefore incumbent upon the petitioner to
point to some provisions of the LGC that expressly grant it
exemption from local taxes.
But this would be an exercise in futility. Section 137 of the LGC
clearly states that the LGUs can impose franchise tax
"notwithstanding any exemption granted by any law or other special
law." This particular provision of the LGC does not admit any
exception. In City Government of San Pablo, Laguna v. Reyes,74
MERALCO's exemption from the payment of franchise taxes was
brought as an issue before this Court. The same issue was involved
in the subsequent case of Manila Electric Company v. Province of
Laguna.75 Ruling in favor of the local government in both instances,
we ruled that the franchise tax in question is imposable despite any
exemption enjoyed by MERALCO under special laws, viz:
It is worth mentioning that section 192 of the LGC empowers the
LGUs, through ordinances duly approved, to grant tax exemptions,
initiatives or reliefs.77 But in enacting section 37 of Ordinance No.
165-92 which imposes an annual franchise tax "notwithstanding any
exemption granted by law or other special law," the respondent city
government clearly did not intend to exempt the petitioner from the
coverage thereof.
Doubtless, the power to tax is the most effective instrument to raise
needed revenues to finance and support myriad activities of the
local government units for the delivery of basic services essential to
the promotion of the general welfare and the enhancement of
peace, progress, and prosperity of the people. As this Court
observed in the Mactan case, "the original reasons for the
withdrawal of tax exemption privileges granted to government-
owned or controlled corporations and all other units of government
were that such privilege resulted in serious tax base erosion and
distortions in the tax treatment of similarly situated enterprises."78
With the added burden of devolution, it is even more imperative for
government entities to share in the requirements of development,
fiscal or otherwise, by paying taxes or other charges due from them.
IN VIEW WHEREOF, the instant petition is DENIED and the
assailed Decision and Resolution of the Court of Appeals dated
March 12, 2001 and July 10, 2001, respectively, are hereby
AFFIRMED.
SO ORDERED.

"It is our view that petitioners correctly rely on provisions of Sections

137 and 193 of the LGC to support their position that MERALCO's
tax exemption has been withdrawn. The explicit language of section
137 which authorizes the province to impose franchise tax
'notwithstanding any exemption granted by any law or other special
law' is all-encompassing and clear. The franchise tax is imposable
despite any exemption enjoyed under special laws.

Section 193 buttresses the withdrawal of extant tax exemption

privileges. By stating that unless otherwise provided in this Code,
tax exemptions or incentives granted to or presently enjoyed by all
persons, whether natural or juridical, including government-owned
or controlled corporations except (1) local water districts, (2)
cooperatives duly registered under R.A. 6938, (3) non-stock and
non-profit hospitals and educational institutions, are withdrawn upon
the effectivity of this code, the obvious import is to limit the
exemptions to the three enumerated entities. It is a basic precept of
statutory construction that the express mention of one person, thing,
act, or consequence excludes all others as expressed in the familiar
maxim expressio unius est exclusio alterius. In the absence of any
provision of the Code to the contrary, and we find no other provision
in point, any existing tax exemption or incentive enjoyed by
MERALCO under existing law was clearly intended to be withdrawn.

Reading together sections 137 and 193 of the LGC, we conclude

that under the LGC the local government unit may now impose a
local tax at a rate not exceeding 50% of 1% of the gross annual
receipts for the preceding calendar based on the incoming receipts
realized within its territorial jurisdiction. The legislative purpose to
withdraw tax privileges enjoyed under existing law or charter is
clearly manifested by the language used on (sic) Sections 137 and
193 categorically withdrawing such exemption subject only to the
exceptions enumerated. Since it would be not only tedious and
impractical to attempt to enumerate all the existing statutes
providing for special tax exemptions or privileges, the LGC provided
for an express, albeit general, withdrawal of such exemptions or
 CONSTI LAW II I ACJUCO 45

BILLS OF RIGHTS "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
DUE PROCESS
"Resolved, that under section 2077 of the Administrative Code, 800
G.R. No. L-14078 March 7, 1919
hectares of public land in the sitio of Tigbao on Naujan Lake be
selected as a site for the permanent settlement of Mangyanes in
RUBI, ET AL. (manguianes), plaintiffs,
Mindoro subject to the approval of the Honorable Secretary of the
vs.
Interior, and
THE PROVINCIAL BOARD OF MINDORO, defendant.
"Resolved further, That Mangyans may only solicit homesteads on
D. R. Williams & Filemon Sotto for plaintiff.
this reservation providing that said homestead applications are
Office of the Solicitor-General Paredes for defendant.
previously recommended by the provincial governor."
MALCOLM, J.:
2. That said resolution No. 25 (series 1917) of the provincial
board of Mindoro was approved by the Secretary of the Interior of
In one of the cases which denote a landmark in American
February 21, 1917.
Constitutional History (Worcester vs. Georgia [1832], 6 Pet., 515),
Chief Justice Marshall, the first luminary of American jurisprudence,
3. That on December 4, 1917, the provincial governor of
began his opinion (relating to the status of an Indian) with words
Mindoro issued executive order No. 2 which says:
which, with a slight change in phraseology, can be made to
introduce the present opinion — This cause, in every point of view
"Whereas the provincial board, by Resolution No. 25, current series,
in which it can be placed, is of the deepest interest. The legislative
has selected a site in the sitio of Tigbao on Naujan Lake for the
power of state, the controlling power of the constitution and laws,
permanent settlement of Mangyanes in Mindoro.
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
"Whereas said resolution has been duly approve by the Honorable,
considered.
the Secretary of the Interior, on February 21, 1917.
To imitate still further the opinion of the Chief Justice, we adopt his
"Now, therefore, I, Juan Morente, jr., provincial governor of Mindoro,
outline and proceed first, to introduce the facts and the issues, next
pursuant to the provisions of section 2145 of the revised
to give a history of the so called "non-Christians," next to compare
Administrative Code, do hereby direct that all the Mangyans in the
the status of the "non-Christians" with that of the American Indians,
townships of Naujan and Pola and the Mangyans east of the Baco
and, lastly, to resolve the constitutional questions presented.
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
I. INTRODUCTION.
Lake, not later than December 31, 1917.
This is an application for habeas corpus in favor of Rubi and other
"Any Mangyan who shall refuse to comply with this order shall upon
Manguianes of the Province of Mindoro. It is alleged that the
conviction be imprisoned not exceed in sixty days, in accordance
Maguianes are being illegally deprived of their liberty by the
with section 2759 of the revised Administrative Code."
provincial officials of that province. Rubi and his companions are
said to be held on the reservation established at Tigbao, Mindoro,
4. That the resolution of the provincial board of Mindoro
against their will, and one Dabalos is said to be held under the
copied in paragraph 1 and the executive order of the governor of the
custody of the provincial sheriff in the prison at Calapan for having
same province copied in paragraph 3, were necessary measures for
run away form the reservation.
the protection of the Mangyanes of Mindoro as well as the protection
of public forests in which they roam, and to introduce civilized
The return of the Solicitor-General alleges:
customs among them.
1. That on February 1, 1917, the provincial board of Mindoro
5. That Rubi and those living in his rancheria have not fixed
adopted resolution No. 25 which is as follows:
their dwelling within the reservation of Tigbao and are liable to be
punished in accordance with section 2759 of Act No. 2711.
The provincial governor, Hon. Juan Morente, Jr., presented the
following resolution:
6. That the undersigned has not information that Doroteo
Dabalos is being detained by the sheriff of Mindoro but if he is so
"Whereas several attempts and schemes have been made for the
detained it must be by virtue of the provisions of articles Nos. 2145
advancement of the non-Christian people of Mindoro, which were
and 2759 of Act No. 2711.
all a failure,
It thus appears that the provincial governor of Mindoro and the
"Whereas it has been found out and proved that unless some other
provincial board thereof directed the Manguianes in question to take
measure is taken for the Mangyan work of this province, no
up their habitation in Tigbao, a site on the shore of Lake Naujan,
successful result will be obtained toward educating these people.
selected by the provincial governor and approved by the provincial
board. The action was taken in accordance with section 2145 of the
"Whereas it is deemed necessary to obliged them to live in one
Administrative Code of 1917, and was duly approved by the
place in order to make a permanent settlement,
Secretary of the Interior as required by said action. Petitioners,
however, challenge the validity of this section of the Administrative
"Whereas the provincial governor of any province in which non-
Code. This, therefore, becomes the paramount question which the
Christian inhabitants are found is authorized, when such a course is
court is called upon the decide.
deemed necessary in the interest of law and order, to direct such
inhabitants to take up their habitation on sites on unoccupied public
Section 2145 of the Administrative Code of 1917 reads as follows:
lands to be selected by him and approved by the provincial board.
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
CONSTI LAW II I ACJUCO 46
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.
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.
CONSTI LAW II I ACJUCO 47
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.
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.
CONSTI LAW II I ACJUCO 48
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.)
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."
CONSTI LAW II I ACJUCO 49
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 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 Zuñiga, "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.)
CONSTI LAW II I ACJUCO 50
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:
. . . 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
CONSTI LAW II I ACJUCO 51
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:
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 Avanceña, 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.
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
CONSTI LAW II I ACJUCO 52
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 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
CONSTI LAW II I ACJUCO 53
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.
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"?
CONSTI LAW II I ACJUCO 54
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.)
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
CONSTI LAW II I ACJUCO 55
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 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.
CONSTI LAW II I ACJUCO 56
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 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.
CONSTI LAW II I ACJUCO 57
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
caiñgins 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 caiñgins 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 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.
CONSTI LAW II I ACJUCO 58
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 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 Avanceña, JJ., concur.
Separate Opinions
CARSON, J., concurring:
I fully concur in the reasoning and the conclusions of Justice
Malcolm as set forth in the prevailing, opinion.
The words "non-Christian' have a clear, definite and well settled
signification when used in the Philippine statute-book as a
descriptive adjective, applied to "tribes," "people," or "inhabitants,"
dwelling in more or less remote districts and provinces throughout
the Islands.
Justice Malcolm, as I think, correctly finds that these words, as used
in this connection in our statute-book, denote the 'low grace of
civilization" of the individuals included in the class to which they are
applied. To this I would add that the tests for the determination of
the fact that an individual or tribes is, or is not of the "non-Christian"
are, and throughout the period of American occupation always have
CONSTI LAW II I ACJUCO 59
been, "the mode of life, the degree of advancement in civilization,
and connection or lack of connection with some civilized
community." (Cf. letter of Collector of Internal Revenue dated
September 17, 1910, and set out in the principal opinion.)
The legislative and administrative history of the Philippine Islands
clearly discloses that the standard of civilization to which a specific
tribe must be found to have advanced, to justify its removal from the
class embraces with the descriptive term "non-Christian," as that
term is used in the Philippine statute-book, is that degree of
civilization which results in a mode of life within the tribe, such that
it is feasible and practicable to extend to, and enforce upon its
membership the general laws and regulations, administrative,
legislative, and judicial, which control the conduct of the admitted
civilized inhabitants of the Islands; a made of life, furthermore, which
does not find expression in tribal customs or practices which tend to
brutalize or debauch the members of the tribe indulging in such
customs or practices, or to expose to loss or peril the lives or
property of those who may be brought in contact with members of
the tribe.
So the standard of civilization to which any given number or group
of inhabitants of particular province in these Islands, or any
individual member of such a group, must be found to have
advanced, in order to remove such group or individual from the class
embraced within the statutory description of "non-Christian," is that
degree of civilization which would naturally and normally result in
the withdrawal by such persons of permanent allegiance or
adherence to a "non-Christian" tribe, had they at any time adhered
to or maintained allegiance to such a tribe; and which would qualify
them whether they reside within or beyond the habitat of a "non-
Christian" tribe, not only to maintain a mode of life independent of a
apart from that maintain by such tribe, but a mode of life as would
not be inimical to the lives or property or general welfare of the
civilized inhabitants of the Islands with whom they are brought in
contact.
The contention that, in this particular case, and without challenging
the validity of the statute, the writ should issue because of the failure
to give these petitioners, as well as the rest of the fifteen thousand
Manguianes affected by the reconcentration order, an opportunity
to be heard before any attempt was made to enforce it, begs the
question and is, of course, tantamount to a contention that there is
no authority in law for the issuance of such an order.
If the fifteen thousand manguianes affected by the order complained
of had attained that degree of civilization which would have made it
practicable to serve notice upon, and give an opportunity for a real
hearing, to all the members of the tribe affected by the order, it may
well be doubted whether the provincial board and the Secretary of
the Interior would have been justified in its enforcement By what
proceeding known to the law, or to be specially adopted in a
particular case, could the offices of any province provide for a
genuine hearing upon a proposal to issue a reconcentration order
upon a head-hunting tribe in the north of the Island of Luzon; or upon
one of the nomadic tribes whose habitat is in the mountain
fastnesses of Mindanao, and whose individual members have no
fixed or known place of residence, or upon the fifteen thousand
Manguianes roaming in the wilds of Mindoro.
Of course, friendly headmen or chief might and, as a rule, should be
consulted, after the practice in the United States when tribes or
groups of American Indians have been placed upon reservations;
but since non-Christian head men and chiefs in the Philippines have
no lawful authority to bind their acts or their consent, the objection
based on lack of a hearing, would have the same force whether the
issuance of a reconcentration order was or was not preceded by a
pow-wow of this kind.
The truth of the mater is that the power to provide for the issuance
of such orders rests upon analogous principles to those upon which

the liberty and freedom or action of children and persons of unsound
minds is restrained, without consulting their wishes, but for their own
good and the general welfare. The power rests upon necessity, that
"great master of all things," and is properly exercised only where
certain individuals or groups of individual are found to be of such a
low grade of civilization that their own wishes cannot be permitted
to determine their mode of life or place of residence.
The status of the non-Christian inhabitants of these Islands, and the
special and necessarily paternal attitude assume toward them by
the Insular Government is well illustrated by the following provisions
found in the Administrative Code of 1917:
SEC. 705. Special duties and purposes of Bureau (of non-
Christian tribes). — It shall be the duty of the Bureau of non-
Christian tribes to continue the work for advancement and liberty in
favor of the regions inhabited by non-Christian Filipinos and to foster
by all adequate means and in a systematic, rapid, and completely
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. 2116. Township and settlement fund. — There shall be
maintained in the provincial treasuries of the respective specially
organized provinces a special fund to be known as the township and
settlement fund, which shall be available, exclusively, for
expenditures for the benefit of the townships and settlements of the
province, and non-Christian inhabitants of the province, upon
approval of the Secretary of the Interior.
As I understand it, the case at bar does not raise any real question
as to the jurisdiction of the courts of these Islands in habeas corpus
proceedings, to review the action of the administrative authorities in
the enforcement of reconcentration orders issued, under authority
of section 2145 of the Administrative Code, against a petitioner
challenging the alleged fact that he is a "non-Christian" as that term
is used in the statute. I, therefore, express no opinion on that
question at this time.
JOHNSON, J., dissenting:
I dissent. The petitioners were deprived of their liberty without a
hearing. That fact is not denied. I cannot give my consent to any act
which deprives the humblest citizen of his just liberty without a
hearing, whether he be a Christian or non-Christian. All persons in
the Philippine Islands are entitled to a hearing, at least, before they
are deprived of their liberty.
MOIR, J., dissenting:
I dissent.
I realize that a dissenting opinion carries little weight, but may sense
of justice will not permit me to let this decision go on record without
expressing may strong dissent from the opinion of Justice Malcolm,
concurred in by a majority of the court. I shall not attempt to analyze
the opinion or to go into the question in detail. I shall simply state,
as briefly as may be, the legal and human side of the case as it
presents itself to my mind.
The facts are that one Rubi and various other Manguianes in the
Province of Mindoro were ordered by the Provincial governor of
Mindoro to remove their residence from their native habitat and to
establish themselves on a reservation at Tigbao in the Province of
Mindoro and to remain there, or be punished by imprisonment if they
escaped. This reservation, as appears from the resolution of the
provincial board, extends over an area of 800 hectares of land,
CONSTI LAW II I ACJUCO 60
which is approximately 2,000 acres, on which about three hundred
manguianes are confined. One of the Manguianes, Dabalos,
escaped from the reservation and was taken in hand by the
provincial sheriff and placed in prision at Calapan, solely because
he escaped from the reservation. The Manguianes used out a writ
of habeas corpus in this court, alleging that they are deprived of their
liberty in violation of law.
The Solicitor-General of the Philippine Islands makes return to the
writ copied in the majority opinion which states that the provincial
governor of Mindoro with the prior approval of his act by the
Department Secretary ordered the placing of the petitioners and
others on a reservation.
The manguianes, it is stated on page 694 of the majority opinion,
"are very low in culture. They have considerable Negrito blood and
have not advanced beyond the Negritos in civilization. They are
peaceful, timid, primitive, seminomadic 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 no progressed sufficiently in civilization to make it practicable
to bring them under any for of municipal government."
It may be well to add that the last P.I. Census (1903) shows that the
Island of Mindoro (not including smaller islands which together
make the Province of Mindoro) has an area of 3,851 square miles
and a populations of 28, 361 of which 7, 369 are wild or uncivilized
tribes (Manguianes). This appears to be the total Mangyan
population of the province. The total population was less than seven
to the mile (Vol. 2, P.I. Census, pp. 30 and 407).
The Island is fertile, heavily wooded and well watered.
It has no savage population, but it is sparsely settled by Christian
Filipinos along the coast and by Manguianes.
The Manguianes roamed its mountains and valleys, fishing and
hunting at will long before Magallanes [Magellan] anchored his
boats in the water of Cebu. They have made little or no progress in
the ways of civilization. "They are a peaceful, timid, primitive,
seminomadic people," whom the Government of the Philippines
Islands would bring under the beneficient influence of civilization
and progress.
The law provides for it in section 2145 of the Administrative Code,
and for those who like Dadalos do not take kindly to the ways
provided for civilizing them section 2759 provides the punishment.
The attorney for the petitioners has raised various constitutional
questions, but only the fundamental one will be considered by me.
It is that the sections of the Administrative Code, 2145 and 2759,
quoted in the majority opinion, are in violation of the first paragraph
of section 3 of the Act of Congress of August 29, 1916, which reads
as follows:
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.
It is not necessary to argue that a Mangyan is one of the persons
protected by that provision.
The Attorney-General argues that the treatment provided for the
Manguianes is similar to that accorded the Indians in the United
States, and reference is made all through the court's decision to the
decisions of the United States Supreme Court with reference to the
Indians. It is not considered necessary to go into these cases for the
simple reason that all the Indians nations in the United States were
considered as separate nations and all acts taken in regard to them
were the result of separate treaties made by the United States
Government with the Indian nations, and, incompliance with these

treaties, reservations were set apart for them on which they lived
and were protected form intrusion and molestation by white men.
Some these reservations were larger than the Islands of Luzon, and
they were not measured in hectares but in thousands of square
miles.
The Manguianes are not a separate state. They have no treaty with
the Government of the Philippine Islands by which they have agreed
to live within a certain district where they are accorded exclusive
rights. They are citizens of the Philippine Islands. Legally they are
Filipinos. They are entitled to all the rights and privileges of any other
citizen of this country. And when the provincial governor of the
Province of Mindoro attempted to take them from their native habitat
and to hold them on the little reservation of about 800 hectares, he
deprived them of their rights and their liberty without due process of
law, and they were denied the equal protection of the law.
The majority opinion says "they are restrained for their own good
and the general good of the Philippines."
They are to be made to accept the civilization of the more advanced
Filipinos whether they want it or not. They are backward and
deficient in culture and must be moved from their homes, however
humble they may be and "bought under the bells" and made to stay
on a reservation.
Are these petitioners charged with any crime? There is no mention
in the return of the Solicitor-General of the Philippine Islands of any
crime having been committed by these "peacefully, timid, primitive,
semi-nomadic people."
A memorandum of the Secretary of the Interior of the Philippine
Islands is copied in extenso in the majority opinion, and from it I
gather the nature of their offense which is that —
Living a nomadic and 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
caiñgins thereon. No bringing any benefit to the State but, instead,
injuring and damaging its interests, what will ultimately become of
those people with the sort of liberty they wish to preserve and for
which they are not 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 has not 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 caiñgins thereon.
Not knowing what true liberty is and not practising the same
rightfully, how can 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 be let alone in the
mountains and in a permanent state of savagery without even the
CONSTI LAW II I ACJUCO 61
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.
There appear to be two intimations or charges in this memorandum;
one is that the Manguianes destroy the forest by making a caiñgin.
What is a "caiñgin?" Simply this. These people move their camp or
place of abode frequently and when they do move to a new place, it
is necessary to clear the land in order to plant corn and camotes
(sweet potatoes) and they cut down the smaller trees and burn these
around the larger ones, killing them, so that they can plant their
crops. The fires never spread in the tropical undergrowth of an
island like Mindoro, but the trees within the caiñgin are killed and
crops are planted and harvested. This land may be abandoned later
on — due to superstition, to a lack of game in the neighborhood, to
poor crops from exhausted fertility, or to a natural desire to move
on.
Granting that the Manguianes do make caiñgins or clear lands in
spots and then abandon them for the more fertile lands, which every
man knows to be just over the hills, we cannot see that they are
committing such a great abuse as to justify incarcerating them on a
small tract of land — for incarceration it is and nothing less.
The second intimation or charge is that "they will 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 want to abuse
them." They have never been a burden to the state and never will
be. They have not committed crimes and, when they do, let the law
punish them." The authorities are anticipating too much from these
"peaceful, timid, primitive, semi-nomadic people." Their history does
not demonstrate that we must expect them to commit crimes and jail
them to prevent the possibility. But the Secretary says "they will be
subjected to involuntary servitude by those want to abuse them."
Are they more liable to be subjected to involuntary servitude when
left free to roam their native hills and gain a livelihood as they have
been accustomed to for hundreds of years, than they will be if
closely confined on a narrow reservation from which they may not
escape without facing a term in jail? Is not more likely that they will
be glad to exchange their "freedom" on a small reservation for the
great boon of binding themselves and their children to the more
fortunate Christian Filipinos who will feed them and clothe them in
return of their services.?
It think it not only probable but almost a certainty that they will be all
be subjected to involuntary personal servitude if their freedom is
limited as it has been. How will they live? There may be persons
who are willing to lend them money with which to buy food on the
promise that they will work for them. And if they accept the loan and
do not work for the lender we have another law on the statute books,
Act No. 2098, into whose noose they run their necks, and they may
be fined not more than two hundred pesos or imprisonment for not
exceeding six months or both, and when the sentence expires they
must again go into debt or starve, and if they do not work will again
go to jail, and this maybe repeated till they are too old to work and
are cast adrift.
The manguianes have committed no offenses and are charged with
none. It does not appear they were ever consulted about their

reconcentration. It does not appear that they had any hearing or
were allowed to make any defense. It seems they were gathered
here and there whenever found by the authorities of the law and
forcibly placed upon the reservation, because they are "non-
Christian," and because the provincial governor ordered it. Let it be
clear there is no discrimination because of religion. The term "non-
Christian" means one who is not a Christian Filipino, but it also
means any of the so-called "wild" or backward tribes of the
Philippines. These non-Christian tribes are Moros, Igorrotes,
Bukidnons, Ifugaos, Manguianes and various others, about one
millions souls all together. Some of them, like the Moros, Tinguianes
and Ifugaos, have made great progress in civilization. The have
beautiful fields reclaimed by hard labor — they have herds of cattle
and horses and some few of them are well educated. Some of the
non-Christians, like the Aetas and the Negritos, are very low in the
scale of civilization, but they are one and all "non-Christians," as the
term is used and understood in law and in fact.
All of them, according to the court's opinion under the present law,
may be taken from their homes and herded on a reservation at the
instance of the provincial governor, with the prior approval of the
department head. To state such a monstrous proposition is to show
the wickedness and illegality of the section of the law under which
these people are restrained of their liberty. But it is argued that there
is no probability of the department head ever giving his approval to
such a crime, but the fact that he can do it and has done it in the
present case in what makes the law unconstitutional. The arbitrary
and unrestricted power to do harm should be the measure by which
a law's legality is tested and not the probability of doing harm.
It has been said that this is a government of laws and not of men;
that there is no arbitrary body of individuals; that the constitutional
principles upon which our government and its institutions rest do not
leave room for the play and action of purely personal and arbitrary
power, but that all in authority are guided and limited by these
provisions which the people have, the through the organic law,
declared shall be the measure and scope of all control exercised
over them. In particular the fourteenth amendment, and especially
the equal protection clause, thereof, forbids that the individual shall
be subjected to any arbitrary exercise of the powers of government;
it was intended to prohibit, and does prohibit, any arbitrary
deprivation of life or liberty, or arbitrary spoliation of property.
As we have seen, a statute which makes a purely arbitrary or
unreasonable classification, or which singles out any particular
individuals or class as the subject of hostile and discriminating
legislation, is clearly unconstitutional as being opposed to the
fourteenth amendment and especially to the equal protection clause
thereof. This is a plain case, and requires no further discussion. (Vol.
4, Encyclopedia of U.S. Supreme Court Reports, p. 366.)
When we consider the nature and the theory of our institutions of
government, the principles upon which they are supposed to rest,
and review the history of their development, we are constrained to
conclude that they do not mean to leave room for the play and action
of purely personal and arbitrary power. Sovereignty itself is, of
course, not subject to law, for its is the author and source of law; but
in our system, while sovereign powers are delegated to the
agencies of government, sovereignty itself remains with the people,
by whom and for whom all government exists and acts. And the law
is the definition and limitation of power. It is, indeed, quite true, that
there must always be lodged somewhere, and in some person or
body, the authority of final decision; and, in many cases of mere
administration the responsibility is purely political, no appeal lying
except to the ultimate tribunal of the public judgment, exercised
either in the pressure of opinion or by means of the suffrage. But the
fundamental rights to life, liberty, and the pursuit of happiness,
considered as individual possessions, are secured by those maxims
of constitutional law which are the monuments showing the
victorious progress of the race in securing to men the blessings of
civilization under the reign of just and equal laws, so that, in the
CONSTI LAW II I ACJUCO 62
famous language of Massachusetts Bill of Rights, the Government
of Commonwealth "may be a government of law and not of men."
For the very idea 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, 118 U.S., 374.)
It is said that the present law is an old Act being substance Act No.
547 of the Philippine Commission. But it has never been brought
before this court for determination of its constitutionality. No matter
how beneficient the motives of the lawmakers if the lawmakers if the
law tends to deprive any man of life, liberty, or property without due
process law, it is void.
In may opinion the acts complained of which were taken in
conformity with section 2145 of the Administrative Code not only
deprive these Manguianes of their liberty, without due process of
law, but will in all probability deprive them of their life, without due
process of law. History teaches that to take a semi-nomadic tribe
from their native fastnesses and to transfer them to the narrow
confines of a reservation is to invite disease an suffering and death.
From my long experience in the Islands, I should say that it would
be a crime of title less magnitude to take the Ifugaos from their
mountain homes where they have reclaimed a wilderness and made
it a land of beauty and fruitfulness and to transfer them to the more
fertile, unoccupied, malaria infested valleys which they look down
upon from their fields — than it would be to order their decapitation
en masse.
There can be no denial that the Ifugaos are "non-Christians," or "wild
tribes" and are in exactly the same category as the Manguianes. If
the Manguianes may be so taken from their native habitat and
reconcentrated on a reservation — in effect an open air jail — then
so may the Ifugaos, so may the Tinguianes, who have made more
progress than the Ifugaos, and so may the Moros.
There are "non-Christian" in nearly every province in the Philippine
Islands. All of the thirty-nine governors upon the prior approval of
the head of the department, have the power under this law to take
the non-Christian inhabitants of their different provinces form their
homes and put them on a reservation for "their own good and the
general good of the Philippines," and the court will grant them no
relief. These unfortunate citizens of the Philippine Islands would
hold their liberty, and their lives, may be, subject to the unregulated
discretion of the provincial governor.
And who would be safe?
After the reservation is once established might not a provincial
governor decide that some political enemy was a non-Christian, and
that he would be safer on the reservation. No matter what his
education and culture, he could have no trial, he could make no
defense, the judge of the court might be in a distant province and
not within reach, and the provincial governor's fiat is final.
The case of the United States vs. Crook (Federal Cases 14891),
cited in the majority opinion, should be quoted at length. District
Judge Dundy said:
During the fifteen years in which I have been engaged in
administering the laws of my country, I have never been called upon
to hear or decide a case that appealed so strongly to my sympathy
as the one now under consideration. On the one side, we have a
few of the remnants of a once numerous and powerful, but now
weak, insignificant, unlettered, and generally despised race; and the
other, we have the representative of one of the most powerful, most
enlightened, and most christianized nations of modern times. On the
one side, we have the representatives of this wasted race coming
into this national tribunal of ours, asking for justice and liberty to
enable them to adopt our boasted civilization, and to pursue the arts

of peace, which have made us great and happy as a nation; on the
other side, we have this magnificent, if not magnanimous,
government, resisting this application with the determination of
sending these people back to the country which is to them less
desirable perpetual imprisonment in their own native land. But I think
it is creditable to the heart and mind of the brave and distinguished
officer who is made respondent herein to say that he has no sort of
sympathy in the business in which he is forced by his position to
bear a part so conspicuous; and, so far as I am individually
concerned, I think it not improper to say that, if the strongest
possible sympathy could give the relators title to freedom, they
would have been restored to liberty the moment the arguments in
their behalf were closed. no examination or further thought would
then have been necessary or expedient. But in a country where
liberty is regulated by law, something more satisfactory and
enduring than mere sympathy must furnish and constitute the rule
and basis of judicial action. It follows that this case must be
examined and decided on principles of law, and that unless the
relators are entitled to their discharge under the constitution or laws
of the United States, or some treaty, they must be remanded to the
custody of the officer who caused their arrest, to be returned to the
Indian Territory which they left without the consent of the
government.
On the 8th of April, 1879, the relators Standing Bear and twenty-five
others, during the session of the court held at that time of Lincoln,
presented their petition, duly verified, praying for the allowance of a
writ of habeas corpus and their final discharged from custody
thereunder.
The petition alleges, 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 writ was issued and served on the respondent on the 8th day
of April, and, the distance between the place where the writ was
made returnable and the place where the relators were confined
being more than twenty miles, ten days were alloted in which to
make return.
On the 18th of April the writ was returned, and the authority for the
arrest and detention is therein shown. The substance of the return
to the writ, and the additional statement since filed, is that the
relators are individual members of, and connected with, the Ponca
Tribe of Indians; that they had fled or escaped from a reservation
situated in 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 reservation, and that they were in his custody
for the purpose of being returned to the Indian Territory.
It is claimed upon the one side, and denied upon the other, that the
relators had withdrawn and severed, for all time, their connection
with the tribe to which they belonged; and upon this point alone was
there any testimony produced by either party hereto. The other
matter stated in the petition and the return to the writ are conceded
to be true; so that the questions to be determined are purely
questions of law.
CONSTI LAW II I ACJUCO 63
On the 8th of Mar, 1859, a treaty was made by the United States
with the Ponca tribe of Indians, by which a certain tract of country,
north of the Niobrara river and west of the Missouri, was set apart
for the permanent home of the aid Indians, in which the government
agreed to protect them during their good behaviour. But just when
or how, or why, or under what circumstances, the Indians left their
reservation in Dakota and went to the Indian Territory does not
appear.
xxx xxx xxx
A question of much greater importance remains for consideration,
which, when determined, will be decisive of this whole controversy.
This relates to the right of the government to arrest and hold the
relators for a time, for the purpose of being returned to a point in the
Indian Territory from which it is alleged the Indians escaped. I am
not vain enough to think that I can do full justice to a question like
the one under consideration. But, as the mater furnishes so much
valuable material for discussion, and so much food for reflection, I
shall try to present it as viewed from my own standpoint, without
reference to consequences or criticisms, which, though not specially
invited, will be sure to follow.
xxx xxx xxx
On the 15th day of August, 1876, congress passed the general
Indian appropriation bill, and in it we find a provision authorizing the
secretary of the interior to use $25,000 for the removal of the Poncas
to the Indian Territory, and providing them a home therein, with
consent of the tribe. (19 Sta., 192.)
xxx xxx xxx
The Poncas lived upon their reservation in southern Dakota, and
cultivated a portion of the same, until two or three years ago, when
they removed therefrom, but whether by force or otherwise does not
appear. At all event, we find a portion of them, including the relators,
located at some point in the Indian Territory. There, the testimony
seems to show, is where the trouble commenced. Standing Bear,
the principal witness, states that out of five hundred and eighty-one
Indians who went from the reservation in Dakota to the Indian
Territory, one hundred and fifty-eight died within a year or so, and a
great proportion of the others were sick and disabled, caused, in a
great measure, no doubt, from change of climate; and to save
himself and the survivors of his wasted family, and the feeble
remnant of his little band of followers, he determined to leave the
Indian Territory and return to his old home, where, to use his own
language, "he might live and die in peace, and be buried with his
fathers." He also stated that he informed the agent of their final
purpose to leave, never to return, and that he and his followers had
finally, fully, and forever severed his and their connection with the
Ponca tribe of Indians, and had resolved to disband as a tribe, or
band of Indians, and to cut loose from the government, go to work,
become self-sustaining, and adopt the habits and customs of a
higher civilization. To accomplish what would seem to be a desirable
and laudable purpose, all who were able to do so went to work to
earn a living. The Omaha Indians, who speak the same language,
and with whom many of the Poncas have long continued to
intermarry, gave them employment and ground to cultivate, so as to
make them self-sustaining. And it was when at the Omaha
reservation, and when thus employed, that they were arrested by
order of the government, for the purpose of being taken back to the
Indian Territory. They claim to be unable to see the justice, or
reason, or wisdom, or necessity, of removing them by force from
their own native plains and blood relations to a far-off country, in
which they can see little but new-made graves opening for their
reception. The land from which they fled in fear has no attractions
for them. The love of home and native land was strong enough in
the minds of these people to induce them to brave every peril to
return and live and die where they had been reared. The bones of
the dead son of Standing Bear were not to repose in the land they
 CONSTI LAW II I ACJUCO 64

hoped to be leaving forever, but were carefully preserved and

protected and formed a part of what was to them melancholy
procession homeward. Such instances of parental affections, and
such love home and native land, may be heathen in origin, but it
seems to that they are not unlike Christian in principle.

And the court declared that the Indians were illegally held by
authority of the United States and in violation of their right to life,
liberty, and the pursuit of happiness, and ordered their release from
custody.

This case is very similarly to the case of Standing Bear and others.

I think this Court should declare that section 2145 and 2759 of the
Administrative Code of 1917 are unconstitutional, null and void, and
that the petitioners are illegally restrained of their liberty, and that
they have been denied the equal protection of the law, and order
the respondents immediately to liberate all of the petitioners.

G.R. No. 74457 March 20, 1987
RESTITUTO YNOT, petitioner,
vs.
INTERMEDIATE APPELLATE COURT, THE STATION
COMMANDER, INTEGRATED NATIONAL POLICE, BAROTAC
NUEVO, ILOILO and THE REGIONAL DIRECTOR, BUREAU OF
ANIMAL INDUSTRY, REGION IV, ILOILO CITY, respondents.
Ramon A. Gonzales for petitioner.
CRUZ, J.:
The essence of due process is distilled in the immortal cry of
Themistocles to Alcibiades "Strike — but hear me first!" It is this cry
that the petitioner in effect repeats here as he challenges the
constitutionality of Executive Order No. 626-A.
The said executive order reads in full as follows:
WHEREAS, the President has given orders prohibiting the
interprovincial movement of carabaos and the slaughtering of
carabaos not complying with the requirements of Executive Order
No. 626 particularly with respect to age;
WHEREAS, it has been observed that despite such orders the
violators still manage to circumvent the prohibition against inter-
provincial movement of carabaos by transporting carabeef instead;
and
WHEREAS, in order to achieve the purposes and objectives of
Executive Order No. 626 and the prohibition against interprovincial
movement of carabaos, it is necessary to strengthen the said
Executive Order and provide for the disposition of the carabaos and
carabeef subject of the violation;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the
Philippines, by virtue of the powers vested in me by the Constitution,
do hereby promulgate the following:
SECTION 1. Executive Order No. 626 is hereby amended such that
henceforth, no carabao regardless of age, sex, physical condition or
purpose and no carabeef shall be transported from one province to
another. The carabao or carabeef transported in violation of this
Executive Order as amended shall be subject to confiscation and
forfeiture by the government, to be distributed to charitable
institutions and other similar institutions as the Chairman of the
National Meat Inspection Commission may ay see fit, in the case of
carabeef, and to deserving farmers through dispersal as the Director
of Animal Industry may see fit, in the case of carabaos.
SECTION 2. This Executive Order shall take effect immediately.
Done in the City of Manila, this 25th day of October, in the year of
Our Lord, nineteen hundred and eighty.
(SGD.) FERDINAND E. MARCOS
President
Republic of the Philippines
The petitioner had transported six carabaos in a pump boat from
Masbate to Iloilo on January 13, 1984, when they were confiscated
by the police station commander of Barotac Nuevo, Iloilo, for
violation of the above measure. 1 The petitioner sued for recovery,
and the Regional Trial Court of Iloilo City issued a writ of replevin
upon his filing of a supersedeas bond of P12,000.00. After
considering the merits of the case, the court sustained the
confiscation of the carabaos and, since they could no longer be
CONSTI LAW II I ACJUCO 65
produced, ordered the confiscation of the bond. The court also
declined to rule on the constitutionality of the executive order, as
raise by the petitioner, for lack of authority and also for its presumed
validity. 2
The petitioner appealed the decision to the Intermediate Appellate
Court,* 3 which upheld the trial court, ** and he has now come
before us in this petition for review on certiorari.
The thrust of his petition is that the executive order is
unconstitutional insofar as it authorizes outright confiscation of the
carabao or carabeef being transported across provincial
boundaries. His claim is that the penalty is invalid because it is
imposed without according the owner a right to be heard before a
competent and impartial court as guaranteed by due process. He
complains that the measure should not have been presumed, and
so sustained, as constitutional. There is also a challenge to the
improper exercise of the legislative power by the former President
under Amendment No. 6 of the 1973 Constitution. 4
While also involving the same executive order, the case of Pesigan
v. Angeles 5 is not applicable here. The question raised there was
the necessity of the previous publication of the measure in the
Official Gazette before it could be considered enforceable. We
imposed the requirement then on the basis of due process of law.
In doing so, however, this Court did not, as contended by the
Solicitor General, impliedly affirm the constitutionality of Executive
Order No. 626-A. That is an entirely different matter.
This Court has declared that while lower courts should observe a
becoming modesty in examining constitutional questions, they are
nonetheless not prevented from resolving the same whenever
warranted, subject only to review by the highest tribunal. 6 We have
jurisdiction under the Constitution to "review, revise, reverse, modify
or affirm on appeal or certiorari, as the law or rules of court may
provide," final judgments and orders of lower courts in, among
others, all cases involving the constitutionality of certain measures.
7 This simply means that the resolution of such cases may be made
in the first instance by these lower courts.
And while it is true that laws are presumed to be constitutional, that
presumption is not by any means conclusive and in fact may be
rebutted. Indeed, if there be a clear showing of their invalidity, and
of the need to declare them so, then "will be the time to make the
hammer fall, and heavily," 8 to recall Justice Laurel's trenchant
warning. Stated otherwise, courts should not follow the path of least
resistance by simply presuming the constitutionality of a law when it
is questioned. On the contrary, they should probe the issue more
deeply, to relieve the abscess, paraphrasing another distinguished
jurist, 9 and so heal the wound or excise the affliction.
Judicial power authorizes this; and when the exercise is demanded,
there should be no shirking of the task for fear of retaliation, or loss
of favor, or popular censure, or any other similar inhibition unworthy
of the bench, especially this Court.
The challenged measure is denominated an executive order but it
is really presidential decree, promulgating a new rule instead of
merely implementing an existing law. It was issued by President
Marcos not for the purpose of taking care that the laws were
faithfully executed but in the exercise of his legislative authority
under Amendment No. 6. It was provided thereunder that whenever
in his judgment there existed a grave emergency or a threat or
imminence thereof or whenever the legislature failed or was unable
to act adequately on any matter that in his judgment required
immediate action, he could, in order to meet the exigency, issue
decrees, orders or letters of instruction that were to have the force
and effect of law. As there is no showing of any exigency to justify
the exercise of that extraordinary power then, the petitioner has
reason, indeed, to question the validity of the executive order.
Nevertheless, since the determination of the grounds was supposed

to have been made by the President "in his judgment, " a phrase
that will lead to protracted discussion not really necessary at this
time, we reserve resolution of this matter until a more appropriate
occasion. For the nonce, we confine ourselves to the more
fundamental question of due process.
It is part of the art of constitution-making that the provisions of the
charter be cast in precise and unmistakable language to avoid
controversies that might arise on their correct interpretation. That is
the Ideal. In the case of the due process clause, however, this rule
was deliberately not followed and the wording was purposely kept
ambiguous. In fact, a proposal to delineate it more clearly was
submitted in the Constitutional Convention of 1934, but it was
rejected by Delegate Jose P. Laurel, Chairman of the Committee on
the Bill of Rights, who forcefully argued against it. He was sustained
by the body. 10
The due process clause was kept intentionally vague so it would
remain also conveniently resilient. This was felt necessary because
due process is not, like some provisions of the fundamental law, an
"iron rule" laying down an implacable and immutable command for
all seasons and all persons. Flexibility must be the best virtue of the
guaranty. The very elasticity of the due process clause was meant
to make it adapt easily to every situation, enlarging or constricting
its protection as the changing times and circumstances may require.
Aware of this, the courts have also hesitated to adopt their own
specific description of due process lest they confine themselves in
a legal straitjacket that will deprive them of the elbow room they may
need to vary the meaning of the clause whenever indicated. Instead,
they have preferred to leave the import of the protection open-
ended, as it were, to be "gradually ascertained by the process of
inclusion and exclusion in the course of the decision of cases as
they arise." 11 Thus, Justice Felix Frankfurter of the U.S. Supreme
Court, for example, would go no farther than to define due process
— and in so doing sums it all up — as nothing more and nothing
less than "the embodiment of the sporting Idea of fair play." 12
When the barons of England extracted from their sovereign liege the
reluctant promise that that Crown would thenceforth not proceed
against the life liberty or property of any of its subjects except by the
lawful judgment of his peers or the law of the land, they thereby won
for themselves and their progeny that splendid guaranty of fairness
that is now the hallmark of the free society. The solemn vow that
King John made at Runnymede in 1215 has since then resounded
through the ages, as a ringing reminder to all rulers, benevolent or
base, that every person, when confronted by the stern visage of the
law, is entitled to have his say in a fair and open hearing of his
cause.
The closed mind has no place in the open society. It is part of the
sporting Idea of fair play to hear "the other side" before an opinion
is formed or a decision is made by those who sit in judgment.
Obviously, one side is only one-half of the question; the other half
must also be considered if an impartial verdict is to be reached
based on an informed appreciation of the issues in contention. It is
indispensable that the two sides complement each other, as unto
the bow the arrow, in leading to the correct ruling after examination
of the problem not from one or the other perspective only but in its
totality. A judgment based on less that this full appraisal, on the
pretext that a hearing is unnecessary or useless, is tainted with the
vice of bias or intolerance or ignorance, or worst of all, in repressive
regimes, the insolence of power.
The minimum requirements of due process are notice and hearing
13 which, generally speaking, may not be dispensed with because
they are intended as a safeguard against official arbitrariness. It is
a gratifying commentary on our judicial system that the
jurisprudence of this country is rich with applications of this guaranty
as proof of our fealty to the rule of law and the ancient rudiments of
fair play. We have consistently declared that every person, faced by
CONSTI LAW II I ACJUCO 66
the awesome power of the State, is entitled to "the law of the land,"
which Daniel Webster described almost two hundred years ago in
the famous Dartmouth College Case, 14 as "the law which hears
before it condemns, which proceeds upon inquiry and renders
judgment only after trial." It has to be so if the rights of every person
are to be secured beyond the reach of officials who, out of mistaken
zeal or plain arrogance, would degrade the due process clause into
a worn and empty catchword.
This is not to say that notice and hearing are imperative in every
case for, to be sure, there are a number of admitted exceptions. The
conclusive presumption, for example, bars the admission of contrary
evidence as long as such presumption is based on human
experience or there is a rational connection between the fact proved
and the fact ultimately presumed therefrom. 15 There are instances
when the need for expeditions action will justify omission of these
requisites, as in the summary abatement of a nuisance per se, like
a mad dog on the loose, which may be killed on sight because of
the immediate danger it poses to the safety and lives of the people.
Pornographic materials, contaminated meat and narcotic drugs are
inherently pernicious and may be summarily destroyed. The
passport of a person sought for a criminal offense may be cancelled
without hearing, to compel his return to the country he has fled. 16
Filthy restaurants may be summarily padlocked in the interest of the
public health and bawdy houses to protect the public morals. 17 In
such instances, previous judicial hearing may be omitted without
violation of due process in view of the nature of the property involved
or the urgency of the need to protect the general welfare from a clear
and present danger.
The protection of the general welfare is the particular function of the
police power which both restraints and is restrained by due process.
The police power is simply defined as the power inherent in the
State to regulate liberty and property for the promotion of the general
welfare. 18 By reason of its function, it extends to all the great public
needs and is described as the most pervasive, the least limitable
and the most demanding of the three inherent powers of the State,
far outpacing taxation and eminent domain. The individual, as a
member of society, is hemmed in by the police power, which affects
him even before he is born and follows him still after he is dead —
from the womb to beyond the tomb — in practically everything he
does or owns. Its reach is virtually limitless. It is a ubiquitous and
often unwelcome intrusion. Even so, as long as the activity or the
property has some relevance to the public welfare, its regulation
under the police power is not only proper but necessary. And the
justification is found in the venerable Latin maxims, Salus populi est
suprema lex and Sic utere tuo ut alienum non laedas, which call for
the subordination of individual interests to the benefit of the greater
number.
It is this power that is now invoked by the government to justify
Executive Order No. 626-A, amending the basic rule in Executive
Order No. 626, prohibiting the slaughter of carabaos except under
certain conditions. The original measure was issued for the reason,
as expressed in one of its Whereases, that "present conditions
demand that the carabaos and the buffaloes be conserved for the
benefit of the small farmers who rely on them for energy needs." We
affirm at the outset the need for such a measure. In the face of the
worsening energy crisis and the increased dependence of our farms
on these traditional beasts of burden, the government would have
been remiss, indeed, if it had not taken steps to protect and preserve
them.
A similar prohibition was challenged in United States v. Toribio, 19
where a law regulating the registration, branding and slaughter of
large cattle was claimed to be a deprivation of property without due
process of law. The defendant had been convicted thereunder for
having slaughtered his own carabao without the required permit,
and he appealed to the Supreme Court. The conviction was
affirmed. The law was sustained as a valid police measure to
prevent the indiscriminate killing of carabaos, which were then badly

needed by farmers. An epidemic had stricken many of these
animals and the reduction of their number had resulted in an acute
decline in agricultural output, which in turn had caused an incipient
famine. Furthermore, because of the scarcity of the animals and the
consequent increase in their price, cattle-rustling had spread
alarmingly, necessitating more effective measures for the
registration and branding of these animals. The Court held that the
questioned statute was a valid exercise of the police power and
declared in part as follows:
To justify the State in thus interposing its authority in behalf of the
public, it must appear, first, that the interests of the public generally,
as distinguished from those of a particular class, require such
interference; and second, that the means are reasonably necessary
for the accomplishment of the purpose, and not unduly oppressive
upon individuals. ...
From what has been said, we think it is clear that the enactment of
the provisions of the statute under consideration was required by
"the interests of the public generally, as distinguished from those of
a particular class" and that the prohibition of the slaughter of
carabaos for human consumption, so long as these animals are fit
for agricultural work or draft purposes was a "reasonably necessary"
limitation on private ownership, to protect the community from the
loss of the services of such animals by their slaughter by
improvident owners, tempted either by greed of momentary gain, or
by a desire to enjoy the luxury of animal food, even when by so
doing the productive power of the community may be measurably
and dangerously affected.
In the light of the tests mentioned above, we hold with the Toribio
Case that the carabao, as the poor man's tractor, so to speak, has
a direct relevance to the public welfare and so is a lawful subject of
Executive Order No. 626. The method chosen in the basic measure
is also reasonably necessary for the purpose sought to be achieved
and not unduly oppressive upon individuals, again following the
above-cited doctrine. There is no doubt that by banning the
slaughter of these animals except where they are at least seven
years old if male and eleven years old if female upon issuance of
the necessary permit, the executive order will be conserving those
still fit for farm work or breeding and preventing their improvident
depletion.
But while conceding that the amendatory measure has the same
lawful subject as the original executive order, we cannot say with
equal certainty that it complies with the second requirement, viz.,
that there be a lawful method. We note that to strengthen the original
measure, Executive Order No. 626-A imposes an absolute ban not
on the slaughter of the carabaos but on their movement, providing
that "no carabao regardless of age, sex, physical condition or
purpose (sic) and no carabeef shall be transported from one
province to another." The object of the prohibition escapes us. The
reasonable connection between the means employed and the
purpose sought to be achieved by the questioned measure is
missing
We do not see how the prohibition of the inter-provincial transport of
carabaos can prevent their indiscriminate slaughter, considering
that they can be killed anywhere, with no less difficulty in one
province than in another. Obviously, retaining the carabaos in one
province will not prevent their slaughter there, any more than
moving them to another province will make it easier to kill them
there. As for the carabeef, the prohibition is made to apply to it as
otherwise, so says executive order, it could be easily circumvented
by simply killing the animal. Perhaps so. However, if the movement
of the live animals for the purpose of preventing their slaughter
cannot be prohibited, it should follow that there is no reason either
to prohibit their transfer as, not to be flippant dead meat.
Even if a reasonable relation between the means and the end were
to be assumed, we would still have to reckon with the sanction that
CONSTI LAW II I ACJUCO 67
the measure applies for violation of the prohibition. The penalty is
outright confiscation of the carabao or carabeef being transported,
to be meted out by the executive authorities, usually the police only.
In the Toribio Case, the statute was sustained because the penalty
prescribed was fine and imprisonment, to be imposed by the court
after trial and conviction of the accused. Under the challenged
measure, significantly, no such trial is prescribed, and the property
being transported is immediately impounded by the police and
declared, by the measure itself, as forfeited to the government.
In the instant case, the carabaos were arbitrarily confiscated by the
police station commander, were returned to the petitioner only after
he had filed a complaint for recovery and given a supersedeas bond
of P12,000.00, which was ordered confiscated upon his failure to
produce the carabaos when ordered by the trial court. The executive
order defined the prohibition, convicted the petitioner and
immediately imposed punishment, which was carried out forthright.
The measure struck at once and pounced upon the petitioner
without giving him a chance to be heard, thus denying him the
centuries-old guaranty of elementary fair play.
It has already been remarked that there are occasions when notice
and hearing may be validly dispensed with notwithstanding the
usual requirement for these minimum guarantees of due process. It
is also conceded that summary action may be validly taken in
administrative proceedings as procedural due process is not
necessarily judicial only. 20 In the exceptional cases accepted,
however. there is a justification for the omission of the right to a
previous hearing, to wit, the immediacy of the problem sought to be
corrected and the urgency of the need to correct it.
In the case before us, there was no such pressure of time or action
calling for the petitioner's peremptory treatment. The properties
involved were not even inimical per se as to require their instant
destruction. There certainly was no reason why the offense
prohibited by the executive order should not have been proved first
in a court of justice, with the accused being accorded all the rights
safeguarded to him under the Constitution. Considering that, as we
held in Pesigan v. Angeles, 21 Executive Order No. 626-A is penal
in nature, the violation thereof should have been pronounced not by
the police only but by a court of justice, which alone would have had
the authority to impose the prescribed penalty, and only after trial
and conviction of the accused.
We also mark, on top of all this, the questionable manner of the
disposition of the confiscated property as prescribed in the
questioned executive order. It is there authorized that the seized
property shall "be distributed to charitable institutions and other
similar institutions as the Chairman of the National Meat Inspection
Commission may see fit, in the case of carabeef, and to deserving
farmers through dispersal as the Director of Animal Industry may
see fit, in the case of carabaos." (Emphasis supplied.) The phrase
"may see fit" is an extremely generous and dangerous condition, if
condition it is. It is laden with perilous opportunities for partiality and
abuse, and even corruption. One searches in vain for the usual
standard and the reasonable guidelines, or better still, the limitations
that the said officers must observe when they make their
distribution. There is none. Their options are apparently boundless.
Who shall be the fortunate beneficiaries of their generosity and by
what criteria shall they be chosen? Only the officers named can
supply the answer, they and they alone may choose the grantee as
they see fit, and in their own exclusive discretion. Definitely, there is
here a "roving commission," a wide and sweeping authority that is
not "canalized within banks that keep it from overflowing," in short,
a clearly profligate and therefore invalid delegation of legislative
powers.
To sum up then, we find that the challenged measure is an invalid
exercise of the police power because the method employed to
conserve the carabaos is not reasonably necessary to the purpose
of the law and, worse, is unduly oppressive. Due process is violated
 CONSTI LAW II I ACJUCO 68

because the owner of the property confiscated is denied the right to

be heard in his defense and is immediately condemned and
punished. The conferment on the administrative authorities of the
power to adjudge the guilt of the supposed offender is a clear
encroachment on judicial functions and militates against the
doctrine of separation of powers. There is, finally, also an invalid
delegation of legislative powers to the officers mentioned therein
who are granted unlimited discretion in the distribution of the
properties arbitrarily taken. For these reasons, we hereby declare
Executive Order No. 626-A unconstitutional.

We agree with the respondent court, however, that the police station
commander who confiscated the petitioner's carabaos is not liable
in damages for enforcing the executive order in accordance with its
mandate. The law was at that time presumptively valid, and it was
his obligation, as a member of the police, to enforce it. It would have
been impertinent of him, being a mere subordinate of the President,
to declare the executive order unconstitutional and, on his own
responsibility alone, refuse to execute it. Even the trial court, in fact,
and the Court of Appeals itself did not feel they had the competence,
for all their superior authority, to question the order we now annul.

The Court notes that if the petitioner had not seen fit to assert and
protect his rights as he saw them, this case would never have
reached us and the taking of his property under the challenged
measure would have become a fait accompli despite its invalidity.
We commend him for his spirit. Without the present challenge, the
matter would have ended in that pump boat in Masbate and another
violation of the Constitution, for all its obviousness, would have been
perpetrated, allowed without protest, and soon forgotten in the limbo
of relinquished rights.

The strength of democracy lies not in the rights it guarantees but in

the courage of the people to invoke them whenever they are ignored
or violated. Rights are but weapons on the wall if, like expensive
tapestry, all they do is embellish and impress. Rights, as weapons,
must be a promise of protection. They become truly meaningful, and
fulfill the role assigned to them in the free society, if they are kept
bright and sharp with use by those who are not afraid to assert them.

WHEREFORE, Executive Order No. 626-A is hereby declared

unconstitutional. Except as affirmed above, the decision of the Court
of Appeals is reversed. The supersedeas bond is cancelled and the
amount thereof is ordered restored to the petitioner. No costs.

SO ORDERED.

[G.R. No. 111953. December 12, 1997]
HON. RENATO C. CORONA, in his capacity as Assistant
Secretary for Legal Affairs, HON. JESUS B. GARCIA, in his
capacity as Acting Secretary, Department of Transportation
and Communications, and ROGELIO A. DAYAN, in his
capacity as General Manager of Philippine Ports Authority,
petitioners, vs. UNITED HARBOR PILOTS ASSOCIATION OF
THE PHILIPPINES and MANILA PILOTS ASSOCIATION,
respondents.
DECISION
ROMERO, J.:
In issuing Administrative Order No. 04-92 (PPA-AO No. 04-92),
limiting the term of appointment of harbor pilots to one year subject
to yearly renewal or cancellation, did the Philippine Ports Authority
(PPA) violate respondents right to exercise their profession and their
right to due process of law?
The PPA was created on July 11, 1974, by virtue of Presidential
Decree No. 505. On December 23, 1975, Presidential Decree No.
857 was issued revising the PPAs charter. Pursuant to its power of
control, regulation, and supervision of pilots and the pilotage
profession, [1] the PPA promulgated PPA-AO-03-85 [2] on March
21, 1985, which embodied the Rules and Regulations Governing
Pilotage Services, the Conduct of Pilots and Pilotage Fees in
Philippine Ports. These rules mandate, inter alia, that aspiring pilots
must be holders of pilot licenses [3] and must train as probationary
pilots in outports for three months and in the Port of Manila for four
months. It is only after they have achieved satisfactory performance
[4] that they are given permanent and regular appointments by the
PPA itself [5] to exercise harbor pilotage until they reach the age of
70, unless sooner removed by reason of mental or physical
unfitness by the PPA General Manager. [6] Harbor pilots in every
harbor district are further required to organize themselves into pilot
associations which would make available such equipment as may
be required by the PPA for effective pilotage services. In view of this
mandate, pilot associations invested in floating, communications,
and office equipment. In fact, every new pilot appointed by the PPA
automatically becomes a member of a pilot association and is
required to pay a proportionate equivalent equity or capital before
being allowed to assume his duties, as reimbursement to the
association concerned of the amount it paid to his predecessor.
Subsequently, then PPA General Manager Rogelio A. Dayan issued
PPA-AO No. 04-92 [7] on July 15, 1992, whose avowed policy was
to instill effective discipline and thereby afford better protection to
the port users through the improvement of pilotage services. This
was implemented by providing therein that all existing regular
appointments which have been previously issued either by the
Bureau of Customs or the PPA shall remain valid up to 31 December
1992 only and that all appointments to harbor pilot positions in all
pilotage districts shall, henceforth, be only for a term of one (1) year
from date of effectivity subject to yearly renewal or cancellation by
the Authority after conduct of a rigid evaluation of performance.
On August 12, 1992, respondents United Harbor Pilots Association
and the Manila Pilots Association, through Capt. Alberto C.
Compas, questioned PPA-AO No. 04-92 before the Department of
Transportation and Communication, but they were informed by then
DOTC Secretary Jesus B. Garcia that the matter of reviewing,
recalling or annulling PPAs administrative issuances lies exclusively
with its Board of Directors as its governing body.
Meanwhile, on August 31, 1992, the PPA issued Memorandum
Order No. 08-92 [8] which laid down the criteria or factors to be
considered in the reappointment of harbor pilots, viz.: (1) Qualifying
Factors: [9] safety record and physical/mental medical exam report
and (2) Criteria for Evaluation: [10] promptness in servicing vessels,
CONSTI LAW II I ACJUCO 69
compliance with PPA Pilotage Guidelines, number of years as a
harbor pilot, average GRT of vessels serviced as pilot,
awards/commendations as harbor pilot, and age.
Respondents reiterated their request for the suspension of the
implementation of PPA-AO No. 04-92, but Secretary Garcia insisted
on his position that the matter was within the jurisdiction of the Board
of Directors of the PPA. Compas appealed this ruling to the Office
of the President (OP), reiterating his arguments before the DOTC.
On December 23, 1992, the OP issued an order directing the PPA
to hold in abeyance the implementation of PPA-AO No. 04-92. In its
answer, the PPA countered that said administrative order was
issued in the exercise of its administrative control and supervision
over harbor pilots under Section 6-a (viii), Article IV of P. D. No. 857,
as amended, and it, along with its implementing guidelines, was
intended to restore order in the ports and to improve the quality of
port services.
On March 17, 1993, the OP, through then Assistant Executive
Secretary for Legal Affairs Renato C. Corona, dismissed the
appeal/petition and lifted the restraining order issued earlier. [11] He
concluded that PPA-AO No. 04-92 applied to all harbor pilots and,
for all intents and purposes, was not the act of Dayan, but of the
PPA, which was merely implementing Section 6 of P.D. No. 857,
mandating it to control, regulate and supervise pilotage and conduct
of pilots in any port district.
On the alleged unconstitutionality and illegality of PPA-AO No. 04-
92 and its implementing memoranda and circulars, Secretary
Corona opined that:
The exercise of ones profession falls within the constitutional
guarantee against wrongful deprivation of, or interference with,
property rights without due process. In the limited context of this
case, PPA-AO 04-92 does not constitute a wrongful interference
with, let alone a wrongful deprivation of, the property rights of those
affected thereby. As may be noted, the issuance aims no more than
to improve pilotage services by limiting the appointment to harbor
pilot positions to one year, subject to renewal or cancellation after a
rigid evaluation of the appointees performance.
PPA-AO 04-92 does not forbid, but merely regulates, the exercise
by harbor pilots of their profession in PPAs jurisdictional area.
(Emphasis supplied)
Finally, as regards the alleged absence of ample prior consultation
before the issuance of the administrative order, Secretary Corona
cited Section 26 of P.D. No. 857, which merely requires the PPA to
consult with relevant Government agencies. Since the PPA Board
of Directors is composed of the Secretaries of the DOTC, the
Department of Public Works and Highways, the Department of
Finance, and the Department of Environment and Natural
Resources, as well as the Director-General of the National
Economic Development Agency, the Administrator of the Maritime
Industry Authority (MARINA), and the private sector representative
who, due to his knowledge and expertise, was appointed by the
President to the Board, he concluded that the law has been
sufficiently complied with by the PPA in issuing the assailed
administrative order.
Consequently, respondents filed a petition for certiorari, prohibition
and injunction with prayer for the issuance of a temporary
restraining order and damages, before Branch 6 of the Regional
Trial Court of Manila, which was docketed as Civil Case No. 93-
65673. On September 6, 1993, the trial court rendered the following
judgment: [12]
WHEREFORE, for all the foregoing, this Court hereby rules that:

1. Respondents (herein petitioners) have acted in excess of
jurisdiction and with grave abuse of discretion and in a capricious,
whimsical and arbitrary manner in promulgating PPA Administrative
Order 04-92 including all its implementing Memoranda, Circulars
and Orders;
2. PPA Administrative Order 04-92 and its implementing Circulars
and Orders are declared null and void;
3. The respondents are permanently enjoined from implementing
PPA Administrative Order 04-92 and its implementing Memoranda,
Circulars and Orders.
No costs.
SO ORDERED.
The court a quo pointed out that the Bureau of Customs, the
precursor of the PPA, recognized pilotage as a profession and,
therefore, a property right under Callanta v. Carnation Philippines,
Inc. [13] Thus, abbreviating the term within which that privilege may
be exercised would be an interference with the property rights of the
harbor pilots. Consequently, any withdrawal or alteration of such
property right must be strictly made in accordance with the
constitutional mandate of due process of law. This was apparently
not followed by the PPA when it did not conduct public hearings prior
to the issuance of PPA-AO No. 04-92; respondents allegedly
learned about it only after its publication in the newspapers. From
this decision, petitioners elevated their case to this Court on
certiorari.
After carefully examining the records and deliberating on the
arguments of the parties, the Court is convinced that PPA-AO No.
04-92 was issued in stark disregard of respondents right against
deprivation of property without due process of law. Consequently,
the instant petition must be denied.
Section 1 of the Bill of Rights lays down what is known as the due
process clause of the Constitution, viz.:
SECTION 1. No person shall be deprived of life, liberty, or property
without due process of law, x x x.
In order to fall within the aegis of this provision, two conditions must
concur, namely, that there is a deprivation and that such deprivation
is done without proper observance of due process. When one
speaks of due process of law, however, a distinction must be made
between matters of procedure and matters of substance. In
essence, procedural due process refers to the method or manner
by which the law is enforced, while substantive due process requires
that the law itself, not merely the procedures by which the law would
be enforced, is fair, reasonable, and just. [14] PPA-AO No. 04-92
must be examined in light of this distinction.
Respondents argue that due process was not observed in the
adoption of PPA-AO No. 04-92 allegedly because no hearing was
conducted whereby relevant government agencies and the pilots
themselves could ventilate their views. They are obviously referring
to the procedural aspect of the enactment. Fortunately, the Court
has maintained a clear position in this regard, a stance it has
stressed in the recent case of Lumiqued v. Hon. Exevea, [15] where
it declared that (a)s long as a party was given the opportunity to
defend his interests in due course, he cannot be said to have been
denied due process of law, for this opportunity to be heard is the
very essence of due process. Moreover, this constitutional mandate
is deemed satisfied if a person is granted an opportunity to seek
reconsideration of the action or ruling complained of.
In the case at bar, respondents questioned PPA-AO No. 04-92 no
less than four times [16] before the matter was finally elevated to
this Tribunal. Their arguments on this score, however, fail to
CONSTI LAW II I ACJUCO 70
persuade. While respondents emphasize that the Philippine Coast
Guard, which issues the licenses of pilots after administering the
pilots examinations, was not consulted, [17] the facts show that the
MARINA, which took over the licensing function of the Philippine
Coast Guard, was duly represented in the Board of Directors of the
PPA. Thus, petitioners correctly argued that, there being no matters
of naval defense involved in the issuance of the administrative
order, the Philippine Coast Guard need not be consulted.[18]
Neither does the fact that the pilots themselves were not consulted
in any way taint the validity of the administrative order. As a general
rule, notice and hearing, as the fundamental requirements of
procedural due process, are essential only when an administrative
body exercises its quasi-judicial function. In the performance of its
executive or legislative functions, such as issuing rules and
regulations, an administrative body need not comply with the
requirements of notice and hearing.[19]
Upon the other hand, it is also contended that the sole and exclusive
right to the exercise of harbor pilotage by pilots is a settled issue.
Respondents aver that said right has become vested and can only
be withdrawn or shortened by observing the constitutional mandate
of due process of law. Their argument has thus shifted from the
procedural to one of substance. It is here where PPA-AO No. 04-92
fails to meet the condition set by the organic law.
There is no dispute that pilotage as a profession has taken on the
nature of a property right. Even petitioner Corona recognized this
when he stated in his March 17, 1993, decision that (t)he exercise
of ones profession falls within the constitutional guarantee against
wrongful deprivation of, or interference with, property rights without
due process. [20] He merely expressed the opinion that (i)n the
limited context of this case, PPA-AO 04-92 does not constitute a
wrongful interference with, let alone a wrongful deprivation of, the
property rights of those affected thereby, and that PPA-AO 04-92
does not forbid, but merely regulates, the exercise by harbor pilots
of their profession. As will be presently demonstrated, such
supposition is gravely erroneous and tends to perpetuate an
administrative order which is not only unreasonable but also
superfluous.
Pilotage, just like other professions, may be practiced only by duly
licensed individuals. Licensure is the granting of license especially
to practice a profession. It is also the system of granting licenses
(as for professional practice) in accordance with established
standards. [21] A license is a right or permission granted by some
competent authority to carry on a business or do an act which,
without such license, would be illegal. [22]
Before harbor pilots can earn a license to practice their profession,
they literally have to pass through the proverbial eye of a needle by
taking, not one but five examinations, each followed by actual
training and practice. Thus, the court a quo observed:
Petitioners (herein respondents) contend, and the respondents
(herein petitioners) do not deny, that here (sic) in this jurisdiction,
before a person can be a harbor pilot, he must pass five (5)
government professional examinations, namely, (1) For Third Mate
and after which he must work, train and practice on board a vessel
for at least a year; (2) For Second Mate and after which he must
work, train and practice for at least a year; (3) For Chief Mate and
after which he must work, train and practice for at least a year; (4)
For a Master Mariner and after which he must work as Captain of
vessels for at least two (2) years to qualify for an examination to be
a pilot; and finally, of course, that given for pilots.
Their license is granted in the form of an appointment which allows
them to engage in pilotage until they retire at the age 70 years. This
is a vested right. Under the terms of PPA-AO No. 04-92, (a)ll existing
regular appointments which have been previously issued by the
Bureau of Customs or the PPA shall remain valid up to 31 December
 CONSTI LAW II I ACJUCO 71

1992 only, and (a)ll appointments to harbor pilot positions in all

pilotage districts shall, henceforth, be only for a term of one (1) year
from date of effectivity subject to renewal or cancellation by the
Authority after conduct of a rigid evaluation of performance.

It is readily apparent that PPA-AO No. 04-92 unduly restricts the

right of harbor pilots to enjoy their profession before their
compulsory retirement. In the past, they enjoyed a measure of
security knowing that after passing five examinations and
undergoing years of on-the-job training, they would have a license
which they could use until their retirement, unless sooner revoked
by the PPA for mental or physical unfitness. Under the new
issuance, they have to contend with an annual cancellation of their
license which can be temporary or permanent depending on the
outcome of their performance evaluation. Veteran pilots and
neophytes alike are suddenly confronted with one-year terms which
ipso facto expire at the end of that period. Renewal of their license
is now dependent on a rigid evaluation of performance which is
conducted only after the license has already been cancelled. Hence,
the use of the term renewal. It is this pre-evaluation cancellation
which primarily makes PPA-AO No. 04-92 unreasonable and
constitutionally infirm. In a real sense, it is a deprivation of property
without due process of law.

The Court notes that PPA-AO No. 04-92 and PPA-MO No. 08-92
are already covered by PPA-AO No. 03-85, which is still operational.
Respondents are correct in pointing out that PPA-AO No. 04-92 is
a surplusage [23] and, therefore, an unnecessary enactment. PPA-
AO 03-85 is a comprehensive order setting forth the Rules and
Regulations Governing Pilotage Services, the Conduct of Pilots and
Pilotage Fees in Philippine Ports. It provides, inter alia, for the
qualification, appointment, performance evaluation, disciplining and
removal of harbor pilots - matters which are duplicated in PPA-AO
No. 04-92 and its implementing memorandum order. Since it adds
nothing new or substantial, PPA-AO No. 04-92 must be struck
down.

Finally, respondents insinuation that then PPA General Manager

Dayan was responsible for the issuance of the questioned
administrative order may have some factual basis; after all, power
and authority were vested in his office to propose rules and
regulations. The trial courts finding of animosity between him and
private respondents might likewise have a grain of truth. Yet the
number of cases filed in court between private respondents and
Dayan, including cases which have reached this Court, cannot
certainly be considered the primordial reason for the issuance of
PPA-AO No. 04-92. In the absence of proof to the contrary, Dayan
should be presumed to have acted in accordance with law and the
best of professional motives. In any event, his actions are certainly
always subject to scrutiny by higher administrative authorities.

WHEREFORE, the instant petition is hereby DISMISSED and the

assailed decision of the court a quo dated September 6, 1993, in
Civil Case No. 93-65673 is AFFIRMED. No pronouncement as to
costs.

SO ORDERED.

G.R. No. L-63915 December 29, 1986
LORENZO M. TAÑ;ADA, ABRAHAM F. SARMIENTO, and
MOVEMENT OF ATTORNEYS FOR BROTHERHOOD,
INTEGRITY AND NATIONALISM, INC. (MABINI), petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive
Assistant to the President, HON. JOAQUIN VENUS, in his
capacity as Deputy Executive Assistant to the President,
MELQUIADES P. DE LA CRUZ, ETC., ET AL., respondents.
RESOLUTION
CRUZ, J.:
Due process was invoked by the petitioners in demanding the
disclosure of a number of presidential decrees which they claimed
had not been published as required by law. The government argued
that while publication was necessary as a rule, it was not so when it
was "otherwise provided," as when the decrees themselves
declared that they were to become effective immediately upon their
approval. In the decision of this case on April 24, 1985, the Court
affirmed the necessity for the publication of some of these decrees,
declaring in the dispositive portion as follows:
WHEREFORE, the Court hereby orders respondents to publish in
the Official Gazette all unpublished presidential issuances which are
of general application, and unless so published, they shall have no
binding force and effect.
The petitioners are now before us again, this time to move for
reconsideration/clarification of that decision. 1 Specifically, they ask
the following questions:
1. What is meant by "law of public nature" or "general
applicability"?
2. Must a distinction be made between laws of general
applicability and laws which are not?
3. What is meant by "publication"?
4. Where is the publication to be made?
5. When is the publication to be made?
Resolving their own doubts, the petitioners suggest that there
should be no distinction between laws of general applicability and
those which are not; that publication means complete publication;
and that the publication must be made forthwith in the Official
Gazette. 2
In the Comment 3 required of the then Solicitor General, he claimed
first that the motion was a request for an advisory opinion and
should therefore be dismissed, and, on the merits, that the clause
"unless it is otherwise provided" in Article 2 of the Civil Code meant
that the publication required therein was not always imperative; that
publication, when necessary, did not have to be made in the Official
Gazette; and that in any case the subject decision was concurred in
only by three justices and consequently not binding. This elicited a
Reply 4 refuting these arguments. Came next the February
Revolution and the Court required the new Solicitor General to file
a Rejoinder in view of the supervening events, under Rule 3, Section
18, of the Rules of Court. Responding, he submitted that issuances
intended only for the internal administration of a government agency
or for particular persons did not have to be 'Published; that
publication when necessary must be in full and in the Official
Gazette; and that, however, the decision under reconsideration was
not binding because it was not supported by eight members of this
Court. 5
CONSTI LAW II I ACJUCO 72
The subject of contention is Article 2 of the Civil Code providing as
follows:
ART. 2. Laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is
otherwise provided. This Code shall take effect one year after such
publication.
After a careful study of this provision and of the arguments of the
parties, both on the original petition and on the instant motion, we
have come to the conclusion and so hold, that the clause "unless it
is otherwise provided" refers to the date of effectivity and not to the
requirement of publication itself, which cannot in any event be
omitted. This clause does not mean that the legislature may make
the law effective immediately upon approval, or on any other date,
without its previous publication.
Publication is indispensable in every case, but the legislature may
in its discretion provide that the usual fifteen-day period shall be
shortened or extended. An example, as pointed out by the present
Chief Justice in his separate concurrence in the original decision, 6
is the Civil Code which did not become effective after fifteen days
from its publication in the Official Gazette but "one year after such
publication." The general rule did not apply because it was
"otherwise provided. "
It is not correct to say that under the disputed clause publication may
be dispensed with altogether. The reason. is that such omission
would offend due process insofar as it would deny the public
knowledge of the laws that are supposed to govern the legislature
could validly provide that a law e effective immediately upon its
approval notwithstanding the lack of publication (or after an
unreasonably short period after publication), it is not unlikely that
persons not aware of it would be prejudiced as a result and they
would be so not because of a failure to comply with but simply
because they did not know of its existence, Significantly, this is not
true only of penal laws as is commonly supposed. One can think of
many non-penal measures, like a law on prescription, which must
also be communicated to the persons they may affect before they
can begin to operate.
We note at this point the conclusive presumption that every person
knows the law, which of course presupposes that the law has been
published if the presumption is to have any legal justification at all.
It is no less important to remember that Section 6 of the Bill of Rights
recognizes "the right of the people to information on matters of
public concern," and this certainly applies to, among others, and
indeed especially, the legislative enactments of the government.
The term "laws" should refer to all laws and not only to those of
general application, for strictly speaking all laws relate to the people
in general albeit there are some that do not apply to them directly.
An example is a law granting citizenship to a particular individual,
like a relative of President Marcos who was decreed instant
naturalization. It surely cannot be said that such a law does not
affect the public although it unquestionably does not apply directly
to all the people. The subject of such law is a matter of public interest
which any member of the body politic may question in the political
forums or, if he is a proper party, even in the courts of justice. In fact,
a law without any bearing on the public would be invalid as an
intrusion of privacy or as class legislation or as an ultra vires act of
the legislature. To be valid, the law must invariably affect the public
interest even if it might be directly applicable only to one individual,
or some of the people only, and t to the public as a whole.
We hold therefore that all statutes, including those of local
application and private laws, shall be published as a condition for
their effectivity, which shall begin fifteen days after publication
unless a different effectivity date is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders
promulgated by the President in the exercise of legislative powers
whenever the same are validly delegated by the legislature or, at
present, directly conferred by the Constitution. administrative rules
and regulations must a also be published if their purpose is to
enforce or implement existing law pursuant also to a valid
delegation.
Interpretative regulations and those merely internal in nature, that
is, regulating only the personnel of the administrative agency and
not the public, need not be published. Neither is publication required
of the so-called letters of instructions issued by administrative
superiors concerning the rules or guidelines to be followed by their
subordinates in the performance of their duties.
Accordingly, even the charter of a city must be published
notwithstanding that it applies to only a portion of the national
territory and directly affects only the inhabitants of that place. All
presidential decrees must be published, including even, say, those
naming a public place after a favored individual or exempting him
from certain prohibitions or requirements. The circulars issued by
the Monetary Board must be published if they are meant not merely
to interpret but to "fill in the details" of the Central Bank Act which
that body is supposed to enforce.
However, no publication is required of the instructions issued by,
say, the Minister of Social Welfare on the case studies to be made
in petitions for adoption or the rules laid down by the head of a
government agency on the assignments or workload of his
personnel or the wearing of office uniforms. Parenthetically,
municipal ordinances are not covered by this rule but by the Local
Government Code.
We agree that publication must be in full or it is no publication at all
since its purpose is to inform the public of the contents of the laws.
As correctly pointed out by the petitioners, the mere mention of the
number of the presidential decree, the title of such decree, its
whereabouts (e.g., "with Secretary Tuvera"), the supposed date of
effectivity, and in a mere supplement of the Official Gazette cannot
satisfy the publication requirement. This is not even substantial
compliance. This was the manner, incidentally, in which the General
Appropriations Act for FY 1975, a presidential decree undeniably of
general applicability and interest, was "published" by the Marcos
administration. 7 The evident purpose was to withhold rather than
disclose information on this vital law.
Coming now to the original decision, it is true that only four justices
were categorically for publication in the Official Gazette 8 and that
six others felt that publication could be made elsewhere as long as
the people were sufficiently informed. 9 One reserved his vote 10
and another merely acknowledged the need for due publication
without indicating where it should be made. 11 It is therefore
necessary for the present membership of this Court to arrive at a
clear consensus on this matter and to lay down a binding decision
supported by the necessary vote.
There is much to be said of the view that the publication need not
be made in the Official Gazette, considering its erratic releases and
limited readership. Undoubtedly, newspapers of general circulation
could better perform the function of communicating, the laws to the
people as such periodicals are more easily available, have a wider
readership, and come out regularly. The trouble, though, is that this
kind of publication is not the one required or authorized by existing
law. As far as we know, no amendment has been made of Article 2
of the Civil Code. The Solicitor General has not pointed to such a
law, and we have no information that it exists. If it does, it obviously
has not yet been published.
At any rate, this Court is not called upon to rule upon the wisdom of
a law or to repeal or modify it if we find it impractical. That is not our
function. That function belongs to the legislature. Our task is merely
CONSTI LAW II I ACJUCO 73
to interpret and apply the law as conceived and approved by the
political departments of the government in accordance with the
prescribed procedure. Consequently, we have no choice but to
pronounce that under Article 2 of the Civil Code, the publication of
laws must be made in the Official Gazett and not elsewhere, as a
requirement for their effectivity after fifteen days from such
publication or after a different period provided by the legislature.
We also hold that the publication must be made forthwith or at least
as soon as possible, to give effect to the law pursuant to the said
Article 2. There is that possibility, of course, although not suggested
by the parties that a law could be rendered unenforceable by a mere
refusal of the executive, for whatever reason, to cause its
publication as required. This is a matter, however, that we do not
need to examine at this time.
Finally, the claim of the former Solicitor General that the instant
motion is a request for an advisory opinion is untenable, to say the
least, and deserves no further comment.
The days of the secret laws and the unpublished decrees are over.
This is once again an open society, with all the acts of the
government subject to public scrutiny and available always to public
cognizance. This has to be so if our country is to remain democratic,
with sovereignty residing in the people and all government authority
emanating from them.
Although they have delegated the power of legislation, they retain
the authority to review the work of their delegates and to ratify or
reject it according to their lights, through their freedom of expression
and their right of suffrage. This they cannot do if the acts of the
legislature are concealed.
Laws must come out in the open in the clear light of the sun instead
of skulking in the shadows with their dark, deep secrets. Mysterious
pronouncements and rumored rules cannot be recognized as
binding unless their existence and contents are confirmed by a valid
publication intended to make full disclosure and give proper notice
to the people. The furtive law is like a scabbarded saber that cannot
feint parry or cut unless the naked blade is drawn.
WHEREFORE, it is hereby declared that all laws as above defined
shall immediately upon their approval, or as soon thereafter as
possible, be published in full in the Official Gazette, to become
effective only after fifteen days from their publication, or on another
date specified by the legislature, in accordance with Article 2 of the
Civil Code.
SO ORDERED.

G.R. Nos. L-50581-50617 January 30, 1982
RUFINO V. NUÑEZ petitioner,
vs.
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES,
respondents.
FERNANDO, C.J.:
In categorical and explicit language, the Constitution provided for
but did not create a special Court, the Sandiganbayan with
"jurisdiction over criminal and civil cases involving graft and corrupt
practices and such other offenses committed by public officers and
employees, including those in government-owned or controlled
corporations, in relation to their office as may be determined by law."
1 It came into existence with the issuance in 1978 of a Presidential
Decree. 2 Even under the 1935 Constitution, to be precise, in 1955,
an anti-graft statute was passed, 3 to be supplemented five years
later by another act, 4 the validity of which was upheld in Morfe v.
Mutuc, 5 a 1968 decision. As set forth in the opinion of the Court:
"Nothing can be clearer therefore than that the AntiGraft Act of 1960
like the earlier statute was precisely aimed at curtailing and
minimizing the opportunities for official corruption and maintaining a
standard of honesty in the public service. It is intended to further
promote morality in public administration. A public office must
indeed be a public trust. Nobody can cavil at its objective; the goal
to be pursued commands the assent of all. The conditions then
prevailing called for norms of such character. The times demanded
such a remedial device." 6 It should occasion no surprise, therefore,
why the 1971 Constitutional Convention, with full awareness of the
continuity need to combat the evils of graft and corruption, included
the above-cited provision.
Petitioner in this certiorari and prohibition proceeding assails the
validity of the Presidential Decree creating the Sandiganbayan, He
was accused before such respondent Court of estafa through
falsification of public and commercial documents committed in
connivance with his other co-accused, all public officials, in several
cases. 7 The informations were filed respectively on February 21
and March 26, 1979. Thereafter, on May 15 of that year, upon being
arraigned, he filed a motion to quash on constitutional and
jurisdictional grounds. 8 A week later. respondent Court denied such
motion. 9 There was a motion for reconsideration filed the next day;
it met the same fate. 10 Hence this petition for certiorari and
prohibition It is the claim of petitioner that Presidential Decree No.
1486, as amended, creating the respondent Court is violative of the
due process, 11 equal protection, 12 and ex post facto 13 clauses
of the Constitution. 14
The overriding concern, made manifest in the Constitution itself, to
cope more effectively with dishonesty and abuse of trust in the
public service whether committed by government officials or not,
with the essential cooperation of the private citizens with whom they
deal, cannot of itself justify any departure from or disregard of
constitutional rights. That is beyond question. With due recognition,
however, of the vigor and persistence of counsel of petitioner 15 in
his pleadings butressed by scholarly and diligent research, the
Court, equally aided in the study of the issues raised by the
exhaustive memorandum of the Solicitor General, 16 is of the view
that the invalidity of Presidential Decree No, 1486 as amended,
creating respondent Court has not been demonstrated.
The petition then cannot be granted. The unconstitutionality of such
Decree cannot be adjudged.
1. It is to be made clear that the power of the then President
and Prime Minister Ferdinand E. Marcos to create the
Sandiganbayan in 1978 is not challenged in this proceeding. While
such competence under the 1973 Constitution contemplated that
such an act should come from the National Assembly, the 1976
CONSTI LAW II I ACJUCO 74
Amendments made clear that he as incumbent President "shall
continue to exercise legislative powers until martial law shall have
been lifted. " 17 Thus, there is an affirmation of the ruling of this
Court in Aquino Jr. v. Commission on Elections 18 decided in 1975.
In the language of the ponente, Justice Makasiar, it dissipated "all
doubts as to the legality of such law-making authority by the
President during the period of Martial Law, ... . 19 As the opinion
went on to state: "It is not a grant of authority to legislate, but a
recognition of such power as already existing in favor of the
incumbent President during the period of Martial Law. " 20
2. Petitioner in his memorandum invokes the guarantee of
equal protection in seeking to nullify Presidential Decree No. 1486.
What does it signify? To quote from J. M. Tuason & Co. v. Land
Tenure Administration: 21 "The Ideal situation is for the law's
benefits to be available to all, that none be placed outside the sphere
of its coverage. Only thus could chance and favor be excluded and
the affairs of men governed by that serene and impartial uniformity
which is of the very essence of the Idea of law." 22 There is
recognition, however, in the opinion that what in fact exists "cannot
approximate the Ideal. Nor is the law susceptible to the reproach
that it does not take into account the realities of the situation. The
constitutional guarantee then is not to be given a meaning that
disregards what is, what does in fact exist .To assure that the
general welfare be promoted, which is the end of law, a regulatory
measure may cut into the rights to liberty and property. Those
adversely affected may under such circumstances invoke the equal
protection clause only if they can show that the governmental act
assailed, far from being inspired by the attainment of the common
weal was prompted by the spirit of hostility, or at the very least,
discrimination that finds no support in reason. " 23 Classification is
thus not ruled out, it being sufficient to quote from the Tuason
decision anew "that the laws operate equally and uniformly on all
persons under similar circumstances or that all persons must be
treated in the same manner, the conditions not being different, both
in the privileges conferred and the liabilities imposed. Favoritism
and undue preference cannot be allowed. For the principle is that
equal protection and security shall be given to every person under
circumstances which, if not Identical, are analogous. If law be
looked upon in terms of burden or charges, those that fall within a
class should be treated in the same fashion, whatever restrictions
cast on some in the group equally binding on the rest." 24
3. The premise underlying petitioner's contention on this point is set
forth in his memorandum thus: " 1. The Sandiganbayan proceedings
violates petitioner's right to equal protection, because - appeal as a
matter of right became minimized into a mere matter of discretion; -
appeal likewise was shrunk and limited only to questions of law,
excluding a review of the facts and trial evidence; and - there is only
one chance to appeal conviction, by certiorari to the Supreme Court,
instead of the traditional two chances; while all other estafa
indictees are entitled to appeal as a matter of right covering both law
and facts and to two appellate courts, i.e., first to the Court of
Appeals and thereafter to the Supreme Court." 25 ,that is hardly
convincing, considering that the classification satisfies the test
announced by this Court through Justice Laurel in People v. Vera
26 requiring that it "must be based on substantial distinctions which
make real differences; it must be germane to the purposes of the
law; it must not be limited to existing conditions only, and must apply
equally to each member of the class. 27 To repeat, the Constitution
specifically makes mention of the creation of a special court, the
Sandiganbayan 4 precisely in response to a problem, the urgency
of which cannot be denied, namely, dishonesty in the public service.
It follows that those who may thereafter be tried by such court ought
to have been aware as far back as January 17, 1973, when the
present Constitution came into force, that a different procedure for
the accused therein, whether a private citizen as petitioner is or a
public official, is not necessarily offensive to the equal protection
clause of the Constitution. Petitioner, moreover, cannot be unaware
of the ruling of this Court in Co Chiong v. Cuaderno 28 a 1949
decision, that the general guarantees of the Bill of Rights, included

among which are the due process of law and equal protection
clauses must "give way to [a] specific provision, " in that decision,
one reserving to "Filipino citizens of the operation of public services
or utilities." 29 The scope of such a principle is not to be constricted.
It is certainly broad enough to cover the instant situation.
4. The contention that the challenged Presidential Decree is
contrary to the ex post facto provision of the Constitution is similarly
premised on the allegation that "petitioner's right of appeal is being
diluted or eroded efficacy wise ... ." 30 A more searching scrutiny of
its rationale would demonstrate the lack of permisiveness of such
an argument. The Kay Villegas Kami 31 decision promulgated in
1970, cited by petitioner, supplies the most recent and binding
pronouncement on the matter. To quote from the ponencia of
Justice Makasiar: "An ex post facto law is one which: (1) makes
criminal an act done before the passage of the law and which was
innocent when done, and punishes such an act; (2) aggravates a
crime, or makes it greater than it was, when committed; (3) changes
the punishment and inflicts a greater punishment than the law
annexed to the crime when committed; (4) alters the legal rules of
evidences, and authorizes conviction upon less or different
testimony . than the law required at the time of the commission to
regulate civil rights and remedies only, in effect imposes penalty or
deprivation of a right for something which when done was lawful,
and (6) deprives a person accused of a crime of some lawful
protection to which he has become entitled, such as the protection
of a former conviction or acquittal, or a proclamation of amnesty."
32 Even the most careful scrutiny of the above definition fails to
sustain the claim of petitioner. The "lawful protection" to which an
accused "has become entitled" is qualified, not given a broad scope.
It hardly can be argued that the mode of procedure provided for in
the statutory right to appeal is therein embraced. This is hardly a
controversial matter. This Court has spoken in no uncertain terms.
In People v. Vilo 33 a 1949 decision, speaking through the then
Justice, later Chief Justice Paras, it made clear that seven of the
nine Justices then composing this Court, excepting only the ponente
himself and the late Justice Perfecto, were of the opinion that
Section 9 of the Judiciary Act of 1948, doing away with the
requirement of unanimity under Article 47 of the Revised Penal
Code with eight votes sufficing for the imposition of the death
sentence, does not suffer from any constitutional infirmity. For them
its applicability to crimes committed before its enactment would not
make the law ex post facto.
5. It may not be amiss to pursue the subject further. The first
authoritative exposition of what is prohibited by the ex post facto
clause is found in Mekin v. Wolfe, 34 decided in 1903. Thus: "An ex
post facto law has been defined as one - (a) Which makes an action
done before the passing of the law and which was innocent when
done criminal, and punishes such action; or (b) Which aggravates a
crime or makes it greater than it was when committed; or (c) Which
changes the punishment and inflicts a greater punishment than the
law annexed to the crime when it was committed; or (d) Which alters
the legal rules of evidence and receives less or different testimony
than the law required at the time of the commission of the offense in
order to convict the defendant. " 35 There is relevance to the next
paragraph of the opinion of Justice Cooper: "The case clearly does
not come within this definition, nor can it be seen in what way the
act in question alters the situation of petitioner to his disadvantage.
It gives him, as well as the Government, the benefit of the appeal,
and is intended
First Instance may commit error in his favor and wrongfully
discharge him appears to be the only foundation for the claim. A
person can have no vested right in such a possibility. 36
6. Mekin v. Wolfe is traceable to Calder v. Bull, 37 a 1798
decision of the United States Supreme Court. Even the very
language as to what falls with the category of this provision is well-
nigh Identical. Thus: "I will state what laws I consider ex post facto
laws, within the words and the intent of the prohibition. Ist. Every law
CONSTI LAW II I ACJUCO 75
that makes an action done before the passing of the law, and which
was innocent when done, criminal; and punishes such action. 2nd.
Every law that aggravates a crime, or makes it greater than it was,
when committed. 3rd. Every law that changes the punishment, and
inflicts a greater punishment, than the law annexed to the crime,
when committed. 4th Every law that alters the legal rules of
evidence, and receives less, or different, testimony, than the law
required at the time of the commission of the offense, in order to
convict the offender. All these, and similar laws, are manifestly
unjust and oppressive." 38 The opinion of Justice Chase who spoke
for the United States Supreme Court went on to state: "The
expressions 'ex post facto laws,' are technical, they had been in use
long before the Revolution, and had acquired an appropriate
meaning, by legislators, lawyers, and authors. The celebrated and
judicious Sir William Blackstone in his commentaries, considers an
ex post facto law precisely in the same light I have done. His opinion
is confirmed by his successor, Mr. Wooddeson and by the author of
the Federalist, who I esteem superior to both, for his extensive and
accurate knowledge of the true principle of government. " 39
7. Petitioner relies on Thompson v. Utaha. 40 As it was
decided by the American Supreme Court in April of 1898 - the very
same year when the Treaty of Paris, by virtue of which, American
sovereignty over the Philippines was acquired - it is understandable
why he did so. Certainly, the exhaustive opinion of the first Justice
Harlan, as was mentioned by an author, has a cutting edge, but it
cuts both ways. It also renders clear why the obstacles to declaring
unconstitutional the challenged Presidential Decree are well-nigh
insuperable. After a review of the previous pronouncements of the
American Supreme Court on this subject, Justice Harlan made this
realistic appraisal: "The difficulty is not so much as to the soundness
of the general rule that an accused has no vested right in particular
modes of procedure as in determining whether particular statutes by
their operation take from an accused any right that was regarded, at
the time of the adoption of the constitution, as vital for the protection
of life and liberty, and which he enjoyed at the time of the
commission of the offense charged against him." 41 An 1894
decision of the American Supreme Court, Duncan v. Missouri 42
was also cited by petitioner, The opinion of the then Chief Justice
Fuller, speaking for the Court, is to the same effect. It was
categorically stated that "the prescribing of different modes of
procedure and the abolition of courts and the creation of new ones,
leaving untouched all the substantial protections with which the
existing laws surrounds the person accused of crime, are not
considered within the constitutional inhibition." 43
8. Even from the standpoint then of the American decisions
relied upon, it cannot be successfully argued that there is a dilution
of the right to appeal. Admittedly under Presidential Decree No.
1486, there is no recourse to the Court of Appeals, the review
coming from this Court. The test as to whether the ex post facto
clause is disregarded, in the language of Justice Harlan in the just-
cited Thompson v. Utah decision taking "from an accused any right
that was regarded, at the time of the adoption of the constitution as
vital for the protection of life and liberty, and which he enjoyed at the
time of the commission of the offense charged against him." The
crucial words are "vital for the protection of life and liberty" of a
defendant in a criminal case. Would the omission of the Court of
Appeals as an intermediate tribunal deprive petitioner of a right vital
to the protection of his liberty? The answer must be in the negative.
In the first place, his innocence or guilt is passed upon by the three-
judge court of a division of respondent Court. Moreover, a
unanimous vote is required, failing which "the Presiding Justice shall
designate two other justices from among the members of the Court
to sit temporarily with them, forming a division of five justices, and
the concurrence of a majority of such division shall be necessary for
rendering judgment. " 44 Then if convicted, this Court has the duty
if he seeks a review to see whether any error of law was committed
to justify a reversal of the judgment. Petitioner makes much,
perhaps excessively so as is the wont of advocates, of the fact that
there is no review of the facts. What Cannot be too sufficiently
 CONSTI LAW II I ACJUCO 76

stressed is that this Court in determining whether or not to give due awarded within the authority of a constitutional law, then he has had
course to the petition for review must be convinced that the due process of law." 55
constitutional presumption of innocence 45 has been overcome. In
that sense, it cannot be said that on the appellate level there is no 10. This Court holds that petitioner has been unable to make a case
way of scrutinizing whether the quantum of evidence required for a calling for a declaration of unconstitutionality of Presidential Decree
finding of guilt has been satisfied. The standard as to when there is No. 1486 as amended by Presidential Decree No. 1606. The
proof of such weight to justify a conviction is set forth in People v. decision does not go as far as passing on any question not affecting
Dramayo. 46 Thus: "Accusation is not, according to the fundamental the right of petitioner to a trial with all the safeguards of the
law, as synonymous with guilt. It is incumbent on the prosecution to Constitution. It is true that other Sections of the Decree could have
demonstrate that culpability lies. Appellants were not even called been worded to avoid any constitutional objection. As of now,
upon then to offer evidence on their behalf. Their freedom is forfeit however, no ruling is called for. The view is given expression in the
only if the requisite quantum of proof necessary for conviction be in concurring and dissenting opinion of Justice Makasiar that in such
existence. Their guilt must be shown beyond reasonable doubt. To a case to save the Decree from the dire fate of invalidity, they must
such a standard, this Court has always been committed. There is be construed in such a way as preclude any possible erosion on the
need, therefore, for the most careful scrutiny of the testimony of the powers vested in this Court by the Constitution. That is a proposition
state, both oral and documentary, independently of whatever too plain to be contested. It commends itself for approval. Nor
defense, is offered by the accused. Only if the judge below and should there be any doubt either that a review by certiorari of a
thereafter the appellate tribunal could arrive at a conclusion that the decision of conviction by the Sandiganbayan calls for strict
crime had been committed precisely by the person on trial under observance of the constitutional presumption of innocence.
such an exacting test should the sentence be one of conviction. It is
thus required that every circumstance favoring his innocence be WHEREFORE, the petition is dismissed. No costs.
duly taken into account. The proof against him must survive the test
of reason; the strongest suspicion must not be permitted to sway
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." 47 This Court has repeatedly
reversed convictions on a showing that this fundamental and basic
right to De presumed innocent has been disregarded. 48 It does
seem farfetched and highly unrealistic to conclude that the omission
of the Court of Appeals as a reviewing authority results in the loss
"vital protection" of liberty.

9. The argument based on denial of due process has much less to

recommend it. In the exhaustive forty-two page memorandum of
petitioner, only four and a half pages were devoted to its discussion.
There is the allegation of lack of fairness. Much is made of what is
characterized as "the tenor and thrust" of the leading American
Supreme Court decision, Snyder v. Massachusetts. 49 Again this
citation cuts both ways. With his usual felicitous choice of words,
Justice Cardozo, who penned the opinion, emphasized: "The law,
as we have seen, is sedulous in maintaining for a defendant charged
with crime whatever forms of procedure are of the essence of an
opportunity to defend. Privileges so fundamental as to be inherent
in every concept of a fair trial that could be acceptable to the thought
of reasonable men will be kept inviolate and inviolable, however
crushing may be the pressure of incriminating proof. But justice,
though due to the accused, is due to the accuser also, The concept
of fairness must not be strained till it is narrowed to a filament. We
are to keep the balance true." 50 What is required for compliance
with the due process mandate in criminal proceedings? In Arnault v.
Pecson, 51 this Court with Justice Tuason as ponente, succinctly
Identified it with "a fair and impartial trial and reasonable opportunity
for the preparation of defense." 52 In criminal proceedings then, due
process is satisfied if the accused is "informed as to why he is
proceeded against and what charge he has to meet, with his
conviction being made to rest on evidence that is not tainted with
falsity after full opportunity for him to rebut it and the sentence being
imposed in accordance with a valid law. It is assumed, of course,
that the court that rendered the decision is one of competent
jurisdiction." 53 The above formulation is a reiteration of what was
decided by the American Supreme Court in a case of Philippine
origin, Ong Chang Wing v. United States 54 decided during the
period of American rule, 1910 to be precise. Thus: "This court has
had frequent occasion to consider the requirements of due process
of law as applied to criminal procedure, and, generally speaking, it
may be said that if an accused has been heard in a court of
competent jurisdiction, and proceeded against under the orderly
processes of law, and only punished after inquiry and investigation,
upon notice to him, with an opportunity to be heard, and a judgment

G.R. No. L-46496 February 27, 1940
ANG TIBAY, represented by TORIBIO TEODORO, manager
and propietor, and
NATIONAL WORKERS BROTHERHOOD, petitioners,
vs.
THE COURT OF INDUSTRIAL RELATIONS and NATIONAL
LABOR UNION, INC., respondents.
Office of the Solicitor-General Ozaeta and Assistant Attorney
Barcelona for the Court of Industrial Relations.
Antonio D. Paguia for National Labor Unon.
Claro M. Recto for petitioner "Ang Tibay".
Jose M. Casal for National Workers' Brotherhood.
LAUREL, J.:
The Solicitor-General in behalf of the respondent Court of Industrial
Relations in the above-entitled case has filed a motion for
reconsideration and moves that, for the reasons stated in his
motion, we reconsider the following legal conclusions of the majority
opinion of this Court:
1. Que un contrato de trabajo, asi individual como colectivo, sin
termino fijo de duracion o que no sea para una determinada, termina
o bien por voluntad de cualquiera de las partes o cada vez que ilega
el plazo fijado para el pago de los salarios segun costumbre en la
localidad o cunado se termine la obra;
2. Que los obreros de una empresa fabril, que han celebrado
contrato, ya individual ya colectivamente, con ell, sin tiempo fijo, y
que se han visto obligados a cesar en sus tarbajos por haberse
declarando paro forzoso en la fabrica en la cual tarbajan, dejan de
ser empleados u obreros de la misma;
3. Que un patrono o sociedad que ha celebrado un contrato
colectivo de trabajo con sus osbreros sin tiempo fijo de duracion y
sin ser para una obra determiminada y que se niega a readmitir a
dichos obreros que cesaron como consecuencia de un paro
forzoso, no es culpable de practica injusta in incurre en la sancion
penal del articulo 5 de la Ley No. 213 del Commonwealth, aunque
su negativa a readmitir se deba a que dichos obreros pertenecen a
un determinado organismo obrero, puesto que tales ya han dejado
deser empleados suyos por terminacion del contrato en virtud del
paro.
The respondent National Labor Union, Inc., on the other hand, prays
for the vacation of the judgement rendered by the majority of this
Court and the remanding of the case to the Court of Industrial
Relations for a new trial, and avers:
1. That Toribio Teodoro's claim that on September 26, 1938, there
was shortage of leather soles in ANG TIBAY making it necessary
for him to temporarily lay off the members of the National Labor
Union Inc., is entirely false and unsupported by the records of the
Bureau of Customs and the Books of Accounts of native dealers in
leather.
2. That the supposed lack of leather materials claimed by Toribio
Teodoro was but a scheme to systematically prevent the forfeiture
of this bond despite the breach of his CONTRACT with the
Philippine Army.
3. That Toribio Teodoro's letter to the Philippine Army dated
September 29, 1938, (re supposed delay of leather soles from the
States) was but a scheme to systematically prevent the forfeiture of
this bond despite the breach of his CONTRACT with the Philippine
Army.
4. That the National Worker's Brotherhood of ANG TIBAY is a
company or employer union dominated by Toribio Teodoro, the
CONSTI LAW II I ACJUCO 77
existence and functions of which are illegal. (281 U.S., 548,
petitioner's printed memorandum, p. 25.)
5. That in the exercise by the laborers of their rights to collective
bargaining, majority rule and elective representation are highly
essential and indispensable. (Sections 2 and 5, Commonwealth Act
No. 213.)
6. That the century provisions of the Civil Code which had been (the)
principal source of dissensions and continuous civil war in Spain
cannot and should not be made applicable in interpreting and
applying the salutary provisions of a modern labor legislation of
American origin where the industrial peace has always been the
rule.
7. That the employer Toribio Teodoro was guilty of unfair labor
practice for discriminating against the National Labor Union, Inc.,
and unjustly favoring the National Workers' Brotherhood.
8. That the exhibits hereto attached are so inaccessible to the
respondents that even with the exercise of due diligence they could
not be expected to have obtained them and offered as evidence in
the Court of Industrial Relations.
9. That the attached documents and exhibits are of such far-
reaching importance and effect that their admission would
necessarily mean the modification and reversal of the judgment
rendered herein.
The petitioner, Ang Tibay, has filed an opposition both to the motion
for reconsideration of the respondent National Labor Union, Inc.
In view of the conclusion reached by us and to be herein after stead
with reference to the motion for a new trial of the respondent
National Labor Union, Inc., we are of the opinion that it is not
necessary to pass upon the motion for reconsideration of the
Solicitor-General. We shall proceed to dispose of the motion for new
trial of the respondent labor union. Before doing this, however, we
deem it necessary, in the interest of orderly procedure in cases of
this nature, in interest of orderly procedure in cases of this nature,
to make several observations regarding the nature of the powers of
the Court of Industrial Relations and emphasize certain guiding
principles which should be observed in the trial of cases brought
before it. We have re-examined the entire record of the proceedings
had before the Court of Industrial Relations in this case, and we
have found no substantial evidence that the exclusion of the 89
laborers here was due to their union affiliation or activity. The whole
transcript taken contains what transpired during the hearing and is
more of a record of contradictory and conflicting statements of
opposing counsel, with sporadic conclusion drawn to suit their own
views. It is evident that these statements and expressions of views
of counsel have no evidentiary value.
The Court of Industrial Relations is a special court whose functions
are specifically stated in the law of its creation (Commonwealth Act
No. 103). It is more an administrative than a part of the integrated
judicial system of the nation. It is not intended to be a mere receptive
organ of the Government. Unlike a court of justice which is
essentially passive, acting only when its jurisdiction is invoked and
deciding only cases that are presented to it by the parties litigant,
the function of the Court of Industrial Relations, as will appear from
perusal of its organic law, is more active, affirmative and dynamic.
It not only exercises judicial or quasi-judicial functions in the
determination of disputes between employers and employees but
its functions in the determination of disputes between employers
and employees but its functions are far more comprehensive and
expensive. It has jurisdiction over the entire Philippines, to consider,
investigate, decide, and settle any question, matter controversy or
dispute arising between, and/or affecting employers and employees
or laborers, and regulate the relations between them, subject to, and
in accordance with, the provisions of Commonwealth Act No. 103

(section 1). It shall take cognizance or purposes of prevention,
arbitration, decision and settlement, of any industrial or agricultural
dispute causing or likely to cause a strike or lockout, arising from
differences as regards wages, shares or compensation, hours of
labor or conditions of tenancy or employment, between landlords
and tenants or farm-laborers, provided that the number of
employees, laborers or tenants of farm-laborers involved exceeds
thirty, and such industrial or agricultural dispute is submitted to the
Court by the Secretary of Labor or by any or both of the parties to
the controversy and certified by the Secretary of labor as existing
and proper to be by the Secretary of Labor as existing and proper
to be dealth with by the Court for the sake of public interest. (Section
4, ibid.) It shall, before hearing the dispute and in the course of such
hearing, endeavor to reconcile the parties and induce them to settle
the dispute by amicable agreement. (Paragraph 2, section 4, ibid.)
When directed by the President of the Philippines, it shall investigate
and study all industries established in a designated locality, with a
view to determinating the necessity and fairness of fixing and
adopting for such industry or locality a minimum wage or share of
laborers or tenants, or a maximum "canon" or rental to be paid by
the "inquilinos" or tenants or less to landowners. (Section 5, ibid.) In
fine, it may appeal to voluntary arbitration in the settlement of
industrial disputes; may employ mediation or conciliation for that
purpose, or recur to the more effective system of official
investigation and compulsory arbitration in order to determine
specific controversies between labor and capital industry and in
agriculture. There is in reality here a mingling of executive and
judicial functions, which is a departure from the rigid doctrine of the
separation of governmental powers.
In the case of Goseco vs. Court of Industrial Relations et al., G.R.
No. 46673, promulgated September 13, 1939, we had occasion to
joint out that the Court of Industrial Relations et al., G. R. No. 46673,
promulgated September 13, 1939, we had occasion to point out that
the Court of Industrial Relations is not narrowly constrained by
technical rules of procedure, and the Act requires it to "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
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." (Section 20, Commonwealth Act No.
103.) It shall not be restricted to the specific relief claimed or
demands made by the parties to the industrial or agricultural
dispute, but may include in the award, order or decision any matter
or determination which may be deemed necessary or expedient for
the purpose of settling the dispute or of preventing further industrial
or agricultural disputes. (section 13, ibid.) And in the light of this
legislative policy, appeals to this Court have been especially
regulated by the rules recently promulgated by the rules recently
promulgated by this Court to carry into the effect the avowed
legislative purpose. The fact, however, that the Court of Industrial
Relations may be said to be free from the rigidity of certain
procedural requirements does not mean that it can, in justifiable
cases before it, entirely ignore or disregard the fundamental and
essential requirements of due process in trials and investigations of
an administrative character. There are primary rights which must be
respected even in proceedings of this character:
(1) The first of these rights is the right to a hearing, which includes
the right of the party interested or affected to present his own case
and submit evidence in support thereof. In the language of Chief
Hughes, in Morgan v. U.S., 304 U.S. 1, 58 S. Ct. 773, 999, 82 Law.
ed. 1129, "the liberty and property of the citizen shall be protected
by the rudimentary requirements of fair play.
(2) Not only must the party be given an opportunity to present his
case and to adduce evidence tending to establish the rights which
he asserts but the tribunal must consider the evidence presented.
(Chief Justice Hughes in Morgan v. U.S. 298 U.S. 468, 56 S. Ct.
906, 80 law. ed. 1288.) In the language of this court in Edwards vs.
McCoy, 22 Phil., 598, "the right to adduce evidence, without the
CONSTI LAW II I ACJUCO 78
corresponding duty on the part of the board to consider it, is vain.
Such right is conspicuously futile if the person or persons to whom
the evidence is presented can thrust it aside without notice or
consideration."
(3) "While the duty to deliberate does not impose the obligation to
decide right, it does imply a necessity which cannot be disregarded,
namely, that of having something to support it is a nullity, a place
when directly attached." (Edwards vs. McCoy, supra.) This principle
emanates from the more fundamental is contrary to the vesting of
unlimited power anywhere. Law is both a grant and a limitation upon
power.
(4) Not only must there be some evidence to support a finding or
conclusion (City of Manila vs. Agustin, G.R. No. 45844, promulgated
November 29, 1937, XXXVI O. G. 1335), but the evidence must be
"substantial." (Washington, Virginia and Maryland Coach Co. v.
national labor Relations Board, 301 U.S. 142, 147, 57 S. Ct. 648,
650, 81 Law. ed. 965.) It means such relevant evidence as a
reasonable mind accept as adequate to support a conclusion."
(Appalachian Electric Power v. National Labor Relations Board, 4
Cir., 93 F. 2d 985, 989; National Labor Relations Board v.
Thompson Products, 6 Cir., 97 F. 2d 13, 15; Ballston-Stillwater
Knitting Co. v. National Labor Relations Board, 2 Cir., 98 F. 2d 758,
760.) . . . The statute provides that "the rules of evidence prevailing
in courts of law and equity shall not be controlling.' The obvious
purpose of this and similar provisions is to free administrative
boards from the compulsion of technical rules so that the mere
admission of matter which would be deemed incompetent inn
judicial proceedings would not invalidate the administrative order.
(Interstate Commerce Commission v. Baird, 194 U.S. 25, 44, 24 S.
Ct. 563, 568, 48 Law. ed. 860; Interstate Commerce Commission v.
Louisville and Nashville R. Co., 227 U.S. 88, 93 33 S. Ct. 185, 187,
57 Law. ed. 431; United States v. Abilene and Southern Ry. Co. S.
Ct. 220, 225, 74 Law. ed. 624.) But this assurance of a desirable
flexibility in administrative procedure does not go far as to justify
orders without a basis in evidence having rational probative force.
Mere uncorroborated hearsay or rumor does not constitute
substantial evidence. (Consolidated Edison Co. v. National Labor
Relations Board, 59 S. Ct. 206, 83 Law. ed. No. 4, Adv. Op., p.
131.)"
(5) The decision must be rendered on the evidence presented at the
hearing, or at least contained in the record and disclosed to the
parties affected. (Interstate Commence Commission vs. L. & N. R.
Co., 227 U.S. 88, 33 S. Ct. 185, 57 Law. ed. 431.) Only by confining
the administrative tribunal to the evidence disclosed to the parties,
can the latter be protected in their right to know and meet the case
against them. It should not, however, detract from their duty actively
to see that the law is enforced, and for that purpose, to use the
authorized legal methods of securing evidence and informing itself
of facts material and relevant to the controversy. Boards of inquiry
may be appointed for the purpose of investigating and determining
the facts in any given case, but their report and decision are only
advisory. (Section 9, Commonwealth Act No. 103.) The Court of
Industrial Relations may refer any industrial or agricultural dispute
or any matter under its consideration or advisement to a local board
of inquiry, a provincial fiscal. a justice of the peace or any public
official in any part of the Philippines for investigation, report and
recommendation, and may delegate to such board or public official
such powers and functions as the said Court of Industrial Relations
may deem necessary, but such delegation shall not affect the
exercise of the Court itself of any of its powers. (Section 10, ibid.)
(6) The Court of Industrial Relations or any of its judges, therefore,
must act on its or his own independent consideration of the law and
facts of the controversy, and not simply accept the views of a
subordinate in arriving at a decision. It may be that the volume of
work is such that it is literally Relations personally to decide all
controversies coming before them. In the United States the difficulty
is solved with the enactment of statutory authority authorizing
 CONSTI LAW II I ACJUCO 79

examiners or other subordinates to render final decision, with the

right to appeal to board or commission, but in our case there is no
such statutory authority.

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

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

In the right of the foregoing fundamental principles, it is sufficient to

observe here that, except as to the alleged agreement between the
Ang Tibay and the National Worker's Brotherhood (appendix A), the
record is barren and does not satisfy the thirst for a factual basis
upon which to predicate, in a national way, a conclusion of law.

This result, however, does not now preclude the concession of a

new trial prayed for the by respondent National Labor Union, Inc., it
is alleged that "the supposed lack of material claimed by Toribio
Teodoro was but a scheme adopted to systematically discharged all
the members of the National Labor Union Inc., from work" and this
avernment is desired to be proved by the petitioner with the "records
of the Bureau of Customs and the Books of Accounts of native
dealers in leather"; that "the National Workers Brotherhood Union of
Ang Tibay is a company or employer union dominated by Toribio
Teodoro, the existence and functions of which are illegal." Petitioner
further alleges under oath that the exhibits attached to the petition
to prove his substantial avernments" are so inaccessible to the
respondents that even within the exercise of due diligence they
could not be expected to have obtained them and offered as
evidence in the Court of Industrial Relations", and that the
documents attached to the petition "are of such far reaching
importance and effect that their admission would necessarily mean
the modification and reversal of the judgment rendered herein." We
have considered the reply of Ang Tibay and its arguments against
the petition. By and large, after considerable discussions, we have
come to the conclusion that the interest of justice would be better
served if the movant is given opportunity to present at the hearing
the documents referred to in his motion and such other evidence as
may be relevant to the main issue involved. The legislation which
created the Court of Industrial Relations and under which it acts is
new. The failure to grasp the fundamental issue involved is not
entirely attributable to the parties adversely affected by the result.
Accordingly, the motion for a new trial should be and the same is
hereby granted, and the entire record of this case shall be remanded
to the Court of Industrial Relations, with instruction that it reopen the
case, receive all such evidence as may be relevant and otherwise
proceed in accordance with the requirements set forth hereinabove.
So ordered.

G.R. No. 93891 March 11, 1991
POLLUTION ADJUDICATION BOARD, petitioner
vs.
COURT OF APPEALS and SOLAR TEXTILE FINISHING
CORPORATION, respondents.
Oscar A. Pascua and Charemon Clio L. Borre for petitioner.
Leonardo A. Aurelio for respondent Solar Textile Finishing
Corp.
RESOLUTION
FELICIANO, J.:
Petitioner Pollution Adjudication Board ("Board") asks us to review
the Decision and Resolution promulgated on 7 February 1990 and
10 May 1990, respectively, by the Court of Appeals in C.A.-G R. No.
SP 18821 entitled "Solar Textile Finishing Corporation v. Pollution
Adjudication Board." In that Decision and Resolution, the Court of
Appeals reversed an order of the Regional Trial Court, Quezon City,
Branch 77, in Civil Case No. Q-89-2287 dismissing private
respondent Solar Textile Finishing Corporation's ("Solar") petition
for certiorari and remanded the case to the trial court for further
proceedings.
On 22 September 1988, petitioner Board issued an ex parte Order
directing Solar immediately to cease and desist from utilizing its
wastewater pollution source installations which were discharging
untreated wastewater directly into a canal leading to the adjacent
Tullahan-Tinejeros River. The Order signed by Hon. Fulgencio
Factoran, Jr., as Board Chairman, reads in full as follows:
Respondent, Solar Textile Finishing Corporation with plant and
place of business at 999 General Pascual Avenue, Malabon, Metro
Manila is involved in bleaching, rinsing and dyeing textiles with
wastewater of about 30 gpm. being directly discharged untreated
into the sewer. Based on findings in the Inspections conducted on
05 November 1986 and 15 November 1986, the volume of untreated
wastewater discharged in the final out fall outside of the plant's
compound was even greater. The result of inspection conducted on
06 September 1988 showed that respondent's Wastewater
Treatment Plant was noted unoperational and the combined
wastewater generated from its operation was about 30 gallons per
minute and 80% of the wastewater was being directly discharged
into a drainage canal leading to the Tullahan-Tinejeros River by
means of a by-pass and the remaining 20% was channelled into the
plant's existing Wastewater Treatment Plant (WTP). Result of the
analyses of the sample taken from the by-pass showed that the
wastewater is highly pollutive in terms of Color units, BOD and
Suspended Solids, among others. These acts of respondent in spite
of directives to comply with the requirements are clearly in violation
of Section 8 of Presidential Decree No. 984 and Section 103 of its
Implementing Rules and Regulations and the 1982 Effluent
Regulations.
WHEREFORE, pursuant to Section 7 of P.D. 984 and Section 38 of
its Implementing Rules and Regulations, respondent is hereby
ordered to cease and desist from utilizing its wastewater pollution
source installation and discharging its untreated wastewater directly
into the canal leading to the Tullahan-Tinejeros River effective
immediately upon receipt hereof and until such time when it has fully
complied with all the requirements and until further orders from this
Board.
SO ORDERED.1
We note that the above Order was based on findings of several
inspections of Solar's plant:
CONSTI LAW II I ACJUCO 80
a. inspections conducted on 5 November 1986 and 12
November 1986 by the National Pollution Control Commission
("NPCC"), the predecessor of the Board ;2 and
b. the inspection conducted on 6 September 1988 by the
Department of Environment and Natural Resources ("DENR").
The findings of these two (2) inspections were that Solar's
wastewater treatment plant was non-operational and that its plant
generated about 30 gallons per minute of wastewater, 80% of which
was being directly discharged into a drainage canal leading to the
Tullahan-Tinejeros River. The remaining 20% of the wastewater
was being channeled through Solar's non-operational wastewater
treatment plant. Chemical analysis of samples of Solar's effluents
showed the presence of pollutants on a level in excess of what was
permissible under P.D. No. 984 and its Implementing Regulations.
A copy of the above Order was received by Solar on 26 September
1988. A Writ of Execution issued by the Board was received by Solar
on 31 March 1989.
Meantime, Solar filed a motion for reconsideration/appeal with
prayer for stay of execution of the Order dated 22 September 1988.
Acting on this motion, the Board issued an Order dated 24 April
1989 allowing Solar to operate temporarily, to enable the Board to
conduct another inspection and evaluation of Solar's wastewater
treatment facilities. In the same Order, the Board directed the
Regional Executive Director of the DENR/ NCR to conduct the
inspection and evaluation within thirty (30) days.
On 21 April 1989, however, Solar went to the Regional Trial Court
of Quezon City, Branch 77, on petition for certiorari with preliminary
injunction against the Board, the petition being docketed as Civil
Case No. Q-89-2287.
On 21 July 1989, the Regional Trial Court dismissed Solar's petition
upon two (2) grounds, i.e., that appeal and not certiorari from the
questioned Order of the Board as well as the Writ of Execution was
the proper remedy, and that the Board's subsequent Order allowing
Solar to operate temporarily had rendered Solar's petition moot and
academic.
Dissatisfied, Solar went on appeal to the Court of Appeals which, in
the Decision here assailed, reversed the Order of dismissal of the
trial court and remanded the case to that court for further
proceedings. In addition, the Court of Appeals declared the Writ of
Execution null and void. At the same time, the Court of Appeals said
in the dispositive portion of its Decision that:
. . .. Still and all, this decision is without prejudice to whatever action
the appellee [Board] may take relative to the projected 'inspection
and evaluation' of appellant's [Solar's] water treatment facilities.3
The Court of Appeals, in so ruling, held that certiorari was a proper
remedy since the Orders of petitioner Board may result in great and
irreparable injury to Solar; and that while the case might be moot
and academic, "larger issues" demanded that the question of due
process be settled. Petitioner Board moved for reconsideration,
without success.
The Board is now before us on a Petition for Review basically
arguing that:
1. its ex parte Order dated 22 September 1988 and the Writ
of Execution were issued in accordance with law and were not
violative of the requirements of due process; and
2. the ex parte Order and the Writ of Execution are not the
proper subjects of a petition for certiorari.
 CONSTI LAW II I ACJUCO 81

The only issue before us at this time is whether or not the Court of
Appeals erred in reversing the trial court on the ground that Solar
had been denied due process by the Board.
Petitioner Board claims that under P.D. No. 984, Section 7(a), it has
legal authority to issue ex parte orders to suspend the operations of
an establishment when there is prima facie evidence that such
establishment is discharging effluents or wastewater, the pollution
level of which exceeds the maximum permissible standards set by
the NPCC (now, the Board). Petitioner Board contends that the
reports before it concerning the effluent discharges of Solar into the
Tullahan-Tinejeros River provided prima facie evidence of violation
by Solar of Section 5 of the 1982 Effluent Code.
Solar, on the other hand, contends that under the Board's own rules
and regulations, an ex parte order may issue only if the effluents
discharged pose an "immediate threat to life, public health, safety or
welfare, or to animal and plant life." In the instant case, according to
Solar, the inspection reports before the Board made no finding that
Solar's wastewater discharged posed such a threat.
The Court is not persuaded by Solar's contention. Section 7(a) of
P.D. No. 984 authorized petitioner Board to issue ex parte cease
and desist orders under the following circumstances:
Section 5 of the Effluent Regulations of 19824 sets out the maximum
permissible levels of physical and chemical substances which
effluents from domestic wastewater treatment plants and industrial
plants" must not exceed "when discharged into bodies of water
classified as Class A, B, C, D, SB and SC in accordance with the
1978 NPCC Rules and Regulations." The waters of Tullahan-
Tinejeros River are classified as inland waters Class D under
Section 68 of the 1978 NPCC Rules and Regulations5 which in part
provides that:
Sec. 68. Water Usage and Classification. — The quality of
Philippine waters shall be maintained in a safe and satisfactory
condition according to their best usages. For this purpose, all water
shall be classified according to the following beneficial usages:
(a) Fresh Surface Water
Classification
xxx xxx xxx
Best usage
Class D
For agriculture, irrigation, livestock watering and industrial cooling
and processing.

P.D. 984, Section 7, paragraph (a), provides: xxx xxx xxx

(a) Public Hearing. . . . Provided, That whenever the Commission (Emphases supplied)
finds prima facie evidence that the discharged sewage or wastes
are of immediate threat to life, public health, safety or welfare, or to The reports on the inspections carried on Solar's wastewater
animal or plant life, or exceeds the allowable standards set by the treatment facilities on 5 and 12 November 1986 and 6 September
Commission, the Commissioner may issue an ex-parte order 1988 set forth the following Identical finding:
directing the discontinuance of the same or the temporary
suspension or cessation of operation of the establishment or person a. For legal action in [view of] implementing rules and
generating such sewage or wastes without the necessity of a prior regulations of P.D. No. 984 and Section 5 of the Effluent Regulations
public hearing. The said ex-parte order shall be immediately of 1982.6
executory and shall remain in force until said establishment or
person prevents or abates the said pollution within the allowable Placing the maximum allowable standards set in Section 5 of the
standards or modified or nullified by a competent court. (Emphasis Effluent Regulations of 1982 alongside the findings of the November
supplied) 1986 and September 1988 inspection reports, we get the following
results:
We note that under the above-quoted portion of Section 7(a) of P.D.
No. 984, an ex parte cease and desist order may be issued by the
Board (a) whenever the wastes discharged by an establishment
pose an "immediate threat to life, public health, safety or welfare, or "Inland
to animal or plant life," or (b) whenever such discharges or wastes Waters
exceed "the allowable standards set by the [NPCC]." On the one (Class C & D7
hand, it is not essential that the Board prove that an "immediate
threat to life, public health, safety or welfare, or to animal or plant November
life" exists before an ex parte cease and desist order may be issued. 1986
It is enough if the Board finds that the wastes discharged do exceed Report8
"the allowable standards set by the [NPCC]." In respect of Station 1 September
discharges of wastes as to which allowable standards have been 1988
set by the Commission, the Board may issue an ex parte cease and Report9
desist order when there is prima facie evidence of an establishment Station 1
exceeding such allowable standards. Where, however, the effluents a) Color in
or discharges have not yet been the subject matter of allowable platinum
standards set by the Commission, then the Board may act on an ex cobalt
parte basis when it finds at least prima facie proof that the units 100 a) Color units
wastewater or material involved presents an "immediate threat to (Apparent
life, public health, safety or welfare or to animal or plant life." Since Color) 250 125
the applicable standards set by the Commission existing at any b) pH 6-8.5 b) pH 9.3 8.7
given time may well not cover every possible or imaginable kind of c) Tempera-
effluent or waste discharge, the general standard of an "immediate ture in °C 40 c) Temperature
threat to life, public health, safety or welfare, or to animal and plant (°C)
life" remains necessary. d) Phenols in
mg.1 0.1 d) Phenols in
Upon the other hand, the Court must assume that the extant mg./1.
allowable standards have been set by the Commission or Board e) Suspended
precisely in order to avoid or neutralize an "immediate threat to life, solids in
public health, safety or welfare, or to animal or plant life.'' mg./1. 75 e) Suspended
 CONSTI LAW II I ACJUCO 82

solids in emanating from Solar's plant exceeded the maximum allowable

mg./1. 340 80 levels of physical and chemical substances set by the NPCC and
f) BOD in that accordingly there was adequate basis supporting the ex parte
mg./1. 80 f) BOD (5-day) cease and desist order issued by the Board. It is also well to note
mg./1 1,100 152 that the previous owner of the plant facility Fine Touch Finishing
g) oil/Grease Corporation had been issued a Notice of Violation on 20 December
in mg./1. 10 g) Oil/Grease 1985 directing it to cease and refrain from carrying out dyeing
mg./1. operations until the water treatment plant was completed and
h) Detergents operational. Solar, the new owner, informed the NPCC of the
mg./1." 5 h) Detergents acquisition of the plant on March 1986. Solar was summoned by the
mg./1. MBAS 2.93 NPCC to a hearing on 13 October 1986 based on the results of the
i) Dissolved sampling test conducted by the NPCC on 8 August 1986. Petitioner
oxygen, mg./1. 0 Board refrained from issuing an ex parte cease and desist order until
j) Settleable after the November 1986 and September 1988 re-inspections were
Matter, mg./1. 0.4 1.5 conducted and the violation of applicable standards was confirmed.
k) Total Dis In other words, petitioner Board appears to have been remarkably
solved Solids forbearing in its efforts to enforce the applicable standards vis-a-vis
mg./1. 800 610 Solar. Solar, on the other hand, seemed very casual about its
l) Total Solids 1,400 690 continued discharge of untreated, pollutive effluents into the
m) Turbidity NTU / ppm, SiO3 70 Tullahan- Tinerejos River, presumably loath to spend the money
necessary to put its Wastewater Treatment Plant ("WTP") in an
The November 1986 inspections report concluded that: operating condition.

Records of the Commission show that the plant under its previous
owner, Fine Touch Finishing Corporation, was issued a Notice of
Violation on 20 December 1985 directing same to cease and desist
from conducting dyeing operation until such time the waste
treatment plant is already completed and operational. The new
owner Solar Textile Corporation informed the Commission of the
plant acquisition thru its letter dated March 1986 (sic).
The new owner was summoned to a hearing held on 13 October
1986 based on the adverse findings during the inspection/water
sampling test conducted on 08 August 1986. As per instruction of
the Legal Division a re- inspection/sampling text should be
conducted first before an appropriate legal action is instituted;
hence, this inspection.
Based on the above findings, it is clear that the new owner
continuously violates the directive of the Commission by
undertaking dyeing operation without completing first and operating
its existing WTP. The analysis of results on water samples taken
showed that the untreated wastewater from the firm pollutes our
water resources. In this connection, it is recommended that
appropriate legal action be instituted immediately against the firm. .
. .10
The September 1988 inspection report's conclusions were:
1. The plant was undertaking dyeing, bleaching and rinsing
operations during the inspection. The combined wastewater
generated from the said operations was estimated at about 30
gallons per minute. About 80% of the wastewater was traced directly
discharged into a drainage canal leading to the Tullahan-Tinejeros
river by means of a bypass. The remaining 20% was channeled into
the plant's existing wastewater treatment plant (WTP).
2. The WTP was noted not yet fully operational- some
accessories were not yet installed.1âwphi1 Only the sump pit and
the holding/collecting tank are functional but appeared seldom used.
The wastewater mentioned channeled was noted held indefinitely
into the collection tank for primary treatment. There was no effluent
discharge [from such collection tank].
3. A sample from the bypass wastewater was collected for
laboratory analyses. Result of the analyses show that the bypass
wastewater is polluted in terms of color units, BOD and suspended
solids, among others. (Please see attached laboratory resul .)11
From the foregoing reports, it is clear to this Court that there was at
least prima facie evidence before the Board that the effluents
In this connection, we note that in Technology Developers, Inc. v.
Court of appeals, et al.,12 the Court very recently upheld the
summary closure ordered by the Acting Mayor of Sta. Maria,
Bulacan, of a pollution-causing establishment, after finding that the
records showed that:
1. No mayor's permit had been secured. While it is true that
the matter of determining whether there is a pollution of the
environment that requires control if not prohibition of the operation
of a business is essentially addressed to the then National Pollution
Control Commission of the Ministry of Human Settlements, now the
Environmental Management Bureau of the Department of
Environment and Natural Resources, it must be recognized that the
mayor of a town has as much responsibility to protect its inhabitants
from pollution, and by virtue of his police power, he may deny the
application for a permit to operate a business or otherwise close the
same unless appropriate measures are taken to control and/or avoid
injury to the health of the residents of the community from the
emission in the operation of the business.
2. The Acting Mayor, in a letter of February l6, 1989, called
the attention of petitioner to the pollution emitted by the fumes of its
plant whose offensive odor "not only pollute the air in the locality but
also affect the health of the residents in the area," so that petitioner
was ordered to stop its operation until further orders and it was
required to bring the following:
xxx xxx xxx
(3) Region III-Department of Environment and Natural
Resources Anti-Pollution permit. (Annex A-2, petition)
3. This action of the Acting Mayor was in response to the
complaint of the residents of Barangay Guyong, Sta. Maria,
Bulacan, directed to the Provincial Governor through channels
(Annex A-B, petition).. . .
4. The closure order of the Acting Mayor was issued only
after an investigation was made by Marivic Guina who in her report
of December 8, 1988 observed that the fumes emitted by the plant
of petitioner goes directly to the surrounding houses and that no
proper air pollution device has been installed. (Annex A-9, petition)
xxx xxx xxx
6. While petitioner was able to present a temporary permit to
operate by the then National Pollution Control Commission on
December 15,1987, the permit was good only up to May 25,1988
 CONSTI LAW II I ACJUCO 83

(Annex A-12, petition). Petitioner had not exerted any effort to
extend or validate its permit much less to install any device to control
the pollution and prevent any hazard to the health of the residents
of the community."
In the instant case, the ex parte cease and desist Order was issued
not by a local government official but by the Pollution Adjudication
Board, the very agency of the Government charged with the task of
determining whether the effluents of a particular industrial
establishment comply with or violate applicable anti-pollution
statutory and regulatory provisions.
hereby SET ASIDE. The Order of petitioner Board dated 22
September 1988 and the Writ of Execution, as well as the decision
of the trial court dated 21 July 1989, are hereby REINSTATED,
without prejudice to the right of Solar to contest the correctness of
the basis of the Board's Order and Writ of Execution at a public
hearing before the Board.
Fernan, C.J., Gutierrez, Jr., Bidin and Davide, Jr., JJ., concur.

Ex parte cease and desist orders are permitted by law and

regulations in situations like that here presented precisely because
stopping the continuous discharge of pollutive and untreated
effluents into the rivers and other inland waters of the Philippines
cannot be made to wait until protracted litigation over the ultimate
correctness or propriety of such orders has run its full course,
including multiple and sequential appeals such as those which Solar
has taken, which of course may take several years. The relevant
pollution control statute and implementing regulations were enacted
and promulgated in the exercise of that pervasive, sovereign power
to protect the safety, health, and general welfare and comfort of the
public, as well as the protection of plant and animal life, commonly
designated as the police power. It is a constitutional commonplace
that the ordinary requirements of procedural due process yield to
the necessities of protecting vital public interests like those here
involved, through the exercise of police power. The Board's ex parte
Order and Writ of Execution would, of course, have compelled Solar
temporarily to stop its plant operations, a state of affairs Solar could
in any case have avoided by simply absorbing the bother and
burden of putting its WTP on an operational basis. Industrial
establishments are not constitutionally entitled to reduce their
capitals costs and operating expenses and to increase their profits
by imposing upon the public threats and risks to its safety, health,
general welfare and comfort, by disregarding the requirements of
anti- pollution statutes and their implementing regulations.

It should perhaps be made clear the Court is not here saying that
the correctness of the ex parte Order and Writ of Execution may not
be contested by Solar in a hearing before the Board itself. Where
the establishment affected by an ex parte cease and desist order
contests the correctness of the prima facie findings of the Board, the
Board must hold a public hearing where such establishment would
have an opportunity to controvert the basis of such ex parte order.
That such an opportunity is subsequently available is really all that
is required by the due process clause of the Constitution in
situations like that we have here. The Board's decision rendered
after the public hearing may then be tested judicially by an appeal
to the Court of Appeals in accordance with Section 7(c) of P.D. No.
984 and Section 42 of the Implementing Rules and Regulations. A
subsequent public hearing is precisely what Solar should have
sought instead of going to court to seek nullification of the Board's
Order and Writ of Execution and instead of appealing to the Court
of Appeals. It will be recalled the at the Board in fact gave Solar
authority temporarily to continue operations until still another
inspection of its wastewater treatment facilities and then another
analysis of effluent samples could be taken and evaluated.

Solar claims finally that the petition for certiorari was the proper
remedy as the questioned Order and Writ of Execution issued by
the Board were patent nullities. Since we have concluded that the
Order and Writ of Execution were entirely within the lawful authority
of petitioner Board, the trial court did not err when it dismissed
Solar's petition for certiorari. It follows that the proper remedy was
an appeal from the trial court to the Court of Appeals, as Solar did
in fact appeal.

ACCORDINGLY, the Petition for Review is given DUE COURSE

and the Decision of the Court of Appeals dated 7 February 1990 and
its Resolution dated 10 May 1990 in A.C.-G.R. No. SP 18821 are

G.R. No. 89317 May 20, 1990
ARIEL NON, REX MAGANA, ALVIN AGURA, NORMANDY
OCCIANO, JORGE DAYAON, LOURDES BANARES,
BARTOLOME IBASCO, EMMANUEL BARBA, SONNY
MORENO, GIOVANI PALMA, JOSELITO VILLALON, LUIS
SANTOS, and DANIEL TORRES, petitioners,
vs.
HON. SANCHO DANES II, in his capacity as the Presiding
Judge of 5th Regional Trial Court, Br. 38, Daet, Camarines
Norte; and MABINI COLLEGES, INC., represented by its
president ROMULO ADEVA and by the chairman of the Board
of Trustees, JUSTO LUKBAN, respondents.
Antonio A. Ayo Jr. and Soliman M. Santos, Jr., for petitioners
Pedro A. Venida Agustin A. Ferrer and Gil F. Echaro for
private respondents.
CORTES, J.:
Petitioners urge the Court en banc to review and reverse the
doctrine laid down in Alcuaz, et al. v. Philippine School of Business
Administration, et al., G.R. No. 76353, May 2, 1988, 161 SCRA 7,
to the effect that a college student, once admitted by the school, is
considered enrolled only for one semester and, hence, may be
refused readmission after the semester is over, as the contract
between the student and the school is deemed terminated.
Petitioners, students in private respondent Mabini Colleges, Inc. in
Daet, Camarines Norte, were not allowed to re-enroll by the school
for the academic year 1988-1989 for leading or participating in
student mass actions against the school in the preceding semester.
The subject of the protests is not, however, made clear in the
pleadings.
Petitioners filed a petition in the court a quo seeking their
readmission or re-enrollment to the school, but the trial court
dismissed the petition in an order dated August 8, 1988; the
dispositive portion of which reads:
WHEREFORE, premises considered, and the fact that the ruling in
the Alcuaz vs. PSBA is exactly on the point at issue in this case but
the authority of the school regarding admission of students, save as
a matter of compassionate equity — when any of the petitioners
would, at the least, qualify for re-enrollment, this petition is hereby
DISMISSED.
SO ORDERED. [Rollo, p. 12-A.]
A motion for reconsideration was filed, but this was denied by the
trial court on February 24, 1989 in this wise:
Perhaps many will agree with the critical comment of Joaquin G.
Bernas S.J., and that really there must be a better way of treating
students and teachers than the manner ruled (not suggested) by the
Supreme Court, the Termination of Contract at the end of the
semester, that is.
But applicable rule in the case is that enunciated by the Supreme
Court in the case of Sophia Alcuaz, et al. vs. Philippine School of
Business Administration, Quezon City Branch (PSBA), et al., G.R.
No. 76353, May 2, 1988; that of the termination at the end of the
semester, reason for the critical comments of Joaquin G. Bernas
and Doods Santos, who both do not agree with the ruling.
Petitioners' claim of lack of due process cannot prosper in view of
their failure to specifically deny respondent's affirmative defenses
that "they were given all the chances to air their grievances on
February 9, 10, 16, and 18, 1988, and also on February 22, 1988
during which they were represented by Atty. Jose L. Lapak" and that
CONSTI LAW II I ACJUCO 84
on February 22, 1988, the date of the resumption of classes at
Mabini College, petitioners continued their rally picketing, even
though without any renewal permit, physically coercing students not
to attend their classes, thereby disrupting the scheduled classes
and depriving a great majority of students of their right to be present
in their classes.
Against this backdrop, it must be noted that the petitioners waived
their privilege to be admitted for re-enrollment with respondent
college when they adopted, signed, and used its enrollment form for
the first semester of school year 1988-89. Said form specifically
states that:
The Mabini College reserves the right to deny admission of students
whose scholarship and attendance are unsatisfactory and to require
withdrawal of students whose conduct discredits the institution
and/or whose activities unduly disrupts or interfere with the efficient
operation of the college. Students, therefore, are required to behave
in accord with the Mabini College code of conduct and discipline.
In addition, for the same semester, petitioners duly signed pledges
which among others uniformly reads:
In consideration of my admission to the Mabini College and of my
privileges as student of this institution, I hereby pledge/ promise
under oath to abide and comply with all the rules and regulations
laid down by competent authorities in the College Department or
School in which I am enrolled. Specifically:
xxx xxx xxx
3. I will respect my Alma Matter the Mabini College, which I
represent and see to it that I conduct myself in such a manner that
the college wig not be put to a bad light;
xxx xxx xxx
9. I will not release false or unauthorized announcement
which tend to cause confusion or disrupt the normal appreciation of
the college.
Moreover, a clear legal right must first be established for a petition
for mandamus to prosper (Sec. 3, Rule 65). It being a mere privilege
and not a legal right for a student to be enrolled or reenrolled,
respondent Mabini College is free to admit or not admit the
petitioners for re-enrollment in view of the academic freedom
enjoyed by the school in accordance with the Supreme Court rulings
in the cases of Garcia vs. Faculty [Admission Committee] (G.R. No.
40779, November 28, 1975) and Tangonon vs. Pano, et al. (L-
45157, June 27, 1985).
WHEREFORE, premises and jurisprudence considered, and for
lack of merit, the motion for reconsideration of the order of this Court
dated August 8, 1988 is hereby DENIED.
SO ORDERED. [Rollo pp. 15-16.]
Hence, petitioners filed the instant petition for certiorari with prayer
for preliminary mandatory injunction.
The case was originally assigned to the Second Division of the
Court, which resolved on April 10, 1989 to refer the case to the Court
of Appeals for proper determination and disposition. The Court of
Appeals ordered respondents to comment on the petition and set
the application for issuance of a writ of preliminary mandatory
injunction for hearing. After considering the comment and hearing
the injunction application, the Court of Appeals resolved on May 22,
1989 to certify the case back to the Supreme Court considering that
only pure questions of law were raised.

The case was assigned to the Third Division of the Court, which then
transferred it to the Court en banc on August 21, 1989 considering
that the issues raised are jurisdictional. On September 14, 1989, the
Court en banc accepted the case and required respondents to
comment.
Respondents filed their comment on November 13, 1989.
Petitioners were required to reply. As reply, they filed a pleading
entitled "Counter-Comment," to which respondents filed a rejoinder
entitled "Reply to Counter-Comment To this petitioners filed a
"Rejoinder to Reply."
The issues having been joined, the case was deemed submitted.
At the heart of the controversy is the doctrine encapsuled in the
following excerpt from Alcuaz:
It is beyond dispute that a student once admitted by the school is
considered enrolled for one semester. It is provided in Paragraph
137 Manual of Regulations for Private Schools, that when a college
student registers in a school, it is understood that he is enrolling for
the entire semester. Likewise, it is provided in the Manual, that the
"written contracts" required for college teachers are for "one
semester." It is thus evident that after the close of the first semester,
the PSBA-QC no longer has any existing contract either with the
students or with the intervening teachers. Such being the case, the
charge of denial of due process is untenable. It is a time-honored
principle that contracts are respected as the law between the
contracting parties (Henson vs. Intermediate Appellate Court, et al.,
G.R. No. 72456, February 19, 1987, citing: Castro vs. Court of
Appeals, 99 SCRA 722; Escano vs. Court of Appeals, 100 SCRA
197). The contract having been terminated, there is no more
contract to speak of. The school cannot be compelled to enter into
another contract with said students and teachers. "The courts, be
they the original trial court or the appellate court, have no power to
make contracts for the parties.' (Henson vs. Intermediate Appellate
Court, et al., supra). [At 161 SCRA 17-18; Emphasis supplied.]
In Alcuaz, the Second Division of the Court dismissed the petition
filed by the students, who were barred from re-enrolling after they
led mass assemblies and put up barricades, but it added that "in the
light of compassionate equity, students who were, in view of the
absence of academic deficiencies, scheduled to graduate during the
school year when this petition was filed, should be allowed to re-
enroll and to graduate in due time." [At 161 SCRA 22.] Mr. Justice
Sarmiento dissented from the majority opinion.
A motion for reconsideration was filed by the dismissed teachers in
Alcuaz. The students did not move for reconsideration. The Court
en banc, to which the case had been transferred, denied the motion
for reconsideration in a Resolution dated September 29, 1989, but
added as an obiter dictum:
In conclusion, We wish to reiterate that while We value the right of
students to complete their education in the school or university of
their choice, and while We fully respect their right to resort to rallies
and demonstrations for the redress of their grievances and as part
of their freedom of speech and their right to assemble, still such
rallies, demonstrations, and assemblies must always be conducted
peacefully, and without resort to intimidation, coercion, or violence.
Academic freedom in all its forms, demands the full display of
discipline. To hold otherwise would be to subvert freedom into
degenerate license.
The majority's failure to expressly repudiate the "termination of
contract" doctrine enunciated in the decision provoked several
dissents on that issue. Although seven (7) members of the Court *
disagreed with the Second Division's dismissal of the students
petition, a definitive ruling on the issue could not have been made
because no timely motion for reconsideration was filed by the
CONSTI LAW II I ACJUCO 85
students. (As stated above, the motion for reconsideration was filed
by the dismissed teachers.)
Be that as it may, the reassessment of the doctrine laid down in
Alcuaz, insofar as it allowed schools to bar the readmission or re-
enrollment of students on the ground of termination of contract, shall
be made in this case where the issue is squarely raised by
petitioners [Petition, p. 4; Rollo, p. 5].
Initially, the case at bar must be put in the proper perspective. This
is not a simple case of a school refusing readmission or re-
enrollment of returning students. Undisputed is the fact that the
refusal to readmit or re-enroll petitioners was decided upon and
implemented by school authorities as a reaction to student mass
actions directed against the school. Petitioners are students of
respondent school who, after leading and participating in student
protests, were denied readmission or re-enrollment for the next
semester. This is a case that focuses on the right to speech and
assembly as exercised by students vis-a-vis the right of school
officials to discipline them.
Thus, although respondent judge believed himself bound by the
ruling in Alcuaz [Order dated August 8, 1988; Rollo, pp. 1212-A], he
actually viewed the issue as a conflict between students' rights and
the school's power to discipline them, to wit:
Students should not be denied their constitutional and statutory right
to education, and there is such denial when students are expelled
or barred from enrollment for the exercise of their right to free
speech and peaceable assembly and/or subjected to disciplinary
action without abiding with the requirements of due process. Also, it
is understandable for student leaders to let loose extremely critical
and, at times, vitriolic language against school authorities during a
student rally.
But the right of students is no license and not without limit . . . [Order
of February 24, 1989; Rollo, p. 13.]
1. The Student Does Not Shed His Constitutionally Protected
Rights at the Schoolgate.
Central to the democratic tradition which we cherish is the
recognition and protection of the rights of free speech and
assembly. Thus, our Constitution provides:
Sec. 4. No law shall be passed abridging the freedom of speech,
of expression, or of the press, or the right of the people peaceably
to assemble and petition the government for redress of grievances.
[Art. III.]
This guarantee is not peculiar to the 1987 Constitution. A similar
provision was found in the 1973 Constitution, as amended [Art. VI,
sec. 9], the 1935 Constitution, as amended [Art. III, sec. 81, the
Philippine Autonomy Act (Jones Law) [Sec. 3, para. 13], and the
Philippine Bill of 1902 [Sec. 15, para. 13]. Thus, as early as 1907,
the Court in People v. Apurado, 7 Phil. 422, upheld the right to
speech and assembly to overturn a conviction for sedition. It said:
Section 5 of the Act No. 292 is as follows:
All persons who rise publicly and tumultuously in order to attain by
force or outside of legal methods any of the following objects are
guilty of sedition:
xxx xxx xxx
2. To prevent the Insular Government, or any provincial or
municipal government or any public official, from freely exercising
its or his duties or the due execution of any judicial or administrative
order.

But this law must not be interpreted so as to abridge "the freedom
of speech" or "the right of the people peaceably to assemble and
petition the Government for redress of grievances" guaranteed by
the express provisions of section 5 of "the Philippine Bill."
xxx xxx xxx
It is rather to be expected that more or less disorder will mark the
public assembly of the people to protest against grievances whether
real or imaginary, because on such occasions feeling is always
wrought to a high pitch of excitement, and the greater the grievance
and the more intense the feeling, the less perfect, as a rule, will be
the disciplinary control of the leaders over their irresponsible
followers. But if the prosecution be permitted to seize upon every
instance of such disorderly conduct by individual members of a
crowd as an excuse to characterize the assembly as a seditious and
tumultuous rising against the authorities, then the right to assemble
and to petition for redress of grievances would become a delusion
and a snare and the attempt to exercise it on the most righteous
occasion and in the most peaceable manner would expose all those
who took part therein to the severest and most unmerited
punishment, if the purposes which they sought to attain did not
happen to be pleasing to the prosecuting authorities. If instances of
disorderly conduct occur on such occasions, the guilty individuals
should be sought out and punished therefor, but the utmost
discretion must be exercise in drawing the line between disorderly
and seditious conduct and between an essentially peaceable
assembly and a tumultuous uprising. [At pp. 424, 426.]
That the protection to the cognate rights of speech and assembly
guaranteed by the Constitution is similarly available to students is
well-settled in our jurisdiction. In the leading case of Malabanan v.
Ramento, G.R. No. 62270, May 21, 1984, 129 SCRA 359, the Court,
speaking through Mr. Chief Justice Fernando in an en banc
decision, declared:
xxx xxx xxx
4. Petitioners invoke their rights to peaceable assembly and
free speech. They are entitled to do so. They enjoy like the rest of
the citizens the freedom to express their views and communicate
their thoughts to those disposed to listen in gatherings such as was
held in this case. They do not, to borrow from the opinion of Justice
Fortas in Tinker v. Des Moines Community School District, "shed
their constitutional rights to freedom of speech or expression at the
schoolhouse gate." While therefore, the authority of educational
institutions over the conduct of students must be recognized, it
cannot go so far as to be violative of constitutional safeguards. [At
pp. 367-368.]
The facts in Malabanan are only too familiar in the genre of cases
involving student mass actions:
. . . Petitioners were officers of the Supreme Student Council of
respondent [Gregorio Araneta] University. They sought and were
granted by the school authorities a permit to hold a meeting from
8:00 A.M. to 12:00 P.M. on August 27, 1982. Pursuant to such
permit, along with other students, they held a general assembly at
the Veterinary Medicine and Animal Science (VMAS) the place
indicated in such permit, not in the basketball court as therein stated
but at the respond floor lobby. At such gathering they manifested in
vehement and vigorous language their opposition to the proposed
merger of the Institute of Animal Science with the Institute of
Agriculture. At 10:30 A.M., the same day, they marched toward the
Life Science building and continued their rally. It was outside the
area covered by their permit. They continued their demonstration,
giving utterance to language severely critical of the University
authorities and using megaphones in the process. There was, as a
result, disturbance of the classes being held. Also, the non-
academic employees, within hearing distance, stopped their work
because of the noise created. They were asked to explain on the
CONSTI LAW II I ACJUCO 86
same day why they should not be held liable for holding an illegal
assembly. Then on September 9, 1982, they were informed through
a memorandum that they were under preventive suspension for
their failure to explain the holding of an illegal assembly in front of
the Life Science Building. The validity thereof was challenged by
petitioners both before the Court of First Instance of Rizal in a
petition for mandamus with damages against private respondents
and before the Ministry of Education, Culture, and Sports. On
October 20, 1982, respondent Ramento, as Director of the National
Capital Region, found petitioners guilty of the charge of having
violated par. 146(c) of the Manual for Private Schools more
specifically their holding of an illegal assembly which was
characterized by the violation of the permit granted resulting in the
disturbance of classes and oral defamation. The penalty was
suspension for one academic year. . . . [At pp. 363-364.]
The Court found the penalty imposed on the students too severe
and reduced it to a one-week suspension.
The rule laid down in Malabanan was applied with equal force in
three other en banc decisions of the Court.
In Villar v. Technological Institute of the Philippines, G.R. No. 69198,
April 17, 1985, 135 SCRA 706, the Court reiterated that the exercise
of the freedom of assembly could not be a basis for barring students
from enrolling. It enjoined the school and its officials from acts of
surveillance, blacklisting, suspension and refusal to re-enroll. But
the Court allowed the non-enrollment of students who clearly
incurred marked academic deficiency, with the following caveat:
xxx xxx xxx
4. The academic freedom enjoyed by ''institutions of higher
learning" includes the right to set academic standards to determine
under what circumstances failing grades suffice for the expulsion of
students. Once it has done so, however, that standard should be
followed meticulously. It cannot be utilized to discriminate against
those students who exercise their constitutional rights to peaceable
assembly and free speech. If it does so, then there is a legitimate
grievance by the students thus prejudiced, their right to the equal
protection clause being disregarded. [At p. 711.]
In Arreza v. Gregorio Araneta University Foundation, G.R. No.
62297, June 19, 1985, 137 SCRA 94, a case arising from almost
the same facts as those in Malabanan, the Court rejected "the
infliction of the highly- disproportionate penalty of denial of
enrollment and the consequent failure of senior students to
graduate, if in the exercise of the cognate rights of free speech and
peaceable assembly, improper conduct could be attributed to them.
[At p. 98].
In Guzman v. National University, G.R. No. 68288, July 11, 1986,
142 SCRA 699, respondent school was directed to allow the
petitioning students to re-enroll or otherwise continue with their
respective courses, without prejudice to any disciplinary
proceedings that may be conducted in connection with their
participation in the protests that led to the stoppage of classes.
2. Permissible Limitations on Student Exercise of
Constitutional Rights Within the School.
While the highest regard must be afforded the exercise of the rights
to free speech and assembly, this should not be taken to mean that
school authorities are virtually powerless to discipline students. This
was made clear by the Court in Malabanan, when it echoed Tinker
v. Des Moines Community School District, 393 US 503, 514: "But
conduct by the student, in class or out of it, which for any reason —
whether it stems from time, place, or type of behavior — materially
disrupts classwork or involves substantial disorder or invasion of the
rights of others is, of course, not immunized by the constitutional
guarantee of freedom of speech."

Thus, in Malabanan, the Court said:
xxx xxx xxx
8. It does not follow, however, that petitioners can be totally
absolved for the events that transpired. Admittedly, there was a
violation of the terms of the permit. The rally was held at a place
other than that specified, in the second floor lobby, rather than the
basketball court, of the (VMAS) building of the University. Moreover,
it was continued longer than the period allowed. According to the
decision of respondent Ramento, the "concerted activity [referring
to such assembly went on until 5:30 p.m." Private respondents could
thus, take disciplinary action. . . . [ At pp. 370-371].
But, as stated in Guzman, the imposition of disciplinary sanctions
requires observance of procedural due process. Thus:
. . . There are withal minimum standards which must be met to
satisfy the demands of procedural due process; and these are, that
(1) the students must be informed in writing of the nature and cause
of any accusation against them; (2) they shall have the right to
answer the charges against them, with the assistance of counsel, if
desired; (3) they shall be informed of the evidence against them; (4)
they shall have the right to adduce evidence in their own behalf; and
(5) the evidence must be duly considered by the investigating
committee or official designated by the school authorities to hear
and decide the case. [At pp. 706-707].
Moreover, the penalty imposed must be proportionate to the offense
committed. As stated in Malabanan, "[i]f the concept of
proportionality between the offense committed and sanction
imposed is not followed, an element of arbitrariness intrudes." [At p.
371].
3. Circumventing Established Doctrine.
Malabanan was decided by the Court in 1984. Since then, student
mass actions have escalated not only because of political events
that unfurled but also because of the constantly raging controversy
over increases in tuition fees. But the over-eager hands of some
school authorities were not effectively tied down by the ruling in
Malabanan. Instead of suspending or expelling student leaders who
fell into disfavor with school authorities, a new variation of the same
stratagem was adopted by the latter: refusing the students
readmission or re-enrollment on grounds not related to, their alleged
misconduct of "illegal assembly" in leading or participating in student
mass actions directed against the school. Thus, the spate of
expulsions or exclusions due to "academic deficiency."
4. The Nature of the Contract Between a School and its
Student.
The Court, in Alcuaz, anchored its decision on the "termination of
contract" theory. But it must be repeatedly emphasized that the
contract between the school and the student is not an ordinary
contract. It is imbued with public interest, considering the high
priority given by the Constitution to education and the grant to the
State of supervisory and regulatory powers over all educational
institutions [See Art. XIV, secs. 1-2, 4(1)].
Respondent school cannot justify its actions by relying on
Paragraph 137 of the Manual of Regulations for Private Schools,
which provides that "[w]hen a student registers in a school, it is
understood that he is enrolling . . . for the entire semester for
collegiate courses," which the Court in Alcuaz construed as
authority for schools to refuse enrollment to a student on the ground
that his contract, which has a term of one semester, has already
expired.
CONSTI LAW II I ACJUCO 87
The "termination of contract" theory does not even find support in
the Manual. Paragraph 137 merely clarifies that a college student
enrolls for the entire semester. It serves to protect schools wherein
tuition fees are collected and paid on an installment basis, i.e.
collection and payment of the downpayment upon enrollment and
the balance before examinations. Thus, even if a student does not
complete the semester for which he was enrolled, but has stayed on
for more than two weeks, he may be required to pay his tuition fees
for the whole semester before he is given his credentials for transfer.
This is the import of Paragraph 137, subsumed under Section VII on
Tuition and Other Fees, which in its totality provides:
137. When a student registers in a school, it is understood that
he is enrolling for the entire school year for elementary and
secondary courses, and for the entire semester for collegiate
courses. A student who transfers or otherwise withdraws, in writing,
within two weeks after the beginning of classes and who has already
paid the pertinent tuition and other school fees in full or for any
length of time longer than one month may be charged ten per cent
of the total amount due for the term if he withdraws within the first
week of classes, or twenty per cent if within the second week of
classes, regardless of whether or not he has actually attended
classes. The student may be charged all the school fees in full if he
withdraws anytime after the second week of classes. However, if the
transfer or withdrawal is due to a justifiable reason, the student shall
be charged the pertinent fees only up to and including the last month
of attendance.
Clearly, in no way may Paragraph 137 be construed to mean that
the student shall be enrolled for only one semester, and that after
that semester is over his re-enrollment is dependent solely on the
sound discretion of the school. On the contrary, the Manual
recognizes the right of the student to be enrolled in his course for
the entire period he is expected to complete it. Thus, Paragraph 107
states:
Every student has the right to enrol in any school, college or
university upon meeting its specific requirement and reasonable
regulation: Provided, that except in the case of academic
delinquency and violation of disciplinary regulation, the student is
presumed to be qualified for enrolment for the entire period he is
expected to complete his course without prejudice to his right to
transfer.
This "presumption" has been translated into a right in Batas
Pambansa Blg. 232, the "Education Act of 1982." Section 9 of this
act provides:
Sec. 9. Rights of Students in School. — In addition to other rights,
and subject to the limitations prescribed by law and regulations,
students and pupils in all schools shall enjoy the following rights:
xxx xxx xxx
2. The right to freely choose their field of study subject to
existing curricula and to continue their course therein up to
graduation, except in cases of academic deficiency, or violation of
disciplinary regulations.
xxx xxx xxx
5. Academic Freedom Not a Ground for Denying Students'
Rights.
Respondent judge, in his order dated February 24, 1989, stated that
"respondent Mabini College is free to admit or not admit the
petitioners for re-enrollment in view of the academic freedom
enjoyed by the school" [Rollo, p. 16]. To support this conclusion, he
cited the cases of Garcia v. The Faculty Admission Committee,
Loyola School of Theology, G.R. No. L-40779, November 28, 1975,
68 SCRA 277, and Tangonan v. Pano, G.R. No. L-45157, June 27,

1985, 137 SCRA 245, where the Court emphasized the institutions'
discretion on the admission and enrollment of students as a major
component of the academic freedom guaranteed to institutions of
higher learning.
These cases involve different facts and issues. In Garcia, the issue
was whether a female lay student has a clear legal right to compel
a seminary for the priesthood to admit her for theological studies
leading to a degree. In Tangonan, the issue was whether a nursing
student, who was admitted on probation and who has failed in her
nursing subjects, may compel her school to readmit her for
enrollment.
Moreover, respondent judge loses sight of the Court's unequivocal
statement in Villar that the right of an institution of higher learning to
set academic standards cannot be utilized to discriminate against
students who exercise their constitutional rights to speech and
assembly, for otherwise there win be a violation of their right to equal
protection [At p. 711]
6. Capitol Medical Center and Licup.
In support of the action taken by respondent judge, private
respondents cite the recent cases of Capitol Medical Center, Inc. v.
Court of Appeals, G.R. No. 82499, October 13, 1989, and Licup v.
University of San Carlos, G.R. No. 85839, October 19, 1989, both
decided by the First Division of the Court.
We find the issues raised and resolved in these two decisions
dissimilar from the issues in the present case.
In Capitol Medical Center, the Court upheld the decision of the
school authorities to close down the school because of problems
emanating from a labor dispute between the school and its faculty.
The Court ruled that the students had no clear legal right to demand
the reopening of the school.
On the other hand, in Licup the issue resolved was whether or not
the students were afforded procedural due process before
disciplinary action was taken against them. Thus, the Court stated:
The Court finds no cogent basis for the protestations of petitioners
that they were deprived of due process of law and that the
investigation conducted was far from impartial and fair. On the
contrary, what appear from the record is that the charges against
petitioners were adequately established in an appropriate
investigation. The imputation of bias and partiality is not supported
by the record. . . .
Moreover, Licup, far from adopting the "termination of contract"
theory in Alcuaz, impliedly rejected it, to wit:
While it is true that the students are entitled to the right to pursue
their education, the USC as an educational institution is also entitled
to pursue its academic freedom and in the process has the
concommitant right to see to it that this freedom is not jeopardized.
True, an institution of learning has a contractual obligation to afford
its students a fair opportunity to complete the course they seek to
pursue. However, when a student commits a serious breach of
discipline or fails to maintain the required academic standard, he
forfeits his contractual right; and the court should not review the
discretion of university authorities. (Emphasis supplied.)
7. The Instant Case.
To justify the school's action, respondents, in their Comment dated
November 12, 1989, quoting from their answer filed in the trial court,
allege that of the thirteen (13) petitioners eight (8) have incurred
failing grades, to wit:
CONSTI LAW II I ACJUCO 88
a) Ariel Non has not only failed in four (4) subjects but also
failed to cause the submission of Form 137 which is a pre-requisite
to his re- enrollment and to his continuing as a student of Mabini;
b) Rex Magana not only has failed in one (1) subject but also
has incomplete grades in four (4) subjects as well as no grades in
two (2) subjects;
c) Elvin Agura failed in two (2) subjects and has three (3)
incomplete grades;
d) Emmanuel Barba has failed in one (1) subject, and has to
still take CMT 1 1 to 22. He is already enrolled at Ago Foundation;
e) Joselito Villalon has incomplete grades in nine (9)
subjects;
f) Luis Santos has failed in one (1) subject;
g) George Dayaon has failed in four (4) subjects and has to
remove the incomplete grade in one (1) subject;
h) Daniel Torres has failed in five (5) subjects, has to remove
incomplete grades in five (5) more objects and has no grade in one
(1) subject. [Rollo, p. 79.]
Petitioners have not denied this, but have countered this allegation
as follows:
xxx xxx xxx
(11) Petitioners were and are prepared to show, among others,
that:
a) Three of the 13 of them were graduating. (Admitted in the
Answer.)
b) Their academic deficiencies, if any, do not warrant non-
readmission. (The Answer indicates only 8 of the 13 as with
deficiencies.)
c) Their breach of discipline, if any, was not serious.
d) The improper conduct attributed to them was during the
exercise of the cognate rights of free speech and peaceable
assembly, particularly a February 1988 student rally. (The crux of
the matter, as shown even in the Answer.)
e) There was no due investigation that could serve as basis
for disciplinary action. (In effect, admitted in the Answer; even
Alcuaz required due process.)
f) Respondents admit students with worse deficiencies — a
clear case of discrimination against petitioners for their role in the
student rally. (An equal protection question.)
g) Respondent school is their choice institution near their
places of residence which they can afford to pay for tertiary
education, of which they have already lost one-and-a-half school-
years — in itself punishment enough. [Rollo, p. 86].
Clearly, the five (5) students who did not incur failing marks, namely,
Normandy Occiano, Lourdes Banares, Bartolome Ibasco, Sonny
Moreno and Giovani Palma, were refused re-enrollment without just
cause and, hence, should be allowed to re-enroll.
On the other hand, it does not appear that the petitioners were
afforded due process, in the manner expressed in Guzman, before
they were refused re-enrollment. In fact, it would appear from the
pleadings that the decision to refuse them re-enrollment because of
failing grades was a mere afterthought. It is not denied that what
 CONSTI LAW II I ACJUCO 89

incurred the ire of the school authorities was the student mass
actions conducted in February 1988 and which were led and/or
participated in by petitioners. Certainly, excluding students because
of failing grades when the cause for the action taken against them
undeniably related to possible breaches of discipline not only is a
denial of due process but also constitutes a violation of the basic
tenets of fair play.

Moreover, of the eight (8) students with failing grades, some have
only one or two failures, namely, Rex Magana, Elvin Agura,
Emmanuel Barba, and Luis Santos. Certainly, their failures cannot
be considered marked academic deficiency within the context of the
Court's decision in Villar.

Then, as to the students who incurred several failing grades,

namely, Ariel Non, Joselito Villalon, George (Jorge) Dayaon, and
Daniel Torres, it is not clear from respondents' enumeration whether
the failures were incurred in only one semester or through the
course of several semesters of study in the school. Neither are the
academic standards of respondent school, from which we can
gauge whether or not these students are academically deficient,
alleged by respondents. Thus, while the prerogative of schools to
set academic standards is recognized, we cannot affirm respondent
school's action as to petitioners Non, Villalon, Dayaon and Torres
because of insufficient information.

With regard to petitioner Emmanuel Barba who respondents claim

has enrolled in Ago Foundation, such fact alone, if true, will not bar
him from seeking readmission in respondent school.

However, these should not be taken to mean that no disciplinary

action could have been taken against petitioners for breach of
discipline if the facts had so warranted. In line with the Court's ruling
in Malabanan, petitioners could have been subjected to disciplinary
proceedings in connection with the February 1988 mass actions.
But the penalty that could have been imposed must be
commensurate to the offense committed and, as set forth in
Guzman, it must be imposed only after the requirements of
procedural due process have been complied with. This is explicit
from the Manual of Regulations for Private Schools, which provides
in Paragraph 145 that "[n]o penalty shall be imposed upon any
student, except for cause as defined in this Manual and/or in the
school's rules and regulations duly promulgated and only after due
investigation shall have been conducted."

But this matter of disciplinary proceedings and the imposition of

administrative sanctions have become moot and academic.
Petitioners, who have been refused readmission or re-enrollment
and who have been effectively excluded from respondent school for
four (4) semesters, have already been more than sufficiently
penalized for any breach of discipline they might have committed
when they led and participated in the mass actions that, according
to respondents, resulted in the disruption of classes. To still subject
them to disciplinary proceedings would serve no useful purpose and
would only further aggravate the strained relations between
petitioners and the officials of respondent school which necessarily
resulted from the heated legal battle here, in the Court of Appeals
and before the trial court.

WHEREFORE, the petition is GRANTED. The orders of respondent

judge dated August 8, 1988 and February 24, 1989 are hereby
ANNULLED. Respondent Mabini College is ORDERED to readmit
and to allow the re- enrollment of petitioners, if they are still so
minded, without prejudice to its taking the appropriate action as to
petitioners Ariel Non, Joselito Villalon, George (Jorge) Dayaon and
Daniel Torres, if it is shown by their records (Form 137) that they
have failed to satisfy the school's prescribed academic standards.

SO ORDERED.

EQUAL PROTECTION
G.R. No. 148208 December 15, 2004
CENTRAL BANK (now Bangko Sentral ng Pilipinas)
EMPLOYEES ASSOCIATION, INC., petitioner,
vs.
BANGKO SENTRAL NG PILIPINAS and the EXECUTIVE
SECRETARY, respondents.
DECISION
PUNO, J.:
Can a provision of law, initially valid, become subsequently
unconstitutional, on the ground that its continued operation would
violate the equal protection of the law? We hold that with the
passage of the subsequent laws amending the charter of seven (7)
other governmental financial institutions (GFIs), the continued
operation of the last proviso of Section 15(c), Article II of Republic
Act (R.A.) No. 7653, constitutes invidious discrimination on the
2,994 rank-and-file employees of the Bangko Sentral ng Pilipinas
(BSP).
I.
The Case
First the facts.
On July 3, 1993, R.A. No. 7653 (the New Central Bank Act) took
effect. It abolished the old Central Bank of the Philippines, and
created a new BSP.
On June 8, 2001, almost eight years after the effectivity of R.A. No.
7653, petitioner Central Bank (now BSP) Employees Association,
Inc., filed a petition for prohibition against BSP and the Executive
Secretary of the Office of the President, to restrain respondents from
further implementing the last proviso in Section 15(c), Article II of
R.A. No. 7653, on the ground that it is unconstitutional.
Article II, Section 15(c) of R.A. No. 7653 provides:
Section 15. Exercise of Authority - In the exercise of its authority,
the Monetary Board shall:
xxx xxx xxx
(c) establish a human resource management system which shall
govern the selection, hiring, appointment, transfer, promotion, or
dismissal of all personnel. Such system shall aim to establish
professionalism and excellence at all levels of the Bangko Sentral
in accordance with sound principles of management.
A compensation structure, based on job evaluation studies and
wage surveys and subject to the Board's approval, shall be instituted
as an integral component of the Bangko Sentral's human resource
development program: Provided, That the Monetary Board shall
make its own system conform as closely as possible with the
principles provided for under Republic Act No. 6758 [Salary
Standardization Act]. Provided, however, That compensation and
wage structure of employees whose positions fall under salary
grade 19 and below shall be in accordance with the rates prescribed
under Republic Act No. 6758. [emphasis supplied]
The thrust of petitioner's challenge is that the above proviso makes
an unconstitutional cut between two classes of employees in the
BSP, viz: (1) the BSP officers or those exempted from the coverage
of the Salary Standardization Law (SSL) (exempt class); and (2) the
rank-and-file (Salary Grade [SG] 19 and below), or those not
exempted from the coverage of the SSL (non-exempt class). It is
CONSTI LAW II I ACJUCO 90
contended that this classification is "a classic case of class
legislation," allegedly not based on substantial distinctions which
make real differences, but solely on the SG of the BSP personnel's
position. Petitioner also claims that it is not germane to the purposes
of Section 15(c), Article II of R.A. No. 7653, the most important of
which is to establish professionalism and excellence at all levels in
the BSP.1 Petitioner offers the following sub-set of arguments:
a. the legislative history of R.A. No. 7653 shows that the questioned
proviso does not appear in the original and amended versions of
House Bill No. 7037, nor in the original version of Senate Bill No.
1235; 2
b. subjecting the compensation of the BSP rank-and-file employees
to the rate prescribed by the SSL actually defeats the purpose of the
law3 of establishing professionalism and excellence at all levels in
the BSP; 4 (emphasis supplied)
c. the assailed proviso was the product of amendments introduced
during the deliberation of Senate Bill No. 1235, without showing its
relevance to the objectives of the law, and even admitted by one
senator as discriminatory against low-salaried employees of the
BSP;5
d. GSIS, LBP, DBP and SSS personnel are all exempted from the
coverage of the SSL; thus within the class of rank-and-file personnel
of government financial institutions (GFIs), the BSP rank-and-file
are also discriminated upon;6 and
e. the assailed proviso has caused the demoralization among the
BSP rank-and-file and resulted in the gross disparity between their
compensation and that of the BSP officers'.7
In sum, petitioner posits that the classification is not reasonable but
arbitrary and capricious, and violates the equal protection clause of
the Constitution.8 Petitioner also stresses: (a) that R.A. No. 7653
has a separability clause, which will allow the declaration of the
unconstitutionality of the proviso in question without affecting the
other provisions; and (b) the urgency and propriety of the petition,
as some 2,994 BSP rank-and-file employees have been prejudiced
since 1994 when the proviso was implemented. Petitioner
concludes that: (1) since the inequitable proviso has no force and
effect of law, respondents' implementation of such amounts to lack
of jurisdiction; and (2) it has no appeal nor any other plain, speedy
and adequate remedy in the ordinary course except through this
petition for prohibition, which this Court should take cognizance of,
considering the transcendental importance of the legal issue
involved.9
Respondent BSP, in its comment,10 contends that the provision
does not violate the equal protection clause and can stand the
constitutional test, provided it is construed in harmony with other
provisions of the same law, such as "fiscal and administrative
autonomy of BSP," and the mandate of the Monetary Board to
"establish professionalism and excellence at all levels in
accordance with sound principles of management."
The Solicitor General, on behalf of respondent Executive Secretary,
also defends the validity of the provision. Quite simplistically, he
argues that the classification is based on actual and real
differentiation, even as it adheres to the enunciated policy of R.A.
No. 7653 to establish professionalism and excellence within the
BSP subject to prevailing laws and policies of the national
government.11
II.
Issue
Thus, the sole - albeit significant - issue to be resolved in this case
is whether the last paragraph of Section 15(c), Article II of R.A. No.

7653, runs afoul of the constitutional mandate that "No person shall
be. . . denied the equal protection of the laws."12
III.
Ruling
A. UNDER THE PRESENT STANDARDS OF EQUAL
PROTECTION,
SECTION 15(c), ARTICLE II OF R.A. NO. 7653 IS VALID.
Jurisprudential standards for equal protection challenges
indubitably show that the classification created by the questioned
proviso, on its face and in its operation, bears no constitutional
infirmities.
It is settled in constitutional law that the "equal protection" clause
does not prevent the Legislature from establishing classes of
individuals or objects upon which different rules shall operate - so
long as the classification is not unreasonable. As held in Victoriano
v. Elizalde Rope Workers' Union,13 and reiterated in a long line of
cases:14
The guaranty of equal protection of the laws is not a guaranty of
equality in the application of the laws upon all citizens of the state.
It is not, therefore, a requirement, in order to avoid the constitutional
prohibition against inequality, that every man, woman and child
should be affected alike by a statute. Equality of operation of
statutes does not mean indiscriminate operation on persons merely
as such, but on persons according to the circumstances surrounding
them. It guarantees equality, not identity of rights. The Constitution
does not require that things which are different in fact be treated in
law as though they were the same. The equal protection clause
does not forbid discrimination as to things that are different. It does
not prohibit legislation which is limited either in the object to which it
is directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows
classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or
practice because they agree with one another in certain particulars.
A law is not invalid because of simple inequality. The very idea of
classification is that of inequality, so that it goes without saying that
the mere fact of inequality in no manner determines the matter of
constitutionality. All that is required of a valid classification is that it
be reasonable, which means that the classification should be based
on substantial distinctions which make for real differences, that it
must be germane to the purpose of the law; that it must not be
limited to existing conditions only; and that it must apply equally to
each member of the class. This Court has held that the standard is
satisfied if the classification or distinction is based on a reasonable
foundation or rational basis and is not palpably arbitrary.
In the exercise of its power to make classifications for the purpose
of enacting laws over matters within its jurisdiction, the state is
recognized as enjoying a wide range of discretion. It is not
necessary that the classification be based on scientific or marked
differences of things or in their relation. Neither is it necessary that
the classification be made with mathematical nicety. Hence,
legislative classification may in many cases properly rest on narrow
distinctions, for the equal protection guaranty does not preclude the
legislature from recognizing degrees of evil or harm, and legislation
is addressed to evils as they may appear. (citations omitted)
Congress is allowed a wide leeway in providing for a valid
classification.15 The equal protection clause is not infringed by
legislation which applies only to those persons falling within a
specified class.16 If the groupings are characterized by substantial
distinctions that make real differences, one class may be treated
and regulated differently from another.17 The classification must
CONSTI LAW II I ACJUCO 91
also be germane to the purpose of the law and must apply to all
those belonging to the same class.18
In the case at bar, it is clear in the legislative deliberations that the
exemption of officers (SG 20 and above) from the SSL was intended
to address the BSP's lack of competitiveness in terms of attracting
competent officers and executives. It was not intended to
discriminate against the rank-and-file. If the end-result did in fact
lead to a disparity of treatment between the officers and the rank-
and-file in terms of salaries and benefits, the discrimination or
distinction has a rational basis and is not palpably, purely, and
entirely arbitrary in the legislative sense. 19
That the provision was a product of amendments introduced during
the deliberation of the Senate Bill does not detract from its validity.
As early as 1947 and reiterated in subsequent cases,20 this Court
has subscribed to the conclusiveness of an enrolled bill to refuse
invalidating a provision of law, on the ground that the bill from which
it originated contained no such provision and was merely inserted
by the bicameral conference committee of both Houses.
Moreover, it is a fundamental and familiar teaching that all
reasonable doubts should be resolved in favor of the
constitutionality of a statute.21 An act of the legislature, approved
by the executive, is presumed to be within constitutional
limitations.22 To justify the nullification of a law, there must be a
clear and unequivocal breach of the Constitution, not a doubtful and
equivocal breach.23
B. THE ENACTMENT, HOWEVER, OF SUBSEQUENT LAWS -
EXEMPTING ALL OTHER RANK-AND-FILE EMPLOYEES
OF GFIs FROM THE SSL - RENDERS THE CONTINUED
APPLICATION OF THE CHALLENGED PROVISION
A VIOLATION OF THE EQUAL PROTECTION CLAUSE.
While R.A. No. 7653 started as a valid measure well within the
legislature's power, we hold that the enactment of subsequent laws
exempting all rank-and-file employees of other GFIs leeched all
validity out of the challenged proviso.
1. The concept of relative constitutionality.
The constitutionality of a statute cannot, in every instance, be
determined by a mere comparison of its provisions with applicable
provisions of the Constitution, since the statute may be
constitutionally valid as applied to one set of facts and invalid in its
application to another.24
A statute valid at one time may become void at another time
because of altered circumstances.25 Thus, if a statute in its practical
operation becomes arbitrary or confiscatory, its validity, even though
affirmed by a former adjudication, is open to inquiry and
investigation in the light of changed conditions.26
Demonstrative of this doctrine is Vernon Park Realty v. City of Mount
Vernon,27 where the Court of Appeals of New York declared as
unreasonable and arbitrary a zoning ordinance which placed the
plaintiff's property in a residential district, although it was located in
the center of a business area. Later amendments to the ordinance
then prohibited the use of the property except for parking and
storage of automobiles, and service station within a parking area.
The Court found the ordinance to constitute an invasion of property
rights which was contrary to constitutional due process. It ruled:
While the common council has the unquestioned right to enact
zoning laws respecting the use of property in accordance with a
well-considered and comprehensive plan designed to promote
public health, safety and general welfare, such power is subject to
the constitutional limitation that it may not be exerted arbitrarily or
unreasonably and this is so whenever the zoning ordinance
precludes the use of the property for any purpose for which it is

reasonably adapted. By the same token, an ordinance valid when
adopted will nevertheless be stricken down as invalid when, at a
later time, its operation under changed conditions proves
confiscatory such, for instance, as when the greater part of its value
is destroyed, for which the courts will afford relief in an appropriate
case.28 (citations omitted, emphasis supplied)
In the Philippine setting, this Court declared the continued
enforcement of a valid law as unconstitutional as a consequence of
significant changes in circumstances. Rutter v. Esteban29 upheld
the constitutionality of the moratorium law - its enactment and
operation being a valid exercise by the State of its police power30 -
but also ruled that the continued enforcement of the otherwise valid
law would be unreasonable and oppressive. It noted the subsequent
changes in the country's business, industry and agriculture. Thus,
the law was set aside because its continued operation would be
grossly discriminatory and lead to the oppression of the creditors.
The landmark ruling states:31
The question now to be determined is, is the period of eight (8) years
which Republic Act No. 342 grants to debtors of a monetary
obligation contracted before the last global war and who is a war
sufferer with a claim duly approved by the Philippine War Damage
Commission reasonable under the present circumstances?
It should be noted that Republic Act No. 342 only extends relief to
debtors of prewar obligations who suffered from the ravages of the
last war and who filed a claim for their losses with the Philippine War
Damage Commission. It is therein provided that said obligation shall
not be due and demandable for a period of eight (8) years from and
after settlement of the claim filed by the debtor with said
Commission. The purpose of the law is to afford to prewar debtors
an opportunity to rehabilitate themselves by giving them a
reasonable time within which to pay their prewar debts so as to
prevent them from being victimized by their creditors. While it is
admitted in said law that since liberation conditions have gradually
returned to normal, this is not so with regard to those who have
suffered the ravages of war and so it was therein declared as a
policy that as to them the debt moratorium should be continued in
force (Section 1).
But we should not lose sight of the fact that these obligations had
been pending since 1945 as a result of the issuance of Executive
Orders Nos. 25 and 32 and at present their enforcement is still
inhibited because of the enactment of Republic Act No. 342 and
would continue to be unenforceable during the eight-year period
granted to prewar debtors to afford them an opportunity to
rehabilitate themselves, which in plain language means that the
creditors would have to observe a vigil of at least twelve (12) years
before they could effect a liquidation of their investment dating as
far back as 1941. his period seems to us unreasonable, if not
oppressive. While the purpose of Congress is plausible, and should
be commended, the relief accorded works injustice to creditors who
are practically left at the mercy of the debtors. Their hope to effect
collection becomes extremely remote, more so if the credits are
unsecured. And the injustice is more patent when, under the law,
the debtor is not even required to pay interest during the operation
of the relief, unlike similar statutes in the United States.
xxx xxx xxx
In the face of the foregoing observations, and consistent with what
we believe to be as the only course dictated by justice, fairness and
righteousness, we feel that the only way open to us under the
present circumstances is to declare that the continued operation
and enforcement of Republic Act No. 342 at the present time is
unreasonable and oppressive, and should not be prolonged a
minute longer, and, therefore, the same should be declared null and
void and without effect. (emphasis supplied, citations omitted)
2. Applicability of the equal protection clause.
CONSTI LAW II I ACJUCO 92
In the realm of equal protection, the U.S. case of Atlantic Coast Line
R. Co. v. Ivey32 is illuminating. The Supreme Court of Florida ruled
against the continued application of statutes authorizing the
recovery of double damages plus attorney's fees against railroad
companies, for animals killed on unfenced railroad right of way
without proof of negligence. Competitive motor carriers, though
creating greater hazards, were not subjected to similar liability
because they were not yet in existence when the statutes were
enacted. The Court ruled that the statutes became invalid as
denying "equal protection of the law," in view of changed conditions
since their enactment.
In another U.S. case, Louisville & N.R. Co. v. Faulkner,33 the Court
of Appeals of Kentucky declared unconstitutional a provision of a
statute which imposed a duty upon a railroad company of proving
that it was free from negligence in the killing or injury of cattle by its
engine or cars. This, notwithstanding that the constitutionality of the
statute, enacted in 1893, had been previously sustained. Ruled the
Court:
The constitutionality of such legislation was sustained because it
applied to all similar corporations and had for its object the safety of
persons on a train and the protection of property…. Of course, there
were no automobiles in those days. The subsequent inauguration
and development of transportation by motor vehicles on the public
highways by common carriers of freight and passengers created
even greater risks to the safety of occupants of the vehicles and of
danger of injury and death of domestic animals. Yet, under the law
the operators of that mode of competitive transportation are not
subject to the same extraordinary legal responsibility for killing such
animals on the public roads as are railroad companies for killing
them on their private rights of way.
The Supreme Court, speaking through Justice Brandeis in
Nashville, C. & St. L. Ry. Co. v. Walters, 294 U.S. 405, 55 S.Ct. 486,
488, 79 L.Ed. 949, stated, "A statute valid when enacted may
become invalid by change in the conditions to which it is applied.
The police power is subject to the constitutional limitation that it may
not be exerted arbitrarily or unreasonably." A number of prior
opinions of that court are cited in support of the statement. The State
of Florida for many years had a statute, F.S.A. § 356.01 et seq.
imposing extraordinary and special duties upon railroad companies,
among which was that a railroad company was liable for double
damages and an attorney's fee for killing livestock by a train without
the owner having to prove any act of negligence on the part of the
carrier in the operation of its train. In Atlantic Coast Line Railroad
Co. v. Ivey, it was held that the changed conditions brought about
by motor vehicle transportation rendered the statute unconstitutional
since if a common carrier by motor vehicle had killed the same
animal, the owner would have been required to prove negligence in
the operation of its equipment. Said the court, "This certainly is not
equal protection of the law."34 (emphasis supplied)
Echoes of these rulings resonate in our case law, viz:
[C]ourts are not confined to the language of the statute under
challenge in determining whether that statute has any discriminatory
effect. A statute nondiscriminatory on its face may be grossly
discriminatory in its operation. Though the law itself be fair on its
face and impartial in appearance, yet, if it is applied and
administered by public authority with an evil eye and unequal hand,
so as practically to make unjust and illegal discriminations between
persons in similar circumstances, material to their rights, the denial
of equal justice is still within the prohibition of the Constitution.35
(emphasis supplied, citations omitted)
[W]e see no difference between a law which denies equal protection
and a law which permits of such denial. A law may appear to be fair
on its face and impartial in appearance, yet, if it permits of unjust
and illegal discrimination, it is within the constitutional prohibition…..

In other words, statutes may be adjudged unconstitutional because
of their effect in operation…. If a law has the effect of denying the
equal protection of the law it is unconstitutional. ….36 (emphasis
supplied, citations omitted
3. Enactment of R.A. Nos. 7907 + 8282 + 8289 + 8291 + 8523 +
8763
+ 9302 = consequential unconstitutionality of challenged proviso.
According to petitioner, the last proviso of Section 15(c), Article II of
R.A. No. 7653 is also violative of the equal protection clause
because after it was enacted, the charters of the GSIS, LBP, DBP
and SSS were also amended, but the personnel of the latter GFIs
were all exempted from the coverage of the SSL.37 Thus, within the
class of rank-and-file personnel of GFIs, the BSP rank-and-file are
also discriminated upon.
Indeed, we take judicial notice that after the new BSP charter was
enacted in 1993, Congress also undertook the amendment of the
charters of the GSIS, LBP, DBP and SSS, and three other GFIs,
from 1995 to 2004, viz:
1. R.A. No. 7907 (1995) for Land Bank of the Philippines (LBP);
2. R.A. No. 8282 (1997) for Social Security System (SSS);
3. R.A. No. 8289 (1997) for Small Business Guarantee and Finance
Corporation, (SBGFC);
4. R.A. No. 8291 (1997) for Government Service Insurance System
(GSIS);
5. R.A. No. 8523 (1998) for Development Bank of the Philippines
(DBP);
6. R.A. No. 8763 (2000) for Home Guaranty Corporation (HGC);38
and
7. R.A. No. 9302 (2004) for Philippine Deposit Insurance
Corporation (PDIC).
It is noteworthy, as petitioner points out, that the subsequent
charters of the seven other GFIs share this common proviso: a
blanket exemption of all their employees from the coverage of the
SSL, expressly or impliedly, as illustrated below:
1. LBP (R.A. No. 7907)
Section 10. Section 90 of [R.A. No. 3844] is hereby amended to read
as follows:
Section 90. Personnel. -
xxx xxx xxx
All positions in the Bank shall be governed by a compensation,
position classification system and qualification standards approved
by the Bank's Board of Directors based on a comprehensive job
analysis and audit of actual duties and responsibilities. The
compensation plan shall be comparable with the prevailing
compensation plans in the private sector and shall be subject to
periodic review by the Board no more than once every two (2) years
without prejudice to yearly merit reviews or increases based on
productivity and profitability. The Bank shall therefore be exempt
from existing laws, rules and regulations on compensation, position
classification and qualification standards. It shall however endeavor
to make its system conform as closely as possible with the principles
under Republic Act No. 6758. (emphasis supplied)
xxx xxx xxx
CONSTI LAW II I ACJUCO 93
2. SSS (R.A. No. 8282)
Section 1. [Amending R.A. No. 1161, Section 3(c)]:
xxx xxx xxx
(c)The Commission, upon the recommendation of the SSS
President, shall appoint an actuary and such other personnel as
may [be] deemed necessary; fix their reasonable compensation,
allowances and other benefits; prescribe their duties and establish
such methods and procedures as may be necessary to insure the
efficient, honest and economical administration of the provisions
and purposes of this Act: Provided, however, That the personnel of
the SSS below the rank of Vice President shall be appointed by the
SSS President: Provided, further, That the personnel appointed by
the SSS President, except those below the rank of assistant
manager, shall be subject to the confirmation by the Commission;
Provided further, That the personnel of the SSS shall be selected
only from civil service eligibles and be subject to civil service rules
and regulations: Provided, finally, That the SSS shall be exempt
from the provisions of Republic Act No. 6758 and Republic Act No.
7430. (emphasis supplied)
3. SBGFC (R.A. No. 8289)
Section 8. [Amending R.A. No. 6977, Section 11]:
xxx xxx xxx
The Small Business Guarantee and Finance Corporation shall:
xxx xxx xxx
(e) notwithstanding the provisions of Republic Act No. 6758, and
Compensation Circular No. 10, series of 1989 issued by the
Department of Budget and Management, the Board of Directors of
SBGFC shall have the authority to extend to the employees and
personnel thereof the allowance and fringe benefits similar to those
extended to and currently enjoyed by the employees and personnel
of other government financial institutions. (emphases supplied)
4. GSIS (R.A. No. 8291)
Section 1. [Amending Section 43(d)].
xxx xxx xxx
Sec. 43. Powers and Functions of the Board of Trustees. - The
Board of Trustees shall have the following powers and functions:
xxx xxx xxx
(d) upon the recommendation of the President and General
Manager, to approve the GSIS' organizational and administrative
structures and staffing pattern, and to establish, fix, review, revise
and adjust the appropriate compensation package for the officers
and employees of the GSIS with reasonable allowances, incentives,
bonuses, privileges and other benefits as may be necessary or
proper for the effective management, operation and administration
of the GSIS, which shall be exempt from Republic Act No. 6758,
otherwise known as the Salary Standardization Law and Republic
Act No. 7430, otherwise known as the Attrition Law. (emphasis
supplied)
xxx xxx xxx
5. DBP (R.A. No. 8523)
Section 6. [Amending E.O. No. 81, Section 13]:

Section 13. Other Officers and Employees. - The Board of Directors
shall provide for an organization and staff of officers and employees
of the Bank and upon recommendation of the President of the Bank,
fix their remunerations and other emoluments. All positions in the
Bank shall be governed by the compensation, position classification
system and qualification standards approved by the Board of
Directors based on a comprehensive job analysis of actual duties
and responsibilities. The compensation plan shall be comparable
with the prevailing compensation plans in the private sector and
shall be subject to periodic review by the Board of Directors once
every two (2) years, without prejudice to yearly merit or increases
based on the Bank's productivity and profitability. The Bank shall,
therefore, be exempt from existing laws, rules, and regulations on
compensation, position classification and qualification standards.
The Bank shall however, endeavor to make its system conform as
closely as possible with the principles under Compensation and
Position Classification Act of 1989 (Republic Act No. 6758, as
amended). (emphasis supplied)
6. HGC (R.A. No. 8763)
Section 9. Powers, Functions and Duties of the Board of Directors.
- The Board shall have the following powers, functions and duties:
xxx xxx xxx
(e) To create offices or positions necessary for the efficient
management, operation and administration of the Corporation:
Provided, That all positions in the Home Guaranty Corporation
(HGC) shall be governed by a compensation and position
classification system and qualifications standards approved by the
Corporation's Board of Directors based on a comprehensive job
analysis and audit of actual duties and responsibilities: Provided,
further, That the compensation plan shall be comparable with the
prevailing compensation plans in the private sector and which shall
be exempt from Republic Act No. 6758, otherwise known as the
Salary Standardization Law, and from other laws, rules and
regulations on salaries and compensations; and to establish a
Provident Fund and determine the Corporation's and the
employee's contributions to the Fund; (emphasis supplied)
xxx xxx xxx
7. PDIC (R.A. No. 9302)
Section 2. Section 2 of [Republic Act No. 3591, as amended] is
hereby further amended to read:
xxx xxx xxx
3.
xxx xxx xxx
A compensation structure, based on job evaluation studies and
wage surveys and subject to the Board's approval, shall be instituted
as an integral component of the Corporation's human resource
development program: Provided, That all positions in the
Corporation shall be governed by a compensation, position
classification system and qualification standards approved by the
Board based on a comprehensive job analysis and audit of actual
duties and responsibilities. The compensation plan shall be
comparable with the prevailing compensation plans of other
government financial institutions and shall be subject to review by
the Board no more than once every two (2) years without prejudice
to yearly merit reviews or increases based on productivity and
profitability. The Corporation shall therefore be exempt from existing
laws, rules and regulations on compensation, position classification
and qualification standards. It shall however endeavor to make its
system conform as closely as possible with the principles under
Republic Act No. 6758, as amended. (emphases supplied)
CONSTI LAW II I ACJUCO 94
Thus, eleven years after the amendment of the BSP charter, the
rank-and-file of seven other GFIs were granted the exemption that
was specifically denied to the rank-and-file of the BSP. And as if to
add insult to petitioner's injury, even the Securities and Exchange
Commission (SEC) was granted the same blanket exemption from
the SSL in 2000!39
The prior view on the constitutionality of R.A. No. 7653 was confined
to an evaluation of its classification between the rank-and-file and
the officers of the BSP, found reasonable because there were
substantial distinctions that made real differences between the two
classes.
The above-mentioned subsequent enactments, however, constitute
significant changes in circumstance that considerably alter the
reasonability of the continued operation of the last proviso of Section
15(c), Article II of Republic Act No. 7653, thereby exposing the
proviso to more serious scrutiny. This time, the scrutiny relates to
the constitutionality of the classification - albeit made indirectly as a
consequence of the passage of eight other laws - between the rank-
and-file of the BSP and the seven other GFIs. The classification
must not only be reasonable, but must also apply equally to all
members of the class. The proviso may be fair on its face and
impartial in appearance but it cannot be grossly discriminatory in its
operation, so as practically to make unjust distinctions between
persons who are without differences.40
Stated differently, the second level of inquiry deals with the following
questions: Given that Congress chose to exempt other GFIs (aside
the BSP) from the coverage of the SSL, can the exclusion of the
rank-and-file employees of the BSP stand constitutional scrutiny in
the light of the fact that Congress did not exclude the rank-and-file
employees of the other GFIs? Is Congress' power to classify so
unbridled as to sanction unequal and discriminatory treatment,
simply because the inequity manifested itself, not instantly through
a single overt act, but gradually and progressively, through seven
separate acts of Congress? Is the right to equal protection of the law
bounded in time and space that: (a) the right can only be invoked
against a classification made directly and deliberately, as opposed
to a discrimination that arises indirectly, or as a consequence of
several other acts; and (b) is the legal analysis confined to
determining the validity within the parameters of the statute or
ordinance (where the inclusion or exclusion is articulated), thereby
proscribing any evaluation vis-à-vis the grouping, or the lack thereof,
among several similar enactments made over a period of time?
In this second level of scrutiny, the inequality of treatment cannot be
justified on the mere assertion that each exemption (granted to the
seven other GFIs) rests "on a policy determination by the
legislature." All legislative enactments necessarily rest on a policy
determination - even those that have been declared to contravene
the Constitution. Verily, if this could serve as a magic wand to
sustain the validity of a statute, then no due process and equal
protection challenges would ever prosper. There is nothing
inherently sacrosanct in a policy determination made by Congress
or by the Executive; it cannot run riot and overrun the ramparts of
protection of the Constitution.
In fine, the "policy determination" argument may support the
inequality of treatment between the rank-and-file and the officers of
the BSP, but it cannot justify the inequality of treatment between
BSP rank-and-file and other GFIs' who are similarly situated. It fails
to appreciate that what is at issue in the second level of scrutiny is
not the declared policy of each law per se, but the oppressive results
of Congress' inconsistent and unequal policy towards the BSP rank-
and-file and those of the seven other GFIs. At bottom, the second
challenge to the constitutionality of Section 15(c), Article II of
Republic Act No. 7653 is premised precisely on the irrational
discriminatory policy adopted by Congress in its treatment of
persons similarly situated. In the field of equal protection, the

guarantee that "no person shall be … denied the equal protection of
the laws" includes the prohibition against enacting laws that allow
invidious discrimination, directly or indirectly. If a law has the effect
of denying the equal protection of the law, or permits such denial, it
is unconstitutional.41
It is against this standard that the disparate treatment of the BSP
rank-and-file from the other GFIs cannot stand judicial scrutiny. For
as regards the exemption from the coverage of the SSL, there exist
no substantial distinctions so as to differentiate, the BSP rank-and-
file from the other rank-and-file of the seven GFIs. On the contrary,
our legal history shows that GFIs have long been recognized as
comprising one distinct class, separate from other governmental
entities.
Before the SSL, Presidential Decree (P.D.) No. 985 (1976) declared
it as a State policy (1) to provide equal pay for substantially equal
work, and (2) to base differences in pay upon substantive
differences in duties and responsibilities, and qualification
requirements of the positions. P.D. No. 985 was passed to address
disparities in pay among similar or comparable positions which had
given rise to dissension among government employees. But even
then, GFIs and government-owned and/or controlled corporations
(GOCCs) were already identified as a distinct class among
government employees. Thus, Section 2 also provided, "[t]hat
notwithstanding a standardized salary system established for all
employees, additional financial incentives may be established by
government corporation and financial institutions for their
employees to be supported fully from their corporate funds and for
such technical positions as may be approved by the President in
critical government agencies."42
The same favored treatment is made for the GFIs and the GOCCs
under the SSL. Section 3(b) provides that one of the principles
governing the Compensation and Position Classification System of
the Government is that: "[b]asic compensation for all personnel in
the government and government-owned or controlled corporations
and financial institutions shall generally be comparable with those in
the private sector doing comparable work, and must be in
accordance with prevailing laws on minimum wages."
Thus, the BSP and all other GFIs and GOCCs were under the
unified Compensation and Position Classification System of the
SSL,43 but rates of pay under the SSL were determined on the
basis of, among others, prevailing rates in the private sector for
comparable work. Notably, the Compensation and Position
Classification System was to be governed by the following
principles: (a) just and equitable wages, with the ratio of
compensation between pay distinctions maintained at equitable
levels;44 and (b) basic compensation generally comparable with the
private sector, in accordance with prevailing laws on minimum
wages.45 Also, the Department of Budget and Management was
directed to use, as guide for preparing the Index of Occupational
Services, the Benchmark Position Schedule, and the following
factors:46
(1) the education and experience required to perform the duties and
responsibilities of the positions;
(2) the nature and complexity of the work to be performed;
(3) the kind of supervision received;
(4) mental and/or physical strain required in the completion of the
work;
(5) nature and extent of internal and external relationships;
(6) kind of supervision exercised;
(7) decision-making responsibility;
CONSTI LAW II I ACJUCO 95
(8) responsibility for accuracy of records and reports;
(9) accountability for funds, properties and equipment; and
(10) hardship, hazard and personal risk involved in the job.
The Benchmark Position Schedule enumerates the position titles
that fall within Salary Grades 1 to 20.
Clearly, under R.A. No. 6758, the rank-and-file of all GFIs were
similarly situated in all aspects pertaining to compensation and
position classification, in consonance with Section 5, Article IX-B of
the 1997 Constitution.47
Then came the enactment of the amended charter of the BSP,
implicitly exempting the Monetary Board from the SSL by giving it
express authority to determine and institute its own compensation
and wage structure. However, employees whose positions fall under
SG 19 and below were specifically limited to the rates prescribed
under the SSL.
Subsequent amendments to the charters of other GFIs followed.
Significantly, each government financial institution (GFI) was not
only expressly authorized to determine and institute its own
compensation and wage structure, but also explicitly exempted -
without distinction as to salary grade or position - all employees of
the GFI from the SSL.
It has been proffered that legislative deliberations justify the grant or
withdrawal of exemption from the SSL, based on the perceived need
"to fulfill the mandate of the institution concerned considering,
among others, that: (1) the GOCC or GFI is essentially proprietary
in character; (2) the GOCC or GFI is in direct competition with their
[sic] counterparts in the private sector, not only in terms of the
provisions of goods or services, but also in terms of hiring and
retaining competent personnel; and (3) the GOCC or GFI are or
were [sic] experiencing difficulties filling up plantilla positions with
competent personnel and/or retaining these personnel. The need
for the scope of exemption necessarily varies with the particular
circumstances of each institution, and the corresponding variance
in the benefits received by the employees is merely incidental."
The fragility of this argument is manifest. First, the BSP is the central
monetary authority,48 and the banker of the government and all its
political subdivisions.49 It has the sole power and authority to issue
currency;50 provide policy directions in the areas of money,
banking, and credit; and supervise banks and regulate finance
companies and non-bank financial institutions performing quasi-
banking functions, including the exempted GFIs.51 Hence, the
argument that the rank-and-file employees of the seven GFIs were
exempted because of the importance of their institution's mandate
cannot stand any more than an empty sack can stand.
Second, it is certainly misleading to say that "the need for the scope
of exemption necessarily varies with the particular circumstances of
each institution." Nowhere in the deliberations is there a cogent
basis for the exclusion of the BSP rank-and-file from the exemption
which was granted to the rank-and-file of the other GFIs and the
SEC. As point in fact, the BSP and the seven GFIs are similarly
situated in so far as Congress deemed it necessary for these
institutions to be exempted from the SSL. True, the SSL-exemption
of the BSP and the seven GFIs was granted in the amended
charters of each GFI, enacted separately and over a period of time.
But it bears emphasis that, while each GFI has a mandate different
and distinct from that of another, the deliberations show that the
raison d'être of the SSL-exemption was inextricably linked to and for
the most part based on factors common to the eight GFIs, i.e., (1)
the pivotal role they play in the economy; (2) the necessity of hiring
and retaining qualified and effective personnel to carry out the GFI's
mandate; and (3) the recognition that the compensation package of

these GFIs is not competitive, and fall substantially below industry
standards. Considering further that (a) the BSP was the first GFI
granted SSL exemption; and (b) the subsequent exemptions of
other GFIs did not distinguish between the officers and the rank-
and-file; it is patent that the classification made between the BSP
rank-and-file and those of the other seven GFIs was inadvertent,
and NOT intended, i.e., it was not based on any substantial
distinction vis-à-vis the particular circumstances of each GFI.
Moreover, the exemption granted to two GFIs makes express
reference to allowance and fringe benefits similar to those extended
to and currently enjoyed by the employees and personnel of other
GFIs,52 underscoring that GFIs are a particular class within the
realm of government entities.
It is precisely this unpremeditated discrepancy in treatment of the
rank-and-file of the BSP - made manifest and glaring with each and
every consequential grant of blanket exemption from the SSL to the
other GFIs - that cannot be rationalized or justified. Even more so,
when the SEC - which is not a GFI - was given leave to have a
compensation plan that "shall be comparable with the prevailing
compensation plan in the [BSP] and other [GFIs],"53 then granted a
blanket exemption from the SSL, and its rank-and-file endowed a
more preferred treatment than the rank-and-file of the BSP.
The violation to the equal protection clause becomes even more
pronounced when we are faced with this undeniable truth: that if
Congress had enacted a law for the sole purpose of exempting the
eight GFIs from the coverage of the SSL, the exclusion of the BSP
rank-and-file employees would have been devoid of any substantial
or material basis. It bears no moment, therefore, that the unlawful
discrimination was not a direct result arising from one law. "Nemo
potest facere per alium quod non potest facere per directum." No
one is allowed to do indirectly what he is prohibited to do directly.
It has also been proffered that "similarities alone are not sufficient to
support the conclusion that rank-and-file employees of the BSP may
be lumped together with similar employees of the other GOCCs for
purposes of compensation, position classification and qualification
standards. The fact that certain persons have some attributes in
common does not automatically make them members of the same
class with respect to a legislative classification." Cited is the ruling
in Johnson v. Robinson:54 "this finding of similarity ignores that a
common characteristic shared by beneficiaries and
nonbeneficiaries alike, is not sufficient to invalidate a statute when
other characteristics peculiar to only one group rationally explain the
statute's different treatment of the two groups."
The reference to Johnson is inapropos. In Johnson, the US Court
sustained the validity of the classification as there were quantitative
and qualitative distinctions, expressly recognized by Congress,
which formed a rational basis for the classification limiting
educational benefits to military service veterans as a means of
helping them readjust to civilian life. The Court listed the peculiar
characteristics as follows:
First, the disruption caused by military service is quantitatively
greater than that caused by alternative civilian service. A
conscientious objector performing alternative service is obligated to
work for two years. Service in the Armed Forces, on the other hand,
involves a six-year commitment…
xxx xxx xxx
Second, the disruptions suffered by military veterans and alternative
service performers are qualitatively different. Military veterans suffer
a far greater loss of personal freedom during their service careers.
Uprooted from civilian life, the military veteran becomes part of the
military establishment, subject to its discipline and potentially
hazardous duty. Congress was acutely aware of the peculiar
disabilities caused by military service, in consequence of which
CONSTI LAW II I ACJUCO 96
military servicemen have a special need for readjustment
benefits…55 (citations omitted)
In the case at bar, it is precisely the fact that as regards the
exemption from the SSL, there are no characteristics peculiar only
to the seven GFIs or their rank-and-file so as to justify the exemption
which BSP rank-and-file employees were denied (not to mention the
anomaly of the SEC getting one). The distinction made by the law
is not only superficial,56 but also arbitrary. It is not based on
substantial distinctions that make real differences between the BSP
rank-and-file and the seven other GFIs.
Moreover, the issue in this case is not - as the dissenting opinion of
Mme. Justice Carpio-Morales would put it - whether "being an
employee of a GOCC or GFI is reasonable and sufficient basis for
exemption" from R.A. No. 6758. It is Congress itself that
distinguished the GFIs from other government agencies, not once
but eight times, through the enactment of R.A. Nos. 7653, 7907,
8282, 8289, 8291, 8523, 8763, and 9302. These laws may have
created a "preferred sub-class within government employees," but
the present challenge is not directed at the wisdom of these laws.
Rather, it is a legal conundrum involving the exercise of legislative
power, the validity of which must be measured not only by looking
at the specific exercise in and by itself (R.A. No. 7653), but also as
to the legal effects brought about by seven separate exercises -
albeit indirectly and without intent.
Thus, even if petitioner had not alleged "a comparable change in the
factual milieu as regards the compensation, position classification
and qualification standards of the employees of the BSP (whether
of the executive level or of the rank-and-file) since the enactment of
the new Central Bank Act" is of no moment. In GSIS v.
Montesclaros,57 this Court resolved the issue of constitutionality
notwithstanding that claimant had manifested that she was no
longer interested in pursuing the case, and even when the
constitutionality of the said provision was not squarely raised as an
issue, because the issue involved not only the claimant but also
others similarly situated and whose claims GSIS would also deny
based on the challenged proviso. The Court held that social justice
and public interest demanded the resolution of the constitutionality
of the proviso. And so it is with the challenged proviso in the case at
bar.
It bears stressing that the exemption from the SSL is a "privilege"
fully within the legislative prerogative to give or deny. However, its
subsequent grant to the rank-and-file of the seven other GFIs and
continued denial to the BSP rank-and-file employees breached the
latter's right to equal protection. In other words, while the granting of
a privilege per se is a matter of policy exclusively within the domain
and prerogative of Congress, the validity or legality of the exercise
of this prerogative is subject to judicial review.58 So when the
distinction made is superficial, and not based on substantial
distinctions that make real differences between those included and
excluded, it becomes a matter of arbitrariness that this Court has
the duty and the power to correct.59 As held in the United Kingdom
case of Hooper v. Secretary of State for Work and Pensions,60 once
the State has chosen to confer benefits, "discrimination" contrary to
law may occur where favorable treatment already afforded to one
group is refused to another, even though the State is under no
obligation to provide that favorable treatment. 61
The disparity of treatment between BSP rank-and-file and the rank-
and-file of the other seven GFIs definitely bears the unmistakable
badge of invidious discrimination - no one can, with candor and
fairness, deny the discriminatory character of the subsequent
blanket and total exemption of the seven other GFIs from the SSL
when such was withheld from the BSP. Alikes are being treated as
unalikes without any rational basis.
Again, it must be emphasized that the equal protection clause does
not demand absolute equality but it requires that all persons shall

be treated alike, under like circumstances and conditions both as to
privileges conferred and liabilities enforced. 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 is equally binding on the rest.62
In light of the lack of real and substantial distinctions that would
justify the unequal treatment between the rank-and-file of BSP from
the seven other GFIs, it is clear that the enactment of the seven
subsequent charters has rendered the continued application of the
challenged proviso anathema to the equal protection of the law, and
the same should be declared as an outlaw.
IV.
Equal Protection Under International Lens
In our jurisdiction, the standard and analysis of equal protection
challenges in the main have followed the "rational basis" test,
coupled with a deferential attitude to legislative classifications63 and
a reluctance to invalidate a law unless there is a showing of a clear
and unequivocal breach of the Constitution. 64
A. Equal Protection in the United States
In contrast, jurisprudence in the U.S. has gone beyond the static
"rational basis" test. Professor Gunther highlights the development
in equal protection jurisprudential analysis, to wit: 65
Traditionally, equal protection supported only minimal judicial
intervention in most contexts. Ordinarily, the command of equal
protection was only that government must not impose differences in
treatment "except upon some reasonable differentiation fairly
related to the object of regulation." The old variety of equal
protection scrutiny focused solely on the means used by the
legislature: it insisted merely that the classification in the statute
reasonably relates to the legislative purpose. Unlike substantive due
process, equal protection scrutiny was not typically concerned with
identifying "fundamental values" and restraining legislative ends.
And usually the rational classification requirement was readily
satisfied: the courts did not demand a tight fit between classification
and purpose; perfect congruence between means and ends was not
required.
xxx xxx xxx
[From marginal intervention to major cutting edge: The Warren
Court's "new equal protection" and the two-tier approach.]
From its traditional modest role, equal protection burgeoned into a
major intervention tool during the Warren era, especially in the
1960s. The Warren Court did not abandon the deferential
ingredients of the old equal protection: in most areas of economic
and social legislation, the demands imposed by equal protection
remained as minimal as ever…But the Court launched an equal
protection revolution by finding large new areas for strict rather than
deferential scrutiny. A sharply differentiated two-tier approach
evolved by the late 1960s: in addition to the deferential "old" equal
protection, a "new" equal protection, connoting strict scrutiny,
arose…. The intensive review associated with the new equal
protection imposed two demands - a demand not only as to means
but also one as to ends. Legislation qualifying for strict scrutiny
required a far closer fit between classification and statutory purpose
than the rough and ready flexibility traditionally tolerated by the old
equal protection: means had to be shown "necessary" to achieve
statutory ends, not merely "reasonably related" ones. Moreover,
equal protection became a source of ends scrutiny as well:
legislation in the areas of the new equal protection had to be justified
CONSTI LAW II I ACJUCO 97
by "compelling" state interests, not merely the wide spectrum of
"legitimate" state ends.
The Warren Court identified the areas appropriate for strict scrutiny
by searching for two characteristics: the presence of a "suspect"
classification; or an impact on "fundamental" rights or interests. In
the category of "suspect classifications," the Warren Court's major
contribution was to intensify the strict scrutiny in the traditionally
interventionist area of racial classifications. But other cases also
suggested that there might be more other suspect categories as
well: illegitimacy and wealth for example. But it was the 'fundamental
interests" ingredient of the new equal protection that proved
particularly dynamic, open-ended, and amorphous….. [Other
fundamental interests included voting, criminal appeals, and the
right of interstate travel ….]
xxx xxx xxx
The Burger Court and Equal Protection.
The Burger Court was reluctant to expand the scope of the new
equal protection, although its best established ingredient retains
vitality. There was also mounting discontent with the rigid two-tier
formulations of the Warren Court's equal protection doctrine. It was
prepared to use the clause as an interventionist tool without
resorting to the strict language of the new equal protection….
[Among the fundamental interests identified during this time were
voting and access to the ballot, while "suspect" classifications
included sex, alienage and illegitimacy.]
xxx xxx xxx
Even while the two-tier scheme has often been adhered to in form,
there has also been an increasingly noticeable resistance to the
sharp difference between deferential "old" and interventionist "new"
equal protection. A number of justices sought formulations that
would blur the sharp distinctions of the two-tiered approach or that
would narrow the gap between strict scrutiny and deferential review.
The most elaborate attack came from Justice Marshall, whose
frequently stated position was developed most elaborately in his
dissent in the Rodriguez case: 66
The Court apparently seeks to establish [that] equal protection
cases fall into one of two neat categories which dictate the
appropriate standard of review - strict scrutiny or mere rationality.
But this (sic) Court's [decisions] defy such easy categorization. A
principled reading of what this Court has done reveals that it has
applied a spectrum of standards in reviewing discrimination
allegedly violative of the equal protection clause. This spectrum
clearly comprehends variations in the degree of care with which
Court will scrutinize particular classification, depending, I believe, on
the constitutional and societal importance of the interests adversely
affected and the recognized invidiousness of the basis upon which
the particular classification is drawn.
Justice Marshall's "sliding scale" approach describes many of the
modern decisions, although it is a formulation that the majority
refused to embrace. But the Burger Court's results indicate at least
two significant changes in equal protection law: First, invocation of
the "old" equal protection formula no longer signals, as it did with
the Warren Court, an extreme deference to legislative classifications
and a virtually automatic validation of challenged statutes. Instead,
several cases, even while voicing the minimal "rationality" "hands-
off" standards of the old equal protection, proceed to find the statute
unconstitutional. Second, in some areas the modern Court has put
forth standards for equal protection review that, while clearly more
intensive than the deference of the "old" equal protection, are less
demanding than the strictness of the "new" equal protection. Sex
discrimination is the best established example of an "intermediate"
level of review. Thus, in one case, the Court said that "classifications
by gender must serve important governmental objectives and must

be substantially related to achievement of those objectives." That
standard is "intermediate" with respect to both ends and means:
where ends must be "compelling" to survive strict scrutiny and
merely "legitimate" under the "old" mode, "important" objectives are
required here; and where means must be "necessary" under the
"new" equal protection, and merely "rationally related" under the
"old" equal protection, they must be "substantially related" to survive
the "intermediate" level of review. (emphasis supplied, citations
omitted)
B. Equal Protection in Europe
The United Kingdom and other members of the European
Community have also gone forward in discriminatory legislation and
jurisprudence. Within the United Kingdom domestic law, the most
extensive list of protected grounds can be found in Article 14 of the
European Convention on Human Rights (ECHR). It prohibits
discrimination on grounds such as "sex, race, colour, language,
religion, political or other opinion, national or social origin,
association with a national minority, property, birth or other status."
This list is illustrative and not exhaustive. Discrimination on the basis
of race, sex and religion is regarded as grounds that require strict
scrutiny. A further indication that certain forms of discrimination are
regarded as particularly suspect under the Covenant can be
gleaned from Article 4, which, while allowing states to derogate from
certain Covenant articles in times of national emergency, prohibits
derogation by measures that discriminate solely on the grounds of
"race, colour, language, religion or social origin."67
Moreover, the European Court of Human Rights has developed a
test of justification which varies with the ground of discrimination. In
the Belgian Linguistics case68 the European Court set the standard
of justification at a low level: discrimination would contravene the
Convention only if it had no legitimate aim, or there was no
reasonable relationship of proportionality between the means
employed and the aim sought to be realised.69 But over the years,
the European Court has developed a hierarchy of grounds covered
by Article 14 of the ECHR, a much higher level of justification being
required in respect of those regarded as "suspect" (sex, race,
nationality, illegitimacy, or sexual orientation) than of others. Thus,
in Abdulaziz, 70 the European Court declared that:
. . . [t]he advancement of the equality of the sexes is today a major
goal in the member States of the Council of Europe. This means
that very weighty reasons would have to be advanced before a
difference of treatment on the ground of sex could be regarded as
compatible with the Convention.
And in Gaygusuz v. Austria,71 the European Court held that "very
weighty reasons would have to be put forward before the Court
could regard a difference of treatment based exclusively on the
ground of nationality as compatible with the Convention."72 The
European Court will then permit States a very much narrower
margin of appreciation in relation to discrimination on grounds of
sex, race, etc., in the application of the Convention rights than it will
in relation to distinctions drawn by states between, for example,
large and small land-owners. 73
C. Equality under International Law
The principle of equality has long been recognized under
international law. Article 1 of the Universal Declaration of Human
Rights proclaims that all human beings are born free and equal in
dignity and rights. Non-discrimination, together with equality before
the law and equal protection of the law without any discrimination,
constitutes basic principles in the protection of human rights. 74
Most, if not all, international human rights instruments include some
prohibition on discrimination and/or provisions about equality.75
The general international provisions pertinent to discrimination
and/or equality are the International Covenant on Civil and Political
CONSTI LAW II I ACJUCO 98
Rights (ICCPR);76 the International Covenant on Economic, Social
and Cultural Rights (ICESCR); the International Convention on the
Elimination of all Forms of Racial Discrimination (CERD);77 the
Convention on the Elimination of all Forms of Discrimination against
Women (CEDAW); and the Convention on the Rights of the Child
(CRC).
In the broader international context, equality is also enshrined in
regional instruments such as the American Convention on Human
Rights;78 the African Charter on Human and People's Rights;79 the
European Convention on Human Rights;80 the European Social
Charter of 1961 and revised Social Charter of 1996; and the
European Union Charter of Rights (of particular importance to
European states). Even the Council of the League of Arab States
has adopted the Arab Charter on Human Rights in 1994, although it
has yet to be ratified by the Member States of the League.81
The equality provisions in these instruments do not merely function
as traditional "first generation" rights, commonly viewed as
concerned only with constraining rather than requiring State action.
Article 26 of the ICCPR requires "guarantee[s]" of "equal and
effective protection against discrimination" while Articles 1 and 14 of
the American and European Conventions oblige States Parties "to
ensure ... the full and free exercise of [the rights guaranteed] ...
without any discrimination" and to "secure without discrimination"
the enjoyment of the rights guaranteed.82 These provisions impose
a measure of positive obligation on States Parties to take steps to
eradicate discrimination.
In the employment field, basic detailed minimum standards ensuring
equality and prevention of discrimination, are laid down in the
ICESCR83 and in a very large number of Conventions administered
by the International Labour Organisation, a United Nations body. 84
Additionally, many of the other international and regional human
rights instruments have specific provisions relating to
employment.85
The United Nations Human Rights Committee has also gone
beyond the earlier tendency to view the prohibition against
discrimination (Article 26) as confined to the ICCPR rights.86 In
Broeks87 and Zwaan-de Vries,88 the issue before the Committee
was whether discriminatory provisions in the Dutch Unemployment
Benefits Act (WWV) fell within the scope of Article 26. The Dutch
government submitted that discrimination in social security benefit
provision was not within the scope of Article 26, as the right was
contained in the ICESCR and not the ICCPR. They accepted that
Article 26 could go beyond the rights contained in the Covenant to
other civil and political rights, such as discrimination in the field of
taxation, but contended that Article 26 did not extend to the social,
economic, and cultural rights contained in ICESCR. The Committee
rejected this argument. In its view, Article 26 applied to rights
beyond the Covenant including the rights in other international
treaties such as the right to social security found in ICESCR:
Although Article 26 requires that legislation should prohibit
discrimination, it does not of itself contain any obligation with respect
to the matters that may be provided for by legislation. Thus it does
not, for example, require any state to enact legislation to provide for
social security. However, when such legislation is adopted in the
exercise of a State's sovereign power, then such legislation must
comply with Article 26 of the Covenant.89
Breaches of the right to equal protection occur directly or indirectly.
A classification may be struck down if it has the purpose or effect of
violating the right to equal protection. International law recognizes
that discrimination may occur indirectly, as the Human Rights
Committee90 took into account the definitions of discrimination
adopted by CERD and CEDAW in declaring that:
. . . "discrimination" as used in the [ICCPR] should be understood to
imply any distinction, exclusion, restriction or preference which is

based on any ground such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or
other status, and which has the purpose or effect of nullifying or
impairing the recognition, enjoyment or exercise by all persons, on
an equal footing, of all rights and freedoms. 91 (emphasis supplied)
Thus, the two-tier analysis made in the case at bar of the challenged
provision, and its conclusion of unconstitutionality by subsequent
operation, are in cadence and in consonance with the progressive
trend of other jurisdictions and in international law. There should be
no hesitation in using the equal protection clause as a major cutting
edge to eliminate every conceivable irrational discrimination in our
society. Indeed, the social justice imperatives in the Constitution,
coupled with the special status and protection afforded to labor,
compel this approach.92
Apropos the special protection afforded to labor under our
Constitution and international law, we held in International School
Alliance of Educators v. Quisumbing: 93
That public policy abhors inequality and discrimination is beyond
contention. Our Constitution and laws reflect the policy against
these evils. The Constitution in the Article on Social Justice and
Human Rights exhorts Congress to "give highest priority to the
enactment of measures that protect and enhance the right of all
people to human dignity, reduce social, economic, and political
inequalities." The very broad Article 19 of the Civil Code requires
every person, "in the exercise of his rights and in the performance
of his duties, [to] act with justice, give everyone his due, and observe
honesty and good faith."
International law, which springs from general principles of law,
likewise proscribes discrimination. General principles of law include
principles of equity, i.e., the general principles of fairness and
justice, based on the test of what is reasonable. The Universal
Declaration of Human Rights, the International Covenant on
Economic, Social, and Cultural Rights, the International Convention
on the Elimination of All Forms of Racial Discrimination, the
Convention against Discrimination in Education, the Convention
(No. 111) Concerning Discrimination in Respect of Employment and
Occupation - all embody the general principle against
discrimination, the very antithesis of fairness and justice. The
Philippines, through its Constitution, has incorporated this principle
as part of its national laws.
In the workplace, where the relations between capital and labor are
often skewed in favor of capital, inequality and discrimination by the
employer are all the more reprehensible.
The Constitution specifically provides that labor is entitled to
"humane conditions of work." These conditions are not restricted to
the physical workplace - the factory, the office or the field - but
include as well the manner by which employers treat their
employees.
The Constitution also directs the State to promote "equality of
employment opportunities for all." Similarly, the Labor Code
provides that the State shall "ensure equal work opportunities
regardless of sex, race or creed." It would be an affront to both the
spirit and letter of these provisions if the State, in spite of its
primordial obligation to promote and ensure equal employment
opportunities, closes its eyes to unequal and discriminatory terms
and conditions of employment.
xxx xxx xxx
Notably, the International Covenant on Economic, Social, and
Cultural Rights, in Article 7 thereof, provides:
CONSTI LAW II I ACJUCO 99
The States Parties to the present Covenant recognize the right of
everyone to the enjoyment of just and [favorable] conditions of work,
which ensure, in particular:
a. Remuneration which provides all workers, as a minimum, with:
i. Fair wages and equal remuneration for work of equal value without
distinction of any kind, in particular women being guaranteed
conditions of work not inferior to those enjoyed by men, with equal
pay for equal work;
xxx xxx xxx
The foregoing provisions impregnably institutionalize in this
jurisdiction the long honored legal truism of "equal pay for equal
work." Persons who work with substantially equal qualifications,
skill, effort and responsibility, under similar conditions, should be
paid similar salaries. (citations omitted)
Congress retains its wide discretion in providing for a valid
classification, and its policies should be accorded recognition and
respect by the courts of justice except when they run afoul of the
Constitution.94 The deference stops where the classification
violates a fundamental right, or prejudices persons accorded special
protection by the Constitution. When these violations arise, this
Court must discharge its primary role as the vanguard of
constitutional guaranties, and require a stricter and more exacting
adherence to constitutional limitations. Rational basis should not
suffice.
Admittedly, the view that prejudice to persons accorded special
protection by the Constitution requires a stricter judicial scrutiny
finds no support in American or English jurisprudence.
Nevertheless, these foreign decisions and authorities are not per se
controlling in this jurisdiction. At best, they are persuasive and have
been used to support many of our decisions.95 We should not place
undue and fawning reliance upon them and regard them as
indispensable mental crutches without which we cannot come to our
own decisions through the employment of our own endowments.
We live in a different ambience and must decide our own problems
in the light of our own interests and needs, and of our qualities and
even idiosyncrasies as a people, and always with our own concept
of law and justice.96 Our laws must be construed in accordance with
the intention of our own lawmakers and such intent may be deduced
from the language of each law and the context of other local
legislation related thereto. More importantly, they must be construed
to serve our own public interest which is the be-all and the end-all
of all our laws. And it need not be stressed that our public interest is
distinct and different from others.97
In the 2003 case of Francisco v. House of Representatives, this
Court has stated that: "[A]merican jurisprudence and authorities,
much less the American Constitution, are of dubious application for
these are no longer controlling within our jurisdiction and have only
limited persuasive merit insofar as Philippine constitutional law is
concerned....[I]n resolving constitutional disputes, [this Court]
should not be beguiled by foreign jurisprudence some of which are
hardly applicable because they have been dictated by different
constitutional settings and needs."98 Indeed, although the
Philippine Constitution can trace its origins to that of the United
States, their paths of development have long since diverged. 99
Further, the quest for a better and more "equal" world calls for the
use of equal protection as a tool of effective judicial intervention.
Equality is one ideal which cries out for bold attention and action in
the Constitution. The Preamble proclaims "equality" as an ideal
precisely in protest against crushing inequities in Philippine society.
The command to promote social justice in Article II, Section 10, in
"all phases of national development," further explicitated in Article
XIII, are clear commands to the State to take affirmative action in

the direction of greater equality.… [T]here is thus in the Philippine
Constitution no lack of doctrinal support for a more vigorous state
effort towards achieving a reasonable measure of equality.100
Our present Constitution has gone further in guaranteeing vital
social and economic rights to marginalized groups of society,
including labor.101 Under the policy of social justice, the law bends
over backward to accommodate the interests of the working class
on the humane justification that those with less privilege in life
should have more in law.102 And the obligation to afford protection
to labor is incumbent not only on the legislative and executive
branches but also on the judiciary to translate this pledge into a
living reality.103 Social justice calls for the humanization of laws and
the equalization of social and economic forces by the State so that
justice in its rational and objectively secular conception may at least
be approximated.104
V.
A Final Word
Finally, concerns have been raised as to the propriety of a ruling
voiding the challenged provision. It has been proffered that the
remedy of petitioner is not with this Court, but with Congress, which
alone has the power to erase any inequity perpetrated by R.A. No.
7653. Indeed, a bill proposing the exemption of the BSP rank-and-
file from the SSL has supposedly been filed.
Under most circumstances, the Court will exercise judicial restraint
in deciding questions of constitutionality, recognizing the broad
discretion given to Congress in exercising its legislative power.
Judicial scrutiny would be based on the "rational basis" test, and the
legislative discretion would be given deferential treatment. 105
But if the challenge to the statute is premised on the denial of a
fundamental right, or the perpetuation of prejudice against persons
favored by the Constitution with special protection, judicial scrutiny
ought to be more strict. A weak and watered down view would call
for the abdication of this Court's solemn duty to strike down any law
repugnant to the Constitution and the rights it enshrines. This is true
whether the actor committing the unconstitutional act is a private
person or the government itself or one of its instrumentalities.
Oppressive acts will be struck down regardless of the character or
nature of the actor. 106
Accordingly, when the grant of power is qualified, conditional or
subject to limitations, the issue on whether or not the prescribed
qualifications or conditions have been met, or the limitations
respected, is justiciable or non-political, the crux of the problem
being one of legality or validity of the contested act, not its wisdom.
Otherwise, said qualifications, conditions or limitations - particularly
those prescribed or imposed by the Constitution - would be set at
naught. What is more, the judicial inquiry into such issue and the
settlement thereof are the main functions of courts of justice under
the Presidential form of government adopted in our 1935
Constitution, and the system of checks and balances, one of its
basic predicates. As a consequence, We have neither the authority
nor the discretion to decline passing upon said issue, but are under
the ineluctable obligation - made particularly more exacting and
peremptory by our oath, as members of the highest Court of the
land, to support and defend the Constitution - to settle it. This
explains why, in Miller v. Johnson, it was held that courts have a
"duty, rather than a power", to determine whether another branch of
the government has "kept within constitutional limits." Not satisfied
with this postulate, the court went farther and stressed that, if the
Constitution provides how it may be amended - as it is in our 1935
Constitution - "then, unless the manner is followed, the judiciary as
the interpreter of that constitution, will declare the amendment
invalid." In fact, this very Court - speaking through Justice Laurel,
an outstanding authority on Philippine Constitutional Law, as well as
one of the highly respected and foremost leaders of the Convention
CONSTI LAW II I ACJUCO 100
that drafted the 1935 Constitution - declared, as early as July 15,
1936, that "(i)n times of social disquietude or political excitement,
the great landmarks of the Constitution are apt to be forgotten or
marred, if not entirely obliterated. In cases of conflict, the judicial
department is the only constitutional organ which can be called upon
to determine the proper allocation of powers between the several
departments" of the government.107 (citations omitted; emphasis
supplied)
In the case at bar, the challenged proviso operates on the basis of
the salary grade or officer-employee status. It is akin to a distinction
based on economic class and status, with the higher grades as
recipients of a benefit specifically withheld from the lower grades.
Officers of the BSP now receive higher compensation packages that
are competitive with the industry, while the poorer, low-salaried
employees are limited to the rates prescribed by the SSL. The
implications are quite disturbing: BSP rank-and-file employees are
paid the strictly regimented rates of the SSL while employees higher
in rank - possessing higher and better education and opportunities
for career advancement - are given higher compensation packages
to entice them to stay. Considering that majority, if not all, the rank-
and-file employees consist of people whose status and rank in life
are less and limited, especially in terms of job marketability, it is they
- and not the officers - who have the real economic and financial
need for the adjustment This is in accord with the policy of the
Constitution "to free the people from poverty, provide adequate
social services, extend to them a decent standard of living, and
improve the quality of life for all."108 Any act of Congress that runs
counter to this constitutional desideratum deserves strict scrutiny by
this Court before it can pass muster.
To be sure, the BSP rank-and-file employees merit greater concern
from this Court. They represent the more impotent rank-and-file
government employees who, unlike employees in the private sector,
have no specific right to organize as a collective bargaining unit and
negotiate for better terms and conditions of employment, nor the
power to hold a strike to protest unfair labor practices. Not only are
they impotent as a labor unit, but their efficacy to lobby in Congress
is almost nil as R.A. No. 7653 effectively isolated them from the
other GFI rank-and-file in compensation. These BSP rank-and-file
employees represent the politically powerless and they should not
be compelled to seek a political solution to their unequal and
iniquitous treatment. Indeed, they have waited for many years for
the legislature to act. They cannot be asked to wait some more for
discrimination cannot be given any waiting time. Unless the equal
protection clause of the Constitution is a mere platitude, it is the
Court's duty to save them from reasonless discrimination.
IN VIEW WHEREOF, we hold that the continued operation and
implementation of the last proviso of Section 15(c), Article II of
Republic Act No. 7653 is unconstitutional.
Davide, Jr., C.J., Quisumbing, Ynares-Santiago, Sandoval-
Gutierrez, Austria-Martinez, Azcuna, Tinga, and Chico-Nazario, JJ.,
concur.
Panganiban, Carpio, Carpio-Morales, and Garcia, JJ., see
dissenting.
Corona, and Callejo, Sr., JJ., on leave.
CONCURRING OPINION
CHICO-NAZARIO, J.:
Does Sec. 15(c), Article II, Republic Act No. 6753,1 which allows the
exemption of BSP employees occupying salary grade (SG) 20 and
above from the coverage of Rep. Act No. 67582 result in a denial of
petitioner's constitutional right to equal protection of the law?

I submit that it does and said provision should therefore be declared
unconstitutional on the ground that the division between BSP
employees covered from SG 19 down and from SG 20 up is purely
arbitrary. Even given the wide discretion vested in Congress to
make classifications, it is nonetheless clear that the lawmaking body
abused its discretion in making such classification.
It is not disputed that all that is required for a valid classification is
that it must be reasonable, i.e., that it must be based on substantial
distinctions which make for real differences; it must be germane to
the purpose of the law; it must not be limited to existing conditions
and it must apply equally to each member of the class.3
In the instant case, the classification was justified on the need of the
BSP to compete in the labor market for economists, accountants,
lawyers, experts in security, printing, commercial and rural banking,
financial intermediation fund management, and other highly
technical and professional personnel,4 which it could not do unless
personnel occupying top positions are exempted from the coverage
of Rep. Act No. 6758, the Salary Standardization Law.
Under Rep. Act No. 6758, however, professional supervisory
positions are covered by SG 9 to SG 33 which includes:
(R)esponsible positions of a managerial character involving the
exercise of management functions such as planning, organizing,
directing, coordinating, controlling and overseeing within delegated
authority the activities of an organization, a unit thereof or of a group,
requiring some degree of professional, technical or scientific
knowledge and experience, application of managerial or supervisory
skills required to carry out their basic duties and responsibilities
involving functional guidance and control, leadership, as well as line
supervision. These positions require intense and thorough
knowledge of a specialized field usually acquired from completion
of a bachelor's degree or higher degree courses.
The positions in this category are assigned Salary Grade 9 to Salary
Grade 33.5 (Underscoring supplied)
SG 33 is assigned to the President of the Philippines; SG 32 is for
the Vice-President, Senate President, Speaker of the House and
Chief Justice of this Court. SG 31 is for senators, associate justices
of this Court, chairpersons of the constitutional commissions,
department secretaries and other positions of equivalent rank while
SG 30 is assigned to the constitutional commissioners and other
positions of equivalent rank.6
Economists, accountants, lawyers and other highly technical and
professional personnel are covered under SG 9 to 29 as already
adverted to.
Classification in law is the grouping of persons/objects because they
agree with one another in certain particulars and differ from others
in those same particulars. In the instant case, however, SG 20 and
up do not differ from SG 19 and down in terms of technical and
professional expertise needed as the entire range of positions all
"require intense and thorough knowledge of a specialized field
usually acquired from completion of a bachelor's degree or higher
courses."
Consequently, if BSP needs an exemption from Rep. Act No. 6758
for key positions in order that it may hire the best and brightest
economists, accountants, lawyers and other technical and
professional people, the exemption must not begin only in SG 20.
Under the circumstances, the cut-off point, the great divide, between
SG 19 and 20 is entirely arbitrary as it does not have a reasonable
or rational foundation. This conclusion finds support in no less than
the records of the congressional deliberations, the bicameral
conference committee having pegged the cut-off period at SG 20
CONSTI LAW II I ACJUCO 101
despite previous discussions in the Senate that the "executive
group" is "probably" SG 23 and above.7
Moreover, even assuming that the classification is reasonable,
nonetheless, its continued operation will result in hostile
discrimination against those occupying grades 19 and below.
As pointed out by Mr. Justice Puno, some other government
corporations, by law, now exempt all their employees from the
coverage of Rep. Act No. 6758. BSP employees occupying SG 19
and below, however, shall remain under Rep. Act No. 6758
considering the rule that the subject classification, to be valid, must
not be limited only to conditions existing as of the time the law was
passed. Thus, while BSP employees from SG 19 down will continue
to be covered under Rep. Act No. 6758, other government
employees of the same class and occupying the same positions in
government corporations will be exempt.
I therefore concur with Justice Puno in that respect and, considering
his thorough discussion, I have nothing more to add thereto.
DISSENTING OPINION
PANGANIBAN, J.:
With all due respect, I dissent. I believe that it would be uncalled for,
untimely and imprudent for this Court to void the last proviso of the
second paragraph of Section 15(c) of Chapter 1 of Article II of
Republic Act (RA) 7653. In the first place, the assailed provision is
not unconstitutional, either on its face or as applied, and the theory
of relative constitutionality finds no application to the case at bar. In
the second place, a becoming respect on the part of this Court for
Congress as a coequal and coordinate branch of government
dictates that Congress should be given ample opportunity to study
the situation, weigh its options and exercise its constitutional
prerogative to enact whatever legislation it may deem appropriate
to address the alleged inequity pointed out by petitioner.
For the record, I am not against the exemption from the Salary
Standardization Law of the Bangko Sentral ng Pilipinas (BSP) rank
and file employees (with Salary Grade 19 and below). Neither am I
against increases in their pay. I simply submit that (1) the factual
milieu of this case does not show a denial of equal protection, (2)
the theory of relative constitutionality does not come into play, and
(3) petitioner should have addressed its plaint, not to this Court, but
to Congress in the first instance. I am confident that given sufficient
opportunity, the legislature will perform its constitutional duty
accordingly. Hence, there is no need or warrant for this Court to
intervene in legislative work.
Theory of Relative Constitutionality
Not Applicable to Extraneous Circumstances
The ponencia advocates the application of the theory of relative
constitutionality to the present case. The theory says that a statute
valid at one time may become unconstitutional at another, because
of altered circumstances or changed conditions that make the
practical operation of such a statute arbitrary or confiscatory. Thus,
the provisions of that statute, which may be valid as applied to one
set of facts but invalid as applied to another, cannot be merely
compared with those applicable under the Constitution.
From the manner in which it has been utilized in American and
Philippine jurisprudence, however, this novel theory finds relevance
only when the factual situation covered by an assailed law changes,
not when another law is passed pertaining to subjects not directly
covered by the former. Thus, the theory applies only when
circumstances that were specifically addressed upon the passage
of the law change. It does not apply to changes or alterations

extraneous to those specifically addressed. To prove my point, allow
me then to tackle seriatim the cases relied upon in the ponencia.1
Cited American Cases
Not Applicable to and
Not in Pari Materia with
Present Facts
Medill.2 The constitutionality issue in Medill v. State was raised by
a bankruptcy trustee in regard to a statute exempting damages that
were awarded to the claimants who suffered as a result of an
automobile accident.3 Specifically, the contested provision
exempted from "attachment, garnishment, or sale on any final
process issued from any court" (1) general damages and (2) future
special damages awarded in rights of action filed for injuries that
were caused to the person of a debtor or of a relative.4
The Supreme Court of Minnesota said that the general damages
portion of the right of action filed by claimants for personal injuries
sustained in fact represented the monetary restoration of the
physically and mentally damaged person; hence, claims for such
damages could never constitute unreasonable amounts for
exemption purposes.5 Such claims were thus fully exempt. It added
that the legislature had assigned the role of determining the
amounts that were reasonable to the state's judicial process.6
While a statute may be constitutional and valid as applied to one set
of facts and invalid in its application to another, the said Court limited
its discussion only to the set of facts as presented before it7 and
held that the statute was "not unconstitutional."8 Distinguishing the
facts of that case from those found in its earlier rulings,9 it concluded
that -- by limiting the assets that were available for distribution to
creditors10 -- the contested provision therein was a bankruptcy
relief for protecting not only human capital,11 but also the debtor's
fundamental needs.
Cook.12 The bankruptcy trustee in In re Cook also objected to the
same statutory exemption, inter alia, asserted by the debtors in
another personal injury claim.
The US Bankruptcy Court, following Medill, held that such
exemption was "violative of x x x the Minnesota Constitution,"13 as
applied to pre-petition special damages,14 but not as applied to
general damages.15 The statute did not provide for any limitation
on the amount of exemption as to the former type of damages.16
Neither did it set any objective criteria by which the bankruptcy court
may limit its size.17
Nashville.18 The plaintiff in Nashville v. Walters questioned the
constitutionality of a Tennessee statute imposing upon railroad
companies one half of the total cost of grade separation in every
instance that the state's Highway Commission issued an order for
the elimination of a grade crossing. The plaintiff rested its contention
not on the exercise of police power that promoted the safety of
travel, but on the arbitrariness and unreasonableness of the
imposition that deprived it of property without due process of law.19
Reversing the judgment that the Supreme Court of Tennessee had
rendered against the plaintiff, the US Supreme Court however did
not declare the statute unconstitutional.20 Instead, it remanded the
case, because the determination of facts showing arbitrariness and
unreasonableness should have been made by the Tennessee
Supreme Court in the first place.21 It enumerated the revolutionary
changes incident to transportation wrought in the 1930s by the
widespread introduction of motor vehicles; the assumption by the
federal government of the functions of a road builder; the resulting
depletion of rail revenues; the change in the character, construction
and use of highways; the change in the occasion for the elimination
of grade crossings, and in the purpose and beneficiaries of such
elimination; and the change in the relative responsibility of railroads
and vehicles moving on the highways.22 In addition, it held that the
CONSTI LAW II I ACJUCO 102
promotion of public convenience did not justify requiring a railroad
company -- any more than others -- to spend money, unless it was
shown that the duty to provide such convenience rested upon that
company.23 Providing an underpass at one's own expense for
private convenience, and not primarily as a safety measure, was a
denial of due process.24
Atlantic.25 In Atlantic v. Ivey, the plaintiff filed an action for damages
against the railroad company for the killing of a cow on an unfenced
right of way of the railway. The defendant pointed out that the
original Florida Act of 1889 and its later amendments in the 1940s
had required railroad companies to fence their tracks for the
protection and safety of the traveling public and their property
against livestock roaming at large. Thus, the defendant averred that
-- without imposing a similar fencing requirement on the owners of
automobiles, trucks and buses that carry passengers upon
unfenced public highways of the state where such vehicles operated
-- the equal protection guarantees of the state and federal
constitutions would be violated.26
Reversing the lower court's judgment for the plaintiff, the Supreme
Court of Florida held that the application of the contested statutes
under then existing conditions was violative of the equal protection
clause.27 Citing Nashville, that Court took judicial notice of the fact
that there were no motor carriers on public roads when the statutes
were originally enacted. It also reasoned that the statutes were
enacted in the exercise of the state's police power28 and were
intended for the protection of everyone against accidents involving
public transportation. Although motor-driven vehicles and railroad
carriers were under a similar obligation to protect everyone against
accidents to life and property when conducting their respective
businesses, the hazard of accidents by reason of cattle straying
onto the line of traffic of motor-driven vehicles was greater than that
which arose when cattle strayed onto the line of traffic of railroad
carriers.29 Yet the burden of expenses and penalties that were
rendered in favor of individuals who were neither shippers nor
passengers was imposed only on railroad carriers.30
In addition, the railroad carriers would be held liable for attorney's
fees and double the value of the animals killed in their railways,
without even requiring the plaintiffs who had sued them to prove the
negligence of such carriers in operating their equipment.31
Although it was argued that motor-driven vehicles had no authority
to fence on state and county highways over which they operated,
the legislature could nevertheless authorize and require them to
provide similar protection; or, in default thereof, to suffer similar
penalties that were incidental to using such public roads for
generating profit and serving the public.32
Louisville.33 The plaintiff in Louisville v. Faulkner also filed an action
against defendant-railroad company to recover the value of her
mule that had strayed from her premises and got struck and killed
by the company's train.34 The judgment of the lower court for the
plaintiff was based on the fact that the defendant did not offer any
evidence to rebut the prima facie presumption of the latter's
negligence under Kentucky statutes.35
The Court of Appeals of Kentucky held the contested provision
unconstitutional and reversed the said judgment.36 Citing both
Nashville and Atlantic, the appellate court said that because such
legislation applied to all similar corporations and was aimed at the
safety of all persons on a train and the protection of their property,
it was sustained from its inception in 1893; however, under changed
conditions, it could no longer be so. The court recognized the fact
that, in the 1950s, the inauguration and development of
transportation by motor vehicles on public highways created even
greater risks, not only to the occupants of such vehicles but also to
domestic animals.37 Yet, the operators of these vehicles were not
subjected to the same extraordinary legal responsibility of proving
that for the killing of those animals on public roads, they were free

from negligence, unlike railroad companies that struck and killed
such animals on private rights of way.38
Vernon.39 The plaintiff in Vernon v. City of Mount Vernon sought to
declare unconstitutional a city zoning ordinance which had limited
the business use of its realty, locally known as the "Plaza," only to
the parking of automobiles and its incidental services.40
The Court of Appeals of New York ruled that the ordinance was
unconstitutional.41 That ruling also affirmed the unanimous
judgment earlier rendered in favor of the plaintiff. Again citing
Nashville, the New York court ruled in the main that, no matter how
compelling and acute the community traffic problem might be as to
reach a strangulation point, the solution did not lie in placing an
undue and uncompensated burden on a landowner in the guise of
a regulation issued for a public purpose.42 Although for a long time
the plaintiff's land had already been devoted to parking, the
ordinance that prohibited any other use for it was not "a reasonable
exercise of the police power."43
While the city's common council had the right to pass ordinances
respecting the use of property according to well-considered and
comprehensive plans designed to promote public health, safety and
general welfare, the exercise of such right was still subject to the
constitutional limitation that it may not be exerted arbitrarily or
unreasonably. Thus, the zoning ordinance could not preclude the
use of property for any purpose for which it was reasonably
adapted.44 Although valid when adopted in 1927, the ordinance
was stricken down, because its operation under changed conditions
in the 1950s proved confiscatory, especially when the value of the
greater part of the land -- to be used, for instance, in the erection of
a retail shopping center -- was destroyed.45
Finally, Murphy v. Edmonds.46 An automobile driver and her
husband brought action against a tractor-trailer driver and his
employer and sought damages for the severe injuries she had
sustained in a collision. Raised in issue mainly was the
constitutionality of the statutory cap on noneconomic damages in
personal injury actions.47
Affirming the judgment of the Court of Special Appeals rejecting all
challenges to the validity of the law, the Court of Appeals of
Maryland held that there was no irrationality, arbitrariness, or
violation of equal protection in the legislative classification drawn
between (1) the less seriously injured tort claimants whose
noneconomic damages were less than the statutory cap; and (2) the
more seriously injured tort claimants whose noneconomic damages
were greater than, and thus subject to, the statutory cap.48
Although no express equal protection clause could be found in
Maryland's Constitution, the due process clause therein
nevertheless embodied equal protection to the same extent as that
found in the Fourteenth Amendment49 of the federal Constitution.50
Indeed, the right to recover full damages for a noneconomic injury
was recognized by common law even before the adoption of the
state's Constitution, but the said court declared that there was no
vested interest in any rule ordained by common law.51 Concluding
that only the traditional "rational basis test" should be used, the
appellate court also rejected the lower court's view of the right to
press a claim for pain and suffering as an "important right" requiring
a "heightened scrutiny test" of the legislative classification.52 Under
the "rational basis test," such legislative classification enjoyed a
strong presumption of constitutionality and, not being clearly
arbitrary, could not therefore be invalidated.53
Moreover, the law was an economic response to a legislatively
perceived crisis concerning not only the availability, but also the cost
of liability insurance in the state.54 Putting a statutory cap on
noneconomic damages was "reasonably related to a legitimate
legislative objective,"55 for it led to a greater ease in the calculation
of insurance premiums, thus making the market more attractive to
CONSTI LAW II I ACJUCO 103
insurers. Also, it ultimately reduced the cost of such premiums and
made insurance more affordable to individuals and organizations
that perform needed medical services.56
From the foregoing discussion, it is immediately evident that not one
of the above-cited cases is either applicable to or in pari materia with
the present case.
Medill not only upheld the constitutionality of the contested provision
therein, but also categorically stated that the peculiar facts of the
case prompted such declaration. General damages were declared
exempt; the law allowing their exemption was constitutional. Cook
simply affirmed Medill when the same contested provision was
applied to an issue similar to that which was raised in the latter case,
but then declared that provision unconstitutional when applied to
another issue. Thus, while general damages were also declared
exempt, the claims for special damages filed prior to the filing of a
petition for relief were not, and the law allowing the latter's
exemption was unconstitutional.
The court's action was to be expected, because the issue on special
damages in Cook was not at all raised in Medill, and there was no
precedent on the matter in Minnesota, other than the obiter dictum
-- if it can be called one -- in the latter case.57 Had that issue been
raised in Medill, a similar conclusion would inevitably have been
reached. In fact, that case already stated that while the court "need
not decide whether special damages incurred prior to judgment x x
x [were] to be exempt in order to decide the question"58 on general
damages raised therein, it felt that exempting special damages
appeared reasonable and likely to be applied, following an earlier
ruling in another case.59
Moreover, the facts of both Medill and Cook are not at all akin to so-
called "changed conditions" prompting the declarations of
constitutionality in the former and unconstitutionality in the latter.
Such "altered circumstances" or "changed conditions" in these two
cases refer to the non-exemption of special damages -- a subject
matter distinct and separable, although covered by the same
assailed statute. In fact, Cook precisely emphasized that "where a
statute is not inherently unconstitutional, it may be found
constitutional as applied to some separable subject matters, and
unconstitutional as applied to others."60 In other words, it was the
application of the contested provision therein to an entirely different
and separable subject matter -- not the contested provision itself --
that was declared unconstitutional, but the statute itself was not
inherently unconstitutional to begin with.
Equally important, Nashville skirted the issue on constitutionality.
The "changed conditions" referred to in that case, as well as in
Atlantic and Louisville, were the revolutionary changes in the mode
of transportation that were specifically covered by the statutes
respectively imposing additional costs upon railroad companies
only, requiring the fencing of their tracks, or solely compelling them
to present evidence to rebut the presumption of their negligence. In
Vernon, these "changed conditions" were deemed to be the
economic changes in the 1950s, through which the normal business
use of the land was unduly limited by the zoning ordinance that was
intended to address the acute traffic problem in the community.
Nashville simply took judicial notice of the change in conditions
which, together with the continued imposition of statutory charges
and fees, caused deprivation of property without due process of law.
Atlantic, Louisville and Vernon all relied upon Nashville, but then
went further by rendering their respective contested provisions
unconstitutional, because -- in the application of such provisions
under "changed conditions" -- those similarly situated were no
longer treated alike.
Finally, Murphy -- obviously misplaced because it made no
reference at all to the quoted sentence in the ponencia -- even
upheld the validity of its contested provision. There was no trace,

either, of any "changed conditions." If at all, the legislative
classification therein was declared constitutional, because it was in
fact a valid economic response to a legislatively perceived crisis
concerning the availability and cost of liability insurance.
In the present case, no "altered circumstances" or "changed
conditions" in the application of the assailed provision can be found.
It verily pertains to only one subject matter, not separable subject
matters as earlier pointed out in both Medill and Cook. Hence, its
application remains and will remain consistent. Not inherently
unconstitutional to begin with, it cannot now be declared
unconstitutional. Moreover, herein petitioner miserably fails to
demonstrate -- unlike in Nashville, Atlantic, Louisville, and Vernon -
- how those similarly situated have not been treated alike in the
application of the assailed provision.
Ponencia's Reference to
"Changed Conditions" Misplaced
From Nashville to Murphy, it can be seen that all the contested
statutes were passed in the exercise of police power -- the inherent
power of the State to regulate liberty and property for the promotion
of the general welfare.61 The police measure may be struck down
when an activity or property that ought to be regulated does not
affect the public welfare; or when the means employed are not
reasonably necessary for the accomplishment of the statute's
purpose, and they become unduly oppressive upon individuals.62
As Justice Brandeis stresses in Nashville, "it may not be exerted
arbitrarily or unreasonably."63
In the case before us today, the assailed provision can be
considered a police measure that regulates the income of BSP
employees. Indisputably, the regulation of such income affects the
public welfare, because it concerns not only these employees, but
also the public in general -- from whose various credits the banks
earn their income, the CB generates its revenues, and eventually
these employees get their salaries and other emoluments.
Additionally, with the passage of RAs 6758 and 7653, the means
employed by the State to accomplish its objectives are not unduly
oppressive. They are in fact reasonably necessary, not only to
attract the best and brightest bank regulatory personnel, but also to
establish professionalism and excellence within the BSP in
accordance with sound principles of management. Nothing,
therefore, is arbitrary in the assailed provision; it cannot be stricken
down.
With due respect, the ponencia's reference to "changed conditions"
is totally misplaced. In the above-cited US cases, this phrase never
referred to subsequent laws or executive pronouncements, but
rather to the facts and circumstances that the law or ordinance
specifically addressed upon its passage or adoption. A statute that
is declared invalid because of a change in circumstances affecting
its validity belongs only to a class of emergency laws.64 Being a
manifestation of the State's exercise of its police power, it is valid at
the time of its enactment.
In contrast thereto, RA 7653 cannot be regarded as an emergency
measure that is merely temporary in operation. It is not even a
statute limited to the exigency that brought it about. The facts and
circumstances it specifically addressed upon its passage have not
been shown to have changed at all. Hence, the assailed provision
of such a declaratory statute cannot be invalidated.
Unlike congested traffic or motor-driven vehicles on public roads,
the payment of salaries at differing scales in various GFIs vis-à-vis
in the BSP, is not such a change in conditions as would cause
deprivation of property without due process of law. Petitioner's
members have not been deprived of their right to income as
mandated by law. They have not received less than what they were
entitled to ever since RA 7653 was passed eleven years ago.
CONSTI LAW II I ACJUCO 104
To repeat, the factual situation that the assailed provision
specifically addressed upon passage of this law has not changed.
The same substantive rights to a competitive and structured human
resource development program existing then still exist now. Only the
laws external to and not amendatory of this law did. Even if these
new laws were to be considered as "changed conditions," those who
have been affected in the BSP (as will be shown later) are not at all
similarly situated as those in the GFIs to compel their like treatment
in application.
In addition, the rulings in all the above-cited American cases --
although entitled to great weight65 -- are merely of persuasive effect
in our jurisdiction66 and cannot be stare decisis.67 These are not
direct rulings of our Supreme Court68 that form part of the Philippine
legal system.69
Granting gratia argumenti that the cited cases are to be considered
binding precedents in our jurisdiction, Nashville -- the only one
federal in character -- does not even make a categorical declaration
on constitutionality. Furthermore, Murphy maintains that "[s]imply
because a legal principle is part of the common law x x x does not
give it any greater degree of insulation from legislative change."70
Common law, after all, is "a growing and ever-changing system of
legal principles and theories x x x."71
Every statute is presumed constitutional.72 This axiom reflects the
respect that must be accorded to the wisdom, integrity and
patriotism of the legislature that passed it and to the executive who
approved it.73 Understandably, therefore, the judiciary should be
reluctant to invalidate laws.74 Medill precisely emphasizes that the
"court's power to declare a statute unconstitutional should be
exercised with extreme caution and only when absolutely
necessary."75 Although that case continues by saying that unless it
is inherently unconstitutional, a law "must stand or fall x x x not upon
assumptions" the court may make, the ponencia is still dauntless in
relying thereon to support its arguments.
Rutter Does Not Even Apply
Again with due respect, the ponencia's citation of a local case,
Rutter,76 is also inappropriate. In the said case, appellant instituted
an action to recover the balance, and interest thereon, of a contract
of sale entered into barely four months prior to the outbreak of the
Second World War.77 The lower court, however, rendered
judgment78 for appellee who set up as defense79 the moratorium
clause embodied in RA 342.80 The lower court reasoned further
that the obligation sought to be enforced was not yet demandable
under that law.81
Reversing the judgment, this Court invalidated82 the moratorium
clause,83 not because the law was unconstitutional, but because
both its continued operation and enforcement had become
unreasonable and oppressive under postwar circumstances of
observable reconstruction, rehabilitation and recovery of the
country's general financial condition.84 The forced vigil suffered by
prewar creditors was not only unwittingly extended from eight to
twelve years, but was also imposed without providing for the
payment of the corresponding interest in the interim.85
Thus, the success of their collection efforts, especially when their
credits were unsecured, was extremely remote.86 Moreover, the
settlement of claims filed with the United States-Philippine War
Damage Commission was not only uncertain but was also
practically futile, for it depended entirely on the appropriations to be
made by the US Congress.
The contested clause in Rutter was definitely a remedial measure
passed to accord prewar debtors who suffered the ravages of war
an opportunity to rehabilitate themselves within a reasonable time
and to pay their prewar debts thereafter, thus preventing them from

being victimized in the interim by their prewar creditors. The purpose
having been achieved during the eight-year period, there was
therefore no more reason for the law. Cessante ratione legis cessat
et ipsa lex. When the reason for the law ceases, the law itself
ceases. But it does not become unconstitutional.
The altered circumstances or changed conditions in Rutter were
specifically the very circumstances that the law addressed at its
passage; they were not at all extraneous circumstances like
subsequent laws or executive pronouncements. The eight-year
moratorium period having lapsed, the debtors' concerns had been
adequately addressed. It was now the turn of the creditors to be
protected for the pre-war loans they granted.
In stark contrast, the contested proviso in the instant case is not a
remedial measure. It is not subject to a period within which a right
of action or a remedy is suspended. Since the reason for the law still
subsists, the law itself including the challenged proviso must
continue in existence and operation.
Relative Constitutionality
Not Based on Positive Law
Applying the concept of relative constitutionality strongly advocated
in the ponencia, therefore, not only goes beyond the parameters of
traditional constitutionalism, but also finds no express basis in
positive law.87 While it has been asserted that "a statute valid when
enacted may become invalid by change in conditions to which it is
applied,"88 the present case has shown no such change in
conditions that would warrant the invalidation of the assailed
provision if applied under such conditions. Hence, no semblance of
constitutional impuissance, other than its conjured possibility, can
be seen. In a constitutional order that commands respect for
coequal branches of government, speculation by the judiciary
becomes incendiary and deserves no respectable place in our
judicial chronicles.
The ponencia further contends that the principles of international
law can operate to render a valid law unconstitutional. The generally
accepted definition states that international law is a body of legal
rules that apply between sovereign states and such other entities as
have been granted international personality.89 Government
employees at the BSP with salary grades 19 and below are not such
entities vested with international personality; any possible
discrimination as to them, in the light of the principles and
application of international law would be too far-fetched.
The dangerous consequences of the majority's Decision in the
present case cannot and should not be ignored. Will there now be
an automatic SSL exemption for employees of other GFIs and
financial regulatory agencies? Will such exemption not infringe on
Congress' prerogative? The ponencia overlooks the fact that the
Bangko Sentral is not a GFI, but a regulatory body of GFIs and other
financial/banking institutions. Therefore, it should not be compared
with them. There is no parity. The Bangko Sentral is more akin to
the Insurance Commission, the National Telecommunications
Commission, and the Energy Regulatory Commission. Should not
more appropriate comparisons be made with such regulatory bodies
and their employees?
Respect for
Coequal Branch
The trust reposed in this Court is "not to formulate policy but to
determine its legality as tested by the Constitution."90 "It does not
extend to an unwarranted intrusion into that broad and legitimate
sphere of discretion enjoyed by the political branches to determine
the policies to be pursued. This Court should ever be on the alert
lest, without design or intent, it oversteps the boundary of judicial
competence."91 Judicial activism should not be allowed to become
judicial exuberance. "As was so well put by Justice Malcolm: 'Just
CONSTI LAW II I ACJUCO 105
as the Supreme Court, as the guardian of constitutional rights,
should not sanction usurpations by any other department of the
government, so should it as strictly confine its own sphere of
influence to the powers expressly or by implication conferred on it
by the Organic Act.'"92
Since Congress itself did not commit any constitutional violation or
gravely abusive conduct when it enacted RA 7653, it should not be
summarily blamed for what the ponencia calls "altered
circumstances."93 Congress should be given the opportunity to
correct the problem, if any. I repeat, I am not against exemption from
the SSL of Bangko Sentral employees with salary grades 19 and
below. Neither am I against increases in their pay. However, it is
Congress, not this Court, that should provide a solution to their
predicament, at least in the first instance.
The remedy against any perceived legislative failure to enact
corrective legislation is a resort, not to this Court, but to the bar of
public opinion. The electorate can refuse to return to Congress
members who, in their view, have been remiss in the discharge of
their constitutional duties.94 Our Constitution presumes that, absent
any inference of antipathy, improvident legislative decisions "will
eventually be rectified by the democratic processes;"95 and that
judicial intervention is unwarranted, no matter how unwisely a
political branch may have acted.96
It is only the legislature, not the courts, that "must be appealed to for
the change."97 If, however, Congress decides to act, the choice of
appropriate measure lies within its discretion. Once determined, the
measure chosen cannot be attacked on the ground that it is not the
best solution, or that it is unwise or inefficacious.98 A law that
advances a legitimate governmental interest will be sustained, even
if it "works to the disadvantage of a particular group, or x x x the
rationale for it seems tenuous."99 To compel this Court to make a
more decisive but unnecessary action in advance of what Congress
will do is a downright derogation of the Constitution itself, for it
converts the judiciary into a super-legislature and invests it with a
power that to it has never belonged.100
In the words of the great Sir William Blackstone, "there is no court
that has power to defeat the intent of the Legislature, when couched
in such evident and express words, as leave no doubt whether it
was the intent of the Legislature, or no[t]."101 As Rousseau further
puts it, "according to the fundamental compact, only the general will
can bind the individuals, and there can be no assurance that a
particular will is in conformity with the general will, until it has been
put to the free vote of the people."102 Thus, instead of this Court
invalidating a sovereign act, Congress should be given the
opportunity to enact the appropriate measure to address the so-
called "changed conditions."
We cannot second-guess the mind of the legislature as the
repository of the sovereign will. For all we know, amidst the fiscal
crisis and financial morass we are experiencing, Congress may
altogether remove the blanket exemption, put a salary cap on the
highest echelons,103 lower the salary grade scales subject to SSL
exemption, adopt performance-based compensation structures, or
even amend or repeal the SSL itself, but within the constitutional
mandate that "at the earliest possible time, the Government shall
increase the salary scales of x x x officials and employees of the
National Government."104 Legislative reforms of whatever nature
or scope may be taken one step at a time, addressing phases of
problems that seem to the legislative mind most acute.105 Rightly
so, our legislators must have "flexibility and freedom from judicial
oversight in shaping and limiting their remedial efforts."106 Where
there are plausible reasons for their action, the Court's "inquiry is at
an end."107
Under the doctrine of separation of powers and the concomitant
respect for coequal and coordinate branches of government, the

exercise of prudent restraint by this Court would still be best under
the present circumstances.
Not Grossly Discriminatory
There is no question that Congress neither violated the Constitution
nor gravely abused its discretion when it enacted "The New Central
Bank Act" to establish and organize the BSP in 1993.108 Indeed,
RA 7653 is a valid legislative measure. Even the majority concedes
that in enacting that law, Congress was well within its legislative
powers. However, the ponencia argues that the subsequent
enactment of laws granting "blanket exemption" from the coverage
of the SSL of all employees in seven GFIs109 has made the
contested proviso "grossly discriminatory in its operation"110 and
therefore unconstitutional.
This conclusion, to my mind, is a non sequitur. The mere possible
effect of related or unrelated laws on another law does not ipso facto
make the latter unconstitutional. Besides, as already discussed, the
theory of relative constitutionality is plainly inapplicable to the
present facts. Moreover, the ponencia has assumed without proof
that the BSP rank and file employees are factually and actually
similarly situated as the rank and filers of Land Bank, SSS, GSIS,
etc., and it is clear from the discussion in Mme. Justice Carpio
Morales' Dissenting Opinion that that is not really the case. In fact,
there exist some substantial differences in scope of work, job
responsibilities and so forth that would negate the ponencia's
assumption
No Indicium of Urgency
Other than its bare assertion that the continued implementation of
the assailed provision111 would cause "irreparable damage and
prejudice"112 to its members, petitioner also fails to show a
minimum indicium of such extreme urgency as would impel this
Court to second-guess Congress.
Briefly, petitioner contends that (1) the creation of two classes of
employees within the BSP based on the salary grade corresponding
to their positions113 is unreasonable, arbitrary and capricious class
legislation;114 and (2) the law itself discriminates against rank and
file employees of the BSP vis-à-vis those of GFIs.115
These contentions are utterly unsubstantiated. They find no support
in law for granting the relief prayed for.
While it is true that all employees of the BSP are appointed under
the authority of the Monetary Board, observe the same set of office
rules and regulations, and perform their work in practically the same
offices,116 it is equally true that the levels of difficulty and
responsibility for BSP employees with salary grades 19 and below
are different from those of other BSP employees with salary grades
20 and above. All those classes of position belonging to the
Professional Supervisory Category117 of the Position Classification
System118 under RA 6758, for instance, are obviously not
subjected to the same levels of difficulty, responsibility, and
qualification requirements as those belonging to the Professional
Non-Supervisory Category,119 although to both categories are
assigned positions that include salary grades 19 and 20.120 To
assert, as petitioner does, that the statutory classification is just an
"artifice based on arbitrariness,"121 without more, is nothing more
than throwing a few jabs at an imaginary foe.
In like manner, petitioner's denunciation of the proviso for allegedly
discriminating against its members vis-à-vis the rank and filers of
other GFIs ignores the fact that the BSP and the GFIs cited in the
ponencia do not belong to the same category of government
institutions, although it may be said that both are, broadly speaking,
"involved" in banking and finance.122 While the former performs
primarily governmental or regulatory functions, the latter execute
purely proprietary ones.
CONSTI LAW II I ACJUCO 106
Moreover, the extent of damage or prejudice inflicted upon the BSP
rank and file employees as a result of the proviso is not shown by
any evidence on record. Indeed, neither the petitioner nor the
ponencia demonstrate the injuries sustained.123
There is no indication whatsoever of the precise nature and extent
of damages caused or to be caused to petitioner's members by the
continued implementation of such provision. Surely, with no leg to
stand on, the allegation of petitioner that there is great disparity in
compensation, allowances or benefits, cannot be considered to be
stigmatizing and wounding to the psyche of thousands of its
members.124 In fact, BSP employees, in general, also share the
same tribulations of workers and employees in other regulatory
government offices.125 Not even petitioner's broad and bare claim
of "transcendental importance"126 can ipso facto generate alacrity
on the part of this Court.
In the United States more than sixty years ago, Justice Brandeis
delineated the famous canons of avoidance under which their
Supreme Court had refrained from passing upon constitutional
questions. One such canon is that the Court must "not anticipate a
question of constitutional law in advance of the necessity of deciding
it x x x. It is not the habit of the Court to decide questions of a
constitutional nature unless absolutely necessary to a decision of
the case."127 In addition, the Court must not "pass upon a
constitutional question although properly presented by the record, if
there is also present some other ground upon which the case may
be disposed of."128
Applying to this case the contours of constitutional avoidance
Brandeis brilliantly summarized, this Court may choose to ignore the
constitutional question presented by petitioner, since there is indeed
some other ground upon which this case can be disposed of -- its
clear lack of urgency, by reason of which Congress should be
allowed to do its primary task of reviewing and possibly amending
the law.
Taking cognizance of this case and disposing of, or altogether
ignoring, the constitutional question leads us to the same inevitable
conclusion: the assailed provision should not be declared
"unconstitutional, unless it is clearly so."129 Whichever path is
chosen by this Court, I am of the firm belief that such provision
cannot and should not be declared unconstitutional. Since the
authority to declare a legal provision void is of a "delicate and awful
nature,"130 the Court should "never resort to that authority, but in a
clear and urgent case."131 If ever there is doubt -- and clearly there
is, as manifested herein by a sharply divided Court -- "the expressed
will of the legislature should be sustained."132
Indeed, this Court is of the unanimous opinion that the assailed
provision was at the outset constitutional; however, with recent
amendments to related laws,133 the majority now feels that said
provision could no longer pass constitutional muster. To nail my
colors to the mast, such proclivity to declare it immediately
unconstitutional not only imprudently creeps into the legislative
sphere, but also sorely clings to the strands of obscurantism. Future
changes in both legislation and its executive implementation should
certainly not be the benchmark for a preemptive declaration of
unconstitutionality, especially when the said provision is not even
constitutionally infirm to begin with.
Moreover, the congressional enactment into law of pending bills134
on the compensation of BSP employees -- or even those related
thereto -- will certainly affect the assailed provision. This Court
should bide its time, for it has neither the authority nor the
competence to contemplate laws, much less to create or amend
them.
Given the current status of these pending bills, the arguments raised
by petitioner against the assailed provision become all the more

tenuous and amorphous. I feel we should leave that provision
untouched, and instead just accord proper courtesy to our
legislators to determine at the proper time and in the manner they
deem best the appropriate content of any modifications to it.
Besides, there is an omnipresent presumption of constitutionality in
every legislative enactment.135 No confutation of the proviso was
ever shown before; none should be considered now.
Congress Willing
to Perform Duty
Far from being remiss in its duty, Congress is in fact presently
deliberating upon HB 00123, which precisely seeks to amend RA
7653 by, inter alia, exempting from the SSL136 all positions in the
BSP.137 Accordingly, this Court should not preempt Congress,
especially when the latter has already shown its willingness and
ability to perform its constitutional duty.138 After all, petitioner has
not proven any extreme urgency for this Court to shove Congress
aside in terms of providing the proper solution. Lawmaking is not a
pool this Court should wade into.
The Monetary Board has enough leeway to devise its own human
resource management system, subject to the standards of
professionalism and excellence that are in accordance with sound
principles of management.139 This system must also be in close
conformity to the principles provided for, as well as with the rates
prescribed, under RA 6758.
More specifically, there should be "equal pay for substantially equal
work" and any differences in pay should be based "upon substantive
differences in duties and responsibilities, and qualification
requirements of the positions."140 In determining the basic
compensation of all government personnel, due regard should be
given by the said Board to the prevailing rates for comparable work
in the private sector.141 Furthermore, the reasonableness of such
compensation should be in proportion to the national budget142 and
to the possible erosion in purchasing power as a result of inflation
and other factors.143 It should also abide by the Index of
Occupational Services prepared by the Department of Budget and
Management in accordance with the Benchmark Position Schedule
and other factors prescribed thereunder.144
This Court has not been apprised as to how precisely the human
resource management system of the BSP has been misused. In the
absence of any evidence to the contrary, it is therefore presumed
that the law has been obeyed,145 and that official duty has been
regularly performed146 in implementing the said law. Where
additional implementing rules would still be necessary to put the
assailed provision into continued effect, any "attack on their
constitutionality would be premature."147
Surely, it would be wise "not to anticipate the serious constitutional
law problems that would arise under situations where only a
tentative judgment is dictated by prudence."148 Attempts "at
abstraction could only lead to dialectics and barren legal questions
and to sterile conclusions unrelated to actualities."149 A judicial
determination is fallow when inspired by purely cerebral casuistry or
emotional puffery, especially during rowelling times.
No Denial of Equal Protection
Even if the matter of urgency is set aside for the nonce, and the
Court exercises its power of judicial review150 over acts of the
legislature,151 I respectfully submit that the Petition should still be
dismissed because the assailed provision's continued operation will
not result in a denial of equal protection.
Neither the passage of RA 7653 nor its implementation has been
"committed with grave abuse of discretion amounting to lack or
excess of jurisdiction."152 Every statute is intended by the
legislature to operate "no further than may be necessary to
CONSTI LAW II I ACJUCO 107
effectuate"153 its specific purpose. In the absence of a clear finding
as to its arbitrary, whimsical or capricious application, the assailed
provision cannot be struck down as violative of the fundamental law.
Moreover, "[u]nder the 'enrolled bill doctrine,'154 the signing of a bill
by the Speaker of the House and the Senate President and the
certification of the [s]ecretaries of both Houses of Congress that it
was passed, are conclusive"155 "not only of its provisions but also
of its due enactment."156 It is therefore futile to welter in the thought
that the original and amended versions of the corresponding bill
have no reference to the proviso in question.157 Floor deliberations
are either expansive or restrictive. Bills filed cannot be expected to
remain static; they transmute in form and substance. Whatever
doubts there may be as to the validity of any provision therein must
necessarily be resolved in its favor.
Brief Background of the
Equal Protection Clause
Despite the egalitarian commitment in the Declaration of
Independence that "all men are created equal," the framers of the
original Constitution of the United States omitted any constitutional
rule of equal protection. Not until 1868, when the Fourteenth
Amendment thereto was ratified by the legislatures of the several
states of the Union,158 did the concept of equal protection have a
constitutional basis;159 and not until the modern era did the United
States Supreme Court give it enduring constitutional significance.
From its inception, therefore, the equal protection clause in "the
broad and benign provisions of the Fourteenth Amendment"160
already sought "to place all persons similarly situated upon a plane
of equality and to render it impossible for any class to obtain
preferred treatment."161 Its original understanding was the
proscription only of certain discriminatory acts based on race,162
although its proper construction, when called to the attention of the
US Supreme Court in the Slaughter-House Cases, first involved
exclusive privileges.163 Eventually, other disfavored bases of
governmental action were identified. Labeled as morally irrelevant
traits, gender, illegitimacy and alienage were included in this list.
Today, this clause is "the single most important concept x x x for the
protection of individual rights."164 It does not, however, create
substantive rights.165 Its guaranty is merely "a pledge of the
protection of equal laws."166 Its "promise that no person shall be
denied the equal protection of the laws must coexist with the
practical necessity that most legislation classifies for one purpose
or another, with resulting disadvantage to various groups or
persons."167
As mirrored in our Constitution,168 this clause enjoys the
interpretation given by its American framers169 and magistrates. In
fact, a century ago, this Court already enunciated that "the mere act
of cession of the Philippines to the United States did not extend the
[US] Constitution here, except such parts as fall within the general
principles of fundamental limitations in favor of personal rights
formulated in the [US] Constitution and its amendments, and which
exist rather by inference and the general spirit of the [US]
Constitution, and except those express provisions of the [US]
Constitution which prohibit Congress from passing laws in their
contravention under any circumstances x x x."170 Being one such
limitation in favor of personal rights enshrined in the Fourteenth
Amendment, equal protection is thus deemed extended to our
jurisdiction.
Notably, Justice Malcolm himself said that the constitutional law of
Spain, then in effect, was "entirely abrogated by the change of
sovereignty."171 As a result, it was the constitutional law of the
United States that was transposed to our fledgling political and legal
system. To be precise, the principal organic acts of the Philippines
included President McKinley's Instructions to the Second Philippine
Commission of April 7, 1900, to which this Court recognized the

United States Constitution as a limitation172 upon the powers of the
military governor then in charge of the Philippine Islands.173
In a catena of constitutional cases decided after the change in
sovereignty, this Court consistently held that the equal protection
clause requires all persons or things similarly situated to "be treated
alike, both as to rights conferred and responsibilities imposed.
Similar subjects x x x should not be treated differently, so as to give
undue favor to some and unjustly discriminate against others."174
Being a constitutional limitation first recognized175 in Rubi176 --
citing Yick Wo177 -- as one "derived from the Fourteenth
Amendment to the United States Constitution,"178 this clause
prescribes certain requirements for validity: the challenged statute
must be applicable to all members of a class, reasonable, and
enforced by the regular methods of procedure prescribed, rather
than by purely arbitrary means.179 Its reasonableness must meet
the requirements enumerated in Vera180 and later summarized in
Cayat.181
Three Tests
Passed by Assailed Provision
I respectfully submit that the assailed provision passes the three-
tiered standard of review for equal protection that has been
developed by the courts through all these years.
The Rational Basis Test
Under the first tier or the rational relationship or rational basis test,
courts will uphold a classification if it bears a rational relationship to
an accepted governmental end.182 In other words, it must be
"rationally related to a legitimate state interest."183 To be
reasonable, such classification must be (1) based on substantial
distinction that makes for real differences; (2) germane to the
purposes of the law; (3) not limited to existing conditions only; and
(4) equally applicable to all members of the same class.184
Murphy states that when a governmental classification is attacked
on equal protection grounds, such classification is in most instances
reviewed under the standard rational basis test.185 Accordingly,
courts will not overturn that classification, unless the varying
treatments of different groups are so unrelated to the achievement
of any legitimate purpose that the courts can only conclude that the
governmental actions are irrational.186 A classification must "be
reasonable, not arbitrary, and x x x rest upon some ground of
difference having a fair and substantial relation to the object of the
legislation, so that all persons similarly circumstanced shall be
treated alike."187
All these conditions are met in the present case. The retention of
the best and the brightest officials in an independent central
monetary authority188 is a valid governmental objective that can be
reasonably met by a corresponding exemption from a salary
standardization scheme that is based on graduated salary levels.
The legislature in fact enjoys a wide berth in continually classifying
whenever it enacts a law,189 provided that no persons similarly
situated within a given class are treated differently. To contend
otherwise is to be presumptuous about the legislative intent or lack
of it.
Whether it would have been a better policy to make a more
comprehensive classification "is not our province to decide."190 The
absence of legislative facts supporting a classification chosen has
no significance in the rational basis test.191 In fact, "a legislative
choice is not subject to courtroom fact-finding and may be based on
rational speculation unsupported by evidence or empirical data."192
Requiring Congress to justify its efforts may even "lead it to refrain
from acting at all."193 In addition, Murphy holds that the statutory
classification "enjoys a strong presumption of constitutionality, and
CONSTI LAW II I ACJUCO 108
a reasonable doubt as to its constitutionality is sufficient to sustain
it."194
Respectfully, therefore, I again differ from the ponencia's contention
that the amendments of the charters of the seven GFIs from 1995
to 2004195 have already "unconstitutionalized" the continued
implementation of the BSP proviso. Be it remembered that the first
six GFIs mentioned by Mr. Justice Puno -- namely the LBP, SSS,
SBGFC, GSIS, DBP and HGC -- do not stand in the same class and
category as the BSP.196
While the BSP, as mentioned earlier, is a regulatory agency
performing governmental functions, the six aforementioned GFIs
perform proprietary functions that chiefly compete with private
banks and other non-bank financial institutions. Thus, the so-called
concept of relative constitutionality again finds no application. Under
the rational relationship test, there can be no unequal protection of
the law between employees of the BSP and those of the GFIs.
Further, the equal protection clause "guarantees equality, not
identity of rights."197 A law remains valid even if it is limited "in the
object to which it is directed."198
"Defining the class of persons subject to a regulatory requirement x
x x inevitably requires that some persons who have an almost
equally strong claim to favored treatment be placed on different
sides of the line, and the fact that the line might have been drawn
differently at some points is a matter for legislative, rather than
judicial, consideration."199 In fact, as long as "the basic
classification is rationally based, uneven effects upon particular
groups within a class are ordinarily of no constitutional concern."200
"It is not the province of this Court to create substantive
constitutional rights in the name of guaranteeing equal protection of
the laws."201
On the other hand, the Philippine Deposit Insurance Corporation
(PDIC) is also a government regulatory agency almost on the same
level of importance as the BSP. However, its charter was only
amended very recently -- to be more precise, on July 27, 2004.202
Consequently, it would be most unfair to implicitly accuse Congress
of inaction, discrimination and unequal treatment. Comity with and
courtesy to a coequal branch dictate that our lawmakers be given
sufficient time and leeway to address the alleged problem of
differing pay scales. "Only by faithful adherence to this guiding
principle of judicial review of legislation is it possible to preserve to
the legislative branch its rightful independence and its ability to
function."203 Besides, it is a cardinal rule that courts first ascertain
whether construction of a statute is fairly possible by which any
constitutional question therein may be avoided.204
To explain further, while the possible changes contemplated by
Congress in HB 00123 are similar, if not identical, to those found in
the amended charters of the seven other GFIs already mentioned,
the governmental objectives as explicitly stated in the explanatory
note remain -- to ascertain BSP's effectiveness and to strengthen its
supervisory capability in promoting a more stable banking system.
This fact merely confirms that the present classification and
distinction under the assailed provision still bear a rational
relationship to the same legitimate governmental objectives and
should, therefore, not be invalidated.
The validity of a law is to be determined not by its effects on a
particular case or by an incidental result arising therefrom, but by
the purpose and efficacy of the law in accomplishing that effect or
result.205 This point confirms my earlier position that the enactment
of a law is not the same as its operation. Unlike Vera in which the
Court invalidated the law on probation because of the unequal effect
in the operation of such law,206 the assailed provision in the present
case suffers from no such invidious discrimination. It very well
achieves its purpose, and it applies equally to all government
employees within the BSP. Furthermore, the application of this
provision is not made subject to any discretion, uneven

appropriation of funds, or time limitation. Consequently, such a law
neither denies equal protection nor permits of such denial.
The Strict Scrutiny Test
Under the second tier or the strict scrutiny test, the Court will require
the government to show a compelling or overriding end to justify (1)
the limitation on fundamental rights or (2) the implication of suspect
classes.207 Where a statutory classification impinges upon a
fundamental right or burdens a suspect class, such classification is
subjected to strict scrutiny.208 It will be upheld only if it is shown to
be "suitably tailored to serve a compelling state interest."209
Therefore, all legal restrictions that curtail the civil rights of a suspect
class, like a single racial or ethnic group, are immediately suspect.
"That is not to say that all such restrictions are unconstitutional. It is
to say that courts must subject them to the most rigid scrutiny."210
Pressing public necessity, for instance, may justify the existence of
those restrictions, but antagonism toward such suspect classes
never can.
To date, no American case -- federal or state -- has yet been
decided involving equal pay schemes as applied either to
government employees vis-à-vis private ones, or within the
governmental ranks. Salary grade or class of position is not a
fundamental right like marriage,211 procreation,212 voting,213
speech214 and interstate travel.215 American courts have in fact
even refused to declare government employment a fundamental
right.216
As to suspect classes, non-exempt government employees (those
with salary grades below 20) are not a group "saddled with such
disabilities, or subjected to such a history of purposeful unequal
treatment, or relegated to such a position of political powerlessness,
as to command extraordinary protection from the majoritarian
political process."217 They are a group so much unlike race,218
nationality,219 alienage220 or denominational preference221 --
factors that are "seldom relevant to the achievement of any
legitimate state interest that laws grounded in such considerations
are deemed to reflect prejudice and antipathy x x x."222
Again, with due respect, the ponencia's223 reference to Yick
Wo,224 therefore, is unbefitting. Indeed that case held that "[t]hough
the law itself be fair on its face and impartial in appearance, yet, if it
is applied and administered by public authority with an evil eye and
an unequal hand, so as practically to make unjust and illegal
discriminations between persons in similar circumstances, material
to their rights, the denial of equal justice is still within the prohibition
of the [C]onstitution."225 The facts in Yick Wo clearly point out that
the questioned ordinances therein -- regulating the use of wooden
buildings in the business of keeping and conducting laundries --
operated in hostility to the race and nationality to which plaintiffs
belonged, being aliens and subjects of the Emperor of China.226
To a board of supervisors was given the arbitrary power to withhold
permits to carry on a harmless and useful occupation on which the
plaintiffs depended for livelihood.227
In contrast, no such arbitrariness is found in the case at bar. Neither
is there any allegation of abuse of discretion in the implementation
of a human resource development program. There is also no
allegation of hostility shown toward employees receiving salaries
below grade 20.
In fact, for purposes of equal protection analysis, financial need
alone does not identify a suspect class.228 And even if it were to
consider government pay to be akin to wealth, it has already been
held that "where wealth is involved, the Equal Protection Clause
does not require absolute equality or precisely equal
advantages."229 After all, a law does not become invalid "because
of simple inequality,"230 financial or otherwise.
CONSTI LAW II I ACJUCO 109
Since employment in the government is not a fundamental right and
government employees below salary grade 20 are not a suspect
class, the government is not required to present a compelling
objective to justify a possible infringement under the strict scrutiny
test. The assailed provision thus cannot be invalidated via the strict
scrutiny gauntlet. "In areas of social and economic policy, a statutory
classification that neither proceeds along suspect lines nor infringes
fundamental constitutional rights must be upheld against equal
protection challenge if there is any reasonably conceivable state of
facts that could provide a rational basis for the classification."231
The Intensified Means Test
Under the third tier or the intensified means test, the Court should
accept the legislative end, but should closely scrutinize its
relationship to the classification made.232 There exist
classifications that are subjected to a higher or intermediate degree
of scrutiny than the deferential or traditional rational basis test.
These classifications, however, have not been deemed to involve
suspect classes or fundamental rights; thus, they have not been
subjected to the strict scrutiny test. In other words, such
classifications must be "substantially related to a sufficiently
important governmental interest."233 Examples of these so-called
"quasi-suspect" classifications are those based on gender,234
legitimacy under certain circumstances,235 legal residency with
regard to availment of free public education, civil service
employment preference for armed forces veterans who are state
residents upon entry to military service, and the right to practice for
compensation the profession for which certain persons have been
qualified and licensed.236
Non-exempt government employees may be a sensitive but not a
suspect class, and their employment status may be important
although not fundamental. Yet, the enactment of the assailed
provision is a reasonable means by which the State seeks to
advance its interest.237 Since such provision sufficiently serves
important governmental interests and is substantially related to the
achievement thereof, then, again it stands.
"In the area of economics and social welfare, a State does not
violate the Equal Protection Clause merely because the
classifications made by its laws are imperfect. If the classification
has some 'reasonable basis,' it does not offend the Constitution
simply because the classification 'is not made with mathematical
nicety or because in practice it results in some inequality.'"238 "The
very idea of classification is that of inequality, so that x x x the fact
of inequality in no manner determines the matter of
constitutionality."239
A statute, therefore, "is not invalid under the Constitution because it
might have gone farther than it did, or because it may not succeed
in bringing about the result that it tends to produce."240 Congress
does not have to "strike at all evils at the same time."241 Quoting
Justice Holmes, a law "aimed at what is deemed an evil, and hitting
it presumably where experience shows it to be most felt, is not to be
upset by thinking up and enumerating other instances to which [the
law] might have been applied equally well, so far as the court can
see. That is for the legislature to judge[,] unless the case is very
clear."242 This Court is without power to disturb a legislative
judgment, unless "there is no fair reason for the law that would not
require with equal force its extension to others whom it leaves
untouched."243 To find fault with a legislative policy "is not to
establish the invalidity of the law based upon it."244
Epilogue
After that rather lengthy discourse, permit me to summarize. I
respectfully submit that the assailed provision is not unconstitutional
either on its face or as applied.

First, the theory of relative constitutionality is inapplicable to and not
in pari materia with the present facts. It pertains only to the
circumstances that an assailed law specifically addressed upon its
passage, and not to extraneous circumstances.
The American cases cited in the ponencia prove my point. The laws
therein that have been declared invalid because of "altered
circumstances" or "changed conditions" are of the emergency type
passed in the exercise of the State's police power, unlike the law
involved in the present case. Moreover, our ruling in Rutter does not
apply, because the assailed provision in the present case is not a
remedial measure subject to a period within which a right of action
or a remedy is suspended. Since the reason for the passage of the
law still continues, the law itself must continue.
Second, this Court should respect Congress as a coequal branch of
government. No urgency has been shown as to require the
peremptory striking down of the assailed provision, and no injuries
have been demonstrated to have been sustained as to require
immediate action on the judiciary's part.
The legislative classification of BSP employees into exempt and
non-exempt, based on the salary grade of their positions, and their
further distinction (albeit perhaps not by design) from the employees
of various GFIs are nevertheless valid and reasonable in achieving
the standards of professionalism and excellence within the BSP --
standards that are in accordance with sound principles of
management and the other principles provided for under RA 6758.
They are employees not subjected to the same levels of difficulty,
responsibility, and qualification requirements. Besides, the BSP
performs primarily governmental or regulatory functions, while the
GFIs cited in the ponencia execute purely proprietary ones.
Congress is in fact presently deliberating upon possible
amendments to the assailed provision. Since there is no question
that it validly exercised its power and did not gravely abuse its
discretion when it enacted the law, its will must be sustained. Under
the doctrine of separation of powers with concomitant respect for
coequal and coordinate branches of government, this Court has
neither the authority nor the competence to create or amend laws.
Third, the assailed provision passes the three-tiered standard of
review for equal protection. It is both a social and an economic
measure rationally related to a governmental end that is not
prohibited. Since salary grade, class of position, and government
employment are not fundamental or constitutional rights, and non-
exempt government employees or their financial need are not
suspect classes, the government is not at all required to show a
compelling state interest to justify the classification made. The
provision is also substantially related to the achievement of
sufficiently important governmental objectives. A law does not
become invalid because of simple inequality, or because it did not
strike at all evils at the same time.
At bottom, whichever constitutional test is used, the assailed
provision is not unconstitutional. Moreover, a thorough scrutiny of
the Petition reveals that the issue of equal protection has been
raised only in regard to the unconstitutionality of the proviso at its
inception,245 and not by reason of the alleged "changed conditions"
propounded by the ponencia. With greater reason then that the
Petition should be denied.
In our jurisdiction, relative constitutionality is a rarely utilized theory
having radical consequences; hence, I believe it should not be
imposed by the Court unilaterally. Even in the US, it applies only
when there is a change in factual circumstances covered by the law,
not when there is an enactment of another law pertaining to subjects
not directly covered by the assailed law. Whether factual conditions
have so changed as to call for a partial or even a total abrogation of
the law is a matter that rests primarily within the constitutional
prerogative of Congress to determine.246 To justify a judicial
CONSTI LAW II I ACJUCO 110
nullification, the constitutional breach of a legal provision must be
very clear and unequivocal, not doubtful or argumentative.247
In short, this Court can go no further than to inquire whether
Congress had the power to enact a law; it cannot delve into the
wisdom of policies it adopts or into the adequacy under existing
conditions of measures it enacts.248 The equal protection clause is
not a license for the courts "to judge the wisdom, fairness, or logic
of legislative choices."249 Since relative constitutionality was not
discussed by the parties in any of their pleadings, fundamental
fairness and evenhandedness still dictate that Congress be heard
on this concept before the Court imposes it in a definitive ruling.
Just a final observation at this juncture. It seems to me that when
RA 7653 was enacted, the real focus of the second paragraph of
Section 15(c) of Chapter 1 of Article II of the statute was to enable
the officers and executives of the BSP to enjoy a wider scope of
exemption from the Compensation Classification System than that
stated in the last part of Section 9 of the Salary Standardization Law.
As can be gleaned from the deliberations on the bill, the mention of
BSP employees with salary grade 19 and below seems to have
been purely incidental in the process of defining who were part of
the executive and officer corps. It appears that the "classification" (if
we can call it that) of the rank and filers with salary grade 19 and
below, via the challenged proviso, came about not by design. And it
was only after the later pieces of legislation were promulgated
affecting the charters of the LBP, GSIS, SSS, DBP, etc. that the
proviso came to be considered as "discriminatory."
In these trying times, I cannot but sympathize with the BSP rank and
filers on account of the situation they have found themselves in, and
I do not mean to begrudge them the opportunity to receive a higher
compensation package than what they are receiving now. However,
they are operating on the simplistic assumption that, being rank and
file employees employed in a GFI, they are automatically entitled to
the same benefits, privileges, increases and the like enjoyed by any
other rank and file employee of a GFI, seeing as they are all working
for one and the same government anyway.
It could also have something to do with the fact that Central Bank
employees were quite well paid in the past. They may have
overlooked the fact that the different GFIs are regulated by their
respective charters, and are mandated to perform different functions
(governmental or proprietary). Consequently, their requirements
and priorities are likewise different, and differ in importance in the
overall scheme of things, thus necessitating some degree of
differentiation and calibration in respect of resource allocation,
budgets and appropriations, and the like.
The long and short of it is that there can be no such thing as an
automatic entitlement to increases in compensation, benefits and so
forth, whether we consider the BSP rank and filers similarly situated
along with other rank and filers of GFIs, or as being in a class by
themselves. This is because the BSP is, strictly speaking, not a GFI
but rather, the regulatory agency of GFIs.
The foregoing becomes even more starkly clear when mention is
again made of the fiscal/budget deficit hobbling the national
government, which has, not surprisingly, triggered waves of belt
tightening measures throughout every part of the bureaucracy. This
particular scenario puts Congress somewhat at odds with itself. On
the one hand, it is studying HB 00123 with the end in view of
precisely addressing the principal concern of the petitioner. On the
other hand, it is also looking into how the various exemptions from
the Salary Standardization Law can be rationalized or done away
with, in the hope of ultimately reducing the gargantuan deficit.
Thankfully, the Court is not the one having to grapple with such a
conundrum. It behooves us to give Congress, in the exercise of its
constitutional mandate and prerogative, as much elbow room and
 CONSTI LAW II I ACJUCO 111

breathing space as it needs in order to tackle and perhaps vanquish

the many headed monster.

And while we all watch from the sidelines, we can all console
ourselves and one another that after all, whether we find ourselves
classified-out as BSP rank and filers, or officers and executives, or
employees and members of the judiciary, we are -- all of us -- in the
same boat, for we have all chosen to be in "public service," as the
term is correctly understood. And what is public service if it does not
entail a certain amount of personal sacrifice on the part of each one
of us, all for the greater good of our society and country. We each
make our respective sacrifices, sharing in the burden today, in the
hope of a better tomorrow for our children and loved ones, and our
society as a whole. It makes us strong. For this we can be thankful
as well.

WHEREFORE, I vote to DISMISS the Petition. I maintain that the

last proviso of the second paragraph of Section 15(c) of Chapter 1
of Article II of Republic Act No. 7653 is constitutional. Congress
should be given adequate opportunity to enact the appropriate
legislation that will address the issue raised by petitioner and clear
the proviso of any possible or perceived infringement of the equal
protection clause. At the very least, Congress and herein
respondents should be given notice and opportunity to respond to
the possible application of the theory of relative constitutionality
before it is, if at all, imposed by this Court.

G.R. No. 105371 November 11, 1993
THE PHILIPPINE JUDGES ASSOCIATION, duly rep. by its
President, BERNARDO P. ABESAMIS, Vice-President for
Legal Affairs, MARIANO M. UMALI, Director for Pasig, Makati,
and Pasay, Metro Manila, ALFREDO C. FLORES, and
Chairman of the Committee on Legal Aid, JESUS G.
BERSAMIRA, Presiding Judges of the Regional Trial Court,
Branch 85, Quezon City and Branches 160, 167 and 166,
Pasig, Metro Manila, respectively: the NATIONAL
CONFEDERATION OF THE JUDGES ASSOCIATION OF THE
PHILIPPINES, composed of the METROPOLITAN TRIAL
COURT JUDGES ASSOCIATION rep. by its President.
REINATO QUILALA of the MUNICIPAL TRIAL CIRCUIT
COURT, Manila; THE MUNICIPAL JUDGES LEAGUE OF THE
PHILIPPINES rep. by its President, TOMAS G. TALAVERA; by
themselves and in behalf of all the Judges of the Regional
Trial and Shari'a Courts, Metropolitan Trial Courts and
Municipal Courts throughout the Country, petitioners,
vs.
HON. PETE PRADO, in his capacity as Secretary of the
Department of Transportation and Communications, JORGE
V. SARMIENTO, in his capacity as Postmaster General, and
the PHILIPPINE POSTAL CORP., respondents.
CRUZ, J.:
The basic issue raised in this petition is the independence of the
Judiciary. It is asserted by the petitioners that this hallmark of
republicanism is impaired by the statute and circular they are here
challenging. The Supreme Court is itself affected by these
measures and is thus an interested party that should ordinarily not
also be a judge at the same time. Under our system of government,
however, it cannot inhibit itself and must rule upon the challenge,
because no other office has the authority to do so. We shall
therefore act upon this matter not with officiousness but in the
discharge of an unavoidable duty and, as always, with detachment
and fairness.
The main target of this petition is Section 35 of R.A. No. 7354 as
implemented by the Philippine Postal Corporation through its
Circular No.
92-28. These measures withdraw the franking privilege from the
Supreme Court, the Court of Appeals, the Regional Trial Courts, the
Metropolitan Trial Courts, the Municipal Trial Courts, and the Land
Registration Commission and its Registers of Deeds, along with
certain other government offices.
The petitioners are members of the lower courts who feel that their
official functions as judges will be prejudiced by the above-named
measures. The National Land Registration Authority has taken
common cause with them insofar as its own activities, such as
sending of requisite notices in registration cases, affect judicial
proceedings. On its motion, it has been allowed to intervene.
The petition assails the constitutionality of R.A. No. 7354 on the
grounds that: (1) its title embraces more than one subject and does
not express its purposes; (2) it did not pass the required readings in
both Houses of Congress and printed copies of the bill in its final
form were not distributed among the members before its passage;
and (3) it is discriminatory and encroaches on the independence of
the Judiciary.
We approach these issues with one important principle in mind, to
wit, the presumption of the constitutionality of statutes. The theory
is that as the joint act of the Legislature and the Executive, every
statute is supposed to have first been carefully studied and
determined to be constitutional before it was finally enacted. Hence,
unless it is clearly shown that it is constitutionally flawed, the attack
CONSTI LAW II I ACJUCO 112
against its validity must be rejected and the law itself upheld. To
doubt is to sustain.
I
We consider first the objection based on Article VI, Sec. 26(l), of the
Constitution providing that "Every bill passed by the Congress shall
embrace only one subject which shall be expressed in the title
thereof."
The purposes of this rule are: (1) to prevent hodge-podge or "log-
rolling" legislation; (2) to prevent surprise or fraud upon the
legislature by means of provisions in bills of which the title gives no
intimation, and which might therefore be overlooked and carelessly
and unintentionally adopted; and (3) to fairly apprise the people,
through such publication of legislative proceedings as is usually
made, of the subject of legislation that is being considered, in order
that they may have opportunity of being heard thereon, by petition
or otherwise, if they shall so desire.1
It is the submission of the petitioners that Section 35 of R.A. No.
7354 which withdrew the franking privilege from the Judiciary is not
expressed in the title of the law, nor does it reflect its purposes.
R.A. No. 7354 is entitled "An Act Creating the Philippine Postal
Corporation, Defining its Powers, Functions and Responsibilities,
Providing for Regulation of the Industry and for Other Purposes
Connected Therewith."
The objectives of the law are enumerated in Section 3, which
provides:
The State shall pursue the following objectives of a nationwide
postal system:
a) to enable the economical and speedy transfer of mail and
other postal matters, from sender to addressee, with full recognition
of their privacy or confidentiality;
b) to promote international interchange, cooperation and
understanding through the unhampered flow or exchange of postal
matters between nations;
c) to cause or effect a wide range of postal services to cater
to different users and changing needs, including but not limited to,
philately, transfer of monies and valuables, and the like;
d) to ensure that sufficient revenues are generated by and
within the industry to finance the overall cost of providing the varied
range of postal delivery and messengerial services as well as the
expansion and continuous upgrading of service standards by the
same.
Sec. 35 of R.A. No. 7354, which is the principal target of the petition,
reads as follows:
Sec. 35. Repealing Clause. — All acts, decrees, orders, executive
orders, instructions, rules and regulations or parts thereof
inconsistent with the provisions of this Act are repealed or modified
accordingly.
All franking privileges authorized by law are hereby repealed, except
those provided for under Commonwealth Act No. 265, Republic Acts
Numbered 69, 180, 1414, 2087 and 5059. The Corporation may
continue the franking privilege under Circular No. 35 dated October
24, 1977 and that of the Vice President, under such arrangements
and conditions as may obviate abuse or unauthorized use thereof.
The petitioners' contention is untenable. We do not agree that the
title of the challenged act violates the Constitution.

The title of the bill is not required to be an index to the body of the
act, or to be as comprehensive as to cover every single detail of the
measure. It has been held that if the title fairly indicates the general
subject, and reasonably covers all the provisions of the act, and is
not calculated to mislead the legislature or the people, there is
sufficient compliance with the constitutional requirement. 2
To require every end and means necessary for the accomplishment
of the general objectives of the statute to be expressed in its title
would not only be unreasonable but would actually render legislation
impossible. 3 As has been correctly explained:
The details of a legislative act need not be specifically stated in its
title, but matter germane to the subject as expressed in the title, and
adopted to the accomplishment of the object in view, may properly
be included in the act. Thus, it is proper to create in the same act
the machinery by which the act is to be enforced, to prescribe the
penalties for its infraction, and to remove obstacles in the way of its
execution. If such matters are properly connected with the subject
as expressed in the title, it is unnecessary that they should also have
special mention in the title (Southern Pac. Co. v. Bartine, 170 Fed.
725).
This is particularly true of the repealing clause, on which Cooley
writes: "The repeal of a statute on a given subject is properly
connected with the subject matter of a new statute on the same
subject; and therefore a repealing section in the new statute is valid,
notwithstanding that the title is silent on the subject. It would be
difficult to conceive of a matter more germane to an act and to the
object to be accomplished thereby than the repeal of previous
legislations connected therewith."4
The reason is that where a statute repeals a former law, such repeal
is the effect and not the subject of the statute; and it is the subject,
not the effect of a law, which is required to be briefly expressed in
its title.5 As observed in one case,6 if the title of an act embraces
only one subject, we apprehend it was never claimed that every
other act which repeals it or alters by implication must be mentioned
in the title of the new act. Any such rule would be neither within the
reason of the Constitution, nor practicable.
We are convinced that the withdrawal of the franking privilege from
some agencies is germane to the accomplishment of the principal
objective of R.A. No. 7354, which is the creation of a more efficient
and effective postal service system. Our ruling is that, by virtue of
its nature as a repealing clause, Section 35 did not have to be
expressly included in the title of the said law.
II
The petitioners maintain that the second paragraph of Sec. 35
covering the repeal of the franking privilege from the petitioners and
this Court under E.O. 207, PD 1882 and PD 26 was not included in
the original version of Senate Bill No. 720 or House Bill No. 4200.
As this paragraph appeared only in the Conference Committee
Report, its addition, violates Article VI, Sec. 26(2) of the
Constitution, reading as follows:
(2) No bill passed by either House shall become a law unless
it has passed three readings on separate days, and printed copies
thereof in its final form have been distributed to its Members three
days before its passage, except when the President certifies to the
necessity of its immediate enactment to meet a public calamity or
emergency. Upon the last reading of a bill, no amendment thereto
shall be allowed, and the vote thereon shall be taken immediately
thereafter, and the yeas and nays entered in the Journal.
The petitioners also invoke Sec. 74 of the Rules of the House of
Representatives, requiring that amendment to any bill when the
House and the Senate shall have differences thereon may be
settled by a conference committee of both chambers. They stress
CONSTI LAW II I ACJUCO 113
that Sec. 35 was never a subject of any disagreement between both
Houses and so the second paragraph could not have been validly
added as an amendment.
These argument are unacceptable.
While it is true that a conference committee is the mechanism for
compromising differences between the Senate and the House, it is
not limited in its jurisdiction to this question. Its broader function is
described thus:
A conference committee may, deal generally with the subject matter
or it may be limited to resolving the precise differences between the
two houses. Even where the conference committee is not by rule
limited in its jurisdiction, legislative custom severely limits the
freedom with which new subject matter can be inserted into the
conference bill. But occasionally a conference committee produces
unexpected results, results beyond its mandate, These excursions
occur even where the rules impose strict limitations on conference
committee jurisdiction. This is symptomatic of the authoritarian
power of conference committee (Davies, Legislative Law and
Process: In a Nutshell, 1986 Ed., p.81).
It is a matter of record that the conference Committee Report on the
bill in question was returned to and duly approved by both the
Senate and the House of Representatives. Thereafter, the bill was
enrolled with its certification by Senate President Neptali A.
Gonzales and Speaker Ramon V. Mitra of the House of
Representatives as having been duly passed by both Houses of
Congress. It was then presented to and approved by President
Corazon C. Aquino on April 3, 1992.
Under the doctrine of separation powers, the Court may not inquire
beyond the certification of the approval of a bill from the presiding
officers of Congress. Casco Philippine Chemical Co. v. Gimenez7
laid down the rule that the enrolled bill, is conclusive upon the
Judiciary (except in matters that have to be entered in the journals
like the yeas and nays on the final reading of the
bill).8 The journals are themselves also binding on the Supreme
Court, as we held in the old (but still valid) case of U.S. vs. Pons,9
where we explained the reason thus:
To inquire into the veracity of the journals of the Philippine
legislature when they are, as we have said, clear and explicit, would
be to violate both the, letter and spirit of the organic laws by which
the Philippine Government was brought into existence, to invade a
coordinate and independent department of the Government, and to
interfere with the legitimate powers and functions, of the Legislature.
Applying these principles, we shall decline to look into the
petitioners' charges that an amendment was made upon the last
reading of the bill that eventually became R.A. No. 7354 and that
copies thereof in its final form were not distributed among the
members of each House. Both the enrolled bill and the legislative
journals certify that the measure was duly enacted i.e., in
accordance with Article VI, Sec. 26(2) of the Constitution. We are
bound by such official assurances from a coordinate department of
the government, to which we owe, at the very least, a becoming
courtesy.
III
The third and most serious challenge of the petitioners is based on
the equal protection clause.
It is alleged that R.A. No. 7354 is discriminatory because while
withdrawing the franking privilege from the Judiciary, it retains the
same for the President of the Philippines, the Vice President of the
Philippines; Senators and Members of the House of
Representatives, the Commission on Elections; former Presidents
of the Philippines; the National Census and Statistics Office; and the

general public in the filing of complaints against public offices and
officers.10
The respondents counter that there is no discrimination because the
law is based on a valid classification in accordance with the equal
protection clause. In fact, the franking privilege has been withdrawn
not only from the Judiciary but also the Office of Adult Education,
the Institute of National Language; the Telecommunications Office;
the Philippine Deposit Insurance Corporation; the National Historical
Commission; the Armed Forces of the Philippines; the Armed
Forces of the Philippines Ladies Steering Committee; the City and
Provincial Prosecutors; the Tanodbayan (Office of Special
Prosecutor); the Kabataang Barangay; the Commission on the
Filipino Language; the Provincial and City Assessors; and the
National Council for the Welfare of Disabled Persons.11
The equal protection of the laws is embraced in the concept of due
process, as every unfair discrimination offends the requirements of
justice and fair play. It has nonetheless been embodied in a
separate clause in Article III Sec. 1., of the Constitution to provide
for a more, specific guaranty against any form of undue favoritism
or hostility from the government. Arbitrariness in general may be
challenged on the basis of the due process clause. But if the
particular act assailed partakes of an unwarranted partiality or
prejudice, the sharper weapon to cut it down is the equal protection
clause.
According to a long line of decisions, equal protection simply
requires that all persons or things similarly situated should be
treated alike, both as to rights conferred and responsibilities
imposed, 12 Similar subjects, in other words, should not be treated
differently, so as to give undue favor to some and unjustly
discriminate against others.
The equal protection clause does not require the universal
application of the laws on all persons or things without distinction.
This might in fact sometimes result in unequal protection, as where,
for example, a law prohibiting mature books to all persons,
regardless of age, would benefit the morals of the youth but violate
the liberty of adults. What the clause requires is equality among
equals as determined according to a valid classification. By
classification is meant the grouping of persons or things similar to
each other in certain particulars and different from all others in these
same particulars. 13
What is the reason for the grant of the franking privilege in the first
place? Is the franking privilege extended to the President of the
Philippines or the Commission on Elections or to former Presidents
of the Philippines purely as a courtesy from the lawmaking body? Is
it offered because of the importance or status of the grantee or
because of its need for the privilege? Or have the grantees been
chosen pell-mell, as it were, without any basis at all for the
selection?
We reject outright the last conjecture as there is no doubt that the
statute as a whole was carefully deliberated upon, by the political
departments before it was finally enacted. There is reason to
suspect, however, that not enough care or attention was given to its
repealing clause, resulting in the unwitting withdrawal of the franking
privilege from the Judiciary.
We also do not believe that the basis of the classification was mere
courtesy, for it is unimaginable that the political departments would
have intended this serious slight to the Judiciary as the third of the
major and equal departments the government. The same
observations are made if the importance or status of the grantee
was the criterion used for the extension of the franking privilege,
which is enjoyed by the National Census and Statistics Office and
even some private individuals but not the courts of justice.
CONSTI LAW II I ACJUCO 114
In our view, the only acceptable reason for the grant of the franking
privilege was the perceived need of the grantee for the
accommodation, which would justify a waiver of substantial revenue
by the Corporation in the interest of providing for a smoother flow of
communication between the government and the people.
Assuming that basis, we cannot understand why, of all the
departments of the government, it is the Judiciary, that has been
denied the franking privilege. There is no question that if there is any
major branch of the government that needs the privilege, it is the
Judicial Department, as the respondents themselves point out.
Curiously, the respondents would justify the distinction on the basis
precisely of this need and, on this basis, deny the Judiciary the
franking privilege while extending it to others less deserving.
In their Comment, the respondents point out that available data from
the Postal Service Office show that from January 1988 to June
1992, the total volume of frank mails amounted to P90,424,175.00.
Of this amount, frank mails from the Judiciary and other agencies
whose functions include the service of judicial processes, such as
the intervenor, the Department of Justice and the Office of the
Ombudsman, amounted to P86,481,759. Frank mails coming
fromthe Judiciary amounted to P73,574,864.00, and those coming
from the petitioners reached the total amount of P60,991,431.00.
The respondents' conclusion is that because of this considerable
volume of mail from the Judiciary, the franking privilege must be
withdrawn from it.
The argument is self-defeating. The respondents are in effect saying
that the franking privilege should be extended only to those who do
not need it very much, if at all, (like the widows of former Presidents)
but not to those who need it badly (especially the courts of justice).
It is like saying that a person may be allowed cosmetic surgery
although it is not really necessary but not an operation that can save
his life.
If the problem of the respondents is the loss of revenues from the
franking privilege, the remedy, it seems to us, is to withdraw it
altogether from all agencies of government, including those who do
not need it. The problem is not solved by retaining it for some and
withdrawing it from others, especially where there is no substantial
distinction between those favored, which may or may not need it at
all, and the Judiciary, which definitely needs it. The problem is not
solved by violating the Constitution.
In lumping the Judiciary with the other offices from which the
franking privilege has been withdrawn, Section 35 has placed the
courts of justice in a category to which it does not belong. If it
recognizes the need of the President of the Philippines and the
members of Congress for the franking privilege, there is no reason
why it should not recognize a similar and in fact greater need on the
part of the Judiciary for such privilege. While we may appreciate the
withdrawal of the franking privilege from the Armed Forces of the
Philippines Ladies Steering Committee, we fail to understand why
the Supreme Court should be similarly treated as that Committee.
And while we may concede the need of the National Census and
Statistics Office for the franking privilege, we are intrigued that a
similar if not greater need is not recognized in the courts of justice.
(On second thought, there does not seem to be any justifiable need
for withdrawing the privilege from the Armed Forces of the
Philippines Ladies Steering Committee, which, like former
Presidents of the Philippines or their widows, does not send as
much frank mail as the Judiciary.)
It is worth observing that the Philippine Postal Corporation, as a
government-controlled corporation, was created and is expected to
operate for the purpose of promoting the public service. While it may
have been established primarily for private gain, it cannot excuse
itself from performing certain functions for the benefit of the public
in exchange for the franchise extended to it by the government and
 CONSTI LAW II I ACJUCO 115

the many advantages it enjoys under its charter.14 Among the

services it should be prepared to extend is free carriage of mail for
certain offices of the government that need the franking privilege in
the discharge of their own public functions.

We also note that under Section 9 of the law, the Corporation is

capitalized at P10 billion pesos, 55% of which is supplied by the
Government, and that it derives substantial revenues from the
sources enumerated in Section 10, on top of the exemptions it
enjoys. It is not likely that the retention of the franking privilege of
the Judiciary will cripple the Corporation.

At this time when the Judiciary is being faulted for the delay in the
administration of justice, the withdrawal from it of the franking
privilege can only further deepen this serious problem. The volume
of judicial mail, as emphasized by the respondents themselves,
should stress the dependence of the courts of justice on the postal
service for communicating with lawyers and litigants as part of the
judicial process. The Judiciary has the lowest appropriation in the
national budget compared to the Legislative and Executive
Departments; of the P309 billion budgeted for 1993, only .84%, or
less than 1%, is alloted for the judiciary. It should not be hard to
imagine the increased difficulties of our courts if they have to affix a
purchased stamp to every process they send in the discharge of
their judicial functions.

We are unable to agree with the respondents that Section 35 of R.A.

No. 7354 represents a valid exercise of discretion by the Legislature
under the police power. On the contrary, we find its repealing clause
to be a discriminatory provision that denies the Judiciary the equal
protection of the laws guaranteed for all persons or things similarly
situated. The distinction made by the law is superficial. It is not
based on substantial distinctions that make real differences
between the Judiciary and the grantees of the franking privilege.

This is not a question of wisdom or power into which the Judiciary

may not intrude. It is a matter of arbitrariness that this Court has the
duty and power to correct.

IV

In sum, we sustain R.A. No. 7354 against the attack that its subject
is not expressed in its title and that it was not passed in accordance
with the prescribed procedure. However, we annul Section 35 of the
law as violative of Article 3, Sec. 1, of the Constitution providing that
no person shall "be deprived of the equal protection of laws."

We arrive at these conclusions with a full awareness of the criticism

it is certain to provoke. While ruling against the discrimination in this
case, we may ourselves be accused of similar discrimination
through the exercise of our ultimate power in our own favor. This is
inevitable. Criticism of judicial conduct, however undeserved, is a
fact of life in the political system that we are prepared to accept.. As
judges, we cannot debate with our detractors. We can only decide
the cases before us as law imposes on us the duty to be fair and our
own conscience gives us the light to be right.

ACCORDINGLY, the petition is partially GRANTED and Section 35

of R.A. No. 7354 is declared UNCONSTITUTIONAL. Circular No.
92-28 is SET ASIDE insofar as it withdraws the franking privilege
from the Supreme Court, the Court of Appeals, the Regional trail
Courts, the Municipal trial Courts, and the National Land
Registration Authority and its Register of Deeds to all of which
offices the said privilege shall be RESTORED. The temporary
restraining order dated June 2, 1992, is made permanent.

SO ORDERED.

G.R. No. L-7995 May 31, 1957
LAO H. ICHONG, in his own behalf and in behalf of other alien
residents, corporations and partnerships adversely affected. by
Republic Act No. 1180, petitioner,
vs.
JAIME HERNANDEZ, Secretary of Finance, and MARCELINO
SARMIENTO, City Treasurer of Manila, respondents.
Ozaeta, Lichauco and Picazo and Sycip, Quisumbing, Salazar and
Associates for petitioner.
Office of the Solicitor General Ambrosio Padilla and Solicitor
Pacifico P. de Castro for respondent Secretary of Finance.
City Fiscal Eugenio Angeles and Assistant City Fiscal Eulogio S.
Serrano for respondent City Treasurer.
Dionisio Reyes as Amicus Curiae.
Marcial G. Mendiola as Amicus Curiae.
Emiliano R. Navarro as Amicus Curiae.
LABRADOR, J.:
I. The case and issue, in general
This Court has before it the delicate task of passing upon the validity
and constitutionality of a legislative enactment, fundamental and far-
reaching in significance. The enactment poses questions of due
process, police power and equal protection of the laws. It also poses
an important issue of fact, that is whether the conditions which the
disputed law purports to remedy really or actually exist. Admittedly
springing from a deep, militant, and positive nationalistic impulse,
the law purports to protect citizen and country from the alien retailer.
Through it, and within the field of economy it regulates, Congress
attempts to translate national aspirations for economic
independence and national security, rooted in the drive and urge for
national survival and welfare, into a concrete and tangible measures
designed to free the national retailer from the competing dominance
of the alien, so that the country and the nation may be free from a
supposed economic dependence and bondage. Do the facts and
circumstances justify the enactment?
II. Pertinent provisions of Republic Act No. 1180
Republic Act No. 1180 is entitled "An Act to Regulate the Retail
Business." In effect it nationalizes the retail trade business. The
main provisions of the Act are: (1) a prohibition against persons, not
citizens of the Philippines, and against associations, partnerships,
or corporations the capital of which are not wholly owned by citizens
of the Philippines, from engaging directly or indirectly in the retail
trade; (2) an exception from the above prohibition in favor of aliens
actually engaged in said business on May 15, 1954, who are
allowed to continue to engaged therein, unless their licenses are
forfeited in accordance with the law, until their death or voluntary
retirement in case of natural persons, and for ten years after the
approval of the Act or until the expiration of term in case of juridical
persons; (3) an exception therefrom in favor of citizens and juridical
entities of the United States; (4) a provision for the forfeiture of
licenses (to engage in the retail business) for violation of the laws
on nationalization, control weights and measures and labor and
other laws relating to trade, commerce and industry; (5) a prohibition
against the establishment or opening by aliens actually engaged in
the retail business of additional stores or branches of retail
business, (6) a provision requiring aliens actually engaged in the
retail business to present for registration with the proper authorities
a verified statement concerning their businesses, giving, among
other matters, the nature of the business, their assets and liabilities
and their offices and principal offices of judicial entities; and (7) a
provision allowing the heirs of aliens now engaged in the retail
business who die, to continue such business for a period of six
months for purposes of liquidation.
III. Grounds upon which petition is based-Answer thereto
CONSTI LAW II I ACJUCO 116
Petitioner, for and in his own behalf and on behalf of other alien
residents corporations and partnerships adversely affected by the
provisions of Republic Act. No. 1180, brought this action to obtain a
judicial declaration that said Act is unconstitutional, and to enjoin the
Secretary of Finance and all other persons acting under him,
particularly city and municipal treasurers, from enforcing its
provisions. Petitioner attacks the constitutionality of the Act,
contending that: (1) it denies to alien residents the equal protection
of the laws and deprives of their liberty and property without due
process of law ; (2) the subject of the Act is not expressed or
comprehended in the title thereof; (3) the Act violates international
and treaty obligations of the Republic of the Philippines; (4) the
provisions of the Act against the transmission by aliens of their retail
business thru hereditary succession, and those requiring 100%
Filipino capitalization for a corporation or entity to entitle it to engage
in the retail business, violate the spirit of Sections 1 and 5, Article
XIII and Section 8 of Article XIV of the Constitution.
In answer, the Solicitor-General and the Fiscal of the City of Manila
contend that: (1) the Act was passed in the valid exercise of the
police power of the State, which exercise is authorized in the
Constitution in the interest of national economic survival; (2) the Act
has only one subject embraced in the title; (3) no treaty or
international obligations are infringed; (4) as regards hereditary
succession, only the form is affected but the value of the property is
not impaired, and the institution of inheritance is only of statutory
origin.
IV. Preliminary consideration of legal principles involved
a. The police power. —
There is no question that the Act was approved in the exercise of
the police power, but petitioner claims that its exercise in this
instance is attended by a violation of the constitutional requirements
of due process and equal protection of the laws. But before
proceeding to the consideration and resolution of the ultimate issue
involved, it would be well to bear in mind certain basic and
fundamental, albeit preliminary, considerations in the determination
of the ever recurrent conflict between police power and the
guarantees of due process and equal protection of the laws. What
is the scope of police power, and how are the due process and equal
protection clauses related to it? What is the province and power of
the legislature, and what is the function and duty of the courts?
These consideration must be clearly and correctly understood that
their application to the facts of the case may be brought forth with
clarity and the issue accordingly resolved.
It has been said the police power is so far - reaching in scope, that
it has become almost impossible to limit its sweep. As it derives its
existence from the very existence of the State itself, it does not need
to be expressed or defined in its scope; it is said to be co-extensive
with self-protection and survival, and as such it is the most positive
and active of all governmental processes, the most essential,
insistent and illimitable. Especially is it so under a modern
democratic framework where the demands of society and of nations
have multiplied to almost unimaginable proportions; the field and
scope of police power has become almost boundless, just as the
fields of public interest and public welfare have become almost all-
embracing and have transcended human foresight. Otherwise
stated, as we cannot foresee the needs and demands of public
interest and welfare in this constantly changing and progressive
world, so we cannot delimit beforehand the extent or scope of police
power by which and through which the State seeks to attain or
achieve interest or welfare. So it is that Constitutions do not define
the scope or extent of the police power of the State; what they do is
to set forth the limitations thereof. The most important of these are
the due process clause and the equal protection clause.
b. Limitations on police power. —

The basic limitations of due process and equal protection are found
in the following provisions of our Constitution:
SECTION 1.(1) No person shall be deprived of life, liberty or
property without due process of law, nor any person be denied the
equal protection of the laws. (Article III, Phil. Constitution)
These constitutional guarantees which embody the essence of
individual liberty and freedom in democracies, are not limited to
citizens alone but are admittedly universal in their application,
without regard to any differences of race, of color, or of nationality.
(Yick Wo vs. Hopkins, 30, L. ed. 220, 226.)
c. The, equal protection clause. —
The equal protection of the law clause is against undue favor and
individual or class privilege, as well as hostile discrimination or the
oppression of inequality. It is not intended to prohibit legislation,
which is limited either in the object to which it is directed or by
territory within which is to operate. It does not demand absolute
equality among residents; it merely requires that all persons shall be
treated alike, under like circumstances and conditions both as to
privileges conferred and liabilities enforced. The equal protection
clause is not infringed by legislation which applies only to those
persons falling within a specified class, if it applies alike to all
persons within such class, and reasonable grounds exists for
making a distinction between those who fall within such class and
those who do not. (2 Cooley, Constitutional Limitations, 824-825.)
d. The due process clause. —
The due process clause has to do with the reasonableness of
legislation enacted in pursuance of the police power. Is there public
interest, a public purpose; is public welfare involved? Is the Act
reasonably necessary for the accomplishment of the legislature's
purpose; is it not unreasonable, arbitrary or oppressive? Is there
sufficient foundation or reason in connection with the matter
involved; or has there not been a capricious use of the legislative
power? Can the aims conceived be achieved by the means used,
or is it not merely an unjustified interference with private interest?
These are the questions that we ask when the due process test is
applied.
The conflict, therefore, between police power and the guarantees of
due process and equal protection of the laws is more apparent than
real. Properly related, the power and the guarantees are supposed
to coexist. The balancing is the essence or, shall it be said, the
indispensable means for the attainment of legitimate aspirations of
any democratic society. There can be no absolute power, whoever
exercise it, for that would be tyranny. Yet there can neither be
absolute liberty, for that would mean license and anarchy. So the
State can deprive persons of life, liberty and property, provided
there is due process of law; and persons may be classified into
classes and groups, provided everyone is given the equal protection
of the law. The test or standard, as always, is reason. The police
power legislation must be firmly grounded on public interest and
welfare, and a reasonable relation must exist between purposes and
means. And if distinction and classification has been made, there
must be a reasonable basis for said distinction.
e. Legislative discretion not subject to judicial review. —
Now, in this matter of equitable balancing, what is the proper place
and role of the courts? It must not be overlooked, in the first place,
that the legislature, which is the constitutional repository of police
power and exercises the prerogative of determining the policy of the
State, is by force of circumstances primarily the judge of necessity,
adequacy or reasonableness and wisdom, of any law promulgated
in the exercise of the police power, or of the measures adopted to
implement the public policy or to achieve public interest. On the
CONSTI LAW II I ACJUCO 117
other hand, courts, although zealous guardians of individual liberty
and right, have nevertheless evinced a reluctance to interfere with
the exercise of the legislative prerogative. They have done so early
where there has been a clear, patent or palpable arbitrary and
unreasonable abuse of the legislative prerogative. Moreover, courts
are not supposed to override legitimate policy, and courts never
inquire into the wisdom of the law.
V. Economic problems sought to be remedied
With the above considerations in mind, we will now proceed to delve
directly into the issue involved. If the disputed legislation were
merely a regulation, as its title indicates, there would be no question
that it falls within the legitimate scope of legislative power. But it
goes further and prohibits a group of residents, the aliens, from
engaging therein. The problem becomes more complex because its
subject is a common, trade or occupation, as old as society itself,
which from the immemorial has always been open to residents,
irrespective of race, color or citizenship.
a. Importance of retail trade in the economy of the nation. —
In a primitive economy where families produce all that they consume
and consume all that they produce, the dealer, of course, is
unknown. But as group life develops and families begin to live in
communities producing more than what they consume and needing
an infinite number of things they do not produce, the dealer comes
into existence. As villages develop into big communities and
specialization in production begins, the dealer's importance is
enhanced. Under modern conditions and standards of living, in
which man's needs have multiplied and diversified to unlimited
extents and proportions, the retailer comes as essential as the
producer, because thru him the infinite variety of articles, goods and
needed for daily life are placed within the easy reach of consumers.
Retail dealers perform the functions of capillaries in the human
body, thru which all the needed food and supplies are ministered to
members of the communities comprising the nation.
There cannot be any question about the importance of the retailer
in the life of the community. He ministers to the resident's daily
needs, food in all its increasing forms, and the various little gadgets
and things needed for home and daily life. He provides his
customers around his store with the rice or corn, the fish, the salt,
the vinegar, the spices needed for the daily cooking. He has cloths
to sell, even the needle and the thread to sew them or darn the
clothes that wear out. The retailer, therefore, from the lowly peddler,
the owner of a small sari-sari store, to the operator of a department
store or, a supermarket is so much a part of day-to-day existence.
b. The alien retailer's trait. —
The alien retailer must have started plying his trades in this country
in the bigger centers of population (Time there was when he was
unknown in provincial towns and villages). Slowly but gradually be
invaded towns and villages; now he predominates in the cities and
big centers of population. He even pioneers, in far away nooks
where the beginnings of community life appear, ministering to the
daily needs of the residents and purchasing their agricultural
produce for sale in the towns. It is an undeniable fact that in many
communities the alien has replaced the native retailer. He has
shown in this trade, industry without limit, and the patience and
forbearance of a slave.
Derogatory epithets are hurled at him, but he laughs these off
without murmur; insults of ill-bred and insolent neighbors and
customers are made in his face, but he heeds them not, and he
forgets and forgives. The community takes note of him, as he
appears to be harmless and extremely useful.
c. Alleged alien control and dominance. —
 CONSTI LAW II I ACJUCO 118

There is a general feeling on the part of the public, which appears Chine 12,087 93,155,4 29.38 294,894, 38.20
to be true to fact, about the controlling and dominant position that se 59 227
the alien retailer holds in the nation's economy. Food and other ..........
essentials, clothing, almost all articles of daily life reach the
residents mostly through him. In big cities and centers of population Others 422 10,514,6 3.32 9,995,40 1.29
he has acquired not only predominance, but apparent control over .......... 75 2
distribution of almost all kinds of goods, such as lumber, hardware, 194
textiles, groceries, drugs, sugar, flour, garlic, and scores of other 9:
goods and articles. And were it not for some national corporations
like the Naric, the Namarco, the Facomas and the Acefa, his control Filipin 113,659 213,451, 60.89 462,532, 53.47
over principal foods and products would easily become full and o 602 901
complete. ..........
Chine 16,248 125,223, 35.72 392,414, 45.36
Petitioner denies that there is alien predominance and control in the se 336 875
retail trade. In one breath it is said that the fear is unfounded and ..........
the threat is imagined; in another, it is charged that the law is merely
Others 486 12,056,3 3.39 10,078,3 1.17
the result of radicalism and pure and unabashed nationalism.
.......... 65 64
Alienage, it is said, is not an element of control; also so many
unmanageable factors in the retail business make control virtually 195
impossible. The first argument which brings up an issue of fact 1:
merits serious consideration. The others are matters of opinion
Filipin 119,352 224,053, 61.09 466,058, 53.07
within the exclusive competence of the legislature and beyond our
o 620 052
prerogative to pass upon and decide.
.........
The best evidence are the statistics on the retail trade, which put Chine 17,429 134,325, 36.60 404,481, 46.06
down the figures in black and white. Between the constitutional se 303 384
convention year (1935), when the fear of alien domination and ..........
control of the retail trade already filled the minds of our leaders with Others 347 8,614,02 2.31 7,645,32 87
fears and misgivings, and the year of the enactment of the .......... 5 7
nationalization of the retail trade act (1954), official statistics
unmistakably point out to the ever-increasing dominance and
control by the alien of the retail trade, as witness the following tables: AVERAGE
ASSETS AND GROSS SALES PER ESTABLISHMENT
Assets Gross Sales
Item Gross
Year and No.- Per cent Per cent Year and Retailer's
Assets Sales
Retailers Establishm Pesos Distribut Pesos Distribut Nationality
(Pesos) (Pesos)
Nationality ents ion ion
194 1941:
1:
Filipin 106,671 200,323, 55.82 174,181, 51.74 Filipino 1,878 1,633
o 138 924 .............................................
..........
Chinese 7,707 9,691
Chine 15,356 118,348, 32.98 148,813, 44.21 ..............................................
se 692 239
..........
Others 24,415 8,281
.
...............................................
Others 1,646 40,187,0 11.20 13,630,2 4.05
.......... 90 39 1947:
..
194 Filipino 1,878 2,516
7: .............................................

Filipin 111,107 208,658, 65.05 279,583, 57.03 Chinese 7,707 14,934

o 946 333 ...........................................
..........
Chine 13,774 106,156, 33.56 205,701, 41.96 Others 24,749 13,919
se 218 134 ..............................................
..........
. 1948: (Census)
Others 354 8,761,26 .49 4,927,16 1.01
.......... 0 8 Filipino 1,878 4,111
. .............................................

194 (Cens Chinese 7,707 24,398

8: us) .............................................
Filipin 113,631 213,342, 67.30 467,161, 60.51
o 264 667 Others 24,916 23,686
.......... ..............................................

1949:
Filipino 1,878 4,069
.............................................
Chinese 7,707 24,152
..............................................
Others 24,807 20,737
..............................................
1951:
Filipino 1,877 3,905
.............................................
Chinese 7,707 33,207
.............................................
Others 24,824 22,033
...............................................
(Estimated Assets and Gross Sales of Retail Establishments, By
Year and Nationality of Owners, Benchmark: 1948 Census, issued
by the Bureau of Census and Statistics, Department of Commerce
and Industry; pp. 18-19 of Answer.)
The above statistics do not include corporations and partnerships,
while the figures on Filipino establishments already include mere
market vendors, whose capital is necessarily small..
The above figures reveal that in percentage distribution of assests
and gross sales, alien participation has steadily increased during the
years. It is true, of course, that Filipinos have the edge in the number
of retailers, but aliens more than make up for the numerical gap
through their assests and gross sales which average between six
and seven times those of the very many Filipino retailers. Numbers
in retailers, here, do not imply superiority; the alien invests more
capital, buys and sells six to seven times more, and gains much
more. The same official report, pointing out to the known
predominance of foreign elements in the retail trade, remarks that
the Filipino retailers were largely engaged in minor retailer
enterprises. As observed by respondents, the native investment is
thinly spread, and the Filipino retailer is practically helpless in
matters of capital, credit, price and supply.
d. Alien control and threat, subject of apprehension in Constitutional
convention. —
It is this domination and control, which we believe has been
sufficiently shown to exist, that is the legislature's target in the
enactment of the disputed nationalization would never have been
adopted. The framers of our Constitution also believed in the
existence of this alien dominance and control when they approved
a resolution categorically declaring among other things, that "it is the
sense of the Convention that the public interest requires the
nationalization of the retail trade; . . . ." (II Aruego, The Framing of
the Philippine Constitution, 662-663, quoted on page 67 of
Petitioner.) That was twenty-two years ago; and the events since
then have not been either pleasant or comforting. Dean Sinco of the
University of the Philippines College of Law, commenting on the
patrimony clause of the Preamble opines that the fathers of our
Constitution were merely translating the general preoccupation of
Filipinos "of the dangers from alien interests that had already
brought under their control the commercial and other economic
activities of the country" (Sinco, Phil. Political Law, 10th ed., p. 114);
and analyzing the concern of the members of the constitutional
convention for the economic life of the citizens, in connection with
the nationalistic provisions of the Constitution, he says:
CONSTI LAW II I ACJUCO 119
But there has been a general feeling that alien dominance over the
economic life of the country is not desirable and that if such a
situation should remain, political independence alone is no
guarantee to national stability and strength. Filipino private capital
is not big enough to wrest from alien hands the control of the
national economy. Moreover, it is but of recent formation and hence,
largely inexperienced, timid and hesitant. Under such conditions,
the government as the instrumentality of the national will, has to step
in and assume the initiative, if not the leadership, in the struggle for
the economic freedom of the nation in somewhat the same way that
it did in the crusade for political freedom. Thus . . . it (the
Constitution) envisages an organized movement for the protection
of the nation not only against the possibilities of armed invasion but
also against its economic subjugation by alien interests in the
economic field. (Phil. Political Law by Sinco, 10th ed., p. 476.)
Belief in the existence of alien control and predominance is felt in
other quarters. Filipino businessmen, manufacturers and producers
believe so; they fear the dangers coming from alien control, and they
express sentiments of economic independence. Witness thereto is
Resolution No. 1, approved on July 18, 1953, of the Fifth National
convention of Filipino Businessmen, and a similar resolution,
approved on March 20, 1954, of the Second National Convention of
Manufacturers and Producers. The man in the street also believes,
and fears, alien predominance and control; so our newspapers,
which have editorially pointed out not only to control but to alien
stranglehold. We, therefore, find alien domination and control to be
a fact, a reality proved by official statistics, and felt by all the sections
and groups that compose the Filipino community.
e. Dangers of alien control and dominance in retail. —
But the dangers arising from alien participation in the retail trade
does not seem to lie in the predominance alone; there is a prevailing
feeling that such predominance may truly endanger the national
interest. With ample capital, unity of purpose and action and
thorough organization, alien retailers and merchants can act in such
complete unison and concert on such vital matters as the fixing of
prices, the determination of the amount of goods or articles to be
made available in the market, and even the choice of the goods or
articles they would or would not patronize or distribute, that fears of
dislocation of the national economy and of the complete
subservience of national economy and of the consuming public are
not entirely unfounded. Nationals, producers and consumers alike
can be placed completely at their mercy. This is easily illustrated.
Suppose an article of daily use is desired to be prescribed by the
aliens, because the producer or importer does not offer them
sufficient profits, or because a new competing article offers bigger
profits for its introduction. All that aliens would do is to agree to
refuse to sell the first article, eliminating it from their stocks, offering
the new one as a substitute. Hence, the producers or importers of
the prescribed article, or its consumers, find the article suddenly out
of the prescribed article, or its consumers, find the article suddenly
out of circulation. Freedom of trade is thus curtailed and free
enterprise correspondingly suppressed.
We can even go farther than theoretical illustrations to show the
pernicious influences of alien domination. Grave abuses have
characterized the exercise of the retail trade by aliens. It is a fact
within judicial notice, which courts of justice may not properly
overlook or ignore in the interests of truth and justice, that there
exists a general feeling on the part of the public that alien
participation in the retail trade has been attended by a pernicious
and intolerable practices, the mention of a few of which would suffice
for our purposes; that at some time or other they have cornered the
market of essential commodities, like corn and rice, creating artificial
scarcities to justify and enhance profits to unreasonable proportions;
that they have hoarded essential foods to the inconvenience and
prejudice of the consuming public, so much so that the Government
has had to establish the National Rice and Corn Corporation to save
the public from their continuous hoarding practices and tendencies;

that they have violated price control laws, especially on foods and
essential commodities, such that the legislature had to enact a law
(Sec. 9, Republic Act No. 1168), authorizing their immediate and
automatic deportation for price control convictions; that they have
secret combinations among themselves to control prices, cheating
the operation of the law of supply and demand; that they have
connived to boycott honest merchants and traders who would not
cater or yield to their demands, in unlawful restraint of freedom of
trade and enterprise. They are believed by the public to have
evaded tax laws, smuggled goods and money into and out of the
land, violated import and export prohibitions, control laws and the
like, in derision and contempt of lawful authority. It is also believed
that they have engaged in corrupting public officials with fabulous
bribes, indirectly causing the prevalence of graft and corruption in
the Government. As a matter of fact appeals to unscrupulous aliens
have been made both by the Government and by their own lawful
diplomatic representatives, action which impliedly admits a
prevailing feeling about the existence of many of the above
practices.
The circumstances above set forth create well founded fears that
worse things may come in the future. The present dominance of the
alien retailer, especially in the big centers of population, therefore,
becomes a potential source of danger on occasions of war or other
calamity. We do not have here in this country isolated groups of
harmless aliens retailing goods among nationals; what we have are
well organized and powerful groups that dominate the distribution of
goods and commodities in the communities and big centers of
population. They owe no allegiance or loyalty to the State, and the
State cannot rely upon them in times of crisis or emergency. While
the national holds his life, his person and his property subject to the
needs of his country, the alien may even become the potential
enemy of the State.
f. Law enacted in interest of national economic survival and security.
— established by the Constitution.
We are fully satisfied upon a consideration of all the facts and
circumstances that the disputed law is not the product of racial
hostility, prejudice or discrimination, but the expression of the
legitimate desire and determination of the people, thru their
authorized representatives, to free the nation from the economic
situation that has unfortunately been saddled upon it rightly or
wrongly, to its disadvantage. The law is clearly in the interest of the
public, nay of the national security itself, and indisputably falls within
the scope of police power, thru which and by which the State insures
its existence and security and the supreme welfare of its citizens.
VI. The Equal Protection Limitation
a. Objections to alien participation in retail trade. — The next
question that now poses solution is, Does the law deny the equal
protection of the laws? As pointed out above, the mere fact of
alienage is the root and cause of the distinction between the alien
and the national as a trader. The alien resident owes allegiance to
the country of his birth or his adopted country; his stay here is for
personal convenience; he is attracted by the lure of gain and profit.
His aim or purpose of stay, we admit, is neither illegitimate nor
immoral, but he is naturally lacking in that spirit of loyalty and
enthusiasm for this country where he temporarily stays and makes
his living, or of that spirit of regard, sympathy and consideration for
his Filipino customers as would prevent him from taking advantage
of their weakness and exploiting them. The faster he makes his pile,
the earlier can the alien go back to his beloved country and his
beloved kin and countrymen. The experience of the country is that
the alien retailer has shown such utter disregard for his customers
and the people on whom he makes his profit, that it has been found
necessary to adopt the legislation, radical as it may seem.
Another objection to the alien retailer in this country is that he never
really makes a genuine contribution to national income and wealth.
CONSTI LAW II I ACJUCO 120
He undoubtedly contributes to general distribution, but the gains and
profits he makes are not invested in industries that would help the
country's economy and increase national wealth. The alien's interest
in this country being merely transient and temporary, it would indeed
be ill-advised to continue entrusting the very important function of
retail distribution to his hands.
The practices resorted to by aliens in the control of distribution, as
already pointed out above, their secret manipulations of stocks of
commodities and prices, their utter disregard of the welfare of their
customers and of the ultimate happiness of the people of the nation
of which they are mere guests, which practices, manipulations and
disregard do not attend the exercise of the trade by the nationals,
show the existence of real and actual, positive and fundamental
differences between an alien and a national which fully justify the
legislative classification adopted in the retail trade measure. These
differences are certainly a valid reason for the State to prefer the
national over the alien in the retail trade. We would be doing
violence to fact and reality were we to hold that no reason or ground
for a legitimate distinction can be found between one and the other.
b. Difference in alien aims and purposes sufficient basis for
distinction. —
The above objectionable characteristics of the exercise of the retail
trade by the aliens, which are actual and real, furnish sufficient
grounds for legislative classification of retail traders into nationals
and aliens. Some may disagree with the wisdom of the legislature's
classification. To this we answer, that this is the prerogative of the
law-making power. Since the Court finds that the classification is
actual, real and reasonable, and all persons of one class are treated
alike, and as it cannot be said that the classification is patently
unreasonable and unfounded, it is in duty bound to declare that the
legislature acted within its legitimate prerogative and it can not
declare that the act transcends the limit of equal protection
Broadly speaking, the power of the legislature to make distinctions
and classifications among persons is not curtailed or denied by the
equal protection of the laws clause. The legislative power admits of
a wide scope of discretion, and a law can be violative of the
constitutional limitation only when the classification is without
reasonable basis. In addition to the authorities we have earlier cited,
we can also refer to the case of Linsey vs. Natural Carbonic Fas Co.
(1911), 55 L. ed., 369, which clearly and succinctly defined the
application of equal protection clause to a law sought to be voided
as contrary thereto:
. . . . "1. The equal protection clause of the Fourteenth Amendment
does not take from the state the power to classify in the adoption of
police laws, but admits of the exercise of the wide scope of
discretion in that regard, and avoids what is done only when it is
without any reasonable basis, and therefore is purely arbitrary. 2. A
classification having some reasonable basis does not offend against
that clause merely because it is not made with mathematical nicety,
or because in practice it results in some inequality. 3. When the
classification in such a law is called in question, if any state of facts
reasonably can be conceived that would sustain it, the existence of
that state of facts at the time the law was enacted must be assumed.
4. One who assails the classification in such a law must carry the
burden of showing that it does not rest upon any reasonable basis
but is essentially arbitrary."
c. Authorities recognizing citizenship as basis for classification. —
The question as to whether or not citizenship is a legal and valid
ground for classification has already been affirmatively decided in
this jurisdiction as well as in various courts in the United States. In
the case of Smith Bell & Co. vs. Natividad, 40 Phil. 136, where the
validity of Act No. 2761 of the Philippine Legislature was in issue,
because of a condition therein limiting the ownership of vessels

engaged in coastwise trade to corporations formed by citizens of the
Philippine Islands or the United States, thus denying the right to
aliens, it was held that the Philippine Legislature did not violate the
equal protection clause of the Philippine Bill of Rights. The
legislature in enacting the law had as ultimate purpose the
encouragement of Philippine shipbuilding and the safety for these
Islands from foreign interlopers. We held that this was a valid
exercise of the police power, and all presumptions are in favor of its
constitutionality. In substance, we held that the limitation of
domestic ownership of vessels engaged in coastwise trade to
citizens of the Philippines does not violate the equal protection of
the law and due process or law clauses of the Philippine Bill of
Rights. In rendering said decision we quoted with approval the
concurring opinion of Justice Johnson in the case of Gibbons vs.
Ogden, 9 Wheat., I, as follows:
"Licensing acts, in fact, in legislation, are universally restraining
acts; as, for example, acts licensing gaming houses, retailers of
spirituous liquors, etc. The act, in this instance, is distinctly of that
character, and forms part of an extensive system, the object of
which is to encourage American shipping, and place them on an
equal footing with the shipping of other nations. Almost every
commercial nation reserves to its own subjects a monopoly of its
coasting trade; and a countervailing privilege in favor of American
shipping is contemplated, in the whole legislation of the United
States on this subject. It is not to give the vessel an American
character, that the license is granted; that effect has been correctly
attributed to the act of her enrollment. But it is to confer on her
American privileges, as contra distinguished from foreign; and to
preserve the Government from fraud by foreigners; in surreptitiously
intruding themselves into the American commercial marine, as well
as frauds upon the revenue in the trade coastwise, that this whole
system is projected."
The rule in general is as follows:
Aliens are under no special constitutional protection which forbids a
classification otherwise justified simply because the limitation of the
class falls along the lines of nationality. That would be requiring a
higher degree of protection for aliens as a class than for similar
classes than for similar classes of American citizens. Broadly
speaking, the difference in status between citizens and aliens
constitutes a basis for reasonable classification in the exercise of
police power. (2 Am., Jur. 468-469.)
In Commonwealth vs. Hana, 81 N. E. 149 (Massachusetts, 1907), a
statute on the licensing of hawkers and peddlers, which provided
that no one can obtain a license unless he is, or has declared his
intention, to become a citizen of the United States, was held valid,
for the following reason: It may seem wise to the legislature to limit
the business of those who are supposed to have regard for the
welfare, good order and happiness of the community, and the court
cannot question this judgment and conclusion. In Bloomfield vs.
State, 99 N. E. 309 (Ohio, 1912), a statute which prevented certain
persons, among them aliens, from engaging in the traffic of liquors,
was found not to be the result of race hatred, or in hospitality, or a
deliberate purpose to discriminate, but was based on the belief that
an alien cannot be sufficiently acquainted with "our institutions and
our life as to enable him to appreciate the relation of this particular
business to our entire social fabric", and was not, therefore, invalid.
In Ohio ex rel. Clarke vs. Deckebach, 274 U. S. 392, 71 L. ed. 115
(1926), the U.S. Supreme Court had under consideration an
ordinance of the city of Cincinnati prohibiting the issuance of
licenses (pools and billiard rooms) to aliens. It held that plainly
irrational discrimination against aliens is prohibited, but it does not
follow that alien race and allegiance may not bear in some instances
such a relation to a legitimate object of legislation as to be made the
basis of permitted classification, and that it could not state that the
legislation is clearly wrong; and that latitude must be allowed for the
legislative appraisement of local conditions and for the legislative
choice of methods for controlling an apprehended evil. The case of
CONSTI LAW II I ACJUCO 121
State vs. Carrol, 124 N. E. 129 (Ohio, 1919) is a parallel case to the
one at bar. In Asakura vs. City of Seattle, 210 P. 30 (Washington,
1922), the business of pawn brooking was considered as having
tendencies injuring public interest, and limiting it to citizens is within
the scope of police power. A similar statute denying aliens the right
to engage in auctioneering was also sustained in Wright vs. May,
L.R.A., 1915 P. 151 (Minnesota, 1914). So also in Anton vs. Van
Winkle, 297 F. 340 (Oregon, 1924), the court said that aliens are
judicially known to have different interests, knowledge, attitude,
psychology and loyalty, hence the prohibitions of issuance of
licenses to them for the business of pawnbroker, pool, billiard, card
room, dance hall, is not an infringement of constitutional rights. In
Templar vs. Michigan State Board of Examiners, 90 N.W. 1058
(Michigan, 1902), a law prohibiting the licensing of aliens as barbers
was held void, but the reason for the decision was the court's
findings that the exercise of the business by the aliens does not in
any way affect the morals, the health, or even the convenience of
the community. In Takahashi vs. Fish and Game Commission, 92 L.
ed. 1479 (1947), a California statute banning the issuance of
commercial fishing licenses to person ineligible to citizenship was
held void, because the law conflicts with Federal power over
immigration, and because there is no public interest in the mere
claim of ownership of the waters and the fish in them, so there was
no adequate justification for the discrimination. It further added that
the law was the outgrowth of antagonism toward the persons of
Japanese ancestry. However, two Justices dissented on the theory
that fishing rights have been treated traditionally as natural
resources. In Fraser vs. McConway & Tarley Co., 82 Fed. 257
(Pennsylvania, 1897), a state law which imposed a tax on every
employer of foreign-born unnaturalized male persons over 21 years
of age, was declared void because the court found that there was
no reason for the classification and the tax was an arbitrary
deduction from the daily wage of an employee.
d. Authorities contra explained. —
It is true that some decisions of the Federal court and of the State
courts in the United States hold that the distinction between aliens
and citizens is not a valid ground for classification. But in this
decision the laws declared invalid were found to be either arbitrary,
unreasonable or capricious, or were the result or product of racial
antagonism and hostility, and there was no question of public
interest involved or pursued. In Yu Cong Eng vs. Trinidad, 70 L. ed.
1059 (1925), the United States Supreme Court declared invalid a
Philippine law making unlawful the keeping of books of account in
any language other than English, Spanish or any other local dialect,
but the main reasons for the decisions are: (1) that if Chinese were
driven out of business there would be no other system of
distribution, and (2) that the Chinese would fall prey to all kinds of
fraud, because they would be deprived of their right to be advised
of their business and to direct its conduct. The real reason for the
decision, therefore, is the court's belief that no public benefit would
be derived from the operations of the law and on the other hand it
would deprive Chinese of something indispensable for carrying on
their business. In Yick Wo vs. Hopkins, 30 L. ed 220 (1885) an
ordinance conferring powers on officials to withhold consent in the
operation of laundries both as to persons and place, was declared
invalid, but the court said that the power granted was arbitrary, that
there was no reason for the discrimination which attended the
administration and implementation of the law, and that the motive
thereof was mere racial hostility. In State vs. Montgomery, 47 A. 165
(Maine, 1900), a law prohibiting aliens to engage as hawkers and
peddlers was declared void, because the discrimination bore no
reasonable and just relation to the act in respect to which the
classification was proposed.
The case at bar is radically different, and the facts make them so.
As we already have said, aliens do not naturally possess the
sympathetic consideration and regard for the customers with whom
they come in daily contact, nor the patriotic desire to help bolster the
nation's economy, except in so far as it enhances their profit, nor the

loyalty and allegiance which the national owes to the land. These
limitations on the qualifications of the aliens have been shown on
many occasions and instances, especially in times of crisis and
emergency. We can do no better than borrow the language of Anton
vs. Van Winkle, 297 F. 340, 342, to drive home the reality and
significance of the distinction between the alien and the national,
thus:
. . . . It may be judicially known, however, that alien coming into this
country are without the intimate knowledge of our laws, customs,
and usages that our own people have. So it is likewise known that
certain classes of aliens are of different psychology from our fellow
countrymen. Furthermore, it is natural and reasonable to suppose
that the foreign born, whose allegiance is first to their own country,
and whose ideals of governmental environment and control have
been engendered and formed under entirely different regimes and
political systems, have not the same inspiration for the public weal,
nor are they as well disposed toward the United States, as those
who by citizenship, are a part of the government itself. Further
enlargement, is unnecessary. I have said enough so that obviously
it cannot be affirmed with absolute confidence that the Legislature
was without plausible reason for making the classification, and
therefore appropriate discriminations against aliens as it relates to
the subject of legislation. . . . .
VII. The Due Process of Law Limitation.
a. Reasonability, the test of the limitation; determination by
legislature decisive. —
We now come to due process as a limitation on the exercise of the
police power. It has been stated by the highest authority in the
United States that:
. . . . And the guaranty of due process, as has often been held,
demands only that the law shall not be unreasonable, arbitrary or
capricious, and that the means selected shall have a real and
substantial relation to the subject sought to be attained. . . . .
xxx xxx xxx
So far as the requirement of due process is concerned and in the
absence of other constitutional restriction a state is free to adopt
whatever economic policy may reasonably be deemed to promote
public welfare, and to enforce that policy by legislation adapted to
its purpose. The courts are without authority either to declare such
policy, or, when it is declared by the legislature, to override it. 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. . . .
(Nebbia vs. New York, 78 L. ed. 940, 950, 957.)
Another authority states the principle thus:
. . . . Too much significance cannot be given to the word
"reasonable" in considering the scope of the police power in a
constitutional sense, for the test used to determine the
constitutionality of the means employed by the legislature is to
inquire whether the restriction it imposes on rights secured to
individuals by the Bill of Rights are unreasonable, and not whether
it imposes any restrictions on such rights. . . .
xxx xxx xxx
. . . . A statute to be within this power must also be reasonable in its
operation upon the persons whom it affects, must not be for the
annoyance of a particular class, and must not be unduly oppressive.
(11 Am. Jur. Sec. 302., 1:1)- 1074-1075.)
In the case of Lawton vs. Steele, 38 L. ed. 385, 388. it was also held:
CONSTI LAW II I ACJUCO 122
. . . . To justify the state in thus interposing its authority in behalf of
the public, it must appear, first, that the interests of the public
generally, as distinguished from those of a particular class, require
such interference; and second, that the means are reasonably
necessary for the accomplishment of the purpose, and not unduly
oppressive upon individuals. . . .
Prata Undertaking Co. vs. State Board of Embalming, 104 ALR,
389, 395, fixes this test of constitutionality:
In determining whether a given act of the Legislature, passed in the
exercise of the police power to regulate the operation of a business,
is or is not constitutional, one of the first questions to be considered
by the court is whether the power as exercised has a sufficient
foundation in reason in connection with the matter involved, or is an
arbitrary, oppressive, and capricious use of that power, without
substantial relation to the health, safety, morals, comfort, and
general welfare of the public.
b. Petitioner's argument considered. —
Petitioner's main argument is that retail is a common, ordinary
occupation, one of those privileges long ago recognized as essential
to the orderly pursuant of happiness by free men; that it is a gainful
and honest occupation and therefore beyond the power of the
legislature to prohibit and penalized. This arguments overlooks fact
and reality and rests on an incorrect assumption and premise, i.e.,
that in this country where the occupation is engaged in by petitioner,
it has been so engaged by him, by the alien in an honest creditable
and unimpeachable manner, without harm or injury to the citizens
and without ultimate danger to their economic peace, tranquility and
welfare. But the Legislature has found, as we have also found and
indicated, that the privilege has been so grossly abused by the alien,
thru the illegitimate use of pernicious designs and practices, that he
now enjoys a monopolistic control of the occupation and threatens
a deadly stranglehold on the nation's economy endangering the
national security in times of crisis and emergency.
The real question at issue, therefore, is not that posed by petitioner,
which overlooks and ignores the facts and circumstances, but this,
Is the exclusion in the future of aliens from the retail trade
unreasonable. Arbitrary capricious, taking into account the
illegitimate and pernicious form and manner in which the aliens have
heretofore engaged therein? As thus correctly stated the answer is
clear. The law in question is deemed absolutely necessary to bring
about the desired legislative objective, i.e., to free national economy
from alien control and dominance. It is not necessarily unreasonable
because it affects private rights and privileges (11 Am. Jur. pp.
1080-1081.) The test of reasonableness of a law is the
appropriateness or adequacy under all circumstances of the means
adopted to carry out its purpose into effect (Id.) Judged by this test,
disputed legislation, which is not merely reasonable but actually
necessary, must be considered not to have infringed the
constitutional limitation of reasonableness.
The necessity of the law in question is explained in the explanatory
note that accompanied the bill, which later was enacted into law:
This bill proposes to regulate the retail business. Its purpose is to
prevent persons who are not citizens of the Philippines from having
a strangle hold upon our economic life. If the persons who control
this vital artery of our economic life are the ones who owe no
allegiance to this Republic, who have no profound devotion to our
free institutions, and who have no permanent stake in our people's
welfare, we are not really the masters of our destiny. All aspects of
our life, even our national security, will be at the mercy of other
people.
In seeking to accomplish the foregoing purpose, we do not propose
to deprive persons who are not citizens of the Philippines of their

means of livelihood. While this bill seeks to take away from the
hands of persons who are not citizens of the Philippines a power
that can be wielded to paralyze all aspects of our national life and
endanger our national security it respects existing rights.
The approval of this bill is necessary for our national survival.
If political independence is a legitimate aspiration of a people, then
economic independence is none the less legitimate. Freedom and
liberty are not real and positive if the people are subject to the
economic control and domination of others, especially if not of their
own race or country. The removal and eradication of the shackles
of foreign economic control and domination, is one of the noblest
motives that a national legislature may pursue. It is impossible to
conceive that legislation that seeks to bring it about can infringe the
constitutional limitation of due process. The attainment of a
legitimate aspiration of a people can never be beyond the limits of
legislative authority.
c. Law expressly held by Constitutional Convention to be within the
sphere of legislative action. —
The framers of the Constitution could not have intended to impose
the constitutional restrictions of due process on the attainment of
such a noble motive as freedom from economic control and
domination, thru the exercise of the police power. The fathers of the
Constitution must have given to the legislature full authority and
power to enact legislation that would promote the supreme
happiness of the people, their freedom and liberty. On the precise
issue now before us, they expressly made their voice clear; they
adopted a resolution expressing their belief that the legislation in
question is within the scope of the legislative power. Thus they
declared the their Resolution:
That it is the sense of the Convention that the public interest requires
the nationalization of retail trade; but it abstain from approving the
amendment introduced by the Delegate for Manila, Mr. Araneta, and
others on this matter because it is convinced that the National
Assembly is authorized to promulgate a law which limits to Filipino
and American citizens the privilege to engage in the retail trade. (11
Aruego, The Framing of the Philippine Constitution, quoted on
pages 66 and 67 of the Memorandum for the Petitioner.)
It would do well to refer to the nationalistic tendency manifested in
various provisions of the Constitution. Thus in the preamble, a
principle objective is the conservation of the patrimony of the nation
and as corollary the provision limiting to citizens of the Philippines
the exploitation, development and utilization of its natural resources.
And in Section 8 of Article XIV, it is provided that "no franchise,
certificate, or any other form of authorization for the operation of the
public utility shall be granted except to citizens of the Philippines."
The nationalization of the retail trade is only a continuance of the
nationalistic protective policy laid down as a primary objective of the
Constitution. Can it be said that a law imbued with the same purpose
and spirit underlying many of the provisions of the Constitution is
unreasonable, invalid and unconstitutional?
The seriousness of the Legislature's concern for the plight of the
nationals as manifested in the approval of the radical measures is,
therefore, fully justified. It would have been recreant to its duties
towards the country and its people would it view the sorry plight of
the nationals with the complacency and refuse or neglect to adopt a
remedy commensurate with the demands of public interest and
national survival. As the repository of the sovereign power of
legislation, the Legislature was in duty bound to face the problem
and meet, through adequate measures, the danger and threat that
alien domination of retail trade poses to national economy.
d. Provisions of law not unreasonable. —
CONSTI LAW II I ACJUCO 123
A cursory study of the provisions of the law immediately reveals how
tolerant, how reasonable the Legislature has been. The law is made
prospective and recognizes the right and privilege of those already
engaged in the occupation to continue therein during the rest of their
lives; and similar recognition of the right to continue is accorded
associations of aliens. The right or privilege is denied to those only
upon conviction of certain offenses. In the deliberations of the Court
on this case, attention was called to the fact that the privilege should
not have been denied to children and heirs of aliens now engaged
in the retail trade. Such provision would defeat the law itself, its aims
and purposes. Beside, the exercise of legislative discretion is not
subject to judicial review. It is well settled that the Court will not
inquire into the motives of the Legislature, nor pass upon general
matters of legislative judgment. The Legislature is primarily the
judge of the necessity of an enactment or of any of its provisions,
and every presumption is in favor of its validity, and though the Court
may hold views inconsistent with the wisdom of the law, it may not
annul the legislation if not palpably in excess of the legislative
power. Furthermore, the test of the validity of a law attacked as a
violation of due process, is not its reasonableness, but its
unreasonableness, and we find the provisions are not
unreasonable. These principles also answer various other
arguments raised against the law, some of which are: that the law
does not promote general welfare; that thousands of aliens would
be thrown out of employment; that prices will increase because of
the elimination of competition; that there is no need for the
legislation; that adequate replacement is problematical; that there
may be general breakdown; that there would be repercussions from
foreigners; etc. Many of these arguments are directed against the
supposed wisdom of the law which lies solely within the legislative
prerogative; they do not import invalidity.
VIII. Alleged defect in the title of the law
A subordinate ground or reason for the alleged invalidity of the law
is the claim that the title thereof is misleading or deceptive, as it
conceals the real purpose of the bill which is to nationalize the retail
business and prohibit aliens from engaging therein. The
constitutional provision which is claimed to be violated in Section 21
(1) of Article VI, which reads:
No bill which may be enacted in the law shall embrace more than
one subject which shall be expressed in the title of the bill.
What the above provision prohibits is duplicity, that is, if its title
completely fails to appraise the legislators or the public of the nature,
scope and consequences of the law or its operation (I Sutherland,
Statutory Construction, Sec. 1707, p. 297.) A cursory consideration
of the title and the provisions of the bill fails to show the presence of
duplicity. It is true that the term "regulate" does not and may not
readily and at first glance convey the idea of "nationalization" and
"prohibition", which terms express the two main purposes and
objectives of the law. But "regulate" is a broader term than either
prohibition or nationalization. Both of these have always been
included within the term regulation.
Under the title of an act to "regulate", the sale of intoxicating liquors,
the Legislature may prohibit the sale of intoxicating liquors. (Sweet
vs. City of Wabash, 41 Ind., 7; quoted in page 41 of Answer.)
Within the meaning of the Constitution requiring that the subject of
every act of the Legislature shall be stated in the tale, the title to
regulate the sale of intoxicating liquors, etc." sufficiently expresses
the subject of an act prohibiting the sale of such liquors to minors
and to persons in the habit of getting intoxicated; such matters being
properly included within the subject of regulating the sale. (Williams
vs. State, 48 Ind. 306, 308, quoted in p. 42 of Answer.)
The word "regulate" is of broad import, and necessarily implies
some degree of restraint and prohibition of acts usually done in
connection with the thing to be regulated. While word regulate does

not ordinarily convey meaning of prohibit, there is no absolute
reason why it should not have such meaning when used in
delegating police power in connection with a thing the best or only
efficacious regulation of which involves suppression. (State vs.
Morton, 162 So. 718, 182 La. 887, quoted in p. 42 of Answer.)
The general rule is for the use of general terms in the title of a bill; it
has also been said that the title need not be an index to the entire
contents of the law (I Sutherland, Statutory Construction, See. 4803,
p. 345.) The above rule was followed the title of the Act in question
adopted the more general term "regulate" instead of "nationalize" or
"prohibit". Furthermore, the law also contains other rules for the
regulation of the retail trade which may not be included in the terms
"nationalization" or "prohibition"; so were the title changed from
"regulate" to "nationalize" or "prohibit", there would have been many
provisions not falling within the scope of the title which would have
made the Act invalid. The use of the term "regulate", therefore, is in
accord with the principle governing the drafting of statutes, under
which a simple or general term should be adopted in the title, which
would include all other provisions found in the body of the Act.
One purpose of the constitutional directive that the subject of a bill
should be embraced in its title is to apprise the legislators of the
purposes, the nature and scope of its provisions, and prevent the
enactment into law of matters which have received the notice, action
and study of the legislators or of the public. In the case at bar it
cannot be claimed that the legislators have been appraised of the
nature of the law, especially the nationalization and the prohibition
provisions. The legislators took active interest in the discussion of
the law, and a great many of the persons affected by the prohibitions
in the law conducted a campaign against its approval. It cannot be
claimed, therefore, that the reasons for declaring the law invalid ever
existed. The objection must therefore, be overruled.
IX. Alleged violation of international treaties and obligations
Another subordinate argument against the validity of the law is the
supposed violation thereby of the Charter of the United Nations and
of the Declaration of the Human Rights adopted by the United
Nations General Assembly. We find no merit in the Nations Charter
imposes no strict or legal obligations regarding the rights and
freedom of their subjects (Hans Kelsen, The Law of the United
Nations, 1951 ed. pp. 29-32), and the Declaration of Human Rights
contains nothing more than a mere recommendation or a common
standard of achievement for all peoples and all nations (Id. p. 39.)
That such is the import of the United Nations Charter aid of the
Declaration of Human Rights can be inferred the fact that members
of the United Nations Organizations, such as Norway and Denmark,
prohibit foreigners from engaging in retail trade, and in most nations
of the world laws against foreigners engaged in domestic trade are
adopted.
The Treaty of Amity between the Republic of the Philippines and the
Republic of China of April 18, 1947 is also claimed to be violated by
the law in question. All that the treaty guarantees is equality of
treatment to the Chinese nationals "upon the same terms as the
nationals of any other country." But the nationals of China are not
discriminating against because nationals of all other countries,
except those of the United States, who are granted special rights by
the Constitution, are all prohibited from engaging in the retail trade.
But even supposing that the law infringes upon the said treaty, the
treaty is always subject to qualification or amendment by a
subsequent law (U. S. vs. Thompson, 258, Fed. 257, 260), and the
same may never curtail or restrict the scope of the police power of
the State (plaston vs. Pennsylvania, 58 L. ed. 539.)
X. Conclusion
Resuming what we have set forth above we hold that the disputed
law was enacted to remedy a real actual threat and danger to
national economy posed by alien dominance and control of the retail
CONSTI LAW II I ACJUCO 124
business and free citizens and country from dominance and control;
that the enactment clearly falls within the scope of the police power
of the State, thru which and by which it protects its own personality
and insures its security and future; that the law does not violate the
equal protection clause of the Constitution because sufficient
grounds exist for the distinction between alien and citizen in the
exercise of the occupation regulated, nor the due process of law
clause, because the law is prospective in operation and recognizes
the privilege of aliens already engaged in the occupation and
reasonably protects their privilege; that the wisdom and efficacy of
the law to carry out its objectives appear to us to be plainly evident
— as a matter of fact it seems not only appropriate but actually
necessary — and that in any case such matter falls within the
prerogative of the Legislature, with whose power and discretion the
Judicial department of the Government may not interfere; that the
provisions of the law are clearly embraced in the title, and this
suffers from no duplicity and has not misled the legislators or the
segment of the population affected; and that it cannot be said to be
void for supposed conflict with treaty obligations because no treaty
has actually been entered into on the subject and the police power
may not be curtailed or surrendered by any treaty or any other
conventional agreement.
Some members of the Court are of the opinion that the radical
effects of the law could have been made less harsh in its impact on
the aliens. Thus it is stated that the more time should have been
given in the law for the liquidation of existing businesses when the
time comes for them to close. Our legal duty, however, is merely to
determine if the law falls within the scope of legislative authority and
does not transcend the limitations of due process and equal
protection guaranteed in the Constitution. Remedies against the
harshness of the law should be addressed to the Legislature; they
are beyond our power and jurisdiction.
The petition is hereby denied, with costs against petitioner.
Paras, C.J., Bengzon, Reyes, A., Bautista Angelo, Concepcion,
Reyes, J.B.L., Endencia and Felix, JJ., concur.
Separate Opinions
PADILLA, J., concurring and dissenting:
I agree to the proposition, principle or rule that courts may not
inquire into the wisdom of an the Act passed by the Congress and
duly approved by the President of the Republic. But the rule does
not preclude courts from inquiring and determining whether the Act
offends against a provision or provisions of the Constitution. I am
satisfied that the Act assailed as violative of the due process of law
and the equal protection of the laws clauses of the Constitution does
not infringe upon them, insofar as it affects associations, partnership
or corporations, the capital of which is not wholly owned by the
citizens of the Philippines, and aliens, who are not and have not
been engaged in the retail business. I am, however, unable to
persuade myself that it does not violate said clauses insofar as the
Act applies to associations and partnerships referred to in the Act
and to aliens, who are and have heretofore been engaged in said
business. When they did engage in the retail business there was no
prohibition on or against them to engage in it. They assumed and
believed in good faith they were entitled to engaged in the business.
The Act allows aliens to continue in business until their death or
voluntary retirement from the business or forfeiture of their license;
and corporations, associations or partnership, the capital of which
is not wholly owned by the citizens of the Philippines to continue in
the business for a period of ten years from the date of the approval
of the Act (19 June 1954) or until the expiry of term of the existence
of the association or partnership or corporation, whichever event
comes first. The prohibition on corporations, the capital of which is
not wholly owned by citizens of the Philippines, to engage in the
retail business for a period of more than ten years from the date of
 CONSTI LAW II I ACJUCO 125

the approval of the Act or beyond the term of their corporate

existence, whichever event comes first, is valid and lawful, because
the continuance of the existence of such corporations is subject to
whatever the Congress may impose reasonably upon them by
subsequent legislation.1 But the prohibition to engage in the retail
business by associations and partnerships, the capital of which is
not wholly owned by citizen of the Philippines, after ten years from
the date of the approval of the Act, even before the end of the term
of their existence as agreed upon by the associates and partners,
and by alien heirs to whom the retail business is transmitted by the
death of an alien engaged in the business, or by his executor or
administrator, amounts to a deprivation of their property without due
process of law. To my mind, the ten-year period from the date of the
approval of the Act or until the expiration of the term of the existence
of the association and partnership, whichever event comes first, and
the six-month period granted to alien heirs of a deceased alien, his
executor or administrator, to liquidate the business, do not cure the
defect of the law, because the effect of the prohibition is to compel
them to sell or dispose of their business. The price obtainable at
such forced sale of the business would be inadequate to reimburse
and compensate the associates or partners of the associations or
partnership, and the alien heirs of a deceased alien, engaged in the
retail business for the capital invested in it. The stock of
merchandise bought and sold at retail does not alone constitute the
business. The goodwill that the association, partnership and the
alien had built up during a long period of effort, patience and
perseverance forms part of such business. The constitutional
provisions that no person shall be deprived of his property without
due process of law2 and that no person shall be denied the equal
protection of the laws3 would have no meaning as applied to
associations or partnership and alien heirs of an alien engaged in
the retail business if they were to be compelled to sell or dispose of
their business within ten years from the date of the approval of the
Act and before the end of the term of the existence of the
associations and partnership as agreed upon by the associations
and partners and within six months after the death of their
predecessor-in-interest.

The authors of the Constitution were vigilant, careful and zealous in

the safeguard of the ownership of private agricultural lands which
together with the lands of the public domain constitute the priceless
patrimony and mainstay of the nation; yet, they did not deem it wise
and prudent to deprive aliens and their heirs of such lands.4

For these reasons, I am of the opinion that section 1 of the Act,

insofar as it compels associations and partnership referred to
therein to wind up their retail business within ten years from the date
of the approval of the Act even before the expiry of the term of their
existence as agreed upon by the associates and partners and
section 3 of the Act, insofar as it compels the aliens engaged in the
retail business in his lifetime his executor or administrator, to
liquidate the business, are invalid, for they violate the due process
of law and the equal protection of the laws clauses of the
Constitution.

G.R. No. L-25246 September 12, 1974
BENJAMIN VICTORIANO, plaintiff-appellee,
vs.
ELIZALDE ROPE WORKERS' UNION and ELIZALDE ROPE
FACTORY, INC., defendants, ELIZALDE ROPE WORKERS'
UNION, defendant-appellant.
Salonga, Ordonez, Yap, Sicat & Associates for plaintiff-
appellee.
Cipriano Cid & Associates for defendant-appellant.
ZALDIVAR, J.:p
Appeal to this Court on purely questions of law from the decision of
the Court of First Instance of Manila in its Civil Case No. 58894.
The undisputed facts that spawned the instant case follow:
Benjamin Victoriano (hereinafter referred to as Appellee), a member
of the religious sect known as the "Iglesia ni Cristo", had been in the
employ of the Elizalde Rope Factory, Inc. (hereinafter referred to as
Company) since 1958. As such employee, he was a member of the
Elizalde Rope Workers' Union (hereinafter referred to as Union)
which had with the Company a collective bargaining agreement
containing a closed shop provision which reads as follows:
Membership in the Union shall be required as a condition of
employment for all permanent employees workers covered by this
Agreement.
The collective bargaining agreement expired on March 3, 1964 but
was renewed the following day, March 4, 1964.
Under Section 4(a), paragraph 4, of Republic Act No. 875, prior to
its amendment by Republic Act No. 3350, the employer was not
precluded "from making an agreement with a labor organization to
require as a condition of employment membership therein, if such
labor organization is the representative of the employees." On June
18, 1961, however, Republic Act No. 3350 was enacted, introducing
an amendment to — paragraph (4) subsection (a) of section 4 of
Republic Act No. 875, as follows: ... "but such agreement shall not
cover members of any religious sects which prohibit affiliation of
their members in any such labor organization".
Being a member of a religious sect that prohibits the affiliation of its
members with any labor organization, Appellee presented his
resignation to appellant Union in 1962, and when no action was
taken thereon, he reiterated his resignation on September 3, 1974.
Thereupon, the Union wrote a formal letter to the Company asking
the latter to separate Appellee from the service in view of the fact
that he was resigning from the Union as a member. The
management of the Company in turn notified Appellee and his
counsel that unless the Appellee could achieve a satisfactory
arrangement with the Union, the Company would be constrained to
dismiss him from the service. This prompted Appellee to file an
action for injunction, docketed as Civil Case No. 58894 in the Court
of First Instance of Manila to enjoin the Company and the Union
from dismissing Appellee.1 In its answer, the Union invoked the
"union security clause" of the collective bargaining agreement;
assailed the constitutionality of Republic Act No. 3350; and
contended that the Court had no jurisdiction over the case, pursuant
to Republic Act No. 875, Sections 24 and 9 (d) and (e).2 Upon the
facts agreed upon by the parties during the pre-trial conference, the
Court a quo rendered its decision on August 26, 1965, the
dispositive portion of which reads:
IN VIEW OF THE FOREGOING, judgment is rendered enjoining the
defendant Elizalde Rope Factory, Inc. from dismissing the plaintiff
CONSTI LAW II I ACJUCO 126
from his present employment and sentencing the defendant Elizalde
Rope Workers' Union to pay the plaintiff P500 for attorney's fees
and the costs of this action.3
From this decision, the Union appealed directly to this Court on
purely questions of law, assigning the following errors:
I. That the lower court erred when it did not rule that Republic Act
No. 3350 is unconstitutional.
II. That the lower court erred when it sentenced appellant herein to
pay plaintiff the sum of P500 as attorney's fees and the cost thereof.
In support of the alleged unconstitutionality of Republic Act No.
3350, the Union contented, firstly, that the Act infringes on the
fundamental right to form lawful associations; that "the very
phraseology of said Republic Act 3350, that membership in a labor
organization is banned to all those belonging to such religious sect
prohibiting affiliation with any labor organization"4 , "prohibits all the
members of a given religious sect from joining any labor union if
such sect prohibits affiliations of their members thereto"5 ; and,
consequently, deprives said members of their constitutional right to
form or join lawful associations or organizations guaranteed by the
Bill of Rights, and thus becomes obnoxious to Article III, Section 1
(6) of the 1935 Constitution. 6
Secondly, the Union contended that Republic Act No. 3350 is
unconstitutional for impairing the obligation of contracts in that, while
the Union is obliged to comply with its collective bargaining
agreement containing a "closed shop provision," the Act relieves the
employer from its reciprocal obligation of cooperating in the
maintenance of union membership as a condition of employment;
and that said Act, furthermore, impairs the Union's rights as it
deprives the union of dues from members who, under the Act, are
relieved from the obligation to continue as such members.7
Thirdly, the Union contended that Republic Act No. 3350
discriminatorily favors those religious sects which ban their
members from joining labor unions, in violation of Article Ill, Section
1 (7) of the 1935 Constitution; and while said Act unduly protects
certain religious sects, it leaves no rights or protection to labor
organizations.8
Fourthly, Republic Act No. 3350, asserted the Union, violates the
constitutional provision that "no religious test shall be required for
the exercise of a civil right," in that the laborer's exercise of his civil
right to join associations for purposes not contrary to law has to be
determined under the Act by his affiliation with a religious sect; that
conversely, if a worker has to sever his religious connection with a
sect that prohibits membership in a labor organization in order to be
able to join a labor organization, said Act would violate religious
freedom.9
Fifthly, the Union contended that Republic Act No. 3350, violates the
"equal protection of laws" clause of the Constitution, it being a
discriminately legislation, inasmuch as by exempting from the
operation of closed shop agreement the members of the "Iglesia ni
Cristo", it has granted said members undue advantages over their
fellow workers, for while the Act exempts them from union obligation
and liability, it nevertheless entitles them at the same time to the
enjoyment of all concessions, benefits and other emoluments that
the union might secure from the employer. 10
Sixthly, the Union contended that Republic Act No. 3350 violates the
constitutional provision regarding the promotion of social justice. 11
Appellant Union, furthermore, asserted that a "closed shop
provision" in a collective bargaining agreement cannot be
considered violative of religious freedom, as to call for the
amendment introduced by Republic Act No. 3350; 12 and that
unless Republic Act No. 3350 is declared unconstitutional, trade

unionism in this country would be wiped out as employers would
prefer to hire or employ members of the Iglesia ni Cristo in order to
do away with labor organizations. 13
Appellee, assailing appellant's arguments, contended that Republic
Act No. 3350 does not violate the right to form lawful associations,
for the right to join associations includes the right not to join or to
resign from a labor organization, if one's conscience does not allow
his membership therein, and the Act has given substance to such
right by prohibiting the compulsion of workers to join labor
organizations; 14 that said Act does not impair the obligation of
contracts for said law formed part of, and was incorporated into, the
terms of the closed shop agreement; 15 that the Act does not violate
the establishment of religion clause or separation of Church and
State, for Congress, in enacting said law, merely accommodated the
religious needs of those workers whose religion prohibits its
members from joining labor unions, and balanced the collective
rights of organized labor with the constitutional right of an individual
to freely exercise his chosen religion; that the constitutional right to
the free exercise of one's religion has primacy and preference over
union security measures which are merely contractual 16 ; that said
Act does not violate the constitutional provision of equal protection,
for the classification of workers under the Act depending on their
religious tenets is based on substantial distinction, is germane to the
purpose of the law, and applies to all the members of a given class;
17 that said Act, finally, does not violate the social justice policy of
the Constitution, for said Act was enacted precisely to equalize
employment opportunities for all citizens in the midst of the
diversities of their religious beliefs." 18
I. Before We proceed to the discussion of the first assigned error, it
is necessary to premise that there are some thoroughly established
principles which must be followed in all cases where questions of
constitutionality as obtains in the instant case are involved. All
presumptions are indulged in favor of constitutionality; one who
attacks a statute, alleging unconstitutionality must prove its invalidity
beyond a reasonable doubt, that a law may work hardship does not
render it unconstitutional; that if any reasonable basis may be
conceived which supports the statute, it will be upheld, and the
challenger must negate all possible bases; that the courts are not
concerned with the wisdom, justice, policy, or expediency of a
statute; and that a liberal interpretation of the constitution in favor of
the constitutionality of legislation should be adopted. 19
1. Appellant Union's contention that Republic Act No. 3350 prohibits
and bans the members of such religious sects that forbid affiliation
of their members with labor unions from joining labor unions
appears nowhere in the wording of Republic Act No. 3350; neither
can the same be deduced by necessary implication therefrom. It is
not surprising, therefore, that appellant, having thus misread the
Act, committed the error of contending that said Act is obnoxious to
the constitutional provision on freedom of association.
Both the Constitution and Republic Act No. 875 recognize freedom
of association. Section 1 (6) of Article III of the Constitution of 1935,
as well as Section 7 of Article IV of the Constitution of 1973, provide
that the right to form associations or societies for purposes not
contrary to law shall not be abridged. Section 3 of Republic Act No.
875 provides that employees shall have the right to self-organization
and to form, join of assist labor organizations of their own choosing
for the purpose of collective bargaining and to engage in concerted
activities for the purpose of collective bargaining and other mutual
aid or protection. What the Constitution and the Industrial Peace Act
recognize and guarantee is the "right" to form or join associations.
Notwithstanding the different theories propounded by the different
schools of jurisprudence regarding the nature and contents of a
"right", it can be safely said that whatever theory one subscribes to,
a right comprehends at least two broad notions, namely: first, liberty
or freedom, i.e., the absence of legal restraint, whereby an
employee may act for himself without being prevented by law; and
second, power, whereby an employee may, as he pleases, join or
CONSTI LAW II I ACJUCO 127
refrain from Joining an association. It is, therefore, the employee
who should decide for himself whether he should join or not an
association; and should he choose to join, he himself makes up his
mind as to which association he would join; and even after he has
joined, he still retains the liberty and the power to leave and cancel
his membership with said organization at any time. 20 It is clear,
therefore, that the right to join a union includes the right to abstain
from joining any union. 21 Inasmuch as what both the Constitution
and the Industrial Peace Act have recognized, and guaranteed to
the employee, is the "right" to join associations of his choice, it would
be absurd to say that the law also imposes, in the same breath, upon
the employee the duty to join associations. The law does not enjoin
an employee to sign up with any association.
The right to refrain from joining labor organizations recognized by
Section 3 of the Industrial Peace Act is, however, limited. The legal
protection granted to such right to refrain from joining is withdrawn
by operation of law, where a labor union and an employer have
agreed on a closed shop, by virtue of which the employer may
employ only member of the collective bargaining union, and the
employees must continue to be members of the union for the
duration of the contract in order to keep their jobs. Thus Section 4
(a) (4) of the Industrial Peace Act, before its amendment by Republic
Act No. 3350, provides that although it would be an unfair labor
practice for an employer "to discriminate in regard to hire or tenure
of employment or any term or condition of employment to encourage
or discourage membership in any labor organization" the employer
is, however, not precluded "from making an agreement with a labor
organization to require as a condition of employment membership
therein, if such labor organization is the representative of the
employees". By virtue, therefore, of a closed shop agreement,
before the enactment of Republic Act No. 3350, if any person,
regardless of his religious beliefs, wishes to be employed or to keep
his employment, he must become a member of the collective
bargaining union. Hence, the right of said employee not to join the
labor union is curtailed and withdrawn.
To that all-embracing coverage of the closed shop arrangement,
Republic Act No. 3350 introduced an exception, when it added to
Section 4 (a) (4) of the Industrial Peace Act the following proviso:
"but such agreement shall not cover members of any religious sects
which prohibit affiliation of their members in any such labor
organization". Republic Act No. 3350 merely excludes ipso jure from
the application and coverage of the closed shop agreement the
employees belonging to any religious sects which prohibit affiliation
of their members with any labor organization. What the exception
provides, therefore, is that members of said religious sects cannot
be compelled or coerced to join labor unions even when said unions
have closed shop agreements with the employers; that in spite of
any closed shop agreement, members of said religious sects cannot
be refused employment or dismissed from their jobs on the sole
ground that they are not members of the collective bargaining union.
It is clear, therefore, that the assailed Act, far from infringing the
constitutional provision on freedom of association, upholds and
reinforces it. It does not prohibit the members of said religious sects
from affiliating with labor unions. It still leaves to said members the
liberty and the power to affiliate, or not to affiliate, with labor unions.
If, notwithstanding their religious beliefs, the members of said
religious sects prefer to sign up with the labor union, they can do so.
If in deference and fealty to their religious faith, they refuse to sign
up, they can do so; the law does not coerce them to join; neither
does the law prohibit them from joining; and neither may the
employer or labor union compel them to join. Republic Act No. 3350,
therefore, does not violate the constitutional provision on freedom
of association.
2. Appellant Union also contends that the Act is unconstitutional for
impairing the obligation of its contract, specifically, the "union
security clause" embodied in its Collective Bargaining Agreement
with the Company, by virtue of which "membership in the union was
required as a condition for employment for all permanent employees

workers". This agreement was already in existence at the time
Republic Act No. 3350 was enacted on June 18, 1961, and it cannot,
therefore, be deemed to have been incorporated into the
agreement. But by reason of this amendment, Appellee, as well as
others similarly situated, could no longer be dismissed from his job
even if he should cease to be a member, or disaffiliate from the
Union, and the Company could continue employing him
notwithstanding his disaffiliation from the Union. The Act, therefore,
introduced a change into the express terms of the union security
clause; the Company was partly absolved by law from the
contractual obligation it had with the Union of employing only Union
members in permanent positions, It cannot be denied, therefore,
that there was indeed an impairment of said union security clause.
According to Black, any statute which introduces a change into the
express terms of the contract, or its legal construction, or its validity,
or its discharge, or the remedy for its enforcement, impairs the
contract. The extent of the change is not material. It is not a question
of degree or manner or cause, but of encroaching in any respect on
its obligation or dispensing with any part of its force. There is an
impairment of the contract if either party is absolved by law from its
performance. 22 Impairment has also been predicated on laws
which, without destroying contracts, derogate from substantial
contractual rights. 23
It should not be overlooked, however, that the prohibition to impair
the obligation of contracts is not absolute and unqualified. The
prohibition is general, affording a broad outline and requiring
construction to fill in the details. The prohibition is not to be read with
literal exactness like a mathematical formula, for it prohibits
unreasonable impairment only. 24 In spite of the constitutional
prohibition, the State continues to possess authority to safeguard
the vital interests of its people. Legislation appropriate to
safeguarding said interests may modify or abrogate contracts
already in effect. 25 For not only are existing laws read into contracts
in order to fix the obligations as between the parties, but the
reservation of essential attributes of sovereign power is also read
into contracts as a postulate of the legal order. All contracts made
with reference to any matter that is subject to regulation under the
police power must be understood as made in reference to the
possible exercise of that power. 26 Otherwise, important and
valuable reforms may be precluded by the simple device of entering
into contracts for the purpose of doing that which otherwise may be
prohibited. The policy of protecting contracts against impairment
presupposes the maintenance of a government by virtue of which
contractual relations are worthwhile a government which retains
adequate authority to secure the peace and good order of society.
The contract clause of the Constitution must, therefore, be not only
in harmony with, but also in subordination to, in appropriate
instances, the reserved power of the state to safeguard the vital
interests of the people. It follows that not all legislations, which have
the effect of impairing a contract, are obnoxious to the constitutional
prohibition as to impairment, and a statute passed in the legitimate
exercise of police power, although it incidentally destroys existing
contract rights, must be upheld by the courts. This has special
application to contracts regulating relations between capital and
labor which are not merely contractual, and said labor contracts, for
being impressed with public interest, must yield to the common
good. 27
In several occasions this Court declared that the prohibition against
impairing the obligations of contracts has no application to statutes
relating to public subjects within the domain of the general
legislative powers of the state involving public welfare. 28 Thus, this
Court also held that the Blue Sunday Law was not an infringement
of the obligation of a contract that required the employer to furnish
work on Sundays to his employees, the law having been enacted to
secure the well-being and happiness of the laboring class, and
being, furthermore, a legitimate exercise of the police power. 29
CONSTI LAW II I ACJUCO 128
In order to determine whether legislation unconstitutionally impairs
contract obligations, no unchanging yardstick, applicable at all times
and under all circumstances, by which the validity of each statute
may be measured or determined, has been fashioned, but every
case must be determined upon its own circumstances. Legislation
impairing the obligation of contracts can be sustained when it is
enacted for the promotion of the general good of the people, and
when the means adopted to secure that end are reasonable. Both
the end sought and the means adopted must be legitimate, i.e.,
within the scope of the reserved power of the state construed in
harmony with the constitutional limitation of that power. 30
What then was the purpose sought to be achieved by Republic Act
No. 3350? Its purpose was to insure freedom of belief and religion,
and to promote the general welfare by preventing discrimination
against those members of religious sects which prohibit their
members from joining labor unions, confirming thereby their natural,
statutory and constitutional right to work, the fruits of which work are
usually the only means whereby they can maintain their own life and
the life of their dependents. It cannot be gainsaid that said purpose
is legitimate.
The questioned Act also provides protection to members of said
religious sects against two aggregates of group strength from which
the individual needs protection. The individual employee, at various
times in his working life, is confronted by two aggregates of power
— collective labor, directed by a union, and collective capital,
directed by management. The union, an institution developed to
organize labor into a collective force and thus protect the individual
employee from the power of collective capital, is, paradoxically, both
the champion of employee rights, and a new source of their
frustration. Moreover, when the Union interacts with management,
it produces yet a third aggregate of group strength from which the
individual also needs protection — the collective bargaining
relationship. 31
The aforementioned purpose of the amendatory law is clearly seen
in the Explanatory Note to House Bill No. 5859, which later became
Republic Act No. 3350, as follows:
It would be unthinkable indeed to refuse employing a person who,
on account of his religious beliefs and convictions, cannot accept
membership in a labor organization although he possesses all the
qualifications for the job. This is tantamount to punishing such
person for believing in a doctrine he has a right under the law to
believe in. The law would not allow discrimination to flourish to the
detriment of those whose religion discards membership in any labor
organization. Likewise, the law would not commend the deprivation
of their right to work and pursue a modest means of livelihood,
without in any manner violating their religious faith and/or belief. 32
It cannot be denied, furthermore, that the means adopted by the Act
to achieve that purpose — exempting the members of said religious
sects from coverage of union security agreements — is reasonable.
It may not be amiss to point out here that the free exercise of
religious profession or belief is superior to contract rights. In case of
conflict, the latter must, therefore, yield to the former. The Supreme
Court of the United States has also declared on several occasions
that the rights in the First Amendment, which include freedom of
religion, enjoy a preferred position in the constitutional system. 33
Religious freedom, although not unlimited, is a fundamental
personal right and liberty, 34 and has a preferred position in the
hierarchy of values. Contractual rights, therefore, must yield to
freedom of religion. It is only where unavoidably necessary to
prevent an immediate and grave danger to the security and welfare
of the community that infringement of religious freedom may be
justified, and only to the smallest extent necessary to avoid the
danger.

3. In further support of its contention that Republic Act No. 3350 is
unconstitutional, appellant Union averred that said Act discriminates
in favor of members of said religious sects in violation of Section 1
(7) of Article Ill of the 1935 Constitution, and which is now Section 8
of Article IV of the 1973 Constitution, which provides:
No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof, and the free exercise and
enjoyment of religious profession and worship, without
discrimination and preference, shall forever be allowed. No religious
test shall be required for the exercise of civil or political rights.
The constitutional provision into only prohibits legislation for the
support of any religious tenets or the modes of worship of any sect,
thus forestalling compulsion by law of the acceptance of any creed
or the practice of any form of worship, 35 but also assures the free
exercise of one's chosen form of religion within limits of utmost
amplitude. It has been said that the religion clauses of the
Constitution are all designed to protect the broadest possible liberty
of conscience, to allow each man to believe as his conscience
directs, to profess his beliefs, and to live as he believes he ought to
live, consistent with the liberty of others and with the common good.
36 Any legislation whose effect or purpose is to impede the
observance of one or all religions, or to discriminate invidiously
between the religions, is invalid, even though the burden may be
characterized as being only indirect. 37 But if the stage regulates
conduct by enacting, within its power, a general law which has for
its purpose and effect to advance the state's secular goals, the
statute is valid despite its indirect burden on religious observance,
unless the state can accomplish its purpose without imposing such
burden. 38
In Aglipay v. Ruiz 39 , this Court had occasion to state that the
government should not be precluded from pursuing valid objectives
secular in character even if the incidental result would be favorable
to a religion or sect. It has likewise been held that the statute, in
order to withstand the strictures of constitutional prohibition, must
have a secular legislative purpose and a primary effect that neither
advances nor inhibits religion. 40 Assessed by these criteria,
Republic Act No. 3350 cannot be said to violate the constitutional
inhibition of the "no-establishment" (of religion) clause of the
Constitution.
The purpose of Republic Act No. 3350 is secular, worldly, and
temporal, not spiritual or religious or holy and eternal. It was
intended to serve the secular purpose of advancing the
constitutional right to the free exercise of religion, by averting that
certain persons be refused work, or be dismissed from work, or be
dispossessed of their right to work and of being impeded to pursue
a modest means of livelihood, by reason of union security
agreements. To help its citizens to find gainful employment whereby
they can make a living to support themselves and their families is a
valid objective of the state. In fact, the state is enjoined, in the 1935
Constitution, to afford protection to labor, and regulate the relations
between labor and capital and industry. 41 More so now in the 1973
Constitution where it is mandated that "the State shall afford
protection to labor, promote full employment and equality in
employment, ensure equal work opportunities regardless of sex,
race or creed and regulate the relation between workers and
employers. 42
The primary effects of the exemption from closed shop agreements
in favor of members of religious sects that prohibit their members
from affiliating with a labor organization, is the protection of said
employees against the aggregate force of the collective bargaining
agreement, and relieving certain citizens of a burden on their
religious beliefs; and by eliminating to a certain extent economic
insecurity due to unemployment, which is a serious menace to the
health, morals, and welfare of the people of the State, the Act also
promotes the well-being of society. It is our view that the exemption
from the effects of closed shop agreement does not directly
CONSTI LAW II I ACJUCO 129
advance, or diminish, the interests of any particular religion.
Although the exemption may benefit those who are members of
religious sects that prohibit their members from joining labor unions,
the benefit upon the religious sects is merely incidental and indirect.
The "establishment clause" (of religion) does not ban regulation on
conduct whose reason or effect merely happens to coincide or
harmonize with the tenets of some or all religions. 43 The free
exercise clause of the Constitution has been interpreted to require
that religious exercise be preferentially aided. 44
We believe that in enacting Republic Act No. 3350, Congress acted
consistently with the spirit of the constitutional provision. It acted
merely to relieve the exercise of religion, by certain persons, of a
burden that is imposed by union security agreements. It was
Congress itself that imposed that burden when it enacted the
Industrial Peace Act (Republic Act 875), and, certainly, Congress, if
it so deems advisable, could take away the same burden. It is
certain that not every conscience can be accommodated by all the
laws of the land; but when general laws conflict with scrupples of
conscience, exemptions ought to be granted unless some
"compelling state interest" intervenes. 45 In the instant case, We
see no such compelling state interest to withhold exemption.
Appellant bewails that while Republic Act No. 3350 protects
members of certain religious sects, it leaves no right to, and is silent
as to the protection of, labor organizations. The purpose of Republic
Act No. 3350 was not to grant rights to labor unions. The rights of
labor unions are amply provided for in Republic Act No. 875 and the
new Labor Code. As to the lamented silence of the Act regarding
the rights and protection of labor unions, suffice it to say, first, that
the validity of a statute is determined by its provisions, not by its
silence 46 ; and, second, the fact that the law may work hardship
does not render it unconstitutional. 47
It would not be amiss to state, regarding this matter, that to compel
persons to join and remain members of a union to keep their jobs in
violation of their religious scrupples, would hurt, rather than help,
labor unions, Congress has seen it fit to exempt religious objectors
lest their resistance spread to other workers, for religious objections
have contagious potentialities more than political and philosophic
objections.
Furthermore, let it be noted that coerced unity and loyalty even to
the country, and a fortiori to a labor — union assuming that such
unity and loyalty can be attained through coercion — is not a goal
that is constitutionally obtainable at the expense of religious liberty.
48 A desirable end cannot be promoted by prohibited means.
4. Appellants' fourth contention, that Republic Act No. 3350 violates
the constitutional prohibition against requiring a religious test for the
exercise of a civil right or a political right, is not well taken. The Act
does not require as a qualification, or condition, for joining any lawful
association membership in any particular religion or in any religious
sect; neither does the Act require affiliation with a religious sect that
prohibits its members from joining a labor union as a condition or
qualification for withdrawing from a labor union. Joining or
withdrawing from a labor union requires a positive act. Republic Act
No. 3350 only exempts members with such religious affiliation from
the coverage of closed shop agreements. So, under this Act, a
religious objector is not required to do a positive act — to exercise
the right to join or to resign from the union. He is exempted ipso jure
without need of any positive act on his part. A conscientious
religious objector need not perform a positive act or exercise the
right of resigning from the labor union — he is exempted from the
coverage of any closed shop agreement that a labor union may have
entered into. How then can there be a religious test required for the
exercise of a right when no right need be exercised?
We have said that it was within the police power of the State to enact
Republic Act No. 3350, and that its purpose was legal and in
consonance with the Constitution. It is never an illegal evasion of a

constitutional provision or prohibition to accomplish a desired result,
which is lawful in itself, by discovering or following a legal way to do
it. 49
5. Appellant avers as its fifth ground that Republic Act No. 3350 is a
discriminatory legislation, inasmuch as it grants to the members of
certain religious sects undue advantages over other workers, thus
violating Section 1 of Article III of the 1935 Constitution which forbids
the denial to any person of the equal protection of the laws. 50
The guaranty of equal protection of the laws is not a guaranty of
equality in the application of the laws upon all citizens of the state.
It is not, therefore, a requirement, in order to avoid the constitutional
prohibition against inequality, that every man, woman and child
should be affected alike by a statute. Equality of operation of
statutes does not mean indiscriminate operation on persons merely
as such, but on persons according to the circumstances surrounding
them. It guarantees equality, not identity of rights. The Constitution
does not require that things which are different in fact be treated in
law as though they were the same. The equal protection clause
does not forbid discrimination as to things that are different. 51 It
does not prohibit legislation which is limited either in the object to
which it is directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows
classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or
practice because they agree with one another in certain particulars.
A law is not invalid because of simple inequality. 52 The very idea
of classification is that of inequality, so that it goes without saying
that the mere fact of inequality in no manner determines the matter
of constitutionality. 53 All that is required of a valid classification is
that it be reasonable, which means that the classification should be
based on substantial distinctions which make for real differences;
that it must be germane to the purpose of the law; that it must not
be limited to existing conditions only; and that it must apply equally
to each member of the class. 54 This Court has held that the
standard is satisfied if the classification or distinction is based on a
reasonable foundation or rational basis and is not palpably arbitrary.
55
In the exercise of its power to make classifications for the purpose
of enacting laws over matters within its jurisdiction, the state is
recognized as enjoying a wide range of discretion. 56 It is not
necessary that the classification be based on scientific or marked
differences of things or in their relation. 57 Neither is it necessary
that the classification be made with mathematical nicety. 58 Hence
legislative classification may in many cases properly rest on narrow
distinctions, 59 for the equal protection guaranty does not preclude
the legislature from recognizing degrees of evil or harm, and
legislation is addressed to evils as they may appear.
We believe that Republic Act No. 3350 satisfies the aforementioned
requirements. The Act classifies employees and workers, as to the
effect and coverage of union shop security agreements, into those
who by reason of their religious beliefs and convictions cannot sign
up with a labor union, and those whose religion does not prohibit
membership in labor unions. Tile classification rests on real or
substantial, not merely imaginary or whimsical, distinctions. There
is such real distinction in the beliefs, feelings and sentiments of
employees. Employees do not believe in the same religious faith
and different religions differ in their dogmas and cannons. Religious
beliefs, manifestations and practices, though they are found in all
places, and in all times, take so many varied forms as to be almost
beyond imagination. There are many views that comprise the broad
spectrum of religious beliefs among the people. There are diverse
manners in which beliefs, equally paramount in the lives of their
possessors, may be articulated. Today the country is far more
heterogenous in religion than before, differences in religion do exist,
and these differences are important and should not be ignored.
CONSTI LAW II I ACJUCO 130
Even from the phychological point of view, the classification is based
on real and important differences. Religious beliefs are not mere
beliefs, mere ideas existing only in the mind, for they carry with them
practical consequences and are the motives of certain rules. of
human conduct and the justification of certain acts. 60 Religious
sentiment makes a man view things and events in their relation to
his God. It gives to human life its distinctive character, its tone, its
happiness or unhappiness its enjoyment or irksomeness. Usually, a
strong and passionate desire is involved in a religious belief. To
certain persons, no single factor of their experience is more
important to them than their religion, or their not having any religion.
Because of differences in religious belief and sentiments, a very
poor person may consider himself better than the rich, and the man
who even lacks the necessities of life may be more cheerful than
the one who has all possible luxuries. Due to their religious beliefs
people, like the martyrs, became resigned to the inevitable and
accepted cheerfully even the most painful and excruciating pains.
Because of differences in religious beliefs, the world has witnessed
turmoil, civil strife, persecution, hatred, bloodshed and war,
generated to a large extent by members of sects who were intolerant
of other religious beliefs. The classification, introduced by Republic
Act No. 3350, therefore, rests on substantial distinctions.
The classification introduced by said Act is also germane to its
purpose. The purpose of the law is precisely to avoid those who
cannot, because of their religious belief, join labor unions, from
being deprived of their right to work and from being dismissed from
their work because of union shop security agreements.
Republic Act No. 3350, furthermore, is not limited in its application
to conditions existing at the time of its enactment. The law does not
provide that it is to be effective for a certain period of time only. It is
intended to apply for all times as long as the conditions to which the
law is applicable exist. As long as there are closed shop agreements
between an employer and a labor union, and there are employees
who are prohibited by their religion from affiliating with labor unions,
their exemption from the coverage of said agreements continues.
Finally, the Act applies equally to all members of said religious sects;
this is evident from its provision. The fact that the law grants a
privilege to members of said religious sects cannot by itself render
the Act unconstitutional, for as We have adverted to, the Act only
restores to them their freedom of association which closed shop
agreements have taken away, and puts them in the same plane as
the other workers who are not prohibited by their religion from joining
labor unions. The circumstance, that the other employees, because
they are differently situated, are not granted the same privilege,
does not render the law unconstitutional, for every classification
allowed by the Constitution by its nature involves inequality.
The mere fact that the legislative classification may result in actual
inequality is not violative of the right to equal protection, for every
classification of persons or things for regulation by law produces
inequality in some degree, but the law is not thereby rendered
invalid. A classification otherwise reasonable does not offend the
constitution simply because in practice it results in some inequality.
61 Anent this matter, it has been said that whenever it is apparent
from the scope of the law that its object is for the benefit of the public
and the means by which the benefit is to be obtained are of public
character, the law will be upheld even though incidental advantage
may occur to individuals beyond those enjoyed by the general
public. 62
6. Appellant's further contention that Republic Act No. 3350 violates
the constitutional provision on social justice is also baseless. Social
justice is intended to promote the welfare of all the people. 63
Republic Act No. 3350 promotes that welfare insofar as it looks after
the welfare of those who, because of their religious belief, cannot
join labor unions; the Act prevents their being deprived of work and
of the means of livelihood. In determining whether any particular
measure is for public advantage, it is not necessary that the entire

state be directly benefited — it is sufficient that a portion of the state
be benefited thereby.
Social justice also means the adoption by the Government of
measures calculated to insure economic stability of all component
elements of society, through the maintenance of a proper economic
and social equilibrium in the inter-relations of the members of the
community. 64 Republic Act No. 3350 insures economic stability to
the members of a religious sect, like the Iglesia ni Cristo, who are
also component elements of society, for it insures security in their
employment, notwithstanding their failure to join a labor union
having a closed shop agreement with the employer. The Act also
advances the proper economic and social equilibrium between labor
unions and employees who cannot join labor unions, for it exempts
the latter from the compelling necessity of joining labor unions that
have closed shop agreements and equalizes, in so far as
opportunity to work is concerned, those whose religion prohibits
membership in labor unions with those whose religion does not
prohibit said membership. Social justice does not imply social
equality, because social inequality will always exist as long as social
relations depend on personal or subjective proclivities. Social justice
does not require legal equality because legal equality, being a
relative term, is necessarily premised on differentiations based on
personal or natural conditions. 65 Social justice guarantees equality
of opportunity 66 , and this is precisely what Republic Act No. 3350
proposes to accomplish — it gives laborers, irrespective of their
religious scrupples, equal opportunity for work.
7. As its last ground, appellant contends that the amendment
introduced by Republic Act No. 3350 is not called for — in other
words, the Act is not proper, necessary or desirable. Anent this
matter, it has been held that a statute which is not necessary is not,
for that reason, unconstitutional; that in determining the
constitutional validity of legislation, the courts are unconcerned with
issues as to the necessity for the enactment of the legislation in
question. 67 Courts do inquire into the wisdom of laws. 68 Moreover,
legislatures, being chosen by the people, are presumed to
understand and correctly appreciate the needs of the people, and it
may change the laws accordingly. 69 The fear is entertained by
appellant that unless the Act is declared unconstitutional, employers
will prefer employing members of religious sects that prohibit their
members from joining labor unions, and thus be a fatal blow to
unionism. We do not agree. The threat to unionism will depend on
the number of employees who are members of the religious sects
that control the demands of the labor market. But there is really no
occasion now to go further and anticipate problems We cannot
judge with the material now before Us. At any rate, the validity of a
statute is to be determined from its general purpose and its efficacy
to accomplish the end desired, not from its effects on a particular
case. 70 The essential basis for the exercise of power, and not a
mere incidental result arising from its exertion, is the criterion by
which the validity of a statute is to be measured. 71
II. We now pass on the second assignment of error, in support of
which the Union argued that the decision of the trial court ordering
the Union to pay P500 for attorney's fees directly contravenes
Section 24 of Republic Act No. 875, for the instant action involves
an industrial dispute wherein the Union was a party, and said Union
merely acted in the exercise of its rights under the union shop
provision of its existing collective bargaining contract with the
Company; that said order also contravenes Article 2208 of the Civil
Code; that, furthermore, Appellee was never actually dismissed by
the defendant Company and did not therefore suffer any damage at
all . 72
In refuting appellant Union's arguments, Appellee claimed that in the
instant case there was really no industrial dispute involved in the
attempt to compel Appellee to maintain its membership in the union
under pain of dismissal, and that the Union, by its act, inflicted
intentional harm on Appellee; that since Appellee was compelled to
institute an action to protect his right to work, appellant could legally
CONSTI LAW II I ACJUCO 131
be ordered to pay attorney's fees under Articles 1704 and 2208 of
the Civil Code. 73
The second paragraph of Section 24 of Republic Act No. 875 which
is relied upon by appellant provides that:
No suit, action or other proceedings shall be maintainable in any
court against a labor organization or any officer or member thereof
for any act done by or on behalf of such organization in furtherance
of an industrial dispute to which it is a party, on the ground only that
such act induces some other person to break a contract of
employment or that it is in restraint of trade or interferes with the
trade, business or employment of some other person or with the
right of some other person to dispose of his capital or labor.
(Emphasis supplied)
That there was a labor dispute in the instant case cannot be
disputed for appellant sought the discharge of respondent by virtue
of the closed shop agreement and under Section 2 (j) of Republic
Act No. 875 a question involving tenure of employment is included
in the term "labor dispute". 74 The discharge or the act of seeking it
is the labor dispute itself. It being the labor dispute itself, that very
same act of the Union in asking the employer to dismiss Appellee
cannot be "an act done ... in furtherance of an industrial dispute".
The mere fact that appellant is a labor union does not necessarily
mean that all its acts are in furtherance of an industrial dispute. 75
Appellant Union, therefore, cannot invoke in its favor Section 24 of
Republic Act No. 875. This case is not intertwined with any unfair
labor practice case existing at the time when Appellee filed his
complaint before the lower court.
Neither does Article 2208 of the Civil Code, invoked by the Union,
serve as its shield. The article provides that attorney's fees and
expenses of litigation may be awarded "when the defendant's act or
omission has compelled the plaintiff ... to incur expenses to protect
his interest"; and "in any other case where the court deems it just
and equitable that attorney's fees and expenses of litigation should
be recovered". In the instant case, it cannot be gainsaid that
appellant Union's act in demanding Appellee's dismissal caused
Appellee to incur expenses to prevent his being dismissed from his
job. Costs according to Section 1, Rule 142, of the Rules of Court,
shall be allowed as a matter of course to the prevailing party.
WHEREFORE, the instant appeal is dismissed, and the decision,
dated August 26, 1965, of the Court of First Instance of Manila, in
its Civil Case No. 58894, appealed from is affirmed, with costs
against appellant Union. It is so ordered.

G.R. No. L-52245 January 22, 1980
PATRICIO DUMLAO, ROMEO B. IGOT, and ALFREDO
SALAPANTAN, JR., petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.
Raul M. Gonzales for petitioners
Office of the Solicitor General for respondent.
MELENCIO-HERRERA, J:
This is a Petition for Prohibition with Preliminary Injunction and/or
Restraining Order filed by petitioners, in their own behalf and all
others allegedly similarly situated, seeking to enjoin respondent
Commission on Elections (COMELEC) from implementing certain
provisions of Batas Pambansa Big. 51, 52, and 53 for being
unconstitutional.
The Petition alleges that petitioner, Patricio Dumlao, is a former
Governor of Nueva Vizcaya, who has filed his certificate of
candidacy for said position of Governor in the forthcoming elections
of January 30, 1980. Petitioner, Romeo B. Igot, is a taxpayer, a
qualified voter and a member of the Bar who, as such, has taken his
oath to support the Constitution and obey the laws of the land.
Petitioner, Alfredo Salapantan, Jr., is also a taxpayer, a qualified
voter, and a resident of San Miguel, Iloilo.
Petitioner Dumlao specifically questions the constitutionality of
section 4 of Batas Pambansa Blg. 52 as discriminatory and contrary
to the equal protection and due process guarantees of the
Constitution. Said Section 4 provides:
Sec. 4. Special Disqualification in addition to violation of section
10 of Art. XI I-C of the Constitution and disqualification mentioned in
existing laws, which are hereby declared as disqualification for any
of the elective officials enumerated in section 1 hereof.
Any retired elective provincial city or municipal official who has
received payment of the retirement benefits to which he is entitled
under the law, and who shall have been 6,5 years of age at the
commencement of the term of office to which he seeks to be elected
shall not be qualified to run for the same elective local office from
which he has retired (Emphasis supplied)
Petitioner Dumlao alleges that the aforecited provision is directed
insidiously against him, and that the classification provided therein
is based on "purely arbitrary grounds and, therefore, class
legislation."
For their part, petitioners igot and Salapantan, Jr. assail the validity
of the following statutory provisions:
Sec 7. Terms of Office — Unless sooner removed for cause, all local
elective officials hereinabove mentioned shall hold office for a term
of six (6) years, which shall commence on the first Monday of March
1980.
.... (Batas Pambansa Blg. 51) Sec. 4.
Sec. 4. ...
Any person who has committed any act of disloyalty to the State,
including acts amounting to subversion, insurrection, rebellion or
other similar crimes, shall not be qualified to be a candidate for any
of the offices covered by this Act, or to participate in any partisan
political activity therein:
CONSTI LAW II I ACJUCO 132
provided that a judgment of conviction for any of the aforementioned
crimes shall be conclusive evidence of such fact and
the filing of charges for the commission of such crimes before a civil
court or military tribunal after preliminary investigation shall be prima
fascie evidence of such fact.
... (Batas Pambansa Big. 52) (Paragraphing and Emphasis
supplied).
Section 1. Election of certain Local Officials — ... The
election shall be held on January 30, 1980. (Batas Pambansa, Blg.
52)
Section 6. Election and Campaign Period — The election
period shall be fixed by the Commission on Elections in accordance
with Section 6, Art. XII-C of the Constitution. The period of campaign
shall commence on December 29, 1979 and terminate on January
28, 1980. (ibid.)
In addition to the above-cited provisions, petitioners Igot and
Salapantan, Jr. also question the accreditation of some political
parties by respondent COMELEC, as authorized by Batas
Pambansa Blg. 53, on the ground that it is contrary to section
9(1)Art. XIIC of the Constitution, which provides that a "bona fide
candidate for any public office shall be it. from any form of
harassment and discrimination. "The question of accreditation will
not be taken up in this case but in that of Bacalso, et als. vs.
COMELEC et als. No. L-52232) where the issue has been squarely
raised,
Petitioners then pray that the statutory provisions they have
challenged be declared null and void for being violative of the
Constitution.
I . The procedural Aspect
At the outset, it should be stated that this Petition suffers from basic
procedural infirmities, hence, traditionally unacceptable for judicial
resolution. For one, there is a misjoinder of parties and actions.
Petitioner Dumlao's interest is alien to that of petitioners Igot and
Salapantan Petitioner Dumlao does not join petitioners Igot and
Salapantan in the burden of their complaint, nor do the latter join
Dumlao in his. The respectively contest completely different
statutory provisions. Petitioner Dumlao has joined this suit in his
individual capacity as a candidate. The action of petitioners Igot and
Salapantan is more in the nature of a taxpayer's suit. Although
petitioners plead nine constraints as the reason of their joint Petition,
it would have required only a modicum more of effort tor petitioner
Dumlao, on one hand said petitioners lgot and Salapantan, on the
other, to have filed separate suits, in the interest of orderly
procedure.
For another, there are standards that have to be followed inthe
exercise of the function of judicial review, namely (1) the existence
of an appropriate case:, (2) an interest personal and substantial by
the party raising the constitutional question: (3) the plea that the
function be exercised at the earliest opportunity and (4) the
necessity that the constiutional question be passed upon in order to
decide the case (People vs. Vera 65 Phil. 56 [1937]).
It may be conceded that the third requisite has been complied with,
which is, that the parties have raised the issue of constitutionality
early enough in their pleadings.
This Petition, however, has fallen far short of the other three criteria.
A. Actual case and controversy.
It is basic that the power of judicial review is limited to the
determination of actual cases and controversies.

Petitioner Dumlao assails the constitutionality of the first paragraph
of section 4 of Batas Pambansa Blg. 52, quoted earlier, as being
contrary to the equal protection clause guaranteed by the
Constitution, and seeks to prohibit respondent COMELEC from
implementing said provision. Yet, Dumlao has not been adversely
affected by the application of that provision. No petition seeking
Dumlao's disqualification has been filed before the COMELEC.
There is no ruling of that constitutional body on the matter, which
this Court is being asked to review on Certiorari. His is a question
posed in the abstract, a hypothetical issue, and in effect, a petition
for an advisory opinion from this Court to be rendered without the
benefit of a detailed factual record Petitioner Dumlao's case is
clearly within the primary jurisdiction (see concurring Opinion of now
Chief Justice Fernando in Peralta vs. Comelec, 82 SCRA 30, 96
[1978]) of respondent COMELEC as provided for in section 2, Art.
XII-C, for the Constitution the pertinent portion of which reads:
"Section 2. The Commission on Elections shall have the following
power and functions:
1) xxx
2) Be the sole judge of all contests relating to the elections,
returns and qualifications of all members of the National Assembly
and elective provincial and city officials. (Emphasis supplied)
The aforequoted provision must also be related to section 11 of Art.
XII-C, which provides:
Section 11. Any decision, order, or ruling of the Commission may be
brought to the Supreme Court on certiorari by the aggrieved party
within thirty days from his receipt of a copy thereof.
B. Proper party.
The long-standing rule has been that "the person who impugns the
validity of a statute must have a personal and substantial interest in
the case such that he has sustained, or will sustain, direct injury as
a result of its enforcement" (People vs. Vera, supra).
In the case of petitioners Igot and Salapantan, it was only during the
hearing, not in their Petition, that Igot is said to be a candidate for
Councilor. Even then, it cannot be denied that neither one has been
convicted nor charged with acts of disloyalty to the State, nor
disqualified from being candidates for local elective positions.
Neither one of them has been calle ed to have been adversely
affected by the operation of the statutory provisions they assail as
unconstitutional Theirs is a generated grievance. They have no
personal nor substantial interest at stake. In the absence of any
litigate interest, they can claim no locus standi in seeking judicial
redress.
It is true that petitioners Igot and Salapantan have instituted this
case as a taxpayer's suit, and that the rule enunciated in People vs.
Vera, above stated, has been relaxed in Pascual vs. The Secretary
of Public Works (110 Phil. 331 [1960], thus:
... it is well settled that the validity of a statute may be contested only
by one who will sustain a direct injury in consequence of its
enforcement. Yet, there are many decisions nullifying at the
instance of taxpayers, laws providing for the disbursement of public
funds, upon the theory that "the expenditure of public funds, by an
officer of the State for the purpose of administering an
unconstitutional act constitutes a misapplication of such funds,"
which may be enjoined at the request of a taxpayer.
In the same vein, it has been held:
In the determination of the degree of interest essential to give the
requisite standing to attack the constitutionality of a statute, the
CONSTI LAW II I ACJUCO 133
general rule is that not only persons individually affected, but also
taxpayers have sufficient interest in preventing the illegal
expenditure of moneys raised by taxation and they may, therefore,
question the constitutionality of statutes requiring expenditure of
public moneys. (Philippine Constitution Association, Inc., et als., vs.
Gimenez, et als., 15 SCRA 479 [1965]).
However, the statutory provisions questioned in this case, namely,
sec. 7, BP Blg. 51, and sections 4, 1, and 6 BP Blg. 52, do not
directly involve the disbursement of public funds. While, concededly,
the elections to be held involve the expenditure of public moneys,
nowhere in their Petition do said petitioners allege that their tax
money is "being extracted and spent in violation of specific
constitutional protections against abuses of legislative power" (Flast
v. Cohen, 392 U.S., 83 [1960]), or that there is a misapplication of
such funds by respondent COMELEC (see Pascual vs. Secretary of
Public Works, 110 Phil. 331 [1960]), or that public money is being
deflected to any improper purpose. Neither do petitioners seek to
restrain respondent from wasting public funds through the
enforcement of an invalid or unconstitutional law. (Philippine
Constitution Association vs. Mathay, 18 SCRA 300 [1966]), citing
Philippine Constitution Association vs. Gimenez, 15 SCRA 479
[1965]). Besides, the institution of a taxpayer's suit, per se is no
assurance of judicial review. As held by this Court in Tan vs.
Macapagal (43 SCRA 677 [1972]), speaking through our present
Chief Justice, this Court is vested with discretion as to whether or
not a taxpayer's suit should be entertained.
C. Unavoidability of constitutional question.
Again upon the authority of People vs. Vera, "it is a wellsettled rule
that the constitutionality of an act of the legislature will not be
determined by the courts unless that question is properly raised and
presented in appropriate cases and is necessary to a determination
of the case; i.e., the issue of constitutionality must be the very lis
mota presented."
We have already stated that, by the standards set forth in People
vs. Vera, the present is not an "appropriate case" for either petitioner
Dumlao or for petitioners Igot and Salapantan. They are actually
without cause of action. It follows that the necessity for resolving the
issue of constitutionality is absent, and procedural regularity would
require that this suit be dismissed.
II. The substantive viewpoint.
We have resolved, however, to rule squarely on two of the
challenged provisions, the Courts not being entirely without
discretion in the matter. Thus, adherence to the strict procedural
standard was relaxed in Tinio vs. Mina (26 SCRA 512 [1968]); Edu
vs. Ericta (35 SCRA 481 [1970]); and in Gonzalez vs. Comelec (27
SCRA 835 [1969]), the Opinion in the Tinio and Gonzalez cases
having been penned by our present Chief Justice. The reasons
which have impelled us are the paramount public interest involved
and the proximity of the elections which will be held only a few days
hence.
Petitioner Dumlao's contention that section 4 of BP Blg. 52 is
discriminatory against him personally is belied by the fact that
several petitions for the disqualification of other candidates for local
positions based on the challenged provision have already been filed
with the COMELEC (as listed in p. 15, respondent's Comment). This
tellingly overthrows Dumlao's contention of intentional or purposeful
discrimination.
The assertion that Section 4 of BP Blg. 52 is contrary to the safer
guard of equal protection is neither well taken. The constitutional
guarantee of equal protection of the laws is subject to rational
classification. If the groupings are based on reasonable and real
differentiations, one class can be treated and regulated differently
from another class. For purposes of public service, employees 65

years of age, have been validly classified differently from younger
employees. Employees attaining that age are subject to compulsory
retirement, while those of younger ages are not so compulsorily
retirable.
In respect of election to provincial, city, or municipal positions, to
require that candidates should not be more than 65 years of age at
the time they assume office, if applicable to everyone, might or might
not be a reasonable classification although, as the Solicitor General
has intimated, a good policy of the law would be to promote the
emergence of younger blood in our political elective echelons. On
the other hand, it might be that persons more than 65 years old may
also be good elective local officials.
Coming now to the case of retirees. Retirement from government
service may or may not be a reasonable disqualification for elective
local officials. For one thing, there can also be retirees from
government service at ages, say below 65. It may neither be
reasonable to disqualify retirees, aged 65, for a 65 year old retiree
could be a good local official just like one, aged 65, who is not a
retiree.
But, in the case of a 65-year old elective local official, who has
retired from a provincial, city or municipal office, there is reason to
disqualify him from running for the same office from which he had
retired, as provided for in the challenged provision. The need for
new blood assumes relevance. The tiredness of the retiree for
government work is present, and what is emphatically significant is
that the retired employee has already declared himself tired and
unavailable for the same government work, but, which, by virtue of
a change of mind, he would like to assume again. It is for this very
reason that inequality will neither result from the application of the
challenged provision. Just as that provision does not deny equal
protection neither does it permit of such denial (see People vs. Vera,
65 Phil. 56 [1933]). Persons similarly situated are sinlilarly treated.
In fine, it bears reiteration that the equal protection clause does not
forbid all legal classification. What is proscribes is a classification
which is arbitrary and unreasonable. That constitutional guarantee
is not violated by a reasonable classification based upon substantial
distinctions, where the classification is germane to the purpose of
the law and applies to all Chose belonging to the same class
(Peralta vs. Comelec, 82 SCRA 30 [1978] citing Felwa vs. Salas, 18
SCRA 606 [1966]; Rafael v. Embroidery and Apparel Control and
Inspection Board, 21 SCRA 336 [1967]; Inchong etc., et al. vs.
Hernandez 101 Phil. 1155 [1957]). The purpose of the law is to allow
the emergence of younger blood in local governments. The
classification in question being pursuant to that purpose, it cannot
be considered invalid "even it at times, it may be susceptible to the
objection that it is marred by theoretical inconsistencies" (Chief
Justice Fernando, The Constitution of the Philippines, 1977 ed., p.
547).
There is an additional consideration. Absent herein is a showing of
the clear invalidity of the questioned provision. Well accepted is the
rule that to justify the nullification of a law, there must be a clear and
unequivocal breach of the Constitution, not a doubtful and equivocal
breach. Courts are practically unanimous in the pronouncement that
laws shall not be declared invalid unless the conflict with the
Constitution is clear beyond reasonable doubt (Peralta vs.
COMELEC, 82 SCRA 55 [1978], citing Cooper vs. Telfair 4 Dall 14;
Dodd, Cases on Constitutional Law, 3rd ed. 1942, 56). Lastly, it is
within the compentence of the legislature to prescribe qualifications
for one who desires to become a candidate for office provided they
are reasonable, as in this case.
In so far as the petition of Igot and Salapantan are concerned, the
second paragraph of section 4 of Batas Pambansa Blg. 52, quoted
in full earlier, and which they challenge, may be divided in two parts.
The first provides:
CONSTI LAW II I ACJUCO 134
a. judgment of conviction jor any of the aforementioned crimes shall
be conclusive evidence of such fact ...
The supremacy of the Constitution stands out as the cardinal
principle. We are aware of the presumption of validity that attaches
to a challenged statute, of the well-settled principle that "all
reasonable doubts should be resolved in favor of constitutionality,"
and that Courts will not set aside a statute as constitutionally
defective "except in a clear case." (People vs. Vera, supra). We are
constrained to hold that this is one such clear case.
Explicit is the constitutional provision that, in all criminal
prosecutions, the accused shall be presumed innocent until the
contrary is proved, and shall enjoy the right to be heard by himself
and counsel (Article IV, section 19, 1973 Constitution). An
accusation, according to the fundamental law, is not synonymous
with guilt. The challenged proviso contravenes the constitutional
presumption of innocence, as a candidate is disqualified from
running for public office on the ground alone that charges have been
filed against him before a civil or military tribunal. It condemns before
one is fully heard. In ultimate effect, except as to the degree of proof,
no distinction is made between a person convicted of acts of
dislotalty and one against whom charges have been filed for such
acts, as both of them would be ineligible to run for public office. A
person disqualified to run for public office on the ground that charges
have been filed against him is virtually placed in the same category
as a person already convicted of a crime with the penalty of arresto,
which carries with it the accessory penalty of suspension of the right
to hold office during the term of the sentence (Art. 44, Revised Penal
Code).
And although the filing of charges is considered as but prima facie
evidence, and therefore, may be rebutted, yet. there is "clear and
present danger" that because of the proximity of the elections, time
constraints will prevent one charged with acts of disloyalty from
offering contrary proof to overcome the prima facie evidence against
him.
Additionally, it is best that evidence pro and con of acts of disloyalty
be aired before the Courts rather than before an administrative body
such as the COMELEC. A highly possible conflict of findings
between two government bodies, to the extreme detriment of a
person charged, will thereby be avoided. Furthermore, a
legislative/administrative determination of guilt should not be
allowed to be substituted for a judicial determination.
Being infected with constitutional infirmity, a partial declaration of
nullity of only that objectionable portion is mandated. It is separable
from the first portion of the second paragraph of section 4 of Batas
Pambansa Big. 52 which can stand by itself.
WHEREFORE, 1) the first paragraph of section 4 of Batas
pambansa Bilang 52 is hereby declared valid. Said paragraph
reads:
SEC. 4. Special disqualification. — In addition to violation of Section
10 of Article XII(C) of the Constitution and disqualifications
mentioned in existing laws which are hereby declared as
disqualification for any of the elective officials enumerated in Section
1 hereof, any retired elective provincial, city or municipal official,
who has received payment of the retirement benefits to which he is
entitled under the law and who shall have been 65 years of age at
the commencement of the term of office to which he seeks to be
elected, shall not be qualified to run for the same elective local office
from which he has retired.
2) That portion of the second paragraph of section 4 of Batas
Pambansa Bilang 52 providing that "... the filing of charges for the
commission of such crimes before a civil court or military tribunal
after preliminary investigation shall be prima facie evidence of such
 CONSTI LAW II I ACJUCO 135

fact", is hereby declared null and void, for being violative of the
constitutional presumption of innocence guaranteed to an accused.

SO ORDERED.

G.R. No. 190582 April 8, 2010
ANG LADLAD LGBT PARTY represented herein by its Chair,
DANTON REMOTO, Petitioner,
vs.
COMMISSION ON ELECTIONS Respondent.
DECISION
DEL CASTILLO, J.:
... [F]reedom to differ is not limited to things that do not matter much.
That would be a mere shadow of freedom. The test of its substance
is the right to differ as to things that touch the heart of the existing
order.
Justice Robert A. Jackson
West Virginia State Board of Education v. Barnette1
One unavoidable consequence of everyone having the freedom to
choose is that others may make different choices – choices we
would not make for ourselves, choices we may disapprove of, even
choices that may shock or offend or anger us. However, choices are
not to be legally prohibited merely because they are different, and
the right to disagree and debate about important questions of public
policy is a core value protected by our Bill of Rights. Indeed, our
democracy is built on genuine recognition of, and respect for,
diversity and difference in opinion.
Since ancient times, society has grappled with deep disagreements
about the definitions and demands of morality. In many cases,
where moral convictions are concerned, harmony among those
theoretically opposed is an insurmountable goal. Yet herein lies the
paradox – philosophical justifications about what is moral are
indispensable and yet at the same time powerless to create
agreement. This Court recognizes, however, that practical solutions
are preferable to ideological stalemates; accommodation is better
than intransigence; reason more worthy than rhetoric. This will allow
persons of diverse viewpoints to live together, if not harmoniously,
then, at least, civilly.
Factual Background
This is a Petition for Certiorari under Rule 65 of the Rules of Court,
with an application for a writ of preliminary mandatory injunction,
filed by Ang Ladlad LGBT Party (Ang Ladlad) against the
Resolutions of the Commission on Elections (COMELEC) dated
November 11, 20092 (the First Assailed Resolution) and December
16, 20093 (the Second Assailed Resolution) in SPP No. 09-228 (PL)
(collectively, the Assailed Resolutions). The case has its roots in the
COMELEC’s refusal to accredit Ang Ladlad as a party-list
organization under Republic Act (RA) No. 7941, otherwise known
as the Party-List System Act.4
Ang Ladlad is an organization composed of men and women who
identify themselves as lesbians, gays, bisexuals, or trans-gendered
individuals (LGBTs). Incorporated in 2003, Ang Ladlad first applied
for registration with the COMELEC in 2006. The application for
accreditation was denied on the ground that the organization had no
substantial membership base. On August 17, 2009, Ang Ladlad
again filed a Petition5 for registration with the COMELEC.
Before the COMELEC, petitioner argued that the LGBT community
is a marginalized and under-represented sector that is particularly
disadvantaged because of their sexual orientation and gender
identity; that LGBTs are victims of exclusion, discrimination, and
violence; that because of negative societal attitudes, LGBTs are
constrained to hide their sexual orientation; and that Ang Ladlad
complied with the 8-point guidelines enunciated by this Court in Ang
Bagong Bayani-OFW Labor Party v. Commission on Elections.6
CONSTI LAW II I ACJUCO 136
Ang Ladlad laid out its national membership base consisting of
individual members and organizational supporters, and outlined its
platform of governance.7
On November 11, 2009, after admitting the petitioner’s evidence,
the COMELEC (Second Division) dismissed the Petition on moral
grounds, stating that:
x x x This Petition is dismissible on moral grounds. Petitioner defines
the Filipino Lesbian, Gay, Bisexual and Transgender (LGBT)
Community, thus:
x x x a marginalized and under-represented sector that is
particularly disadvantaged because of their sexual orientation and
gender identity.
and proceeded to define sexual orientation as that which:
x x x refers to a person’s capacity for profound emotional, affectional
and sexual attraction to, and intimate and sexual relations with,
individuals of a different gender, of the same gender, or more than
one gender."
This definition of the LGBT sector makes it crystal clear that
petitioner tolerates immorality which offends religious beliefs. In
Romans 1:26, 27, Paul wrote:
For this cause God gave them up into vile affections, for even their
women did change the natural use into that which is against nature:
And likewise also the men, leaving the natural use of the woman,
burned in their lust one toward another; men with men working that
which is unseemly, and receiving in themselves that recompense of
their error which was meet.
In the Koran, the hereunder verses are pertinent:
For ye practice your lusts on men in preference to women "ye are
indeed a people transgressing beyond bounds." (7.81) "And we
rained down on them a shower (of brimstone): Then see what was
the end of those who indulged in sin and crime!" (7:84) "He said: "O
my Lord! Help Thou me against people who do mischief" (29:30).
As correctly pointed out by the Law Department in its Comment
dated October 2, 2008:
The ANG LADLAD apparently advocates sexual immorality as
indicated in the Petition’s par. 6F: ‘Consensual partnerships or
relationships by gays and lesbians who are already of age’. It is
further indicated in par. 24 of the Petition which waves for the record:
‘In 2007, Men Having Sex with Men or MSMs in the Philippines were
estimated as 670,000 (Genesis 19 is the history of Sodom and
Gomorrah).
Laws are deemed incorporated in every contract, permit, license,
relationship, or accreditation. Hence, pertinent provisions of the Civil
Code and the Revised Penal Code are deemed part of the
requirement to be complied with for accreditation.
ANG LADLAD collides with Article 695 of the Civil Code which
defines nuisance as ‘Any act, omission, establishment, business,
condition of property, or anything else which x x x (3) shocks, defies;
or disregards decency or morality x x x
It also collides with Article 1306 of the Civil Code: ‘The contracting
parties may establish such stipulations, clauses, terms and
conditions as they may deem convenient, provided they are not
contrary to law, morals, good customs, public order or public policy.
Art 1409 of the Civil Code provides that ‘Contracts whose cause,
object or purpose is contrary to law, morals, good customs, public
order or public policy’ are inexistent and void from the beginning.

Finally to safeguard the morality of the Filipino community, the
Revised Penal Code, as amended, penalizes ‘Immoral doctrines,
obscene publications and exhibitions and indecent shows’ as
follows:
Art. 201. Immoral doctrines, obscene publications and exhibitions,
and indecent shows. — The penalty of prision mayor or a fine
ranging from six thousand to twelve thousand pesos, or both such
imprisonment and fine, shall be imposed upon:
1. Those who shall publicly expound or proclaim doctrines openly
contrary to public morals;
2. (a) The authors of obscene literature, published with their
knowledge in any form; the editors publishing such literature; and
the owners/operators of the establishment selling the same;
(b) Those who, in theaters, fairs, cinematographs or any other place,
exhibit indecent or immoral plays, scenes, acts or shows, it being
understood that the obscene literature or indecent or immoral plays,
scenes, acts or shows, whether live or in film, which are prescribed
by virtue hereof, shall include those which: (1) glorify criminals or
condone crimes; (2) serve no other purpose but to satisfy the market
for violence, lust or pornography; (3) offend any race or religion; (4)
tend to abet traffic in and use of prohibited drugs; and (5) are
contrary to law, public order, morals, good customs, established
policies, lawful orders, decrees and edicts.
3. Those who shall sell, give away or exhibit films, prints,
engravings, sculpture or literature which are offensive to morals.
Petitioner should likewise be denied accreditation not only for
advocating immoral doctrines but likewise for not being truthful
when it said that it "or any of its nominees/party-list representatives
have not violated or failed to comply with laws, rules, or regulations
relating to the elections."
Furthermore, should this Commission grant the petition, we will be
exposing our youth to an environment that does not conform to the
teachings of our faith. Lehman Strauss, a famous bible teacher and
writer in the U.S.A. said in one article that "older practicing
homosexuals are a threat to the youth." As an agency of the
government, ours too is the State’s avowed duty under Section 13,
Article II of the Constitution to protect our youth from moral and
spiritual degradation.8
When Ang Ladlad sought reconsideration,9 three commissioners
voted to overturn the First Assailed Resolution (Commissioners
Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando Velasco),
while three commissioners voted to deny Ang Ladlad’s Motion for
Reconsideration (Commissioners Nicodemo T. Ferrer, Lucenito N.
Tagle, and Elias R. Yusoph). The COMELEC Chairman, breaking
the tie and speaking for the majority in his Separate Opinion, upheld
the First Assailed Resolution, stating that:
I. The Spirit of Republic Act No. 7941
Ladlad is applying for accreditation as a sectoral party in the party-
list system. Even assuming that it has properly proven its under-
representation and marginalization, it cannot be said that Ladlad’s
expressed sexual orientations per se would benefit the nation as a
whole.
Section 2 of the party-list law unequivocally states that the purpose
of the party-list system of electing congressional representatives is
to enable Filipino citizens belonging to marginalized and under-
represented sectors, organizations and parties, and who lack well-
defined political constituencies but who could contribute to the
formulation and enactment of appropriate legislation that will benefit
the nation as a whole, to become members of the House of
Representatives.
CONSTI LAW II I ACJUCO 137
If entry into the party-list system would depend only on the ability of
an organization to represent its constituencies, then all
representative organizations would have found themselves into the
party-list race. But that is not the intention of the framers of the law.
The party-list system is not a tool to advocate tolerance and
acceptance of misunderstood persons or groups of persons. Rather,
the party-list system is a tool for the realization of aspirations of
marginalized individuals whose interests are also the nation’s – only
that their interests have not been brought to the attention of the
nation because of their under representation. Until the time comes
when Ladlad is able to justify that having mixed sexual orientations
and transgender identities is beneficial to the nation, its application
for accreditation under the party-list system will remain just that.
II. No substantial differentiation
In the United States, whose equal protection doctrine pervades
Philippine jurisprudence, courts do not recognize lesbians, gays,
homosexuals, and bisexuals (LGBT) as a "special class" of
individuals. x x x Significantly, it has also been held that
homosexuality is not a constitutionally protected fundamental right,
and that "nothing in the U.S. Constitution discloses a comparable
intent to protect or promote the social or legal equality of
homosexual relations," as in the case of race or religion or belief.
xxxx
Thus, even if society’s understanding, tolerance, and acceptance of
LGBT’s is elevated, there can be no denying that Ladlad
constituencies are still males and females, and they will remain
either male or female protected by the same Bill of Rights that
applies to all citizens alike.
xxxx
IV. Public Morals
x x x There is no question about not imposing on Ladlad Christian
or Muslim religious practices. Neither is there any attempt to any
particular religious group’s moral rules on Ladlad. Rather, what are
being adopted as moral parameters and precepts are generally
accepted public morals. They are possibly religious-based, but as a
society, the Philippines cannot ignore its more than 500 years of
Muslim and Christian upbringing, such that some moral precepts
espoused by said religions have sipped [sic] into society and these
are not publicly accepted moral norms.
V. Legal Provisions
But above morality and social norms, they have become part of the
law of the land. Article 201 of the Revised Penal Code imposes the
penalty of prision mayor upon "Those who shall publicly expound or
proclaim doctrines openly contrary to public morals." It penalizes
"immoral doctrines, obscene publications and exhibition and
indecent shows." "Ang Ladlad" apparently falls under these legal
provisions. This is clear from its Petition’s paragraph 6F:
"Consensual partnerships or relationships by gays and lesbians
who are already of age’ It is further indicated in par. 24 of the Petition
which waves for the record: ‘In 2007, Men Having Sex with Men or
MSMs in the Philippines were estimated as 670,000. Moreoever,
Article 694 of the Civil Code defines "nuisance" as any act, omission
x x x or anything else x x x which shocks, defies or disregards
decency or morality x x x." These are all unlawful.10
On January 4, 2010, Ang Ladlad filed this Petition, praying that the
Court annul the Assailed Resolutions and direct the COMELEC to
grant Ang Ladlad’s application for accreditation. Ang Ladlad also
sought the issuance ex parte of a preliminary mandatory injunction
against the COMELEC, which had previously announced that it

would begin printing the final ballots for the May 2010 elections by
January 25, 2010.
On January 6, 2010, we ordered the Office of the Solicitor General
(OSG) to file its Comment on behalf of COMELEC not later than
12:00 noon of January 11, 2010.11 Instead of filing a Comment,
however, the OSG filed a Motion for Extension, requesting that it be
given until January 16, 2010 to Comment.12 Somewhat
surprisingly, the OSG later filed a Comment in support of petitioner’s
application.13 Thus, in order to give COMELEC the opportunity to
fully ventilate its position, we required it to file its own comment.14
The COMELEC, through its Law Department, filed its Comment on
February 2, 2010.15
In the meantime, due to the urgency of the petition, we issued a
temporary restraining order on January 12, 2010, effective
immediately and continuing until further orders from this Court,
directing the COMELEC to cease and desist from implementing the
Assailed Resolutions.16
Also, on January 13, 2010, the Commission on Human Rights
(CHR) filed a Motion to Intervene or to Appear as Amicus Curiae,
attaching thereto its Comment-in-Intervention.17 The CHR opined
that the denial of Ang Ladlad’s petition on moral grounds violated
the standards and principles of the Constitution, the Universal
Declaration of Human Rights (UDHR), and the International
Covenant on Civil and Political Rights (ICCPR). On January 19,
2010, we granted the CHR’s motion to intervene.
On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to
Intervene18 which motion was granted on February 2, 2010.19
The Parties’ Arguments
Ang Ladlad argued that the denial of accreditation, insofar as it
justified the exclusion by using religious dogma, violated the
constitutional guarantees against the establishment of religion.
Petitioner also claimed that the Assailed Resolutions contravened
its constitutional rights to privacy, freedom of speech and assembly,
and equal protection of laws, as well as constituted violations of the
Philippines’ international obligations against discrimination based
on sexual orientation.
The OSG concurred with Ang Ladlad’s petition and argued that the
COMELEC erred in denying petitioner’s application for registration
since there was no basis for COMELEC’s allegations of immorality.
It also opined that LGBTs have their own special interests and
concerns which should have been recognized by the COMELEC as
a separate classification. However, insofar as the purported
violations of petitioner’s freedom of speech, expression, and
assembly were concerned, the OSG maintained that there had been
no restrictions on these rights.
In its Comment, the COMELEC reiterated that petitioner does not
have a concrete and genuine national political agenda to benefit the
nation and that the petition was validly dismissed on moral grounds.
It also argued for the first time that the LGBT sector is not among
the sectors enumerated by the Constitution and RA 7941, and that
petitioner made untruthful statements in its petition when it alleged
its national existence contrary to actual verification reports by
COMELEC’s field personnel.
Our Ruling
We grant the petition.
Compliance with the Requirements of the Constitution and Republic
Act No. 7941
The COMELEC denied Ang Ladlad’s application for registration on
the ground that the LGBT sector is neither enumerated in the
CONSTI LAW II I ACJUCO 138
Constitution and RA 7941, nor is it associated with or related to any
of the sectors in the enumeration.
Respondent mistakenly opines that our ruling in Ang Bagong Bayani
stands for the proposition that only those sectors specifically
enumerated in the law or related to said sectors (labor, peasant,
fisherfolk, urban poor, indigenous cultural communities, elderly,
handicapped, women, youth, veterans, overseas workers, and
professionals) may be registered under the party-list system. As we
explicitly ruled in Ang Bagong Bayani-OFW Labor Party v.
Commission on Elections,20 "the enumeration of marginalized and
under-represented sectors is not exclusive". The crucial element is
not whether a sector is specifically enumerated, but whether a
particular organization complies with the requirements of the
Constitution and RA 7941.
Respondent also argues that Ang Ladlad made untruthful
statements in its petition when it alleged that it had nationwide
existence through its members and affiliate organizations. The
COMELEC claims that upon verification by its field personnel, it was
shown that "save for a few isolated places in the country, petitioner
does not exist in almost all provinces in the country."21
This argument that "petitioner made untruthful statements in its
petition when it alleged its national existence" is a new one;
previously, the COMELEC claimed that petitioner was "not being
truthful when it said that it or any of its nominees/party-list
representatives have not violated or failed to comply with laws,
rules, or regulations relating to the elections." Nowhere was this
ground for denial of petitioner’s accreditation mentioned or even
alluded to in the Assailed Resolutions. This, in itself, is quite curious,
considering that the reports of petitioner’s alleged non-existence
were already available to the COMELEC prior to the issuance of the
First Assailed Resolution. At best, this is irregular procedure; at
worst, a belated afterthought, a change in respondent’s theory, and
a serious violation of petitioner’s right to procedural due process.
Nonetheless, we find that there has been no misrepresentation. A
cursory perusal of Ang Ladlad’s initial petition shows that it never
claimed to exist in each province of the Philippines. Rather,
petitioner alleged that the LGBT community in the Philippines was
estimated to constitute at least 670,000 persons; that it had 16,100
affiliates and members around the country, and 4,044 members in
its electronic discussion group.22 Ang Ladlad also represented itself
to be "a national LGBT umbrella organization with affiliates around
the Philippines composed of the following LGBT networks:"
§ Abra Gay Association
§ Aklan Butterfly Brigade (ABB) – Aklan
§ Albay Gay Association
§ Arts Center of Cabanatuan City – Nueva Ecija
§ Boys Legion – Metro Manila
§ Cagayan de Oro People Like Us (CDO PLUS)
§ Can’t Live in the Closet, Inc. (CLIC) – Metro Manila
§ Cebu Pride – Cebu City
§ Circle of Friends
§ Dipolog Gay Association – Zamboanga del Norte
§ Gay, Bisexual, & Transgender Youth Association (GABAY)
§ Gay and Lesbian Activists Network for Gender Equality
(GALANG) – Metro Manila

§ Gay Men’s Support Group (GMSG) – Metro Manila
§ Gay United for Peace and Solidarity (GUPS) – Lanao del Norte
§ Iloilo City Gay Association – Iloilo City
§ Kabulig Writer’s Group – Camarines Sur
§ Lesbian Advocates Philippines, Inc. (LEAP)
§ LUMINA – Baguio City
§ Marikina Gay Association – Metro Manila
§ Metropolitan Community Church (MCC) – Metro Manila
§ Naga City Gay Association – Naga City
§ ONE BACARDI
§ Order of St. Aelred (OSAe) – Metro Manila
§ PUP LAKAN
§ RADAR PRIDEWEAR
§ Rainbow Rights Project (R-Rights), Inc. – Metro Manila
§ San Jose del Monte Gay Association – Bulacan
§ Sining Kayumanggi Royal Family – Rizal
§ Society of Transexual Women of the Philippines (STRAP) – Metro
Manila
§ Soul Jive – Antipolo, Rizal
§ The Link – Davao City
§ Tayabas Gay Association – Quezon
§ Women’s Bisexual Network – Metro Manila
§ Zamboanga Gay Association – Zamboanga City23
Since the COMELEC only searched for the names ANG LADLAD
LGBT or LADLAD LGBT, it is no surprise that they found that
petitioner had no presence in any of these regions. In fact, if
COMELEC’s findings are to be believed, petitioner does not even
exist in Quezon City, which is registered as Ang Ladlad’s principal
place of business.
Against this backdrop, we find that Ang Ladlad has sufficiently
demonstrated its compliance with the legal requirements for
accreditation. Indeed, aside from COMELEC’s moral objection and
the belated allegation of non-existence, nowhere in the records has
the respondent ever found/ruled that Ang Ladlad is not qualified to
register as a party-list organization under any of the requisites under
RA 7941 or the guidelines in Ang Bagong Bayani. The difference,
COMELEC claims, lies in Ang Ladlad’s morality, or lack thereof.
Religion as the Basis for Refusal to Accept Ang Ladlad’s Petition for
Registration
Our Constitution provides in Article III, Section 5 that "[n]o law shall
be made respecting an establishment of religion, or prohibiting the
free exercise thereof." At bottom, what our non-establishment
clause calls for is "government neutrality in religious matters."24
Clearly, "governmental reliance on religious justification is
inconsistent with this policy of neutrality."25 We thus find that it was
CONSTI LAW II I ACJUCO 139
grave violation of the non-establishment clause for the COMELEC
to utilize the Bible and the Koran to justify the exclusion of Ang
Ladlad.
Rather than relying on religious belief, the legitimacy of the Assailed
Resolutions should depend, instead, on whether the COMELEC is
able to advance some justification for its rulings beyond mere
conformity to religious doctrine. Otherwise stated, government must
act for secular purposes and in ways that have primarily secular
effects. As we held in Estrada v. Escritor:26
x x x The morality referred to in the law is public and necessarily
secular, not religious as the dissent of Mr. Justice Carpio holds.
"Religious teachings as expressed in public debate may influence
the civil public order but public moral disputes may be resolved only
on grounds articulable in secular terms." Otherwise, if government
relies upon religious beliefs in formulating public policies and
morals, the resulting policies and morals would require conformity
to what some might regard as religious programs or agenda. The
non-believers would therefore be compelled to conform to a
standard of conduct buttressed by a religious belief, i.e., to a
"compelled religion," anathema to religious freedom. Likewise, if
government based its actions upon religious beliefs, it would tacitly
approve or endorse that belief and thereby also tacitly disapprove
contrary religious or non-religious views that would not support the
policy. As a result, government will not provide full religious freedom
for all its citizens, or even make it appear that those whose beliefs
are disapproved are second-class citizens.1avvphi1
In other words, government action, including its proscription of
immorality as expressed in criminal law like concubinage, must have
a secular purpose. That is, the government proscribes this conduct
because it is "detrimental (or dangerous) to those conditions upon
which depend the existence and progress of human society" and
not because the conduct is proscribed by the beliefs of one religion
or the other. Although admittedly, moral judgments based on
religion might have a compelling influence on those engaged in
public deliberations over what actions would be considered a moral
disapprobation punishable by law. After all, they might also be
adherents of a religion and thus have religious opinions and moral
codes with a compelling influence on them; the human mind
endeavors to regulate the temporal and spiritual institutions of
society in a uniform manner, harmonizing earth with heaven.
Succinctly put, a law could be religious or Kantian or Aquinian or
utilitarian in its deepest roots, but it must have an articulable and
discernible secular purpose and justification to pass scrutiny of the
religion clauses. x x x Recognizing the religious nature of the
Filipinos and the elevating influence of religion in society, however,
the Philippine constitution's religion clauses prescribe not a strict but
a benevolent neutrality. Benevolent neutrality recognizes that
government must pursue its secular goals and interests but at the
same time strive to uphold religious liberty to the greatest extent
possible within flexible constitutional limits. Thus, although the
morality contemplated by laws is secular, benevolent neutrality
could allow for accommodation of morality based on religion,
provided it does not offend compelling state interests.27
Public Morals as a Ground to Deny Ang Ladlad’s Petition for
Registration
Respondent suggests that although the moral condemnation of
homosexuality and homosexual conduct may be religion-based, it
has long been transplanted into generally accepted public morals.
The COMELEC argues:
Petitioner’s accreditation was denied not necessarily because their
group consists of LGBTs but because of the danger it poses to the
people especially the youth. Once it is recognized by the
government, a sector which believes that there is nothing wrong in
having sexual relations with individuals of the same gender is a bad
example. It will bring down the standard of morals we cherish in our

civilized society. Any society without a set of moral precepts is in
danger of losing its own existence.28
We are not blind to the fact that, through the years, homosexual
conduct, and perhaps homosexuals themselves, have borne the
brunt of societal disapproval. It is not difficult to imagine the reasons
behind this censure – religious beliefs, convictions about the
preservation of marriage, family, and procreation, even dislike or
distrust of homosexuals themselves and their perceived lifestyle.
Nonetheless, we recall that the Philippines has not seen fit to
criminalize homosexual conduct. Evidently, therefore, these
"generally accepted public morals" have not been convincingly
transplanted into the realm of law.29
The Assailed Resolutions have not identified any specific overt
immoral act performed by Ang Ladlad. Even the OSG agrees that
"there should have been a finding by the COMELEC that the group’s
members have committed or are committing immoral acts."30 The
OSG argues:
x x x A person may be sexually attracted to a person of the same
gender, of a different gender, or more than one gender, but mere
attraction does not translate to immoral acts. There is a great divide
between thought and action. Reduction ad absurdum. If immoral
thoughts could be penalized, COMELEC would have its hands full
of disqualification cases against both the "straights" and the gays."
Certainly this is not the intendment of the law.31
Respondent has failed to explain what societal ills are sought to be
prevented, or why special protection is required for the youth.
Neither has the COMELEC condescended to justify its position that
petitioner’s admission into the party-list system would be so harmful
as to irreparably damage the moral fabric of society. We, of course,
do not suggest that the state is wholly without authority to regulate
matters concerning morality, sexuality, and sexual relations, and we
recognize that the government will and should continue to restrict
behavior considered detrimental to society. Nonetheless, we cannot
countenance advocates who, undoubtedly with the loftiest of
intentions, situate morality on one end of an argument or another,
without bothering to go through the rigors of legal reasoning and
explanation. In this, the notion of morality is robbed of all value.
Clearly then, the bare invocation of morality will not remove an issue
from our scrutiny.
We also find the COMELEC’s reference to purported violations of
our penal and civil laws flimsy, at best; disingenuous, at worst.
Article 694 of the Civil Code defines a nuisance as "any act,
omission, establishment, condition of property, or anything else
which shocks, defies, or disregards decency or morality," the
remedies for which are a prosecution under the Revised Penal Code
or any local ordinance, a civil action, or abatement without judicial
proceedings.32 A violation of Article 201 of the Revised Penal Code,
on the other hand, requires proof beyond reasonable doubt to
support a criminal conviction. It hardly needs to be emphasized that
mere allegation of violation of laws is not proof, and a mere blanket
invocation of public morals cannot replace the institution of civil or
criminal proceedings and a judicial determination of liability or
culpability.
As such, we hold that moral disapproval, without more, is not a
sufficient governmental interest to justify exclusion of homosexuals
from participation in the party-list system. The denial of Ang Ladlad’s
registration on purely moral grounds amounts more to a statement
of dislike and disapproval of homosexuals, rather than a tool to
further any substantial public interest. Respondent’s blanket
justifications give rise to the inevitable conclusion that the
COMELEC targets homosexuals themselves as a class, not
because of any particular morally reprehensible act. It is this
selective targeting that implicates our equal protection clause.
Equal Protection
CONSTI LAW II I ACJUCO 140
Despite the absolutism of Article III, Section 1 of our Constitution,
which provides "nor shall any person be denied equal protection of
the laws," courts have never interpreted the provision as an absolute
prohibition on classification. "Equality," said Aristotle, "consists in
the same treatment of similar persons."33 The equal protection
clause guarantees that no person or class of persons shall be
deprived of the same protection of laws which is enjoyed by other
persons or other classes in the same place and in like
circumstances.34
Recent jurisprudence has affirmed that if a law neither burdens a
fundamental right nor targets a suspect class, we will uphold the
classification as long as it bears a rational relationship to some
legitimate government end.35 In Central Bank Employees
Association, Inc. v. Banko Sentral ng Pilipinas,36 we declared that
"[i]n our jurisdiction, the standard of analysis of equal protection
challenges x x x have followed the ‘rational basis’ test, coupled with
a deferential attitude to legislative classifications and a reluctance
to invalidate a law unless there is a showing of a clear and
unequivocal breach of the Constitution."37
The COMELEC posits that the majority of the Philippine population
considers homosexual conduct as immoral and unacceptable, and
this constitutes sufficient reason to disqualify the petitioner.
Unfortunately for the respondent, the Philippine electorate has
expressed no such belief. No law exists to criminalize homosexual
behavior or expressions or parties about homosexual behavior.
Indeed, even if we were to assume that public opinion is as the
COMELEC describes it, the asserted state interest here – that is,
moral disapproval of an unpopular minority – is not a legitimate state
interest that is sufficient to satisfy rational basis review under the
equal protection clause. The COMELEC’s differentiation, and its
unsubstantiated claim that Ang Ladlad cannot contribute to the
formulation of legislation that would benefit the nation, furthers no
legitimate state interest other than disapproval of or dislike for a
disfavored group.
From the standpoint of the political process, the lesbian, gay,
bisexual, and transgender have the same interest in participating in
the party-list system on the same basis as other political parties
similarly situated. State intrusion in this case is equally burdensome.
Hence, laws of general application should apply with equal force to
LGBTs, and they deserve to participate in the party-list system on
the same basis as other marginalized and under-represented
sectors.
It bears stressing that our finding that COMELEC’s act of
differentiating LGBTs from heterosexuals insofar as the party-list
system is concerned does not imply that any other law
distinguishing between heterosexuals and homosexuals under
different circumstances would similarly fail. We disagree with the
OSG’s position that homosexuals are a class in themselves for the
purposes of the equal protection clause.38 We are not prepared to
single out homosexuals as a separate class meriting special or
differentiated treatment. We have not received sufficient evidence
to this effect, and it is simply unnecessary to make such a ruling
today. Petitioner itself has merely demanded that it be recognized
under the same basis as all other groups similarly situated, and that
the COMELEC made "an unwarranted and impermissible
classification not justified by the circumstances of the case."
Freedom of Expression and Association
Under our system of laws, every group has the right to promote its
agenda and attempt to persuade society of the validity of its position
through normal democratic means.39 It is in the public square that
deeply held convictions and differing opinions should be distilled
and deliberated upon. As we held in Estrada v. Escritor:40

In a democracy, this common agreement on political and moral
ideas is distilled in the public square. Where citizens are free, every
opinion, every prejudice, every aspiration, and every moral
discernment has access to the public square where people
deliberate the order of their life together. Citizens are the bearers of
opinion, including opinion shaped by, or espousing religious belief,
and these citizens have equal access to the public square. In this
representative democracy, the state is prohibited from determining
which convictions and moral judgments may be proposed for public
deliberation. Through a constitutionally designed process, the
people deliberate and decide. Majority rule is a necessary principle
in this democratic governance. Thus, when public deliberation on
moral judgments is finally crystallized into law, the laws will largely
reflect the beliefs and preferences of the majority, i.e., the
mainstream or median groups. Nevertheless, in the very act of
adopting and accepting a constitution and the limits it specifies –
including protection of religious freedom "not only for a minority,
however small – not only for a majority, however large – but for each
of us" – the majority imposes upon itself a self-denying ordinance. It
promises not to do what it otherwise could do: to ride roughshod
over the dissenting minorities.
Freedom of expression constitutes one of the essential foundations
of a democratic society, and this freedom applies not only to those
that are favorably received but also to those that offend, shock, or
disturb. Any restriction imposed in this sphere must be proportionate
to the legitimate aim pursued. Absent any compelling state interest,
it is not for the COMELEC or this Court to impose its views on the
populace. Otherwise stated, the COMELEC is certainly not free to
interfere with speech for no better reason than promoting an
approved message or discouraging a disfavored one.
This position gains even more force if one considers that
homosexual conduct is not illegal in this country. It follows that both
expressions concerning one’s homosexuality and the activity of
forming a political association that supports LGBT individuals are
protected as well.
Other jurisdictions have gone so far as to categorically rule that even
overwhelming public perception that homosexual conduct violates
public morality does not justify criminalizing same-sex conduct.41
European and United Nations judicial decisions have ruled in favor
of gay rights claimants on both privacy and equality grounds, citing
general privacy and equal protection provisions in foreign and
international texts.42 To the extent that there is much to learn from
other jurisdictions that have reflected on the issues we face here,
such jurisprudence is certainly illuminating. These foreign
authorities, while not formally binding on Philippine courts, may
nevertheless have persuasive influence on the Court’s analysis.
In the area of freedom of expression, for instance, United States
courts have ruled that existing free speech doctrines protect gay and
lesbian rights to expressive conduct. In order to justify the
prohibition of a particular expression of opinion, public institutions
must show that their actions were caused by "something more than
a mere desire to avoid the discomfort and unpleasantness that
always accompany an unpopular viewpoint."43
With respect to freedom of association for the advancement of ideas
and beliefs, in Europe, with its vibrant human rights tradition, the
European Court of Human Rights (ECHR) has repeatedly stated
that a political party may campaign for a change in the law or the
constitutional structures of a state if it uses legal and democratic
means and the changes it proposes are consistent with democratic
principles. The ECHR has emphasized that political ideas that
challenge the existing order and whose realization is advocated by
peaceful means must be afforded a proper opportunity of
expression through the exercise of the right of association, even if
such ideas may seem shocking or unacceptable to the authorities
or the majority of the population.44 A political group should not be
hindered solely because it seeks to publicly debate controversial
CONSTI LAW II I ACJUCO 141
political issues in order to find solutions capable of satisfying
everyone concerned.45 Only if a political party incites violence or
puts forward policies that are incompatible with democracy does it
fall outside the protection of the freedom of association
guarantee.46
We do not doubt that a number of our citizens may believe that
homosexual conduct is distasteful, offensive, or even defiant. They
are entitled to hold and express that view. On the other hand, LGBTs
and their supporters, in all likelihood, believe with equal fervor that
relationships between individuals of the same sex are morally
equivalent to heterosexual relationships. They, too, are entitled to
hold and express that view. However, as far as this Court is
concerned, our democracy precludes using the religious or moral
views of one part of the community to exclude from consideration
the values of other members of the community.
Of course, none of this suggests the impending arrival of a golden
age for gay rights litigants. It well may be that this Decision will only
serve to highlight the discrepancy between the rigid constitutional
analysis of this Court and the more complex moral sentiments of
Filipinos. We do not suggest that public opinion, even at its most
liberal, reflect a clear-cut strong consensus favorable to gay rights
claims and we neither attempt nor expect to affect individual
perceptions of homosexuality through this Decision.
The OSG argues that since there has been neither prior restraint
nor subsequent punishment imposed on Ang Ladlad, and its
members have not been deprived of their right to voluntarily
associate, then there has been no restriction on their freedom of
expression or association. The OSG argues that:
There was no utterance restricted, no publication censored, or any
assembly denied. [COMELEC] simply exercised its authority to
review and verify the qualifications of petitioner as a sectoral party
applying to participate in the party-list system. This lawful exercise
of duty cannot be said to be a transgression of Section 4, Article III
of the Constitution.
xxxx
A denial of the petition for registration x x x does not deprive the
members of the petitioner to freely take part in the conduct of
elections. Their right to vote will not be hampered by said denial. In
fact, the right to vote is a constitutionally-guaranteed right which
cannot be limited.
As to its right to be elected in a genuine periodic election, petitioner
contends that the denial of Ang Ladlad’s petition has the clear and
immediate effect of limiting, if not outrightly nullifying the capacity of
its members to fully and equally participate in public life through
engagement in the party list elections.
This argument is puerile. The holding of a public office is not a right
but a privilege subject to limitations imposed by law. x x x47
The OSG fails to recall that petitioner has, in fact, established its
qualifications to participate in the party-list system, and – as
advanced by the OSG itself – the moral objection offered by the
COMELEC was not a limitation imposed by law. To the extent,
therefore, that the petitioner has been precluded, because of
COMELEC’s action, from publicly expressing its views as a political
party and participating on an equal basis in the political process with
other equally-qualified party-list candidates, we find that there has,
indeed, been a transgression of petitioner’s fundamental rights.
Non-Discrimination and International Law
In an age that has seen international law evolve geometrically in
scope and promise, international human rights law, in particular, has
grown dynamically in its attempt to bring about a more just and

humane world order. For individuals and groups struggling with
inadequate structural and governmental support, international
human rights norms are particularly significant, and should be
effectively enforced in domestic legal systems so that such norms
may become actual, rather than ideal, standards of conduct.
Our Decision today is fully in accord with our international
obligations to protect and promote human rights. In particular, we
explicitly recognize the principle of non-discrimination as it relates
to the right to electoral participation, enunciated in the UDHR and
the ICCPR.
The principle of non-discrimination is laid out in Article 26 of the
ICCPR, as follows:
Article 26
All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the
law shall prohibit any discrimination and guarantee to all persons
equal and effective protection against discrimination on any ground
such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status.
In this context, the principle of non-discrimination requires that laws
of general application relating to elections be applied equally to all
persons, regardless of sexual orientation. Although sexual
orientation is not specifically enumerated as a status or ratio for
discrimination in Article 26 of the ICCPR, the ICCPR Human Rights
Committee has opined that the reference to "sex" in Article 26
should be construed to include "sexual orientation."48 Additionally,
a variety of United Nations bodies have declared discrimination on
the basis of sexual orientation to be prohibited under various
international agreements.49
The UDHR provides:
Article 21.
(1) Everyone has the right to take part in the government of his
country, directly or through freely chosen representatives.
Likewise, the ICCPR states:
Article 25
Every citizen shall have the right and the opportunity, without any of
the distinctions mentioned in article 2 and without unreasonable
restrictions:
(a) To take part in the conduct of public affairs, directly or through
freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which
shall be by universal and equal suffrage and shall be held by secret
ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service
in his country.
As stated by the CHR in its Comment-in-Intervention, the scope of
the right to electoral participation is elaborated by the Human Rights
Committee in its General Comment No. 25 (Participation in Public
Affairs and the Right to Vote) as follows:
1. Article 25 of the Covenant recognizes and protects the right of
every citizen to take part in the conduct of public affairs, the right to
vote and to be elected and the right to have access to public service.
Whatever form of constitution or government is in force, the
Covenant requires States to adopt such legislative and other
measures as may be necessary to ensure that citizens have an
CONSTI LAW II I ACJUCO 142
effective opportunity to enjoy the rights it protects. Article 25 lies at
the core of democratic government based on the consent of the
people and in conformity with the principles of the Covenant.
xxxx
15. The effective implementation of the right and the opportunity to
stand for elective office ensures that persons entitled to vote have a
free choice of candidates. Any restrictions on the right to stand for
election, such as minimum age, must be justifiable on objective and
reasonable criteria. Persons who are otherwise eligible to stand for
election should not be excluded by unreasonable or discriminatory
requirements such as education, residence or descent, or by reason
of political affiliation. No person should suffer discrimination or
disadvantage of any kind because of that person's candidacy.
States parties should indicate and explain the legislative provisions
which exclude any group or category of persons from elective
office.50
We stress, however, that although this Court stands willing to
assume the responsibility of giving effect to the Philippines’
international law obligations, the blanket invocation of international
law is not the panacea for all social ills. We refer now to the
petitioner’s invocation of the Yogyakarta Principles (the Application
of International Human Rights Law In Relation to Sexual Orientation
and Gender Identity),51 which petitioner declares to reflect binding
principles of international law.
At this time, we are not prepared to declare that these Yogyakarta
Principles contain norms that are obligatory on the Philippines.
There are declarations and obligations outlined in said Principles
which are not reflective of the current state of international law, and
do not find basis in any of the sources of international law
enumerated under Article 38(1) of the Statute of the International
Court of Justice.52 Petitioner has not undertaken any objective and
rigorous analysis of these alleged principles of international law to
ascertain their true status.
We also hasten to add that not everything that society – or a certain
segment of society – wants or demands is automatically a human
right. This is not an arbitrary human intervention that may be added
to or subtracted from at will. It is unfortunate that much of what
passes for human rights today is a much broader context of needs
that identifies many social desires as rights in order to further claims
that international law obliges states to sanction these innovations.
This has the effect of diluting real human rights, and is a result of
the notion that if "wants" are couched in "rights" language, then they
are no longer controversial.1avvphi1
Using even the most liberal of lenses, these Yogyakarta Principles,
consisting of a declaration formulated by various international law
professors, are – at best – de lege ferenda – and do not constitute
binding obligations on the Philippines. Indeed, so much of
contemporary international law is characterized by the "soft law"
nomenclature, i.e., international law is full of principles that promote
international cooperation, harmony, and respect for human rights,
most of which amount to no more than well-meaning desires,
without the support of either State practice or opinio juris.53
As a final note, we cannot help but observe that the social issues
presented by this case are emotionally charged, societal attitudes
are in flux, even the psychiatric and religious communities are
divided in opinion. This Court’s role is not to impose its own view of
acceptable behavior. Rather, it is to apply the Constitution and laws
as best as it can, uninfluenced by public opinion, and confident in
the knowledge that our democracy is resilient enough to withstand
vigorous debate.
WHEREFORE, the Petition is hereby GRANTED. The Resolutions
of the Commission on Elections dated November 11, 2009 and
December 16, 2009 in SPP No. 09-228 (PL) are hereby SET ASIDE.
 CONSTI LAW II I ACJUCO 143

The Commission on Elections is directed to GRANT petitioner’s

application for party-list accreditation.

SO ORDERED.

G.R. No. 124360 November 5, 1997
FRANCISCO S. TATAD, petitioner,
vs.
THE SECRETARY OF THE DEPARTMENT OF ENERGY AND
THE SECRETARY OF THE DEPARTMENT OF FINANCE,
respondents.
G.R. No. 127867 November 5, 1997
EDCEL C. LAGMAN, JOKER P. ARROYO, ENRIQUE GARCIA,
WIGBERTO TANADA, FLAG HUMAN RIGHTS FOUNDATION,
INC., FREEDOM FROM DEBT COALITION (FDC), SANLAKAS,
petitioners,
vs.
HON. RUBEN TORRES in his capacity as the Executive
Secretary, HON. FRANCISCO VIRAY, in his capacity as the
Secretary of Energy, CALTEX Philippines, Inc., PETRON
Corporation and PILIPINAS SHELL Corporation, respondents.
PUNO, J.:
The petitions at bar challenge the constitutionality of Republic Act
No. 8180 entitled "An Act Deregulating the Downstream Oil Industry
and For Other Purposes".1 R.A. No. 8180 ends twenty six (26) years
of government regulation of the downstream oil industry. Few cases
carry a surpassing importance on the life of every Filipino as these
petitions for the upswing and downswing of our economy materially
depend on the oscillation of oil.
First, the facts without the fat. Prior to 1971, there was no
government agency regulating the oil industry other than those
dealing with ordinary commodities. Oil companies were free to enter
and exit the market without any government interference. There
were four (4) refining companies (Shell, Caltex, Bataan Refining
Company and Filoil Refining) and six (6) petroleum marketing
companies (Esso, Filoil, Caltex, Getty, Mobil and Shell), then
operating in the country.2
In 1971, the country was driven to its knees by a crippling oil crisis.
The government, realizing that petroleum and its products are vital
to national security and that their continued supply at reasonable
prices is essential to the general welfare, enacted the Oil Industry
Commission Act.3 It created the Oil Industry Commission (OIC) to
regulate the business of importing, exporting, re-exporting, shipping,
transporting, processing, refining, storing, distributing, marketing
and selling crude oil, gasoline, kerosene, gas and other refined
petroleum products. The OIC was vested with the power to fix the
market prices of petroleum products, to regulate the capacities of
refineries, to license new refineries and to regulate the operations
and trade practices of the industry.4
In addition to the creation of the OIC, the government saw the
imperious need for a more active role of Filipinos in the oil industry.
Until the early seventies, the downstream oil industry was controlled
by multinational companies. All the oil refineries and marketing
companies were owned by foreigners whose economic interests did
not always coincide with the interest of the Filipino. Crude oil was
transported to the country by foreign-controlled tankers. Crude
processing was done locally by foreign-owned refineries and
petroleum products were marketed through foreign-owned retail
outlets. On November 9, 1973, President Ferdinand E. Marcos
boldly created the Philippine National Oil Corporation (PNOC) to
break the control by foreigners of our oil industry.5 PNOC engaged
in the business of refining, marketing, shipping, transporting, and
storing petroleum. It acquired ownership of ESSO Philippines and
Filoil to serve as its marketing arm. It bought the controlling shares
of Bataan Refining Corporation, the largest refinery in the country.6
PNOC later put up its own marketing subsidiary — Petrophil. PNOC
CONSTI LAW II I ACJUCO 144
operated under the business name PETRON Corporation. For the
first time, there was a Filipino presence in the Philippine oil market.
In 1984, President Marcos through Section 8 of Presidential Decree
No. 1956, created the Oil Price Stabilization Fund (OPSF) to
cushion the effects of frequent changes in the price of oil caused by
exchange rate adjustments or increase in the world market prices of
crude oil and imported petroleum products. The fund is used (1) to
reimburse the oil companies for cost increases in crude oil and
imported petroleum products resulting from exchange rate
adjustment and/or increase in world market prices of crude oil, and
(2) to reimburse oil companies for cost underrecovery incurred as a
result of the reduction of domestic prices of petroleum products.
Under the law, the OPSF may be sourced from:
1. any increase in the tax collection from ad valorem tax or
customs duty imposed on petroleum products subject to tax under
P.D. No. 1956 arising from exchange rate adjustment,
2. any increase in the tax collection as a result of the lifting
of tax exemptions of government corporations, as may be
determined by the Minister of Finance in consultation with the Board
of Energy,
3. any additional amount to be imposed on petroleum
products to augment the resources of the fund through an
appropriate order that may be issued by the Board of Energy
requiring payment of persons or companies engaged in the
business of importing, manufacturing and/or marketing petroleum
products, or
4. any resulting peso costs differentials in case the actual
peso costs paid by oil companies in the importation of crude oil and
petroleum products is less than the peso costs computed using the
reference foreign exchange rate as fixed by the Board of Energy.7
By 1985, only three (3) oil companies were operating in the country
— Caltex, Shell and the government-owned PNOC.
In May, 1987, President Corazon C. Aquino signed Executive Order
No. 172 creating the Energy Regulatory Board to regulate the
business of importing, exporting, re-exporting, shipping,
transporting, processing, refining, marketing and distributing energy
resources "when warranted and only when public necessity
requires." The Board had the following powers and functions:
1. Fix and regulate the prices of petroleum products;
2. Fix and regulate the rate schedule or prices of piped gas
to be charged by duly franchised gas companies which distribute
gas by means of underground pipe system;
3. Fix and regulate the rates of pipeline concessionaries
under the provisions of R.A. No. 387, as amended . . . ;
4. Regulate the capacities of new refineries or additional
capacities of existing refineries and license refineries that may be
organized after the issuance of (E.O. No. 172) under such terms
and conditions as are consistent with the national interest; and
5. Whenever the Board has determined that there is a
shortage of any petroleum product, or when public interest so
requires, it may take such steps as it may consider necessary,
including the temporary adjustment of the levels of prices of
petroleum products and the payment to the Oil Price Stabilization
Fund . . . by persons or entities engaged in the petroleum industry
of such amounts as may be determined by the Board, which may
enable the importer to recover its cost of importation.8
On December 9, 1992, Congress enacted R.A. No. 7638 which
created the Department of Energy to prepare, integrate, coordinate,

supervise and control all plans, programs, projects, and activities of
the government in relation to energy exploration, development,
utilization, distribution and conservation.9 The thrust of the
Philippine energy program under the law was toward privatization of
government agencies related to energy, deregulation of the power
and energy industry and reduction of dependency on oil-fired
plants.10 The law also aimed to encourage free and active
participation and investment by the private sector in all energy
activities. Section 5(e) of the law states that "at the end of four (4)
years from the effectivity of this Act, the Department shall, upon
approval of the President, institute the programs and timetable of
deregulation of appropriate energy projects and activities of the
energy industry."
Pursuant to the policies enunciated in R.A. No. 7638, the
government approved the privatization of Petron Corporation in
1993. On December 16, 1993, PNOC sold 40% of its equity in
Petron Corporation to the Aramco Overseas Company.
In March 1996, Congress took the audacious step of deregulating
the downstream oil industry. It enacted R.A. No. 8180, entitled the
"Downstream Oil Industry Deregulation Act of 1996." Under the
deregulated environment, "any person or entity may import or
purchase any quantity of crude oil and petroleum products from a
foreign or domestic source, lease or own and operate refineries and
other downstream oil facilities and market such crude oil or use the
same for his own requirement," subject only to monitoring by the
Department of
Energy.11
The deregulation process has two phases: the transition phase and
the full deregulation phase. During the transition phase, controls of
the non-pricing aspects of the oil industry were to be lifted. The
following were to be accomplished: (1) liberalization of oil
importation, exportation, manufacturing, marketing and distribution,
(2) implementation of an automatic pricing mechanism, (3)
implementation of an automatic formula to set margins of dealers
and rates of haulers, water transport operators and pipeline
concessionaires, and (4) restructuring of oil taxes. Upon full
deregulation, controls on the price of oil and the foreign exchange
cover were to be lifted and the OPSF was to be abolished.
The first phase of deregulation commenced on August 12, 1996.
On February 8, 1997, the President implemented the full
deregulation of the Downstream Oil Industry through E.O. No. 372.
The petitions at bar assail the constitutionality of various provisions
of R.A No. 8180 and E.O. No. 372.
In G.R. No. 124360, petitioner Francisco S. Tatad seeks the
annulment of section 5(b) of R.A. No. 8180. Section 5(b) provides:
b) Any law to the contrary notwithstanding and starting with
the effectivity of this Act, tariff duty shall be imposed and collected
on imported crude oil at the rate of three percent (3%) and imported
refined petroleum products at the rate of seven percent (7%), except
fuel oil and LPG, the rate for which shall be the same as that for
imported crude oil: Provided, That beginning on January 1, 2004 the
tariff rate on imported crude oil and refined petroleum products shall
be the same: Provided, further, That this provision may be amended
only by an Act of Congress.
The petition is anchored on three arguments:
First, that the imposition of different tariff rates on imported crude oil
and imported refined petroleum products violates the equal
protection clause. Petitioner contends that the 3%-7% tariff
differential unduly favors the three existing oil refineries and
discriminates against prospective investors in the downstream oil
CONSTI LAW II I ACJUCO 145
industry who do not have their own refineries and will have to source
refined petroleum products from abroad.
Second, that the imposition of different tariff rates does not
deregulate the downstream oil industry but instead controls the oil
industry, contrary to the avowed policy of the law. Petitioner avers
that the tariff differential between imported crude oil and imported
refined petroleum products bars the entry of other players in the oil
industry because it effectively protects the interest of oil companies
with existing refineries. Thus, it runs counter to the objective of the
law "to foster a truly competitive market."
Third, that the inclusion of the tariff provision in section 5(b) of R.A.
No. 8180 violates Section 26(1) Article VI of the Constitution
requiring every law to have only one subject which shall be
expressed in its title. Petitioner contends that the imposition of tariff
rates in section 5(b) of R.A. No. 8180 is foreign to the subject of the
law which is the deregulation of the downstream oil industry.
In G.R. No. 127867, petitioners Edcel C. Lagman, Joker P. Arroyo,
Enrique Garcia, Wigberto Tanada, Flag Human Rights Foundation,
Inc., Freedom from Debt Coalition (FDC) and Sanlakas contest the
constitutionality of section 15 of R.A. No. 8180 and E.O. No. 392.
Section 15 provides:
Sec. 15. Implementation of Full Deregulation. — Pursuant to
Section 5(e) of Republic Act No. 7638, the DOE shall, upon approval
of the President, implement the full deregulation of the downstream
oil industry not later than March 1997. As far as practicable, the DOE
shall time the full deregulation when the prices of crude oil and
petroleum products in the world market are declining and when the
exchange rate of the peso in relation to the US dollar is stable. Upon
the implementation of the full deregulation as provided herein, the
transition phase is deemed terminated and the following laws are
deemed repealed:
xxx xxx xxx
E.O. No. 372 states in full, viz.:
WHEREAS, Republic Act No. 7638, otherwise known as the
"Department of Energy Act of 1992," provides that, at the end of four
years from its effectivity last December 1992, "the Department (of
Energy) shall, upon approval of the President, institute the programs
and time table of deregulation of appropriate energy projects and
activities of the energy sector;"
WHEREAS, Section 15 of Republic Act No. 8180, otherwise known
as the "Downstream Oil Industry Deregulation Act of 1996,"
provides that "the DOE shall, upon approval of the President,
implement full deregulation of the downstream oil industry not later
than March, 1997. As far as practicable, the DOE shall time the full
deregulation when the prices of crude oil and petroleum products in
the world market are declining and when the exchange rate of the
peso in relation to the US dollar is stable;"
WHEREAS, pursuant to the recommendation of the Department of
Energy, there is an imperative need to implement the full
deregulation of the downstream oil industry because of the following
recent developments: (i) depletion of the buffer fund on or about 7
February 1997 pursuant to the Energy Regulatory Board's Order
dated 16 January 1997; (ii) the prices of crude oil had been stable
at $21-$23 per barrel since October 1996 while prices of petroleum
products in the world market had been stable since mid-December
of last year. Moreover, crude oil prices are beginning to soften for
the last few days while prices of some petroleum products had
already declined; and (iii) the exchange rate of the peso in relation
to the US dollar has been stable for the past twelve (12) months,
averaging at around P26.20 to one US dollar;

WHEREAS, Executive Order No. 377 dated 31 October 1996
provides for an institutional framework for the administration of the
deregulated industry by defining the functions and responsibilities of
various government agencies;
WHEREAS, pursuant to Republic Act No. 8180, the deregulation of
the industry will foster a truly competitive market which can better
achieve the social policy objectives of fair prices and adequate,
continuous supply of environmentally-clean and high quality
petroleum products;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the
Republic of the Philippines, by the powers vested in me by law, do
hereby declare the full deregulation of the downstream oil industry.
In assailing section 15 of R.A. No. 8180 and E.O. No. 392,
petitioners offer the following submissions:
First, section 15 of R.A. No. 8180 constitutes an undue delegation
of legislative power to the President and the Secretary of Energy
because it does not provide a determinate or determinable standard
to guide the Executive Branch in determining when to implement the
full deregulation of the downstream oil industry. Petitioners contend
that the law does not define when it is practicable for the Secretary
of Energy to recommend to the President the full deregulation of the
downstream oil industry or when the President may consider it
practicable to declare full deregulation. Also, the law does not
provide any specific standard to determine when the prices of crude
oil in the world market are considered to be declining nor when the
exchange rate of the peso to the US dollar is considered stable.
Second, petitioners aver that E.O. No. 392 implementing the full
deregulation of the downstream oil industry is arbitrary and
unreasonable because it was enacted due to the alleged depletion
of the OPSF fund — a condition not found in R.A. No. 8180.
Third, section 15 of R.A. No. 8180 and E.O. No. 392 allow the
formation of a de facto cartel among the three existing oil companies
— Petron, Caltex and Shell — in violation of the constitutional
prohibition against monopolies, combinations in restraint of trade
and unfair competition.
Respondents, on the other hand, fervently defend the
constitutionality of R.A. No. 8180 and E.O. No. 392. In addition,
respondents contend that the issues raised by the petitions are not
justiciable as they pertain to the wisdom of the law. Respondents
further aver that petitioners have no locus standi as they did not
sustain nor will they sustain direct injury as a result of the
implementation of R.A. No. 8180.
The petitions were heard by the Court on September 30, 1997. On
October 7, 1997, the Court ordered the private respondents oil
companies "to maintain the status quo and to cease and desist from
increasing the prices of gasoline and other petroleum fuel products
for a period of thirty (30) days . . . subject to further orders as
conditions may warrant."
We shall now resolve the petitions on the merit. The petitions raise
procedural and substantive issues bearing on the constitutionality of
R.A. No. 8180 and E.O. No. 392. The procedural issues are: (1)
whether or not the petitions raise a justiciable controversy, and (2)
whether or not the petitioners have the standing to assail the validity
of the subject law and executive order. The substantive issues are:
(1) whether or not section 5 (b) violates the one title — one subject
requirement of the Constitution; (2) whether or not the same section
violates the equal protection clause of the Constitution; (3) whether
or not section 15 violates the constitutional prohibition on undue
delegation of power; (4) whether or not E.O. No. 392 is arbitrary and
unreasonable; and (5) whether or not R.A. No. 8180 violates the
constitutional prohibition against monopolies, combinations in
restraint of trade and unfair competition.
CONSTI LAW II I ACJUCO 146
We shall first tackle the procedural issues. Respondents claim that
the avalanche of arguments of the petitioners assail the wisdom of
R.A. No. 8180. They aver that deregulation of the downstream oil
industry is a policy decision made by Congress and it cannot be
reviewed, much less be reversed by this Court. In constitutional
parlance, respondents contend that the petitions failed to raise a
justiciable controversy.
Respondents' joint stance is unnoteworthy. Judicial power includes
not only the duty of the courts to settle actual controversies involving
rights which are legally demandable and enforceable, but also the
duty to determine whether or not there has been grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the government.12 The courts, as
guardians of the Constitution, have the inherent authority to
determine whether a statute enacted by the legislature transcends
the limit imposed by the fundamental law. Where a statute violates
the Constitution, it is not only the right but the duty of the judiciary to
declare such act as unconstitutional and void.13 We held in the
recent case of Tanada v. Angara:14
xxx xxx xxx
In seeking to nullify an act of the Philippine Senate on the ground
that it contravenes the Constitution, the petition no doubt raises a
justiciable controversy. Where an action of the legislative branch is
seriously alleged to have infringed the Constitution, it becomes not
only the right but in fact the duty of the judiciary to settle the dispute.
The question thus posed is judicial rather than political. The duty to
adjudicate remains to assure that the supremacy of the Constitution
is upheld. Once a controversy as to the application or interpretation
of a constitutional provision is raised before this Court, it becomes
a legal issue which the Court is bound by constitutional mandate to
decide.
Even a sideglance at the petitions will reveal that petitioners have
raised constitutional issues which deserve the resolution of this
Court in view of their seriousness and their value as precedents.
Our statement of facts and definition of issues clearly show that
petitioners are assailing R.A. No. 8180 because its provisions
infringe the Constitution and not because the law lacks wisdom. The
principle of separation of power mandates that challenges on the
constitutionality of a law should be resolved in our courts of justice
while doubts on the wisdom of a law should be debated in the halls
of Congress. Every now and then, a law may be denounced in court
both as bereft of wisdom and constitutionally infirmed. Such
denunciation will not deny this Court of its jurisdiction to resolve the
constitutionality of the said law while prudentially refusing to pass
on its wisdom.
The effort of respondents to question the locus standi of petitioners
must also fall on barren ground. In language too lucid to be
misunderstood, this Court has brightlined its liberal stance on a
petitioner's locus standi where the petitioner is able to craft an issue
of transcendental significance to the people.15 In Kapatiran ng mga
Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan,16 we
stressed:
xxx xxx xxx
Objections to taxpayers' suit for lack of sufficient personality,
standing or interest are, however, in the main procedural matters.
Considering the importance to the public of the cases at bar, and in
keeping with the Court's duty, under the 1987 Constitution, to
determine whether or not the other branches of government have
kept themselves within the limits of the Constitution and the laws
and that they have not abused the discretion given to them, the
Court has brushed aside technicalities of procedure and has taken
cognizance of these petitions.

There is not a dot of disagreement between the petitioners and the
respondents on the far reaching importance of the validity of RA No.
8180 deregulating our downstream oil industry. Thus, there is no
good sense in being hypertechnical on the standing of petitioners
for they pose issues which are significant to our people and which
deserve our forthright resolution.
We shall now track down the substantive issues. In G.R. No. 124360
where petitioner is Senator Tatad, it is contended that section 5(b)
of R.A. No. 8180 on tariff differential violates the provision17 of the
Constitution requiring every law to have only one subject which
should be expressed in its title. We do not concur with this
contention. As a policy, this Court has adopted a liberal construction
of the one title — one subject rule. We have consistently ruled18
that the title need not mirror, fully index or catalogue all contents and
minute details of a law. A law having a single general subject
indicated in the title may contain any number of provisions, no
matter how diverse they may be, so long as they are not inconsistent
with or foreign to the general subject, and may be considered in
furtherance of such subject by providing for the method and means
of carrying out the general subject.19 We hold that section 5(b)
providing for tariff differential is germane to the subject of R.A. No.
8180 which is the deregulation of the downstream oil industry. The
section is supposed to sway prospective investors to put up
refineries in our country and make them rely less on imported
petroleum.20 We shall, however, return to the validity of this
provision when we examine its blocking effect on new entrants to
the oil market.
We shall now slide to the substantive issues in G.R. No. 127867.
Petitioners assail section 15 of R.A. No. 8180 which fixes the time
frame for the full deregulation of the downstream oil industry. We
restate its pertinent portion for emphasis, viz.:
Sec. 15. Implementation of Full Deregulation — Pursuant to
section 5(e) of Republic Act No. 7638, the DOE shall, upon approval
of the President, implement the full deregulation of the downstream
oil industry not later than March 1997. As far as practicable, the DOE
shall time the full deregulation when the prices of crude oil and
petroleum products in the world market are declining and when the
exchange rate of the peso in relation to the US dollar is stable . . .
Petitioners urge that the phrases "as far as practicable," "decline of
crude oil prices in the world market" and "stability of the peso
exchange rate to the US dollar" are ambivalent, unclear and
inconcrete in meaning. They submit that they do not provide the
"determinate or determinable standards" which can guide the
President in his decision to fully deregulate the downstream oil
industry. In addition, they contend that E.O. No. 392 which
advanced the date of full deregulation is void for it illegally
considered the depletion of the OPSF fund as a factor.
The power of Congress to delegate the execution of laws has long
been settled by this Court. As early as 1916 in Compania General
de Tabacos de Filipinas vs. The Board of Public Utility
Commissioners,21 this Court thru, Mr. Justice Moreland, held that
"the true distinction is between the delegation of power to make the
law, which necessarily involves a discretion as to what it shall be,
and conferring authority or discretion as to its execution, to be
exercised under and in pursuance of the law. The first cannot be
done; to the latter no valid objection can be made." Over the years,
as the legal engineering of men's relationship became more difficult,
Congress has to rely more on the practice of delegating the
execution of laws to the executive and other administrative
agencies. Two tests have been developed to determine whether the
delegation of the power to execute laws does not involve the
abdication of the power to make law itself. We delineated the metes
and bounds of these tests in Eastern Shipping Lines, Inc. VS.
POEA,22 thus:
CONSTI LAW II I ACJUCO 147
There are two accepted tests to determine whether or not there is a
valid delegation of legislative power, viz: the completeness test and
the sufficient standard test. Under the first test, the law must be
complete in all its terms and conditions when it leaves the legislative
such that when it reaches the delegate the only thing he will have to
do is to enforce it. Under the sufficient standard test, there must be
adequate guidelines or limitations in the law to map out the
boundaries of the delegate's authority and prevent the delegation
from running riot. Both tests are intended to prevent a total
transference of legislative authority to the delegate, who is not
allowed to step into the shoes of the legislature and exercise a
power essentially legislative.
The validity of delegating legislative power is now a quiet area in our
constitutional landscape. As sagely observed, delegation of
legislative power has become an inevitability in light of the
increasing complexity of the task of government. Thus, courts bend
as far back as possible to sustain the constitutionality of laws which
are assailed as unduly delegating legislative powers. Citing
Hirabayashi v. United States23 as authority, Mr. Justice Isagani A.
Cruz states "that even if the law does not expressly pinpoint the
standard, the courts will bend over backward to locate the same
elsewhere in order to spare the statute, if it can, from constitutional
infirmity."24
Given the groove of the Court's rulings, the attempt of petitioners to
strike down section 15 on the ground of undue delegation of
legislative power cannot prosper. Section 15 can hurdle both the
completeness test and the sufficient standard test. It will be noted
that Congress expressly provided in R.A. No. 8180 that full
deregulation will start at the end of March 1997, regardless of the
occurrence of any event. Full deregulation at the end of March 1997
is mandatory and the Executive has no discretion to postpone it for
any purported reason. Thus, the law is complete on the question of
the final date of full deregulation. The discretion given to the
President is to advance the date of full deregulation before the end
of March 1997. Section 15 lays down the standard to guide the
judgment of the President — he is to time it as far as practicable
when the prices of crude oil and petroleum products in the world
market are declining and when the exchange rate of the peso in
relation to the US dollar is stable.
Petitioners contend that the words "as far as practicable," "declining"
and "stable" should have been defined in R.A. No. 8180 as they do
not set determinate or determinable standards. The stubborn
submission deserves scant consideration. The dictionary meanings
of these words are well settled and cannot confuse men of
reasonable intelligence. Webster defines "practicable" as meaning
possible to practice or perform, "decline" as meaning to take a
downward direction, and "stable" as meaning firmly established.25
The fear of petitioners that these words will result in the exercise of
executive discretion that will run riot is thus groundless. To be sure,
the Court has sustained the validity of similar, if not more general
standards in other cases.26
It ought to follow that the argument that E.O. No. 392 is null and void
as it was based on indeterminate standards set by R.A. 8180 must
likewise fail. If that were all to the attack against the validity of E.O.
No. 392, the issue need not further detain our discourse. But
petitioners further posit the thesis that the Executive misapplied R.A.
No. 8180 when it considered the depletion of the OPSF fund as a
factor in fully deregulating the downstream oil industry in February
1997. A perusal of section 15 of R.A. No. 8180 will readily reveal
that it only enumerated two factors to be considered by the
Department of Energy and the Office of the President, viz.: (1) the
time when the prices of crude oil and petroleum products in the
world market are declining, and (2) the time when the exchange rate
of the peso in relation to the US dollar is stable. Section 15 did not
mention the depletion of the OPSF fund as a factor to be given
weight by the Executive before ordering full deregulation. On the
contrary, the debates in Congress will show that some of our

legislators wanted to impose as a pre-condition to deregulation a
showing that the OPSF fund must not be in deficit.27 We therefore
hold that the Executive department failed to follow faithfully the
standards set by R.A. No. 8180 when it considered the extraneous
factor of depletion of the OPSF fund. The misappreciation of this
extra factor cannot be justified on the ground that the Executive
department considered anyway the stability of the prices of crude oil
in the world market and the stability of the exchange rate of the peso
to the dollar. By considering another factor to hasten full
deregulation, the Executive department rewrote the standards set
forth in R.A. 8180. The Executive is bereft of any right to alter either
by subtraction or addition the standards set in R.A. No. 8180 for it
has no power to make laws. To cede to the Executive the power to
make law is to invite tyranny, indeed, to transgress the principle of
separation of powers. The exercise of delegated power is given a
strict scrutiny by courts for the delegate is a mere agent whose
action cannot infringe the terms of agency. In the cases at bar, the
Executive co-mingled the factor of depletion of the OPSF fund with
the factors of decline of the price of crude oil in the world market and
the stability of the peso to the US dollar. On the basis of the text of
E.O. No. 392, it is impossible to determine the weight given by the
Executive department to the depletion of the OPSF fund. It could
well be the principal consideration for the early deregulation. It could
have been accorded an equal significance. Or its importance could
be nil. In light of this uncertainty, we rule that the early deregulation
under E.O. No. 392 constitutes a misapplication of R.A. No. 8180.
We now come to grips with the contention that some provisions of
R.A. No. 8180 violate section 19 of Article XII of the 1987
Constitution. These provisions are:
(1) Section 5 (b) which states — "Any law to the contrary
notwithstanding and starting with the effectivity of this Act, tariff duty
shall be imposed and collected on imported crude oil at the rate of
three percent (3%) and imported refined petroleum products at the
rate of seven percent (7%) except fuel oil and LPG, the rate for
which shall be the same as that for imported crude oil. Provided,
that beginning on January 1, 2004 the tariff rate on imported crude
oil and refined petroleum products shall be the same. Provided,
further, that this provision may be amended only by an Act of
Congress."
(2) Section 6 which states — "To ensure the security and
continuity of petroleum crude and products supply, the DOE shall
require the refiners and importers to maintain a minimum inventory
equivalent to ten percent (10%) of their respective annual sales
volume or forty (40) days of supply, whichever is lower," and
(3) Section 9 (b) which states — "To ensure fair competition
and prevent cartels and monopolies in the downstream oil industry,
the following acts shall be prohibited:
xxx xxx xxx
(b) Predatory pricing which means selling or offering to sell
any product at a price unreasonably below the industry average cost
so as to attract customers to the detriment of competitors.
On the other hand, section 19 of Article XII of the Constitution
allegedly violated by the aforestated provisions of R.A. No. 8180
mandates: "The State shall regulate or prohibit monopolies when
the public interest so requires. No combinations in restraint of trade
or unfair competition shall be allowed."
A monopoly is a privilege or peculiar advantage vested in one or
more persons or companies, consisting in the exclusive right or
power to carry on a particular business or trade, manufacture a
particular article, or control the sale or the whole supply of a
particular commodity. It is a form of market structure in which one
or only a few firms dominate the total sales of a product or service.28
On the other hand, a combination in restraint of trade is an
CONSTI LAW II I ACJUCO 148
agreement or understanding between two or more persons, in the
form of a contract, trust, pool, holding company, or other form of
association, for the purpose of unduly restricting competition,
monopolizing trade and commerce in a certain commodity,
controlling its, production, distribution and price, or otherwise
interfering with freedom of trade without statutory authority.29
Combination in restraint of trade refers to the means while monopoly
refers to the end.30
Article 186 of the Revised Penal Code and Article 28 of the New
Civil Code breathe life to this constitutional policy. Article 186 of the
Revised Penal Code penalizes monopolization and creation of
combinations in restraint of
trade, 31 while Article 28 of the New Civil Code makes any person
who shall engage in unfair competition liable for damages.32
Respondents aver that sections 5(b), 6 and 9(b) implement the
policies and objectives of R.A. No. 8180. They explain that the 4%
tariff differential is designed to encourage new entrants to invest in
refineries. They stress that the inventory requirement is meant to
guaranty continuous domestic supply of petroleum and to
discourage fly-by-night operators. They also submit that the
prohibition against predatory pricing is intended to protect
prospective entrants. Respondents manifested to the Court that new
players have entered the Philippines after deregulation and have
now captured 3% — 5% of the oil market.
The validity of the assailed provisions of R.A. No. 8180 has to be
decided in light of the letter and spirit of our Constitution, especially
section 19, Article XII. Beyond doubt, the Constitution committed us
to the free enterprise system but it is a system impressed with its
own distinctness. Thus, while the Constitution embraced free
enterprise as an economic creed, it did not prohibit per se the
operation of monopolies which can, however, be regulated in the
public interest.33 Thus too, our free enterprise system is not based
on a market of pure and unadulterated competition where the State
pursues a strict hands-off policy and follows the let-the-devil devour
the hindmost rule. Combinations in restraint of trade and unfair
competitions are absolutely proscribed and the proscription is
directed both against the State as well as the private sector.34 This
distinct free enterprise system is dictated by the need to achieve the
goals of our national economy as defined by section 1, Article XII of
the Constitution which are: more equitable distribution of
opportunities, income and wealth; a sustained increase in the
amount of goods and services produced by the nation for the benefit
of the people; and an expanding productivity as the key to raising
the quality of life for all, especially the underprivileged. It also calls
for the State to protect Filipino enterprises against unfair competition
and trade practices.
Section 19, Article XII of our Constitution is anti-trust in history and
in spirit. It espouses competition. The desirability of competition is
the reason for the prohibition against restraint of trade, the reason
for the interdiction of unfair competition, and the reason for
regulation of unmitigated monopolies. Competition is thus the
underlying principle of section 19, Article XII of our Constitution
which cannot be violated by R.A. No. 8180. We subscribe to the
observation of Prof. Gellhorn that the objective of anti-trust law is "to
assure a competitive economy, based upon the belief that through
competition producers will strive to satisfy consumer wants at the
lowest price with the sacrifice of the fewest resources. Competition
among producers allows consumers to bid for goods and services,
and thus matches their desires with society's opportunity costs."35
He adds with appropriateness that there is a reliance upon "the
operation of the 'market' system (free enterprise) to decide what
shall be produced, how resources shall be allocated in the
production process, and to whom the various products will be
distributed. The market system relies on the consumer to decide
what and how much shall be produced, and on competition, among
producers to determine who will manufacture it."

Again, we underline in scarlet that the fundamental principle
espoused by section 19, Article XII of the Constitution is competition
for it alone can release the creative forces of the market. But the
competition that can unleash these creative forces is competition
that is fighting yet is fair. Ideally, this kind of competition requires the
presence of not one, not just a few but several players. A market
controlled by one player (monopoly) or dominated by a handful of
players (oligopoly) is hardly the market where honest-to-goodness
competition will prevail. Monopolistic or oligopolistic markets
deserve our careful scrutiny and laws which barricade the entry
points of new players in the market should be viewed with suspicion.
Prescinding from these baseline propositions, we shall proceed to
examine whether the provisions of R.A. No. 8180 on tariff
differential, inventory reserves, and predatory prices imposed
substantial barriers to the entry and exit of new players in our
downstream oil industry. If they do, they have to be struck down for
they will necessarily inhibit the formation of a truly competitive
market. Contrariwise, if they are insignificant impediments, they
need not be stricken down.
In the cases at bar, it cannot be denied that our downstream oil
industry is operated and controlled by an oligopoly, a foreign
oligopoly at that. Petron, Shell and Caltex stand as the only major
league players in the oil market. All other players belong to the
lilliputian league. As the dominant players, Petron, Shell and Caltex
boast of existing refineries of various capacities. The tariff
differential of 4% therefore works to their immense benefit. Yet, this
is only one edge of the tariff differential. The other edge cuts and
cuts deep in the heart of their competitors. It erects a high barrier to
the entry of new players. New players that intend to equalize the
market power of Petron, Shell and Caltex by building refineries of
their own will have to spend billions of pesos. Those who will not
build refineries but compete with them will suffer the huge
disadvantage of increasing their product cost by 4%. They will be
competing on an uneven field. The argument that the 4% tariff
differential is desirable because it will induce prospective players to
invest in refineries puts the cart before the horse. The first need is
to attract new players and they cannot be attracted by burdening
them with heavy disincentives. Without new players belonging to the
league of Petron, Shell and Caltex, competition in our downstream
oil industry is an idle dream.
The provision on inventory widens the balance of advantage of
Petron, Shell and Caltex against prospective new players. Petron,
Shell and Caltex can easily comply with the inventory requirement
of R.A. No. 8180 in view of their existing storage facilities.
Prospective competitors again will find compliance with this
requirement difficult as it will entail a prohibitive cost. The
construction cost of storage facilities and the cost of inventory can
thus scare prospective players. Their net effect is to further occlude
the entry points of new players, dampen competition and enhance
the control of the market by the three (3) existing oil companies.
Finally, we come to the provision on predatory pricing which is
defined as ". . . selling or offering to sell any product at a price
unreasonably below the industry average cost so as to attract
customers to the detriment of competitors." Respondents contend
that this provision works against Petron, Shell and Caltex and
protects new entrants. The ban on predatory pricing cannot be
analyzed in isolation. Its validity is interlocked with the barriers
imposed by R.A. No. 8180 on the entry of new players. The inquiry
should be to determine whether predatory pricing on the part of the
dominant oil companies is encouraged by the provisions in the law
blocking the entry of new players. Text-writer
Hovenkamp,36 gives the authoritative answer and we quote:
xxx xxx xxx
The rationale for predatory pricing is the sustaining of losses today
that will give a firm monopoly profits in the future. The monopoly
CONSTI LAW II I ACJUCO 149
profits will never materialize, however, if the market is flooded with
new entrants as soon as the successful predator attempts to raise
its price. Predatory pricing will be profitable only if the market
contains significant barriers to new entry.
As aforediscsussed, the 4% tariff differential and the inventory
requirement are significant barriers which discourage new players
to enter the market. Considering these significant barriers
established by R.A. No. 8180 and the lack of players with the
comparable clout of PETRON, SHELL and CALTEX, the temptation
for a dominant player to engage in predatory pricing and succeed is
a chilling reality. Petitioners' charge that this provision on predatory
pricing is anti-competitive is not without reason.
Respondents belittle these barriers with the allegation that new
players have entered the market since deregulation. A scrutiny of
the list of the alleged new players will, however, reveal that not one
belongs to the class and category of PETRON, SHELL and
CALTEX. Indeed, there is no showing that any of these new players
intends to install any refinery and effectively compete with these
dominant oil companies. In any event, it cannot be gainsaid that the
new players could have been more in number and more impressive
in might if the illegal entry barriers in R.A. No. 8180 were not
erected.
We come to the final point. We now resolve the total effect of the
untimely deregulation, the imposition of 4% tariff differential on
imported crude oil and refined petroleum products, the requirement
of inventory and the prohibition on predatory pricing on the
constitutionality of R.A. No. 8180. The question is whether these
offending provisions can be individually struck down without
invalidating the entire R.A. No. 8180. The ruling case law is well
stated by author Agpalo,37 viz.:
xxx xxx xxx
The general rule is that where part of a statute is void as repugnant
to the Constitution, while another part is valid, the valid portion, if
separable from the invalid, may stand and be enforced. The
presence of a separability clause in a statute creates the
presumption that the legislature intended separability, rather than
complete nullity of the statute. To justify this result, the valid portion
must be so far independent of the invalid portion that it is fair to
presume that the legislature would have enacted it by itself if it had
supposed that it could not constitutionally enact the other. Enough
must remain to make a complete, intelligible and valid statute, which
carries out the legislative intent. . . .
The exception to the general rule is that when the parts of a statute
are so mutually dependent and connected, as conditions,
considerations, inducements, or compensations for each other, as
to warrant a belief that the legislature intended them as a whole, the
nullity of one part will vitiate the rest. In making the parts of the
statute dependent, conditional, or connected with one another, the
legislature intended the statute to be carried out as a whole and
would not have enacted it if one part is void, in which case if some
parts are unconstitutional, all the other provisions thus dependent,
conditional, or connected must fall with them.
R.A. No. 8180 contains a separability clause. Section 23 provides
that "if for any reason, any section or provision of this Act is declared
unconstitutional or invalid, such parts not affected thereby shall
remain in full force and effect." This separability clause
notwithstanding, we hold that the offending provisions of R.A. No.
8180 so permeate its essence that the entire law has to be struck
down. The provisions on tariff differential, inventory and predatory
pricing are among the principal props of R.A. No. 8180. Congress
could not have deregulated the downstream oil industry without
these provisions. Unfortunately, contrary to their intent, these
provisions on tariff differential, inventory and predatory pricing inhibit
fair competition, encourage monopolistic power and interfere with

the free interaction of market forces. R.A. No. 8180 needs
provisions to vouchsafe free and fair competition. The need for
these vouchsafing provisions cannot be overstated. Before
deregulation, PETRON, SHELL and CALTEX had no real
competitors but did not have a free run of the market because
government controls both the pricing and non-pricing aspects of the
oil industry. After deregulation, PETRON, SHELL and CALTEX
remain unthreatened by real competition yet are no longer subject
to control by government with respect to their pricing and non-
pricing decisions. The aftermath of R.A. No. 8180 is a deregulated
market where competition can be corrupted and where market
forces can be manipulated by oligopolies.
The fall out effects of the defects of R.A. No. 8180 on our people
have not escaped Congress. A lot of our leading legislators have
come out openly with bills seeking the repeal of these odious and
offensive provisions in R.A. No. 8180. In the Senate, Senator
Freddie Webb has filed S.B. No. 2133 which is the result of the
hearings conducted by the Senate Committee on Energy. The
hearings revealed that (1) there was a need to level the playing field
for the new entrants in the downstream oil industry, and (2) there
was no law punishing a person for selling petroleum products at
unreasonable prices. Senator Alberto G. Romulo also filed S.B. No.
2209 abolishing the tariff differential beginning January 1, 1998. He
declared that the amendment ". . . would mean that instead of just
three (3) big oil companies there will be other major oil companies
to provide more competitive prices for the market and the
consuming public." Senator Heherson T . Alvarez, one of the
principal proponents of R.A. No. 8180, also filed S.B. No. 2290
increasing the penalty for violation of its section 9. It is his opinion
as expressed in the explanatory note of the bill that the present oil
companies are engaged in cartelization despite R.A. No. 8180, viz,:
xxx xxx xxx
Since the downstream oil industry was fully deregulated in February
1997, there have been eight (8) fuel price adjustments made by the
three oil majors, namely: Caltex Philippines, Inc.; Petron
Corporation; and Pilipinas Shell Petroleum Corporation. Very
noticeable in the price adjustments made, however, is the uniformity
in the pump prices of practically all petroleum products of the three
oil companies. This, despite the fact, that their selling rates should
be determined by a combination of any of the following factors: the
prevailing peso-dollar exchange rate at the time payment is made
for crude purchases, sources of crude, and inventory levels of both
crude and refined petroleum products. The abovestated factors
should have resulted in different, rather than identical prices.
The fact that the three (3) oil companies' petroleum products are
uniformly priced suggests collusion, amounting to cartelization,
among Caltex Philippines, Inc., Petron Corporation and Pilipinas
Shell Petroleum Corporation to fix the prices of petroleum products
in violation of paragraph (a), Section 9 of R.A. No. 8180.
To deter this pernicious practice and to assure that present and
prospective players in the downstream oil industry conduct their
business with conscience and propriety, cartel-like activities ought
to be severely penalized.
Senator Francisco S. Tatad also filed S.B. No. 2307 providing for a
uniform tariff rate on imported crude oil and refined petroleum
products. In the explanatory note of the bill, he declared in no
uncertain terms that ". . . the present set-up has raised serious
public concern over the way the three oil companies have uniformly
adjusted the prices of oil in the country, an indication of a possible
existence of a cartel or a cartel-like situation within the downstream
oil industry. This situation is mostly attributed to the foregoing
provision on tariff differential, which has effectively discouraged the
entry of new players in the downstream oil industry."
CONSTI LAW II I ACJUCO 150
In the House of Representatives, the moves to rehabilitate R.A. No.
8180 are equally feverish. Representative Leopoldo E. San
Buenaventura has filed H.B. No. 9826 removing the tariff differential
for imported crude oil and imported refined petroleum products. In
the explanatory note of the bill, Rep. Buenaventura explained:
xxx xxx xxx
As we now experience, this difference in tariff rates between
imported crude oil and imported refined petroleum products,
unwittingly provided a built-in-advantage for the three existing oil
refineries in the country and eliminating competition which is a must
in a free enterprise economy. Moreover, it created a disincentive for
other players to engage even initially in the importation and
distribution of refined petroleum products and ultimately in the
putting up of refineries. This tariff differential virtually created a
monopoly of the downstream oil industry by the existing three oil
companies as shown by their uniform and capricious pricing of their
products since this law took effect, to the great disadvantage of the
consuming public.
Thus, instead of achieving the desired effects of deregulation, that
of free enterprise and a level playing field in the downstream oil
industry, R.A. 8180 has created an environment conducive to
cartelization, unfavorable, increased, unrealistic prices of petroleum
products in the country by the three existing refineries.
Representative Marcial C. Punzalan, Jr., filed H.B. No. 9981 to
prevent collusion among the present oil companies by strengthening
the oversight function of the government, particularly its ability to
subject to a review any adjustment in the prices of gasoline and
other petroleum products. In the explanatory note of the bill, Rep.
Punzalan, Jr., said:
xxx xxx xxx
To avoid this, the proposed bill seeks to strengthen the oversight
function of government, particularly its ability to review the prices set
for gasoline and other petroleum products. It grants the Energy
Regulatory Board (ERB) the authority to review prices of oil and
other petroleum products, as may be petitioned by a person, group
or any entity, and to subsequently compel any entity in the industry
to submit any and all documents relevant to the imposition of new
prices. In cases where the Board determines that there exist
collusion, economic conspiracy, unfair trade practice, profiteering
and/or overpricing, it may take any step necessary to protect the
public, including the readjustment of the prices of petroleum
products. Further, the Board may also impose the fine and penalty
of imprisonment, as prescribed in Section 9 of R.A. 8180, on any
person or entity from the oil industry who is found guilty of such
prohibited acts.
By doing all of the above, the measure will effectively provide
Filipino consumers with a venue where their grievances can be
heard and immediately acted upon by government.
Thus, this bill stands to benefit the Filipino consumer by making the
price-setting process more transparent and making it easier to
prosecute those who perpetrate such prohibited acts as collusion,
overpricing, economic conspiracy and unfair trade.
Representative Sergio A.F . Apostol filed H.B. No. 10039 to remedy
an omission in R.A. No. 8180 where there is no agency in
government that determines what is "reasonable" increase in the
prices of oil products. Representative Dente O. Tinga, one of the
principal sponsors of R.A. No. 8180, filed H.B. No. 10057 to
strengthen its anti-trust provisions. He elucidated in its explanatory
note:
xxx xxx xxx

The definition of predatory pricing, however, needs to be tightened
up particularly with respect to the definitive benchmark price and the
specific anti-competitive intent. The definition in the bill at hand
which was taken from the Areeda-Turner test in the United States
on predatory pricing resolves the questions. The definition reads,
"Predatory pricing means selling or offering to sell any oil product at
a price below the average variable cost for the purpose of destroying
competition, eliminating a competitor or discouraging a competitor
from entering the market."
The appropriate actions which may be resorted to under the Rules
of Court in conjunction with the oil deregulation law are adequate.
But to stress their availability and dynamism, it is a good move to
incorporate all the remedies in the law itself. Thus, the present bill
formalizes the concept of government intervention and private suits
to address the problem of antitrust violations. Specifically, the
government may file an action to prevent or restrain any act of
cartelization or predatory pricing, and if it has suffered any loss or
damage by reason of the antitrust violation it may recover damages.
Likewise, a private person or entity may sue to prevent or restrain
any such violation which will result in damage to his business or
property, and if he has already suffered damage he shall recover
treble damages. A class suit may also be allowed.
To make the DOE Secretary more effective in the enforcement of
the law, he shall be given additional powers to gather information
and to require reports.
Representative Erasmo B. Damasing filed H.B. No. 7885 and has a
more unforgiving view of R.A. No. 8180. He wants it completely
repealed. He explained:
xxx xxx xxx
Contrary to the projections at the time the bill on the Downstream
Oil Industry Deregulation was discussed and debated upon in the
plenary session prior to its approval into law, there aren't any new
players or investors in the oil industry. Thus, resulting in practically
a cartel or monopoly in the oil industry by the three (3) big oil
companies, Caltex, Shell and Petron. So much so, that with the
deregulation now being partially implemented, the said oil
companies have succeeded in increasing the prices of most of their
petroleum products with little or no interference at all from the
government. In the month of August, there was an increase of Fifty
centavos (50¢) per liter by subsidizing the same with the OPSF, this
is only temporary as in March 1997, or a few months from now, there
will be full deregulation (Phase II) whereby the increase in the prices
of petroleum products will be fully absorbed by the consumers since
OPSF will already be abolished by then. Certainly, this would make
the lives of our people, especially the unemployed ones, doubly
difficult and unbearable.
The much ballyhooed coming in of new players in the oil industry is
quite remote considering that these prospective investors cannot
fight the existing and well established oil companies in the country
today, namely, Caltex, Shell and Petron. Even if these new players
will come in, they will still have no chance to compete with the said
three (3) existing big oil companies considering that there is an
imposition of oil tariff differential of 4% between importation of crude
oil by the said oil refineries paying only 3% tariff rate for the said
importation and 7% tariff rate to be paid by businessmen who have
no oil refineries in the Philippines but will import finished
petroleum/oil products which is being taxed with 7% tariff rates.
So, if only to help the many who are poor from further suffering as a
result of unmitigated increase in oil products due to deregulation, it
is a must that the Downstream Oil Industry Deregulation Act of 1996,
or R.A. 8180 be repealed completely.
Various resolutions have also been filed in the Senate calling for an
immediate and comprehensive review of R.A. No. 8180 to prevent
CONSTI LAW II I ACJUCO 151
the downpour of its ill effects on the people. Thus, S. Res. No. 574
was filed by Senator Gloria M. Macapagal entitled Resolution
"Directing the Committee on Energy to Inquire Into The Proper
Implementation of the Deregulation of the Downstream Oil Industry
and Oil Tax Restructuring As Mandated Under R.A. Nos. 8180 and
8184, In Order to Make The Necessary Corrections In the Apparent
Misinterpretation Of The Intent And Provision Of The Laws And
Curb The Rising Tide Of Disenchantment Among The Filipino
Consumers And Bring About The Real Intentions And Benefits Of
The Said Law." Senator Blas P. Ople filed S. Res. No. 664 entitled
resolution "Directing the Committee on Energy To Conduct An
Inquiry In Aid Of Legislation To Review The Government's Oil
Deregulation Policy In Light Of The Successive Increases In
Transportation, Electricity And Power Rates, As well As Of Food
And Other Prime Commodities And Recommend Appropriate
Amendments To Protect The Consuming Public." Senator Ople
observed:
xxx xxx xxx
WHEREAS, since the passage of R.A. No. 8180, the Energy
Regulatory Board (ERB) has imposed successive increases in oil
prices which has triggered increases in electricity and power rates,
transportation fares, as well as in prices of food and other prime
commodities to the detriment of our people, particularly the poor;
WHEREAS, the new players that were expected to compete with
the oil cartel-Shell, Caltex and Petron-have not come in;
WHEREAS, it is imperative that a review of the oil deregulation
policy be made to consider appropriate amendments to the existing
law such as an extension of the transition phase before full
deregulation in order to give the competitive market enough time to
develop;
WHEREAS, the review can include the advisability of providing
some incentives in order to attract the entry of new oil companies to
effect a dynamic competitive market;
WHEREAS, it may also be necessary to defer the setting up of the
institutional framework for full deregulation of the oil industry as
mandated under Executive Order No. 377 issued by President
Ramos last October 31, 1996 . . .
Senator Alberto G. Romulo filed S. Res. No. 769 entitled resolution
"Directing the Committees on Energy and Public Services In Aid Of
Legislation To Assess The Immediate Medium And Long Term
Impact of Oil Deregulation On Oil Prices And The Economy." Among
the reasons for the resolution is the finding that "the requirement of
a 40-day stock inventory effectively limits the entry of other oil firms
in the market with the consequence that instead of going down oil
prices will rise."
Parallel resolutions have been filed in the House of
Representatives. Representative Dante O. Tinga filed H. Res. No.
1311 "Directing The Committee on Energy To Conduct An Inquiry,
In Aid of Legislation, Into The Pricing Policies And Decisions Of The
Oil Companies Since The Implementation of Full Deregulation
Under the Oil Deregulation Act (R.A. No. 8180) For the Purpose of
Determining In the Context Of The Oversight Functions Of
Congress Whether The Conduct Of The Oil Companies, Whether
Singly Or Collectively, Constitutes Cartelization Which Is A
Prohibited Act Under R.A. No. 8180, And What Measures Should
Be Taken To Help Ensure The Successful Implementation Of The
Law In Accordance With Its Letter And Spirit, Including
Recommending Criminal Prosecution Of the Officers Concerned Of
the Oil Companies If Warranted By The Evidence, And For Other
Purposes." Representatives Marcial C. Punzalan, Jr. Dante O.
Tinga and Antonio E. Bengzon III filed H.R. No. 894 directing the
House Committee on Energy to inquire into the proper
implementation of the deregulation of the downstream oil industry.
 CONSTI LAW II I ACJUCO 152

House Resolution No. 1013 was also filed by Representatives Edcel

C. Lagman, Enrique T . Garcia, Jr. and Joker P. Arroyo urging the
President to immediately suspend the implementation of E.O. No.
392.

In recent memory there is no law enacted by the legislature afflicted

with so much constitutional deformities as R.A. No. 8180. Yet, R.A.
No. 8180 deals with oil, a commodity whose supply and price affect
the ebb and flow of the lifeblood of the nation. Its shortage of supply
or a slight, upward spiral in its price shakes our economic
foundation. Studies show that the areas most impacted by the
movement of oil are food manufacture, land transport, trade,
electricity and water.38 At a time when our economy is in a
dangerous downspin, the perpetuation of R.A. No. 8180 threatens
to multiply the number of our people with bent backs and begging
bowls. R.A. No. 8180 with its anti-competition provisions cannot be
allowed by this Court to stand even while Congress is working to
remedy its defects.

The Court, however, takes note of the plea of PETRON, SHELL and
CALTEX to lift our restraining order to enable them to adjust upward
the price of petroleum and petroleum products in view of the
plummeting value of the peso. Their plea, however, will now have to
be addressed to the Energy Regulatory Board as the effect of the
declaration of unconstitutionality of R.A. No. 8180 is to revive the
former laws it repealed.39 The length of our return to the regime of
regulation depends on Congress which can fasttrack the writing of
a new law on oil deregulation in accord with the Constitution.

With this Decision, some circles will chide the Court for interfering
with an economic decision of Congress. Such criticism is charmless
for the Court is annulling R.A. No. 8180 not because it disagrees
with deregulation as an economic policy but because as cobbled by
Congress in its present form, the law violates the Constitution. The
right call therefor should be for Congress to write a new oil
deregulation law that conforms with the Constitution and not for this
Court to shirk its duty of striking down a law that offends the
Constitution. Striking down R.A. No. 8180 may cost losses in
quantifiable terms to the oil oligopolists. But the loss in tolerating the
tampering of our Constitution is not quantifiable in pesos and
centavos. More worthy of protection than the supra-normal profits of
private corporations is the sanctity of the fundamental principles of
the Constitution. Indeed when confronted by a law violating the
Constitution, the Court has no option but to strike it down dead. Lest
it is missed, the Constitution is a covenant that grants and
guarantees both the political and economic rights of the people. The
Constitution mandates this Court to be the guardian not only of the
people's political rights but their economic rights as well. The
protection of the economic rights of the poor and the powerless is of
greater importance to them for they are concerned more with the
exoterics of living and less with the esoterics of liberty. Hence, for
as long as the Constitution reigns supreme so long will this Court be
vigilant in upholding the economic rights of our people especially
from the onslaught of the powerful. Our defense of the people's
economic rights may appear heartless because it cannot be half-
hearted.

IN VIEW WHEREOF, the petitions are granted. R.A. No. 8180 is

declared unconstitutional and E.O. No. 372 void.

SO ORDERED.

G.R. No. 179267 June 25, 2013
JESUS C. GARCIA, Petitioner,
vs.
THE HONORABLE RAY ALAN T. DRILON, Presiding Judge,
Regional Trial Court-Branch 41, Bacolod City, and ROSALIE
JAYPE-GARCIA, for herself and in behalf of minor children,
namely: JO-ANN, JOSEPH EDUARD, JESSE ANTHONE, all
surnamed GARCIA, Respondents.
DECISION
PERLAS-BERNABE, J.:
Hailed as the bastion of Christianity in Asia, the Philippines boasts
of 86.8 million Filipinos- or 93 percent of a total population of 93.3
million – adhering to the teachings of Jesus Christ.1 Yet, the
admonition for husbands to love their wives as their own bodies just
as Christ loved the church and gave himself up for her2 failed to
prevent, or even to curb, the pervasiveness of violence against
Filipino women. The National Commission on the Role of Filipino
Women (NCRFW) reported that, for the years 2000-2003, "female
violence comprised more than 90o/o of all forms of abuse and
violence and more than 90% of these reported cases were
committed by the women's intimate partners such as their husbands
and live-in partners."3
Thus, on March 8, 2004, after nine (9) years of spirited advocacy by
women's groups, Congress enacted Republic Act (R.A.) No. 9262,
entitled "An Act Defining Violence Against Women and Their
Children, Providing for Protective Measures for Victims, Prescribing
Penalties Therefor, and for Other Purposes." It took effect on March
27, 2004.4
R.A. 9262 is a landmark legislation that defines and criminalizes
acts of violence against women and their children (VAWC)
perpetrated by women's intimate partners, i.e, husband; former
husband; or any person who has or had a sexual or dating
relationship, or with whom the woman has a common child.5 The
law provides for protection orders from the barangay and the courts
to prevent the commission of further acts of VAWC; and outlines the
duties and responsibilities of barangay officials, law enforcers,
prosecutors and court personnel, social workers, health care
providers, and other local government officials in responding to
complaints of VAWC or requests for assistance.
A husband is now before the Court assailing the constitutionality of
R.A. 9262 as being violative of the equal protection and due process
clauses, and an undue delegation of judicial power to barangay
officials.
The Factual Antecedents
On March 23, 2006, Rosalie Jaype-Garcia (private respondent)
filed, for herself and in behalf of her minor children, a verified
petition6 (Civil Case No. 06-797) before the Regional Trial Court
(RTC) of Bacolod City for the issuance of a Temporary Protection
Order (TPO) against her husband, Jesus C. Garcia (petitioner),
pursuant to R.A. 9262. She claimed to be a victim of physical abuse;
emotional, psychological, and economic violence as a result of
marital infidelity on the part of petitioner, with threats of deprivation
of custody of her children and of financial support.7
Private respondent's claims
Private respondent married petitioner in 2002 when she was 34
years old and the former was eleven years her senior. They have
three (3) children, namely: Jo-Ann J. Garcia, 17 years old, who is
the natural child of petitioner but whom private respondent adopted;
Jessie Anthone J. Garcia, 6 years old; and Joseph Eduard J. Garcia,
3 years old.8
CONSTI LAW II I ACJUCO 153
Private respondent described herself as a dutiful and faithful wife,
whose life revolved around her husband. On the other hand,
petitioner, who is of Filipino-Chinese descent, is dominant,
controlling, and demands absolute obedience from his wife and
children. He forbade private respondent to pray, and deliberately
isolated her from her friends. When she took up law, and even when
she was already working part time at a law office, petitioner
trivialized her ambitions and prevailed upon her to just stay at home.
He was often jealous of the fact that his attractive wife still catches
the eye of some men, at one point threatening that he would have
any man eyeing her killed.9
Things turned for the worse when petitioner took up an affair with a
bank manager of Robinson's Bank, Bacolod City, who is the
godmother of one of their sons. Petitioner admitted to the affair when
private respondent confronted him about it in 2004. He even
boasted to the household help about his sexual relations with said
bank manager. Petitioner told private respondent, though, that he
was just using the woman because of their accounts with the
bank.10
Petitioner's infidelity spawned a series of fights that left private
respondent physically and emotionally wounded. In one of their
quarrels, petitioner grabbed private respondent on both arms and
shook her with such force that caused bruises and hematoma. At
another time, petitioner hit private respondent forcefully on the lips
that caused some bleeding. Petitioner sometimes turned his ire on
their daughter, Jo-Ann, who had seen the text messages he sent to
his paramour and whom he blamed for squealing on him. He beat
Jo-Ann on the chest and slapped her many times. When private
respondent decided to leave petitioner, Jo-Ann begged her mother
to stay for fear that if the latter leaves, petitioner would beat her up.
Even the small boys are aware of private respondent's sufferings.
Their 6-year-old son said that when he grows up, he would beat up
his father because of his cruelty to private respondent.11
All the emotional and psychological turmoil drove private
respondent to the brink of despair. On December 17, 2005, while at
home, she attempted suicide by cutting her wrist. She was found by
her son bleeding on the floor. Petitioner simply fled the house
instead of taking her to the hospital. Private respondent was
hospitalized for about seven (7) days in which time petitioner never
bothered to visit, nor apologized or showed pity on her. Since then,
private respondent has been undergoing therapy almost every week
and is taking anti-depressant medications.12
When private respondent informed the management of Robinson's
Bank that she intends to file charges against the bank manager,
petitioner got angry with her for jeopardizing the manager's job. He
then packed his things and told private respondent that he was
leaving her for good. He even told private respondent's mother, who
lives with them in the family home, that private respondent should
just accept his extramarital affair since he is not cohabiting with his
paramour and has not sired a child with her.13
Private respondent is determined to separate from petitioner but she
is afraid that he would take her children from her and deprive her of
financial support. Petitioner had previously warned her that if she
goes on a legal battle with him, she would not get a single
centavo.14
Petitioner controls the family businesses involving mostly the
construction of deep wells. He is the President of three corporations
– 326 Realty Holdings, Inc., Negros Rotadrill Corporation, and J-
Bros Trading Corporation – of which he and private respondent are
both stockholders. In contrast to the absolute control of petitioner
over said corporations, private respondent merely draws a monthly
salary of ₱20,000.00 from one corporation only, the Negros Rotadrill
Corporation. Household expenses amounting to not less than
₱200,000.00 a month are paid for by private respondent through the

use of credit cards, which, in turn, are paid by the same corporation
together with the bills for utilities.15
On the other hand, petitioner receives a monthly salary of
₱60,000.00 from Negros Rotadrill Corporation, and enjoys unlimited
cash advances and other benefits in hundreds of thousands of
pesos from the corporations.16 After private respondent confronted
him about the affair, petitioner forbade her to hold office at JBTC
Building, Mandalagan, where all the businesses of the corporations
are conducted, thereby depriving her of access to full information
about said businesses. Until the filing of the petition a quo, petitioner
has not given private respondent an accounting of the businesses
the value of which she had helped raise to millions of pesos.17
Action of the RTC of Bacolod City
Finding reasonable ground to believe that an imminent danger of
violence against the private respondent and her children exists or is
about to recur, the RTC issued a TPO18 on March 24, 2006
effective for thirty (30) days, which is quoted hereunder:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
a) Ordered to remove all his personal belongings from the conjugal
dwelling or family home within 24 hours from receipt of the
Temporary Restraining Order and if he refuses, ordering that he be
removed by police officers from the conjugal dwelling; this order is
enforceable notwithstanding that the house is under the name of
236 Realty Holdings Inc. (Republic Act No. 9262 states "regardless
of ownership"), this is to allow the Petitioner (private respondent
herein) to enter the conjugal dwelling without any danger from the
Respondent.
After the Respondent leaves or is removed from the conjugal
dwelling, or anytime the Petitioner decides to return to the conjugal
dwelling to remove things, the Petitioner shall be assisted by police
officers when re-entering the family home.
The Chief of Police shall also give the Petitioner police assistance
on Sunday, 26 March 2006 because of the danger that the
Respondent will attempt to take her children from her when he
arrives from Manila and finds out about this suit.
b) To stay away from the petitioner and her children, mother and all
her household help and driver from a distance of 1,000 meters, and
shall not enter the gate of the subdivision where the Petitioner may
be temporarily residing.
c) Not to harass, annoy, telephone, contact or otherwise
communicate with the Petitioner, directly or indirectly, or through
other persons, or contact directly or indirectly her children, mother
and household help, nor send gifts, cards, flowers, letters and the
like. Visitation rights to the children may be subject of a modified
TPO in the future.
d) To surrender all his firearms including a .9MM caliber firearm and
a Walther PPK and ordering the Philippine National Police Firearms
and Explosives Unit and the Provincial Director of the PNP to cancel
all the Respondent's firearm licenses. He should also be ordered to
surrender any unlicensed firearms in his possession or control.
e) To pay full financial support for the Petitioner and the children,
including rental of a house for them, and educational and medical
expenses.
f) Not to dissipate the conjugal business.
g) To render an accounting of all advances, benefits, bonuses and
other cash he received from all the corporations from 1 January
2006 up to 31 March 2006, which himself and as President of the
corporations and his Comptroller, must submit to the Court not later
CONSTI LAW II I ACJUCO 154
than 2 April 2006. Thereafter, an accounting of all these funds shall
be reported to the court by the Comptroller, copy furnished to the
Petitioner, every 15 days of the month, under pain of Indirect
Contempt of Court.
h) To ensure compliance especially with the order granting support
pendente lite, and considering the financial resources of the
Respondent and his threat that if the Petitioner sues she will not get
a single centavo, the Respondent is ordered to put up a BOND TO
KEEP THE PEACE in the amount of FIVE MILLION PESOS, in two
sufficient sureties.
On April 24, 2006, upon motion19 of private respondent, the trial
court issued an amended TPO,20 effective for thirty (30) days,
which included the following additional provisions:
i) The petitioners (private respondents herein) are given the
continued use of the Nissan Patrol and the Starex Van which they
are using in Negros Occidental.
j) The petitioners are given the continued use and occupation of the
house in Parañaque, the continued use of the Starex van in Metro
Manila, whenever they go to Manila.
k) Respondent is ordered to immediately post a bond to keep the
peace, in two sufficient sureties.
l) To give monthly support to the petitioner provisionally fixed in the
sum of One Hundred Fifty Thousand Pesos (Php 150,000.00) per
month plus rental expenses of Fifty Thousand Pesos (Php
50,000.00) per month until the matter of support could be finally
resolved.
Two days later, or on April 26, 2006, petitioner filed an Opposition
to the Urgent Ex-Parte Motion for Renewal of the TPO21 seeking
the denial of the renewal of the TPO on the grounds that it did not
(1) comply with the three-day notice rule, and (2) contain a notice of
hearing. He further asked that the TPO be modified by (1) removing
one vehicle used by private respondent and returning the same to
its rightful owner, the J-Bros Trading Corporation, and (2) cancelling
or reducing the amount of the bond from ₱5,000,000.00 to a more
manageable level at ₱100,000.00.
Subsequently, on May 23, 2006, petitioner moved22 for the
modification of the TPO to allow him visitation rights to his children.
On May 24, 2006, the TPO was renewed and extended yet again,
but subject only to the following modifications prayed for by private
respondent:
a) That respondent (petitioner herein) return the clothes and other
personal belongings of Rosalie and her children to Judge Jesus
Ramos, co-counsel for Petitioner, within 24 hours from receipt of the
Temporary Protection Order by his counsel, otherwise be declared
in Indirect Contempt of Court;
b) Respondent shall make an accounting or list of furniture and
equipment in the conjugal house in Pitimini St., Capitolville
Subdivision, Bacolod City within 24 hours from receipt of the
Temporary Protection Order by his counsel;
c) Ordering the Chief of the Women's Desk of the Bacolod City
Police Headquarters to remove Respondent from the conjugal
dwelling within eight (8) hours from receipt of the Temporary
Protection Order by his counsel, and that he cannot return until 48
hours after the petitioners have left, so that the petitioner Rosalie
and her representatives can remove things from the conjugal home
and make an inventory of the household furniture, equipment and
other things in the conjugal home, which shall be submitted to the
Court.

d) Deliver full financial support of Php200,000.00 and Php50,000.00
for rental and Php25,000.00 for clothes of the three petitioners (sic)
children within 24 hours from receipt of the Temporary Protection
Order by his counsel, otherwise be declared in indirect contempt of
Court;
e) That respondent surrender his two firearms and all unlicensed
firearms to the Clerk of Court within 24 hours from receipt of the
Temporary Protection Order by his counsel;
f) That respondent shall pay petitioner educational expenses of the
children upon presentation of proof of payment of such expenses.23
Claiming that petitioner continued to deprive them of financial
support; failed to faithfully comply with the TPO; and committed new
acts of harassment against her and their children, private
respondent filed another application24 for the issuance of a TPO ex
parte. She alleged inter
alia that petitioner contrived a replevin suit against himself by J-Bros
Trading, Inc., of which the latter was purportedly no longer
president, with the end in view of recovering the Nissan Patrol and
Starex Van used by private respondent and the children. A writ of
replevin was served upon private respondent by a group of six or
seven policemen with long firearms that scared the two small boys,
Jessie Anthone and Joseph Eduard.25
While Joseph Eduard, then three years old, was driven to school,
two men allegedly attempted to kidnap him, which incident
traumatized the boy resulting in his refusal to go back to school. On
another occasion, petitioner allegedly grabbed their daughter, Jo-
Ann, by the arm and threatened her.26 The incident was reported
to the police, and Jo-Ann subsequently filed a criminal complaint
against her father for violation of R.A. 7610, also known as the
"Special Protection of Children Against Child Abuse, Exploitation
and Discrimination Act."
Aside from the replevin suit, petitioner's lawyers initiated the filing
by the housemaids working at the conjugal home of a complaint for
kidnapping and illegal detention against private respondent. This
came about after private respondent, armed with a TPO, went to
said home to get her and her children's belongings. Finding some
of her things inside a housemaid's (Sheryl Jamola) bag in the maids'
room, private respondent filed a case for qualified theft against
Jamola.27
On August 23, 2006, the RTC issued a TPO,28 effective for thirty
(30) days, which reads as follows:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
1) Prohibited from threatening to commit or committing, personally
or through another, acts of violence against the offended party;
2) Prohibited from harassing, annoying, telephoning, contacting or
otherwise communicating in any form with the offended party, either
directly or indirectly;
3) Required to stay away, personally or through his friends,
relatives, employees or agents, from all the Petitioners Rosalie J.
Garcia and her children, Rosalie J. Garcia's three brothers, her
mother Primitiva Jaype, cook Novelita Caranzo, driver Romeo
Hontiveros, laundrywoman Mercedita Bornales, security guard
Darwin Gayona and the petitioner's other household helpers from a
distance of 1,000 meters, and shall not enter the gate of the
subdivision where the Petitioners are temporarily residing, as well
as from the schools of the three children; Furthermore, that
respondent shall not contact the schools of the children directly or
indirectly in any manner including, ostensibly to pay for their tuition
or other fees directly, otherwise he will have access to the children
through the schools and the TPO will be rendered nugatory;
CONSTI LAW II I ACJUCO 155
4) Directed to surrender all his firearms including .9MM caliber
firearm and a Walther PPK to the Court;
5) Directed to deliver in full financial support of Php200,000.00 a
month and Php50,000.00 for rental for the period from August 6 to
September 6, 2006; and support in arrears from March 2006 to
August 2006 the total amount of Php1,312,000.00;
6) Directed to deliver educational expenses for 2006-2007 the
amount of Php75,000.00 and Php25,000.00;
7) Directed to allow the continued use of a Nissan Patrol with Plate
No. FEW 508 and a Starex van with Plate No. FFD 991 and should
the respondent fail to deliver said vehicles, respondent is ordered to
provide the petitioner another vehicle which is the one taken by J
Bros Tading;
8) Ordered not to dissipate, encumber, alienate, sell, lease or
otherwise dispose of the conjugal assets, or those real properties in
the name of Jesus Chua Garcia only and those in which the conjugal
partnership of gains of the Petitioner Rosalie J. Garcia and
respondent have an interest in, especially the conjugal home
located in No. 14, Pitimini St., Capitolville Subdivision, Bacolod City,
and other properties which are conjugal assets or those in which the
conjugal partnership of gains of Petitioner Rosalie J. Garcia and the
respondent have an interest in and listed in Annexes "I," "I-1," and
"I-2," including properties covered by TCT Nos. T-186325 and T-
168814;
9) Ordered that the Register of Deeds of Bacolod City and E.B.
Magalona shall be served a copy of this TEMPORARY
PROTECTION ORDER and are ordered not to allow the transfer,
sale, encumbrance or disposition of these above-cited properties to
any person, entity or corporation without the personal presence of
petitioner Rosalie J. Garcia, who shall affix her signature in the
presence of the Register of Deeds, due to the fear of petitioner
Rosalie that her signature will be forged in order to effect the
encumbrance or sale of these properties to defraud her or the
conjugal partnership of gains.
In its Order29 dated September 26, 2006, the trial court extended
the aforequoted TPO for another ten (10) days, and gave petitioner
a period of five (5) days within which to show cause why the TPO
should not be renewed, extended, or modified. Upon petitioner's
manifestation,30 however, that he has not received a copy of private
respondent's motion to modify/renew the TPO, the trial court
directed in its Order31 dated October 6, 2006 that petitioner be
furnished a copy of said motion. Nonetheless, an Order32 dated a
day earlier, October 5, had already been issued renewing the TPO
dated August 23, 2006. The pertinent portion is quoted hereunder:
xxxx
x x x it appearing further that the hearing could not yet be finally
terminated, the Temporary Protection Order issued on August 23,
2006 is hereby renewed and extended for thirty (30) days and
continuously extended and renewed for thirty (30) days, after each
expiration, until further orders, and subject to such modifications as
may be ordered by the court.
After having received a copy of the foregoing Order, petitioner no
longer submitted the required comment to private respondent's
motion for renewal of the TPO arguing that it would only be an
"exercise in futility."33
Proceedings before the CA
During the pendency of Civil Case No. 06-797, petitioner filed before
the Court of Appeals (CA) a petition34 for prohibition (CA-G.R. CEB-
SP. No. 01698), with prayer for injunction and temporary restraining

order, challenging (1) the constitutionality of R.A. 9262 for being
violative of the due process and the equal protection clauses, and
(2) the validity of the modified TPO issued in the civil case for being
"an unwanted product of an invalid law."
On May 26, 2006, the appellate court issued a 60-day Temporary
Restraining Order36 (TRO) against the enforcement of the TPO, the
amended TPOs and other orders pursuant thereto.
Subsequently, however, on January 24, 2007, the appellate court
dismissed36 the petition for failure of petitioner to raise the
constitutional issue in his pleadings before the trial court in the civil
case, which is clothed with jurisdiction to resolve the same.
Secondly, the challenge to the validity
of R.A. 9262 through a petition for prohibition seeking to annul the
protection orders issued by the trial court constituted a collateral
attack on said law.
His motion for reconsideration of the foregoing Decision having
been denied in the Resolution37 dated August 14, 2007, petitioner
is now before us alleging that –
The Issues
I.
THE COURT OF APPEALS ERRED IN DISMISSING THE
PETITION ON THE THEORY THAT THE ISSUE OF
CONSTITUTIONALITY WAS NOT RAISED AT THE EARLIEST
OPPORTUNITY AND THAT, THE PETITION CONSTITUTES A
COLLATERAL ATTACK ON THE VALIDITY OF THE LAW.
II.
THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN
FAILING TO CONCLUDE THAT R.A. 9262 IS DISCRIMINATORY,
UNJUST, AND VIOLATIVE OF THE EQUAL PROTECTION
CLAUSE.
III.
THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN
NOT FINDING THAT R.A. 9262 RUNS COUNTER TO THE DUE
PROCESS CLAUSE OF THE CONSTITUTION.
IV.
THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE
LAW DOES VIOLENCE TO THE POLICY OF THE STATE TO
PROTECT THE FAMILY AS A BASIC SOCIAL INSTITUTION.
V.
THE COURT OF APPEALS SERIOUSLY ERRED IN NOT
DECLARING R.A. No. 9262 AS INVALID AND
UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE
DELEGATION OF JUDICIAL POWER TO THE BARANGAY
OFFICIALS.38
The Ruling of the Court
Before delving into the arguments propounded by petitioner against
the constitutionality of R.A. 9262, we shall first tackle the propriety
of the dismissal by the appellate court of the petition for prohibition
(CA-G.R. CEB-SP. No. 01698) filed by petitioner.
As a general rule, the question of constitutionality must be raised at
the earliest opportunity so that if not raised in the pleadings,
ordinarily it may not be raised in the trial, and if not raised in the trial
court, it will not be considered on appeal.39 Courts will not anticipate
CONSTI LAW II I ACJUCO 156
a question of constitutional law in advance of the necessity of
deciding it.40
In defending his failure to attack the constitutionality of R.A. 9262
before the RTC of Bacolod City, petitioner argues that the Family
Court has limited authority and jurisdiction that is "inadequate to
tackle the complex issue of constitutionality."41
We disagree.
Family Courts have authority and jurisdiction to consider the
constitutionality of a statute.
At the outset, it must be stressed that Family Courts are special
courts, of the same level as Regional Trial Courts. Under R.A. 8369,
otherwise known as the "Family Courts Act of 1997," family courts
have exclusive original jurisdiction to hear and decide cases of
domestic violence against women and children.42 In accordance
with said law, the Supreme Court designated from among the
branches of the Regional Trial Courts at least one Family Court in
each of several key cities identified.43 To achieve harmony with the
first mentioned law, Section 7 of R.A. 9262 now provides that
Regional Trial Courts designated as Family Courts shall have
original and exclusive jurisdiction over cases of VAWC defined
under the latter law, viz:
SEC. 7. Venue. – The Regional Trial Court designated as a Family
Court shall have original and exclusive jurisdiction over cases of
violence against women and their children under this law. In the
absence of such court in the place where the offense was
committed, the case shall be filed in the Regional Trial Court where
the crime or any of its elements was committed at the option of the
complainant. (Emphasis supplied)
Inspite of its designation as a family court, the RTC of Bacolod City
remains possessed of authority as a court of general original
jurisdiction to pass upon all kinds of cases whether civil, criminal,
special proceedings, land registration, guardianship, naturalization,
admiralty or insolvency.44 It is settled that RTCs have jurisdiction to
resolve the constitutionality of a statute,45 "this authority being
embraced in the general definition of the judicial power to determine
what are the valid and binding laws by the criterion of their
conformity to the fundamental law."46 The Constitution vests the
power of judicial review or the power to declare the constitutionality
or validity of a law, treaty, international or executive agreement,
presidential decree, order, instruction, ordinance, or regulation not
only in this Court, but in all RTCs.47 We said in J.M. Tuason and
Co., Inc. v. CA48 that, "plainly the Constitution contemplates that
the inferior courts should have jurisdiction in cases involving
constitutionality of any treaty or law, for it speaks of appellate review
of final judgments of inferior courts in cases where such
constitutionality happens to be in issue." Section 5, Article VIII of the
1987 Constitution reads in part as follows:
SEC. 5. The Supreme Court shall have the following powers:
xxx
2. Review, revise, reverse, modify, or affirm on appeal or certiorari,
as the law or the Rules of Court may provide, final judgments and
orders of lower courts in:
a. All cases in which the constitutionality or validity of any treaty,
international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation is in
question.
xxxx
Thus, contrary to the posturing of petitioner, the issue of
constitutionality of R.A. 9262 could have been raised at the earliest

opportunity in his Opposition to the petition for protection order
before the RTC of Bacolod City, which had jurisdiction to determine
the same, subject to the review of this Court.
Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against
Women and Their Children, lays down a new kind of procedure
requiring the respondent to file an opposition to the petition and not
an answer.49 Thus:
SEC. 20. Opposition to petition. – (a) The respondent may file an
opposition to the petition which he himself shall verify. It must be
accompanied by the affidavits of witnesses and shall show cause
why a temporary or permanent protection order should not be
issued.
(b) Respondent shall not include in the opposition any counterclaim,
cross-claim or third-party complaint, but any cause of action which
could be the subject thereof may be litigated in a separate civil
action. (Emphasis supplied)
We cannot subscribe to the theory espoused by petitioner that,
since a counterclaim, cross-claim and third-party complaint are to
be excluded from the opposition, the issue of constitutionality cannot
likewise be raised therein. A counterclaim is defined as any claim
for money or other relief which a defending party may have against
an opposing party.50 A cross-claim, on the other hand, is any claim
by one party against a co-party arising out of the transaction or
occurrence that is the subject matter either of the original action or
of a counterclaim therein.51 Finally, a third-party complaint is a
claim that a defending party may, with leave of court, file against a
person not a party to the action for contribution, indemnity,
subrogation or any other relief, in respect of his opponent's claim.52
As pointed out by Justice Teresita J. Leonardo-De Castro, the
unconstitutionality of a statute is not a cause of action that could be
the subject of a counterclaim, cross-claim or a third-party complaint.
Therefore, it is not prohibited from being raised in the opposition in
view of the familiar maxim expressio unius est exclusio alterius.
Moreover, it cannot be denied that this issue affects the resolution
of the case a quo because the right of private respondent to a
protection order is founded solely on the very statute the validity of
which is being attacked53 by petitioner who has sustained, or will
sustain, direct injury as a result of its enforcement. The alleged
unconstitutionality of R.A. 9262 is, for all intents and purposes, a
valid cause for the non-issuance of a protection order.
That the proceedings in Civil Case No. 06-797 are summary in
nature should not have deterred petitioner from raising the same in
his Opposition. The question relative to the constitutionality of a
statute is one of law which does not need to be supported by
evidence.54 Be that as it may, Section 25 of A.M. No. 04-10-11-SC
nonetheless allows the conduct of a hearing to determine legal
issues, among others, viz:
SEC. 25. Order for further hearing. - In case the court determines
the need for further hearing, it may issue an order containing the
following:
(a) Facts undisputed and admitted;
(b) Factual and legal issues to be resolved;
(c) Evidence, including objects and documents that have been
marked and will be presented;
(d) Names of witnesses who will be ordered to present their direct
testimonies in the form of affidavits; and
(e) Schedule of the presentation of evidence by both parties which
shall be done in one day, to the extent possible, within the 30-day
CONSTI LAW II I ACJUCO 157
period of the effectivity of the temporary protection order issued.
(Emphasis supplied)
To obviate potential dangers that may arise concomitant to the
conduct of a hearing when necessary, Section 26 (b) of A.M. No.
04-10-11-SC provides that if a temporary protection order issued is
due to expire, the trial court may extend or renew the said order for
a period of thirty (30) days each time until final judgment is rendered.
It may likewise modify the extended or renewed temporary
protection order as may be necessary to meet the needs of the
parties. With the private respondent given ample protection,
petitioner could proceed to litigate the constitutional issues, without
necessarily running afoul of the very purpose for the adoption of the
rules on summary procedure.
In view of all the foregoing, the appellate court correctly dismissed
the petition for prohibition with prayer for injunction and temporary
restraining order (CA-G.R. CEB - SP. No. 01698). Petitioner may
have proceeded upon an honest belief that if he finds succor in a
superior court, he could be granted an injunctive relief. However,
Section 22(j) of A.M. No. 04-10-11-SC expressly disallows the filing
of a petition for certiorari, mandamus or prohibition against any
interlocutory order issued by the trial court. Hence, the 60-day TRO
issued by the appellate court in this case against the enforcement
of the TPO, the amended TPOs and other orders pursuant thereto
was improper, and it effectively hindered the case from taking its
normal course in an expeditious and summary manner.
As the rules stand, a review of the case by appeal or certiorari before
judgment is prohibited. Moreover, if the appeal of a judgment
granting permanent protection shall not stay its enforcement,55 with
more reason that a TPO, which is valid only for thirty (30) days at a
time,56 should not be enjoined.
The mere fact that a statute is alleged to be unconstitutional or
invalid, does not of itself entitle a litigant to have the same
enjoined.57 In Younger v. Harris, Jr.,58 the Supreme Court of the
United States declared, thus:
Federal injunctions against state criminal statutes, either in their
entirety or with respect to their separate and distinct prohibitions,
are not to be granted as a matter of course, even if such statutes
are unconstitutional. No citizen or member of the community is
immune from prosecution, in good faith, for his alleged criminal acts.
The imminence of such a prosecution even though alleged to be
unauthorized and, hence, unlawful is not alone ground for relief in
equity which exerts its extraordinary powers only to prevent
irreparable injury to the plaintiff who seeks its aid. (Citations omitted)
The sole objective of injunctions is to preserve the status quo until
the trial court hears fully the merits of the case. It bears stressing,
however, that protection orders are granted ex parte so as to protect
women and their children from acts of violence. To issue an
injunction against such orders will defeat the very purpose of the law
against VAWC.
Notwithstanding all these procedural flaws, we shall not shirk from
our obligation to determine novel issues, or issues of first
impression, with far-reaching implications. We have, time and again,
discharged our solemn duty as final arbiter of constitutional issues,
and with more reason now, in view of private respondent's plea in
her Comment59 to the instant Petition that we should put the
challenge to the constitutionality of R.A. 9262 to rest. And so we
shall.
Intent of Congress in enacting R.A. 9262.
Petitioner claims that since R.A. 9262 is intended to prevent and
criminalize spousal and child abuse, which could very well be
committed by either the husband or the wife, gender alone is not

enough basis to deprive the husband/father of the remedies under
the law.60
A perusal of the deliberations of Congress on Senate Bill No.
2723,61 which became R.A. 9262, reveals that while the sponsor,
Senator Luisa Pimentel-Ejercito (better known as Senator Loi
Estrada), had originally proposed what she called a "synthesized
measure"62 – an amalgamation of two measures, namely, the "Anti-
Domestic Violence Act" and the "Anti-Abuse of Women in Intimate
Relationships Act"63 – providing protection to "all family members,
leaving no one in isolation" but at the same time giving special
attention to women as the "usual victims" of violence and abuse,64
nonetheless, it was eventually agreed that men be denied protection
under the same measure. We quote pertinent portions of the
deliberations:
Wednesday, December 10, 2003
Senator Pangilinan. I just wanted to place this on record, Mr.
President. Some women's groups have expressed concerns and
relayed these concerns to me that if we are to include domestic
violence apart from against women as well as other members of the
household, including children or the husband, they fear that this
would weaken the efforts to address domestic violence of which the
main victims or the bulk of the victims really are the wives, the
spouses or the female partners in a relationship. We would like to
place that on record. How does the good Senator respond to this
kind of observation?
Senator Estrada. Yes, Mr. President, there is this group of women
who call themselves "WIIR" Women in Intimate Relationship. They
do not want to include men in this domestic violence. But plenty of
men are also being abused by women. I am playing safe so I placed
here members of the family, prescribing penalties therefor and
providing protective measures for victims. This includes the men,
children, live-in, common-law wives, and those related with the
family.65
xxx
Wednesday, January 14, 2004
xxxx
The President Pro Tempore. x x x
Also, may the Chair remind the group that there was the discussion
whether to limit this to women and not to families which was the
issue of the AWIR group. The understanding that I have is that we
would be having a broader scope rather than just women, if I
remember correctly, Madam sponsor.
Senator Estrada. Yes, Mr. President.
As a matter of fact, that was brought up by Senator Pangilinan
during the interpellation period.
I think Senator Sotto has something to say to that.
Senator Legarda. Mr. President, the reason I am in support of the
measure. Do not get me wrong. However, I believe that there is a
need to protect women's rights especially in the domestic
environment.
As I said earlier, there are nameless, countless, voiceless women
who have not had the opportunity to file a case against their
spouses, their live-in partners after years, if not decade, of battery
and abuse. If we broaden the scope to include even the men,
assuming they can at all be abused by the women or their spouses,
then it would not equalize the already difficult situation for women,
Mr. President.
CONSTI LAW II I ACJUCO 158
I think that the sponsor, based on our earlier conversations, concurs
with this position. I am sure that the men in this Chamber who love
their women in their lives so dearly will agree with this
representation. Whether we like it or not, it is an unequal world.
Whether we like it or not, no matter how empowered the women are,
we are not given equal opportunities especially in the domestic
environment where the macho Filipino man would always feel that
he is stronger, more superior to the Filipino woman.
xxxx
The President Pro Tempore. What does the sponsor say?
Senator Estrada. Mr. President, before accepting this, the
committee came up with this bill because the family members have
been included in this proposed measure since the other members
of the family other than women are also possible victims of violence.
While women are most likely the intended victims, one reason
incidentally why the measure focuses on women, the fact remains
that in some relatively few cases, men also stand to be victimized
and that children are almost always the helpless victims of violence.
I am worried that there may not be enough protection extended to
other family members particularly children who are excluded.
Although Republic Act No. 7610, for instance, more or less,
addresses the special needs of abused children. The same law is
inadequate. Protection orders for one are not available in said law.
I am aware that some groups are apprehensive about granting the
same protection to men, fearing that they may use this law to justify
their abusive behavior against women. However, we should also
recognize that there are established procedures and standards in
our courts which give credence to evidentiary support and cannot
just arbitrarily and whimsically entertain baseless complaints.
Mr. President, this measure is intended to harmonize family
relations and to protect the family as the basic social institution.
Though I recognize the unequal power relations between men and
women in our society, I believe we have an obligation to uphold
inherent rights and dignity of both husband and wife and their
immediate family members, particularly children.
While I prefer to focus mainly on women, I was compelled to include
other family members as a critical input arrived at after a series of
consultations/meetings with various NGOs, experts, sports groups
and other affected sectors, Mr. President.
Senator Sotto. Mr. President.
The President Pro Tempore. Yes, with the permission of the other
senators.
Senator Sotto. Yes, with the permission of the two ladies on the
Floor.
The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is
recognized.
Senator Sotto. I presume that the effect of the proposed amendment
of Senator Legarda would be removing the "men and children" in
this particular bill and focus specifically on women alone. That will
be the net effect of that proposed amendment. Hearing the rationale
mentioned by the distinguished sponsor, Sen. Luisa "Loi" Ejercito
Estrada, I am not sure now whether she is inclined to accept the
proposed amendment of Senator Legarda.
I am willing to wait whether she is accepting this or not because if
she is going to accept this, I will propose an amendment to the
amendment rather than object to the amendment, Mr. President.
xxxx

Senator Estrada. The amendment is accepted, Mr. President.
The President Pro Tempore. Is there any objection?
xxxx
Senator Sotto. x x x May I propose an amendment to the
amendment.
The President Pro Tempore. Before we act on the amendment?
Senator Sotto. Yes, Mr. President.
The President Pro Tempore. Yes, please proceed.
Senator Sotto. Mr. President, I am inclined to believe the rationale
used by the distinguished proponent of the amendment. As a matter
of fact, I tend to agree. Kung may maaabuso, mas malamang iyong
babae kaysa sa lalake. At saka iyong mga lalake, puwede na
talagang magulpi iyan. Okey lang iyan. But I cannot agree that we
remove the children from this particular measure.
So, if I may propose an amendment –
The President Pro Tempore. To the amendment.
Senator Sotto. – more than the women, the children are very much
abused. As a matter of fact, it is not limited to minors. The abuse is
not limited to seven, six, 5-year-old children. I have seen 14, 15-
year-old children being abused by their fathers, even by their
mothers. And it breaks my heart to find out about these things.
Because of the inadequate existing law on abuse of children, this
particular measure will update that. It will enhance and hopefully
prevent the abuse of children and not only women.
SOTTO-LEGARDA AMENDMENTS
Therefore, may I propose an amendment that, yes, we remove the
aspect of the men in the bill but not the children.
Senator Legarda. I agree, Mr. President, with the Minority Leader.
The President Pro Tempore. Effectively then, it will be women AND
CHILDREN.
Senator Sotto. Yes, Mr. President.
Senator Estrada. It is accepted, Mr. President.
The President Pro Tempore. Is there any objection? [Silence] There
being none, the amendment, as amended, is approved.66
It is settled that courts are not concerned with the wisdom, justice,
policy, or expediency of a statute.67 Hence, we dare not venture
into the real motivations and wisdom of the members of Congress
in limiting the protection against violence and abuse under R.A.
9262 to women and children only. No proper challenge on said
grounds may be entertained in this proceeding. Congress has made
its choice and it is not our prerogative to supplant this judgment. The
choice may be perceived as erroneous but even then, the remedy
against it is to seek its amendment or repeal by the legislative. By
the principle of separation of powers, it is the legislative that
determines the necessity, adequacy, wisdom and expediency of any
law.68 We only step in when there is a violation of the Constitution.
However, none was sufficiently shown in this case.
R.A. 9262 does not violate the guaranty of equal protection of the
laws.
CONSTI LAW II I ACJUCO 159
Equal protection simply requires that all persons or things similarly
situated should be treated alike, both as to rights conferred and
responsibilities imposed. The oft-repeated disquisition in the early
case of Victoriano v. Elizalde Rope Workers' Union69 is instructive:
The guaranty of equal protection of the laws is not a guaranty of
equality in the application of the laws upon all citizens of the state.
It is not, therefore, a requirement, in order to avoid the constitutional
prohibition against inequality, that every man, woman and child
should be affected alike by a statute. Equality of operation of
statutes does not mean indiscriminate operation on persons merely
as such, but on persons according to the circumstances surrounding
them. It guarantees equality, not identity of rights. The Constitution
does not require that things which are different in fact be treated in
law as though they were the same. The equal protection clause
does not forbid discrimination as to things that are different. It does
not prohibit legislation which is limited either in the object to which it
is directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows
classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or
practice because they agree with one another in certain particulars.
A law is not invalid because of simple inequality. The very idea of
classification is that of inequality, so that it goes without saying that
the mere fact of inequality in no manner determines the matter of
constitutionality. All that is required of a valid classification is that it
be reasonable, which means that the classification should be based
on substantial distinctions which make for real differences; that it
must be germane to the purpose of the law; that it must not be
limited to existing conditions only; and that it must apply equally to
each member of the class. This Court has held that the standard is
satisfied if the classification or distinction is based on a reasonable
foundation or rational basis and is not palpably arbitrary. (Emphasis
supplied)
Measured against the foregoing jurisprudential yardstick, we find
that R.A. 9262 is based on a valid classification as shall hereinafter
be discussed and, as such, did not violate the equal protection
clause by favoring women over men as victims of violence and
abuse to whom the State extends its protection.
I. R.A. 9262 rests on substantial distinctions.
The unequal power relationship between women and men; the fact
that women are more likely than men to be victims of violence; and
the widespread gender bias and prejudice against women all make
for real differences justifying the classification under the law. As
Justice McIntyre succinctly states, "the accommodation of
differences ... is the essence of true equality."70
A. Unequal power relationship between men and women
According to the Philippine Commission on Women (the National
Machinery for Gender Equality and Women's Empowerment),
violence against women (VAW) is deemed to be closely linked with
the unequal power relationship between women and men otherwise
known as "gender-based violence". Societal norms and traditions
dictate people to think men are the leaders, pursuers, providers, and
take on dominant roles in society while women are nurturers, men's
companions and supporters, and take on subordinate roles in
society. This perception leads to men gaining more power over
women. With power comes the need to control to retain that power.
And VAW is a form of men's expression of controlling women to
retain power.71
The United Nations, which has long recognized VAW as a human
rights issue, passed its Resolution 48/104 on the Declaration on
Elimination of Violence Against Women on December 20, 1993
stating that "violence against women is a manifestation of
historically unequal power relations between men and women,

which have led to domination over and discrimination against
women by men and to the prevention of the full advancement of
women, and that violence against women is one of the crucial social
mechanisms by which women are forced into subordinate positions,
compared with men."72
Then Chief Justice Reynato S. Puno traced the historical and social
context of gender-based violence and developments in advocacies
to eradicate VAW, in his remarks delivered during the Joint
Launching of R.A. 9262 and its Implementing Rules last October 27,
2004, the pertinent portions of which are quoted hereunder:
History reveals that most societies sanctioned the use of violence
against women. The patriarch of a family was accorded the right to
use force on members of the family under his control. I quote the
early studies:
Traditions subordinating women have a long history rooted in
patriarchy – the institutional rule of men. Women were seen in
virtually all societies to be naturally inferior both physically and
intellectually. In ancient Western societies, women whether slave,
concubine or wife, were under the authority of men. In law, they
were treated as property.
The Roman concept of patria potestas allowed the husband to beat,
or even kill, his wife if she endangered his property right over her.
Judaism, Christianity and other religions oriented towards the
patriarchal family strengthened the male dominated structure of
society.
English feudal law reinforced the tradition of male control over
women. Even the eminent Blackstone has been quoted in his
commentaries as saying husband and wife were one and that one
was the husband. However, in the late 1500s and through the entire
1600s, English common law began to limit the right of husbands to
chastise their wives. Thus, common law developed the rule of
thumb, which allowed husbands to beat their wives with a rod or
stick no thicker than their thumb.
In the later part of the 19th century, legal recognition of these rights
to chastise wives or inflict corporeal punishment ceased. Even then,
the preservation of the family was given more importance than
preventing violence to women.
The metamorphosis of the law on violence in the United States
followed that of the English common law. In 1871, the Supreme
Court of Alabama became the first appellate court to strike down the
common law right of a husband to beat his wife:
The privilege, ancient though it may be, to beat one's wife with a
stick, to pull her hair, choke her, spit in her face or kick her about
the floor, or to inflict upon her like indignities, is not now
acknowledged by our law... In person, the wife is entitled to the
same protection of the law that the husband can invoke for himself.
As time marched on, the women's advocacy movement became
more organized. The temperance leagues initiated it. These leagues
had a simple focus. They considered the evils of alcoholism as the
root cause of wife abuse. Hence, they demonstrated and picketed
saloons, bars and their husbands' other watering holes. Soon,
however, their crusade was joined by suffragette movements,
expanding the liberation movement's agenda. They fought for
women's right to vote, to own property, and more. Since then, the
feminist movement was on the roll.
The feminist movement exposed the private invisibility of the
domestic violence to the public gaze. They succeeded in
transforming the issue into an important public concern. No less
than the United States Supreme Court, in 1992 case Planned
Parenthood v. Casey, noted:
CONSTI LAW II I ACJUCO 160
In an average 12-month period in this country, approximately two
million women are the victims of severe assaults by their male
partners. In a 1985 survey, women reported that nearly one of every
eight husbands had assaulted their wives during the past year. The
[American Medical Association] views these figures as "marked
underestimates," because the nature of these incidents discourages
women from reporting them, and because surveys typically exclude
the very poor, those who do not speak English well, and women who
are homeless or in institutions or hospitals when the survey is
conducted. According to the AMA, "researchers on family violence
agree that the true incidence of partner violence is probably double
the above estimates; or four million severely assaulted women per
year."
Studies on prevalence suggest that from one-fifth to one-third of all
women will be physically assaulted by a partner or ex-partner during
their lifetime... Thus on an average day in the United States, nearly
11,000 women are severely assaulted by their male partners. Many
of these incidents involve sexual assault... In families where wife
beating takes place, moreover, child abuse is often present as well.
Other studies fill in the rest of this troubling picture. Physical violence
is only the most visible form of abuse. Psychological abuse,
particularly forced social and economic isolation of women, is also
common.
Many victims of domestic violence remain with their abusers,
perhaps because they perceive no superior alternative...Many
abused women who find temporary refuge in shelters return to their
husbands, in large part because they have no other source of
income... Returning to one's abuser can be dangerous. Recent
Federal Bureau of Investigation statistics disclose that 8.8 percent
of all homicide victims in the United States are killed by their
spouses...Thirty percent of female homicide victims are killed by
their male partners.
Finally in 1994, the United States Congress enacted the Violence
Against Women Act.
In the International front, the women's struggle for equality was no
less successful. The United States Charter and the Universal
Declaration of Human Rights affirmed the equality of all human
beings. In 1979, the UN General Assembly adopted the landmark
Convention on the Elimination of all Forms of Discrimination Against
Women (CEDAW). In 1993, the UN General Assembly also adopted
the Declaration on the Elimination of Violence Against Women.
World conferences on the role and rights of women have been
regularly held in Mexico City, Copenhagen, Nairobi and Beijing. The
UN itself established a Commission on the Status of Women.
The Philippines has been in cadence with the half – and full – steps
of all these women's movements. No less than Section 14, Article II
of our 1987 Constitution mandates the State to recognize the role of
women in nation building and to ensure the fundamental equality
before the law of women and men. Our Senate has ratified the
CEDAW as well as the Convention on the Rights of the Child and
its two protocols. To cap it all, Congress, on March 8, 2004, enacted
Rep. Act No. 9262, entitled "An Act Defining Violence Against
Women and Their Children, Providing for Protective Measures for
Victims, Prescribing Penalties therefor and for other Purposes."
(Citations omitted)
B. Women are the "usual" and "most likely"
victims of violence.
At the time of the presentation of Senate Bill No. 2723, official
statistics on violence against women and children show that –
x x x physical injuries had the highest number of cases at 5,058 in
2002 representing 55.63% of total cases reported (9,903). And for
 CONSTI LAW II I ACJUCO 161

the first semester of 2003, there were 2,381 reported cases out of
4,354 cases which represent 54.31%. xxx (T)he total number of
women in especially difficult circumstances served by the
Department of Social Welfare and Development (DSWD) for the
year 2002, there are 1,417 physically abused/maltreated cases out
of the total of 5,608 cases. xxx (T)here are 1,091 DSWD cases out
of a total number of 3,471 cases for the first semester of 2003.
Female violence comprised more than 90% of all forms of abuse
and violence and more than 90% of these reported cases were
committed by the women's intimate partners such as their husbands
and live-in partners.73
is less likely to cause injury than the other way around (18 percent
versus 44 percent). Men, who experience violence from their
spouses are much less likely to live in fear of violence at the hands
of their spouses, and much less likely to experience sexual assault.
In fact, many cases of physical violence by a woman against a
spouse are in self-defense or the result of many years of physical or
emotional abuse.76
While there are, indeed, relatively few cases of violence and abuse
perpetrated against men in the Philippines, the same cannot render
R.A. 9262 invalid.

Recently, the Philippine Commission on Women presented
comparative statistics on violence against women across an eight-
year period from 2004 to August of 2011 with violations under R.A.
9262 ranking first among the different VAW categories since its
implementation in 2004,74 thus:
Table 1. Annual Comparative Statistics on Violence Against
Women, 2004 - 2011*
In a 1960 case involving the violation of a city ordinance requiring
drivers of animal-drawn vehicles to pick up, gather and deposit in
receptacles the manure emitted or discharged by their vehicle-
drawing animals in any public highways, streets, plazas, parks or
alleys, said ordinance was challenged as violative of the guaranty
of equal protection of laws as its application is limited to owners and
drivers of vehicle-drawing animals and not to those animals,
although not utilized, but similarly pass through the same streets.

Reported The ordinance was upheld as a valid classification for the reason
Cases 2004 2005 2006 2007 2008 2009 that, while there may be non-vehicle-drawing animals that also
2010 2011 traverse the city roads, "but their number must be negligible and
Rape 997 927 659 837 811 770 their appearance therein merely occasional, compared to the rig-
1,042 832 drawing ones, as not to constitute a menace to the health of the
Incestuous Rape 38 46 26 22 28 community."77 The mere fact that the legislative classification may
27 19 23 result in actual inequality is not violative of the right to equal
Attempted Rape 194 148 185 147 204 protection, for every classification of persons or things for regulation
167 268 201 by law produces inequality in some degree, but the law is not
Acts of thereby rendered invalid.78
Lasciviousness 580 536 382 358 445
485 745 625 C. Gender bias and prejudices
Physical
Injuries 3,553 2,335 1,892 1,505 1,307 1,498 From the initial report to the police through prosecution, trial, and
2,018 1,588 sentencing, crimes against women are often treated differently and
Sexual less seriously than other crimes. This was argued by then United
Harassment 53 37 38 46 18 States Senator Joseph R. Biden, Jr., now Vice President, chief
54 83 63 sponsor of the Violence Against Women Act (VAWA), in defending
RA 9262 218 924 1,269 2,387 3,599 5,285 the civil rights remedy as a valid exercise of the U.S. Congress'
9,974 9,021 authority under the Commerce and Equal Protection Clauses. He
Threats 319 223 199 182 220 208 stressed that the widespread gender bias in the U.S. has
374 213 institutionalized historic prejudices against victims of rape or
Seduction 62 19 29 30 19 domestic violence, subjecting them to "double victimization" – first
19 25 15 at the hands of the offender and then of the legal system.79
Concubinage 121 102 93 109 109
99 158 128 Our own Senator Loi Estrada lamented in her Sponsorship Speech
RA 9208 17 11 16 24 34 152 for Senate Bill No. 2723 that "(w)henever violence occurs in the
190 62 family, the police treat it as a private matter and advise the parties
Abduction to settle the conflict themselves. Once the complainant brings the
/Kidnapping 29 16 34 23 28 case to the prosecutor, the latter is hesitant to file the complaint for
18 25 22 fear that it might later be withdrawn. This lack of response or
Unjust Vexation 90 50 59 59 83 reluctance to be involved by the police and prosecution reinforces
703 183 155 the escalating, recurring and often serious nature of domestic
Total 6,271 5,374 4,881 5,729 6,905 9,485 violence."80
15,104 12,948
*2011 report covers only from January to August Sadly, our own courts, as well, have exhibited prejudices and biases
against our women.
Source: Philippine National Police – Women and Children
Protection Center (WCPC) In a recent case resolved on March 9, 2011, we fined RTC Judge
Venancio J. Amila for Conduct Unbecoming of a Judge. He used
On the other hand, no reliable estimates may be obtained on derogatory and irreverent language in reference to the complainant
domestic abuse and violence against men in the Philippines in a petition for TPO and PPO under R.A. 9262, calling her as "only
because incidents thereof are relatively low and, perhaps, because a live-in partner" and presenting her as an "opportunist" and a
many men will not even attempt to report the situation. In the United "mistress" in an "illegitimate relationship." Judge Amila even called
Kingdom, 32% of women who had ever experienced domestic her a "prostitute," and accused her of being motivated by "insatiable
violence did so four or five (or more) times, compared with 11% of greed" and of absconding with the contested property.81 Such
the smaller number of men who had ever experienced domestic remarks betrayed Judge Amila's prejudices and lack of gender
violence; and women constituted 89% of all those who had sensitivity.
experienced 4 or more incidents of domestic violence.75 Statistics
in Canada show that spousal violence by a woman against a man

The enactment of R.A. 9262 aims to address the discrimination
brought about by biases and prejudices against women. As
emphasized by the CEDAW Committee on the Elimination of
Discrimination against Women, addressing or correcting
discrimination through specific measures focused on women does
not discriminate against men.82 Petitioner's contention,83
therefore, that R.A. 9262 is discriminatory and that it is an "anti-
male," "husband-bashing," and "hate-men" law deserves scant
consideration. As a State Party to the CEDAW, the Philippines
bound itself to take all appropriate measures "to modify the social
and cultural patterns of conduct of men and women, with a view to
achieving the elimination of prejudices and customary and all other
practices which are based on the idea of the inferiority or the
superiority of either of the sexes or on stereotyped roles for men and
women."84 Justice Puno correctly pointed out that "(t)he paradigm
shift changing the character of domestic violence from a private
affair to a public offense will require the development of a distinct
mindset on the part of the police, the prosecution and the judges."85
II. The classification is germane to the purpose of the law.
The distinction between men and women is germane to the purpose
of R.A. 9262, which is to address violence committed against
women and children, spelled out in its Declaration of Policy, as
follows:
SEC. 2. Declaration of Policy. – It is hereby declared that the State
values the dignity of women and children and guarantees full
respect for human rights. The State also recognizes the need to
protect the family and its members particularly women and children,
from violence and threats to their personal safety and security.
Towards this end, the State shall exert efforts to address violence
committed against women and children in keeping with the
fundamental freedoms guaranteed under the Constitution and the
provisions of the Universal Declaration of Human Rights, the
Convention on the Elimination of All Forms of Discrimination Against
Women, Convention on the Rights of the Child and other
international human rights instruments of which the Philippines is a
party.
In 1979, the U.N. General Assembly adopted the CEDAW, which
the Philippines ratified on August 5, 1981. Subsequently, the
Optional Protocol to the CEDAW was also ratified by the Philippines
on October 6, 2003.86 This Convention mandates that State parties
shall accord to women equality with men before the law87 and shall
take all appropriate measures to eliminate discrimination against
women in all matters relating to marriage and family relations on the
basis of equality of men and women.88 The Philippines likewise
ratified the Convention on the Rights of the Child and its two
protocols.89 It is, thus, bound by said Conventions and their
respective protocols.
III. The classification is not limited to existing
conditions only, and apply equally to all members
Moreover, the application of R.A. 9262 is not limited to the existing
conditions when it was promulgated, but to future conditions as well,
for as long as the safety and security of women and their children
are threatened by violence and abuse.
R.A. 9262 applies equally to all women and children who suffer
violence and abuse. Section 3 thereof defines VAWC as:
x x x any act or a series of acts committed by any person against a
woman who is his wife, former wife, or against a woman with whom
the person has or had a sexual or dating relationship, or with whom
he has a common child, or against her child whether legitimate or
illegitimate, within or without the family abode, which result in or is
likely to result in physical, sexual, psychological harm or suffering,
CONSTI LAW II I ACJUCO 162
or economic abuse including threats of such acts, battery, assault,
coercion, harassment or arbitrary deprivation of liberty. It includes,
but is not limited to, the following acts:
A. "Physical Violence" refers to acts that include bodily or physical
harm;
B. "Sexual violence" refers to an act which is sexual in nature,
committed against a woman or her child. It includes, but is not
limited to:
a) rape, sexual harassment, acts of lasciviousness, treating a
woman or her child as a sex object, making demeaning and sexually
suggestive remarks, physically attacking the sexual parts of the
victim's body, forcing her/him to watch obscene publications and
indecent shows or forcing the woman or her child to do indecent
acts and/or make films thereof, forcing the wife and mistress/lover
to live in the conjugal home or sleep together in the same room with
the abuser;
b) acts causing or attempting to cause the victim to engage in any
sexual activity by force, threat of force, physical or other harm or
threat of physical or other harm or coercion;
c) Prostituting the woman or child.
C. "Psychological violence" refers to acts or omissions causing or
likely to cause mental or emotional suffering of the victim such as
but not limited to intimidation, harassment, stalking, damage to
property, public ridicule or humiliation, repeated verbal abuse and
marital infidelity. It includes causing or allowing the victim to witness
the physical, sexual or psychological abuse of a member of the
family to which the victim belongs, or to witness pornography in any
form or to witness abusive injury to pets or to unlawful or unwanted
deprivation of the right to custody and/or visitation of common
children.
D. "Economic abuse" refers to acts that make or attempt to make a
woman financially dependent which includes, but is not limited to the
following:
1. withdrawal of financial support or preventing the victim from
engaging in any legitimate profession, occupation, business or
activity, except in cases wherein the other spouse/partner objects
on valid, serious and moral grounds as defined in Article 73 of the
Family Code;
2. deprivation or threat of deprivation of financial resources and the
right to the use and enjoyment of the conjugal, community or
property owned in common;
3. destroying household property;
4. controlling the victims' own money or properties or solely
controlling the conjugal money or properties.
It should be stressed that the acts enumerated in the aforequoted
provision are attributable to research that has exposed the
dimensions and dynamics of battery. The acts described here are
also found in the U.N. Declaration on the Elimination of Violence
Against Women.90 Hence, the argument advanced by petitioner
that the definition of what constitutes abuse removes the difference
between violent action and simple marital tiffs is tenuous.
There is nothing in the definition of VAWC that is vague and
ambiguous that will confuse petitioner in his defense. The acts
enumerated above are easily understood and provide adequate
contrast between the innocent and the prohibited acts. They are
worded with sufficient definiteness that persons of ordinary
intelligence can understand what conduct is prohibited, and need
not guess at its meaning nor differ in its application.91 Yet, petitioner

insists92 that phrases like "depriving or threatening to deprive the
woman or her child of a legal right," "solely controlling the conjugal
or common money or properties," "marital infidelity," and "causing
mental or emotional anguish" are so vague that they make every
quarrel a case of spousal abuse. However, we have stressed that
the "vagueness" doctrine merely requires a reasonable degree of
certainty for the statute to be upheld – not absolute precision or
mathematical exactitude, as petitioner seems to suggest. Flexibility,
rather than meticulous specificity, is permissible as long as the
metes and bounds of the statute are clearly delineated. An act will
not be held invalid merely because it might have been more explicit
in its wordings or detailed in its provisions.93
There is likewise no merit to the contention that R.A. 9262 singles
out the husband or father as the culprit. As defined above, VAWC
may likewise be committed "against a woman with whom the person
has or had a sexual or dating relationship." Clearly, the use of the
gender-neutral word "person" who has or had a sexual or dating
relationship with the woman encompasses even lesbian
relationships. Moreover, while the law provides that the offender be
related or connected to the victim by marriage, former marriage, or
a sexual or dating relationship, it does not preclude the application
of the principle of conspiracy under the Revised Penal Code (RPC).
Thus, in the case of Go-Tan v. Spouses Tan,94 the parents-in-law
of Sharica Mari L. Go-Tan, the victim, were held to be proper
respondents in the case filed by the latter upon the allegation that
they and their son (Go-Tan's husband) had community of design
and purpose in tormenting her by giving her insufficient financial
support; harassing and pressuring her to be ejected from the family
home; and in repeatedly abusing her verbally, emotionally, mentally
and physically.
R.A. 9262 is not violative of the
due process clause of the Constitution.
Petitioner bewails the disregard of R.A. 9262, specifically in the
issuance of POs, of all protections afforded by the due process
clause of the Constitution. Says he: "On the basis of
unsubstantiated allegations, and practically no opportunity to
respond, the husband is stripped of family, property, guns, money,
children, job, future employment and reputation, all in a matter of
seconds, without an inkling of what happened."95
A protection order is an order issued to prevent further acts of
violence against women and their children, their family or household
members, and to grant other necessary reliefs. Its purpose is to
safeguard the offended parties from further harm, minimize any
disruption in their daily life and facilitate the opportunity and ability
to regain control of their life.96
"The scope of reliefs in protection orders is broadened to ensure
that the victim or offended party is afforded all the remedies
necessary to curtail access by a perpetrator to the victim. This
serves to safeguard the victim from greater risk of violence; to
accord the victim and any designated family or household member
safety in the family residence, and to prevent the perpetrator from
committing acts that jeopardize the employment and support of the
victim. It also enables the court to award temporary custody of minor
children to protect the children from violence, to prevent their
abduction by the perpetrator and to ensure their financial
support."97
The rules require that petitions for protection order be in writing,
signed and verified by the petitioner98 thereby undertaking full
responsibility, criminal or civil, for every allegation therein. Since
"time is of the essence in cases of VAWC if further violence is to be
prevented,"99 the court is authorized to issue ex parte a TPO after
raffle but before notice and hearing when the life, limb or property of
the victim is in jeopardy and there is reasonable ground to believe
that the order is necessary to protect the victim from the immediate
CONSTI LAW II I ACJUCO 163
and imminent danger of VAWC or to prevent such violence, which
is about to recur.100
There need not be any fear that the judge may have no rational
basis to issue an ex parte order. The victim is required not only to
verify the allegations in the petition, but also to attach her witnesses'
affidavits to the petition.101
The grant of a TPO ex parte cannot, therefore, be challenged as
violative of the right to due process. Just like a writ of preliminary
attachment which is issued without notice and hearing because the
time in which the hearing will take could be enough to enable the
defendant to abscond or dispose of his property,102 in the same
way, the victim of VAWC may already have suffered harrowing
experiences in the hands of her tormentor, and possibly even death,
if notice and hearing were required before such acts could be
prevented. It is a constitutional commonplace that the ordinary
requirements of procedural due process must yield to the
necessities of protecting vital public interests,103 among which is
protection of women and children from violence and threats to their
personal safety and security.
It should be pointed out that when the TPO is issued ex parte, the
court shall likewise order that notice be immediately given to the
respondent directing him to file an opposition within five (5) days
from service. Moreover, the court shall order that notice, copies of
the petition and TPO be served immediately on the respondent by
the court sheriffs. The TPOs are initially effective for thirty (30) days
from service on the respondent.104
Where no TPO is issued ex parte, the court will nonetheless order
the immediate issuance and service of the notice upon the
respondent requiring him to file an opposition to the petition within
five (5) days from service. The date of the preliminary conference
and hearing on the merits shall likewise be indicated on the
notice.105
The opposition to the petition which the respondent himself shall
verify, must be accompanied by the affidavits of witnesses and shall
show cause why a temporary or permanent protection order should
not be issued.106
It is clear from the foregoing rules that the respondent of a petition
for protection order should be apprised of the charges imputed to
him and afforded an opportunity to present his side. Thus, the fear
of petitioner of being "stripped of family, property, guns, money,
children, job, future employment and reputation, all in a matter of
seconds, without an inkling of what happened" is a mere product of
an overactive imagination. The essence of due process is to be
found in the reasonable opportunity to be heard and submit any
evidence one may have in support of one's defense. "To be heard"
does not only mean verbal arguments in court; one may be heard
also through pleadings. Where opportunity to be heard, either
through oral arguments or pleadings, is accorded, there is no denial
of procedural due process.107
It should be recalled that petitioner filed on April 26, 2006 an
Opposition to the Urgent Ex-Parte Motion for Renewal of the TPO
that was granted only two days earlier on April 24, 2006. Likewise,
on May 23, 2006, petitioner filed a motion for the modification of the
TPO to allow him visitation rights to his children. Still, the trial court
in its Order dated September 26, 2006, gave him five days (5) within
which to show cause why the TPO should not be renewed or
extended. Yet, he chose not to file the required comment arguing
that it would just be an "exercise in futility," conveniently forgetting
that the renewal of the questioned TPO was only for a limited period
(30 days) each time, and that he could prevent the continued
renewal of said order if he can show sufficient cause therefor.
Having failed to do so, petitioner may not now be heard to complain
that he was denied due process of law.

Petitioner next laments that the removal and exclusion of the
respondent in the VAWC case from the residence of the victim,
regardless of ownership of the residence, is virtually a "blank check"
issued to the wife to claim any property as her conjugal home.108
The wording of the pertinent rule, however, does not by any stretch
of the imagination suggest that this is so. It states:
SEC. 11. Reliefs available to the offended party. -- The protection
order shall include any, some or all of the following reliefs:
xxxx
(c) Removing and excluding the respondent from the residence of
the offended party, regardless of ownership of the residence, either
temporarily for the purpose of protecting the offended party, or
permanently where no property rights are violated. If the respondent
must remove personal effects from the residence, the court shall
direct a law enforcement agent to accompany the respondent to the
residence, remain there until the respondent has gathered his things
and escort him from the residence;
xxxx
Indubitably, petitioner may be removed and excluded from private
respondent's residence, regardless of ownership, only temporarily
for the purpose of protecting the latter. Such removal and exclusion
may be permanent only where no property rights are violated. How
then can the private respondent just claim any property and
appropriate it for herself, as petitioner seems to suggest?
The non-referral of a VAWC case
to a mediator is justified.
Petitioner argues that "by criminalizing run-of-the-mill arguments,
instead of encouraging mediation and counseling, the law has done
violence to the avowed policy of the State to "protect and strengthen
the family as a basic autonomous social institution."109
Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall not
refer the case or any issue thereof to a mediator. The reason behind
this provision is well-explained by the Commentary on Section 311
of the Model Code on Domestic and Family Violence as follows:110
This section prohibits a court from ordering or referring parties to
mediation in a proceeding for an order for protection. Mediation is a
process by which parties in equivalent bargaining positions
voluntarily reach consensual agreement about the issue at hand.
Violence, however, is not a subject for compromise. A process
which involves parties mediating the issue of violence implies that
the victim is somehow at fault. In addition, mediation of issues in a
proceeding for an order of protection is problematic because the
petitioner is frequently unable to participate equally with the person
against whom the protection order has been sought. (Emphasis
supplied)
There is no undue delegation of
judicial power to barangay officials.
Petitioner contends that protection orders involve the exercise of
judicial power which, under the Constitution, is placed upon the
"Supreme Court and such other lower courts as may be established
by law" and, thus, protests the delegation of power to barangay
officials to issue protection orders.111 The pertinent provision
reads, as follows:
SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and
How. – Barangay Protection Orders (BPOs) refer to the protection
order issued by the Punong Barangay ordering the perpetrator to
desist from committing acts under Section 5 (a) and (b) of this
Act.1âwphi1 A Punong Barangay who receives applications for a
CONSTI LAW II I ACJUCO 164
BPO shall issue the protection order to the applicant on the date of
filing after ex parte determination of the basis of the application. If
the Punong Barangay is unavailable to act on the application for a
BPO, the application shall be acted upon by any available Barangay
Kagawad. If the BPO is issued by a Barangay Kagawad, the order
must be accompanied by an attestation by the Barangay Kagawad
that the Punong Barangay was unavailable at the time of the
issuance of the BPO. BPOs shall be effective for fifteen (15) days.
Immediately after the issuance of an ex parte BPO, the Punong
Barangay or Barangay Kagawad shall personally serve a copy of
the same on the respondent, or direct any barangay official to effect
its personal service.
The parties may be accompanied by a non-lawyer advocate in any
proceeding before the Punong Barangay.
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.112
On the other hand, executive power "is generally defined as the
power to enforce and administer the laws. It is the power of carrying
the laws into practical operation and enforcing their due
observance."113
As clearly delimited by the aforequoted provision, the BPO issued
by the Punong Barangay or, in his unavailability, by any available
Barangay Kagawad, merely orders the perpetrator to desist from (a)
causing physical harm to the woman or her child; and (2) threatening
to cause the woman or her child physical harm. Such function of the
Punong Barangay is, thus, purely executive in nature, in pursuance
of his duty under the Local Government Code to "enforce all laws
and ordinances," and to "maintain public order in the barangay."114
We have held that "(t)he mere fact that an officer is required by law
to inquire into the existence of certain facts and to apply the law
thereto in order to determine what his official conduct shall be and
the fact that these acts may affect private rights do not constitute an
exercise of judicial powers."115
In the same manner as the public prosecutor ascertains through a
preliminary inquiry or proceeding "whether there is reasonable
ground to believe that an offense has been committed and the
accused is probably guilty thereof," the Punong Barangay must
determine reasonable ground to believe that an imminent danger of
violence against the woman and her children exists or is about to
recur that would necessitate the issuance of a BPO. The preliminary
investigation conducted by the prosecutor is, concededly, an
executive, not a judicial, function. The same holds true with the
issuance of a BPO.
We need not even belabor the issue raised by petitioner that since
barangay officials and other law enforcement agencies are required
to extend assistance to victims of violence and abuse, it would be
very unlikely that they would remain objective and impartial, and that
the chances of acquittal are nil. As already stated, assistance by
barangay officials and other law enforcement agencies is consistent
with their duty to enforce the law and to maintain peace and order.
Conclusion
Before a statute or its provisions duly challenged are voided, an
unequivocal breach of, or a clear conflict with the Constitution, not
merely a doubtful or argumentative one, must be demonstrated in
such a manner as to leave no doubt in the mind of the Court. In other
words, the grounds for nullity must be beyond reasonable doubt.116
In the instant case, however, no concrete evidence and convincing
arguments were presented by petitioner to warrant a declaration of
the unconstitutionality of R.A. 9262, which is an act of Congress and
signed into law by the highest officer of the co-equal executive
 CONSTI LAW II I ACJUCO 165

department. As we said in Estrada v. Sandiganbayan, 117 courts

must assume that the legislature is ever conscious of the borders
and edges of its plenary powers, and passed laws with full
knowledge of the facts and for the purpose of promoting what is right
and advancing the welfare of the majority.

We reiterate here Justice Puno's observation that "the history of the

women's movement against domestic violence shows that one of its
most difficult struggles was the fight against the violence of law itself.
If we keep that in mind, law will not again be a hindrance to the
struggle of women for equality but will be its fulfillment."118
Accordingly, the constitutionality of R.A. 9262 is, as it should be,
sustained.

WHEREFORE, the instant petition for review on certiorari is hereby

DENIED for lack of merit.

SO ORDERED.

G.R. No. 192935 December 7, 2010
LOUIS "BAROK" C. BIRAOGO, Petitioner,
vs.
THE PHILIPPINE TRUTH COMMISSION OF 2010, Respondent.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 193036
REP. EDCEL C. LAGMAN, REP. RODOLFO B. ALBANO, JR.,
REP. SIMEON A. DATUMANONG, and REP. ORLANDO B. FUA,
SR., Petitioners,
vs.
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR. and
DEPARTMENT OF BUDGET AND MANAGEMENT SECRETARY
FLORENCIO B. ABAD, Respondents.
DECISION
MENDOZA, J.:
When the judiciary mediates to allocate constitutional boundaries, it
does not assert any superiority over the other departments; it does
not in reality nullify or invalidate an act of the legislature, but only
asserts the solemn and sacred obligation assigned to it by the
Constitution to determine conflicting claims of authority under the
Constitution and to establish for the parties in an actual controversy
the rights which that instrument secures and guarantees to them.
--- Justice Jose P. Laurel1
The role of the Constitution cannot be overlooked. It is through the
Constitution that the fundamental powers of government are
established, limited and defined, and by which these powers are
distributed among the several departments.2 The Constitution is the
basic and paramount law to which all other laws must conform and
to which all persons, including the highest officials of the land, must
defer.3 Constitutional doctrines must remain steadfast no matter
what may be the tides of time. It cannot be simply made to sway and
accommodate the call of situations and much more tailor itself to the
whims and caprices of government and the people who run it.4
For consideration before the Court are two consolidated cases5
both of which essentially assail the validity and constitutionality of
Executive Order No. 1, dated July 30, 2010, entitled "Creating the
Philippine Truth Commission of 2010."
The first case is G.R. No. 192935, a special civil action for
prohibition instituted by petitioner Louis Biraogo (Biraogo) in his
capacity as a citizen and taxpayer. Biraogo assails Executive Order
No. 1 for being violative of the legislative power of Congress under
Section 1, Article VI of the Constitution6 as it usurps the
constitutional authority of the legislature to create a public office and
to appropriate funds therefor.7
The second case, G.R. No. 193036, is a special civil action for
certiorari and prohibition filed by petitioners Edcel C. Lagman,
Rodolfo B. Albano Jr., Simeon A. Datumanong, and Orlando B. Fua,
Sr. (petitioners-legislators) as incumbent members of the House of
Representatives.
The genesis of the foregoing cases can be traced to the events prior
to the historic May 2010 elections, when then Senator Benigno
Simeon Aquino III declared his staunch condemnation of graft and
corruption with his slogan, "Kung walang corrupt, walang mahirap."
The Filipino people, convinced of his sincerity and of his ability to
carry out this noble objective, catapulted the good senator to the
presidency.
CONSTI LAW II I ACJUCO 166
To transform his campaign slogan into reality, President Aquino
found a need for a special body to investigate reported cases of graft
and corruption allegedly committed during the previous
administration.
Thus, at the dawn of his administration, the President on July 30,
2010, signed Executive Order No. 1 establishing the Philippine
Truth Commission of 2010 (Truth Commission). Pertinent provisions
of said executive order read:
EXECUTIVE ORDER NO. 1
CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010
WHEREAS, Article XI, Section 1 of the 1987 Constitution of the
Philippines solemnly enshrines the principle that a public office is a
public trust and mandates that public officers and employees, who
are servants of the people, must at all times be accountable to the
latter, serve them with utmost responsibility, integrity, loyalty and
efficiency, act with patriotism and justice, and lead modest lives;
WHEREAS, corruption is among the most despicable acts of
defiance of this principle and notorious violation of this mandate;
WHEREAS, corruption is an evil and scourge which seriously
affects the political, economic, and social life of a nation; in a very
special way it inflicts untold misfortune and misery on the poor, the
marginalized and underprivileged sector of society;
WHEREAS, corruption in the Philippines has reached very alarming
levels, and undermined the people’s trust and confidence in the
Government and its institutions;
WHEREAS, there is an urgent call for the determination of the truth
regarding certain reports of large scale graft and corruption in the
government and to put a closure to them by the filing of the
appropriate cases against those involved, if warranted, and to deter
others from committing the evil, restore the people’s faith and
confidence in the Government and in their public servants;
WHEREAS, the President’s battlecry during his campaign for the
Presidency in the last elections "kung walang corrupt, walang
mahirap" expresses a solemn pledge that if elected, he would end
corruption and the evil it breeds;
WHEREAS, there is a need for a separate body dedicated solely to
investigating and finding out the truth concerning the reported cases
of graft and corruption during the previous administration, and which
will recommend the prosecution of the offenders and secure justice
for all;
WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No.
292, otherwise known as the Revised Administrative Code of the
Philippines, gives the President the continuing authority to
reorganize the Office of the President.
NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President
of the Republic of the Philippines, by virtue of the powers vested in
me by law, do hereby order:
SECTION 1. Creation of a Commission. – There is hereby created
the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as
the "COMMISSION," which shall primarily seek and find the truth
on, and toward this end, investigate reports of graft and corruption
of such scale and magnitude that shock and offend the moral and
ethical sensibilities of the people, committed by public officers and
employees, their co-principals, accomplices and accessories from
the private sector, if any, during the previous administration; and
thereafter recommend the appropriate action or measure to be
taken thereon to ensure that the full measure of justice shall be
served without fear or favor.

The Commission shall be composed of a Chairman and four (4)
members who will act as an independent collegial body.
SECTION 2. Powers and Functions. – The Commission, which shall
have all the powers of an investigative body under Section 37,
Chapter 9, Book I of the Administrative Code of 1987, is primarily
tasked to conduct a thorough fact-finding investigation of reported
cases of graft and corruption referred to in Section 1, involving third
level public officers and higher, their co-principals, accomplices and
accessories from the private sector, if any, during the previous
administration and thereafter submit its finding and
recommendations to the President, Congress and the Ombudsman.
In particular, it shall:
a) Identify and determine the reported cases of such graft and
corruption which it will investigate;
b) Collect, receive, review and evaluate evidence related to or
regarding the cases of large scale corruption which it has chosen to
investigate, and to this end require any agency, official or employee
of the Executive Branch, including government-owned or controlled
corporations, to produce documents, books, records and other
papers;
c) Upon proper request or representation, obtain information and
documents from the Senate and the House of Representatives
records of investigations conducted by committees thereof relating
to matters or subjects being investigated by the Commission;
d) Upon proper request and representation, obtain information from
the courts, including the Sandiganbayan and the Office of the Court
Administrator, information or documents in respect to corruption
cases filed with the Sandiganbayan or the regular courts, as the
case may be;
e) Invite or subpoena witnesses and take their testimonies and for
that purpose, administer oaths or affirmations as the case may be;
f) Recommend, in cases where there is a need to utilize any person
as a state witness to ensure that the ends of justice be fully served,
that such person who qualifies as a state witness under the Revised
Rules of Court of the Philippines be admitted for that purpose;
g) Turn over from time to time, for expeditious prosecution, to the
appropriate prosecutorial authorities, by means of a special or
interim report and recommendation, all evidence on corruption of
public officers and employees and their private sector co-principals,
accomplices or accessories, if any, when in the course of its
investigation the Commission finds that there is reasonable ground
to believe that they are liable for graft and corruption under pertinent
applicable laws;
h) Call upon any government investigative or prosecutorial agency
such as the Department of Justice or any of the agencies under it,
and the Presidential Anti-Graft Commission, for such assistance
and cooperation as it may require in the discharge of its functions
and duties;
i) Engage or contract the services of resource persons,
professionals and other personnel determined by it as necessary to
carry out its mandate;
j) Promulgate its rules and regulations or rules of procedure it deems
necessary to effectively and efficiently carry out the objectives of this
Executive Order and to ensure the orderly conduct of its
investigations, proceedings and hearings, including the
presentation of evidence;
CONSTI LAW II I ACJUCO 167
k) Exercise such other acts incident to or are appropriate and
necessary in connection with the objectives and purposes of this
Order.
SECTION 3. Staffing Requirements. – x x x.
SECTION 4. Detail of Employees. – x x x.
SECTION 5. Engagement of Experts. – x x x
SECTION 6. Conduct of Proceedings. – x x x.
SECTION 7. Right to Counsel of Witnesses/Resource Persons. – x
x x.
SECTION 8. Protection of Witnesses/Resource Persons. – x x x.
SECTION 9. Refusal to Obey Subpoena, Take Oath or Give
Testimony. – Any government official or personnel who, without
lawful excuse, fails to appear upon subpoena issued by the
Commission or who, appearing before the Commission refuses to
take oath or affirmation, give testimony or produce documents for
inspection, when required, shall be subject to administrative
disciplinary action. Any private person who does the same may be
dealt with in accordance with law.
SECTION 10. Duty to Extend Assistance to the Commission. – x x
x.
SECTION 11. Budget for the Commission. – The Office of the
President shall provide the necessary funds for the Commission to
ensure that it can exercise its powers, execute its functions, and
perform its duties and responsibilities as effectively, efficiently, and
expeditiously as possible.
SECTION 12. Office. – x x x.
SECTION 13. Furniture/Equipment. – x x x.
SECTION 14. Term of the Commission. – The Commission shall
accomplish its mission on or before December 31, 2012.
SECTION 15. Publication of Final Report. – x x x.
SECTION 16. Transfer of Records and Facilities of the Commission.
– x x x.
SECTION 17. Special Provision Concerning Mandate. If and when
in the judgment of the President there is a need to expand the
mandate of the Commission as defined in Section 1 hereof to
include the investigation of cases and instances of graft and
corruption during the prior administrations, such mandate may be
so extended accordingly by way of a supplemental Executive Order.
SECTION 18. Separability Clause. If any provision of this Order is
declared unconstitutional, the same shall not affect the validity and
effectivity of the other provisions hereof.
SECTION 19. Effectivity. – This Executive Order shall take effect
immediately.
DONE in the City of Manila, Philippines, this 30th day of July 2010.
(SGD.) BENIGNO S. AQUINO III
By the President:
(SGD.) PAQUITO N. OCHOA, JR.
Executive Secretary
Nature of the Truth Commission

As can be gleaned from the above-quoted provisions, the Philippine
Truth Commission (PTC) is a mere ad hoc body formed under the
Office of the President with the primary task to investigate reports of
graft and corruption committed by third-level public officers and
employees, their co-principals, accomplices and accessories during
the previous administration, and thereafter to submit its finding and
recommendations to the President, Congress and the Ombudsman.
Though it has been described as an "independent collegial body," it
is essentially an entity within the Office of the President Proper and
subject to his control. Doubtless, it constitutes a public office, as an
ad hoc body is one.8
To accomplish its task, the PTC shall have all the powers of an
investigative body under Section 37, Chapter 9, Book I of the
Administrative Code of 1987. It is not, however, a quasi-judicial body
as it cannot adjudicate, arbitrate, resolve, settle, or render awards
in disputes between contending parties. All it can do is gather,
collect and assess evidence of graft and corruption and make
recommendations. It may have subpoena powers but it has no
power to cite people in contempt, much less order their arrest.
Although it is a fact-finding body, it cannot determine from such facts
if probable cause exists as to warrant the filing of an information in
our courts of law. Needless to state, it cannot impose criminal, civil
or administrative penalties or sanctions.
The PTC is different from the truth commissions in other countries
which have been created as official, transitory and non-judicial fact-
finding bodies "to establish the facts and context of serious
violations of human rights or of international humanitarian law in a
country’s past."9 They are usually established by states emerging
from periods of internal unrest, civil strife or authoritarianism to
serve as mechanisms for transitional justice.
Truth commissions have been described as bodies that share the
following characteristics: (1) they examine only past events; (2) they
investigate patterns of abuse committed over a period of time, as
opposed to a particular event; (3) they are temporary bodies that
finish their work with the submission of a report containing
conclusions and recommendations; and (4) they are officially
sanctioned, authorized or empowered by the State.10
"Commission’s members are usually empowered to conduct
research, support victims, and propose policy recommendations to
prevent recurrence of crimes. Through their investigations, the
commissions may aim to discover and learn more about past
abuses, or formally acknowledge them. They may aim to prepare
the way for prosecutions and recommend institutional reforms."11
Thus, their main goals range from retribution to reconciliation. The
Nuremburg and Tokyo war crime tribunals are examples of a
retributory or vindicatory body set up to try and punish those
responsible for crimes against humanity. A form of a reconciliatory
tribunal is the Truth and Reconciliation Commission of South Africa,
the principal function of which was to heal the wounds of past
violence and to prevent future conflict by providing a cathartic
experience for victims.
The PTC is a far cry from South Africa’s model. The latter placed
more emphasis on reconciliation than on judicial retribution, while
the marching order of the PTC is the identification and punishment
of perpetrators. As one writer12 puts it:
The order ruled out reconciliation. It translated the Draconian code
spelled out by Aquino in his inaugural speech: "To those who talk
about reconciliation, if they mean that they would like us to simply
forget about the wrongs that they have committed in the past, we
have this to say: There can be no reconciliation without justice.
When we allow crimes to go unpunished, we give consent to their
occurring over and over again."
The Thrusts of the Petitions
CONSTI LAW II I ACJUCO 168
Barely a month after the issuance of Executive Order No. 1, the
petitioners asked the Court to declare it unconstitutional and to
enjoin the PTC from performing its functions. A perusal of the
arguments of the petitioners in both cases shows that they are
essentially the same. The petitioners-legislators summarized them
in the following manner:
(a) E.O. No. 1 violates the separation of powers as it arrogates the
power of the Congress to create a public office and appropriate
funds for its operation.
(b) The provision of Book III, Chapter 10, Section 31 of the
Administrative Code of 1987 cannot legitimize E.O. No. 1 because
the delegated authority of the President to structurally reorganize
the Office of the President to achieve economy, simplicity and
efficiency does not include the power to create an entirely new
public office which was hitherto inexistent like the "Truth
Commission."
(c) E.O. No. 1 illegally amended the Constitution and pertinent
statutes when it vested the "Truth Commission" with quasi-judicial
powers duplicating, if not superseding, those of the Office of the
Ombudsman created under the 1987 Constitution and the
Department of Justice created under the Administrative Code of
1987.
(d) E.O. No. 1 violates the equal protection clause as it selectively
targets for investigation and prosecution officials and personnel of
the previous administration as if corruption is their peculiar species
even as it excludes those of the other administrations, past and
present, who may be indictable.
(e) The creation of the "Philippine Truth Commission of 2010"
violates the consistent and general international practice of four
decades wherein States constitute truth commissions to exclusively
investigate human rights violations, which customary practice forms
part of the generally accepted principles of international law which
the Philippines is mandated to adhere to pursuant to the Declaration
of Principles enshrined in the Constitution.
(f) The creation of the "Truth Commission" is an exercise in futility,
an adventure in partisan hostility, a launching pad for trial/conviction
by publicity and a mere populist propaganda to mistakenly impress
the people that widespread poverty will altogether vanish if
corruption is eliminated without even addressing the other major
causes of poverty.
(g) The mere fact that previous commissions were not
constitutionally challenged is of no moment because neither laches
nor estoppel can bar an eventual question on the constitutionality
and validity of an executive issuance or even a statute."13
In their Consolidated Comment,14 the respondents, through the
Office of the Solicitor General (OSG), essentially questioned the
legal standing of petitioners and defended the assailed executive
order with the following arguments:
1] E.O. No. 1 does not arrogate the powers of Congress to create a
public office because the President’s executive power and power of
control necessarily include the inherent power to conduct
investigations to ensure that laws are faithfully executed and that, in
any event, the Constitution, Revised Administrative Code of 1987
(E.O. No. 292), 15 Presidential Decree (P.D.) No. 141616 (as
amended by P.D. No. 1772), R.A. No. 9970,17 and settled
jurisprudence that authorize the President to create or form such
bodies.
2] E.O. No. 1 does not usurp the power of Congress to appropriate
funds because there is no appropriation but a mere allocation of
funds already appropriated by Congress.

3] The Truth Commission does not duplicate or supersede the
functions of the Office of the Ombudsman (Ombudsman) and the
Department of Justice (DOJ), because it is a fact-finding body and
not a quasi-judicial body and its functions do not duplicate, supplant
or erode the latter’s jurisdiction.
4] The Truth Commission does not violate the equal protection
clause because it was validly created for laudable purposes.
The OSG then points to the continued existence and validity of other
executive orders and presidential issuances creating similar bodies
to justify the creation of the PTC such as Presidential Complaint and
Action Commission (PCAC) by President Ramon B. Magsaysay,
Presidential Committee on Administrative Performance Efficiency
(PCAPE) by President Carlos P. Garcia and Presidential Agency on
Reform and Government Operations (PARGO) by President
Ferdinand E. Marcos.18
From the petitions, pleadings, transcripts, and memoranda, the
following are the principal issues to be resolved:
1. Whether or not the petitioners have the legal standing to file their
respective petitions and question Executive Order No. 1;
2. Whether or not Executive Order No. 1 violates the principle of
separation of powers by usurping the powers of Congress to create
and to appropriate funds for public offices, agencies and
commissions;
3. Whether or not Executive Order No. 1 supplants the powers of
the Ombudsman and the DOJ;
4. Whether or not Executive Order No. 1 violates the equal
protection clause; and
5. Whether or not petitioners are entitled to injunctive relief.
Essential requisites for judicial review
Before proceeding to resolve the issue of the constitutionality of
Executive Order No. 1, the Court needs to ascertain whether the
requisites for a valid exercise of its power of judicial review are
present.
Like almost all powers conferred by the Constitution, the power of
judicial review is subject to limitations, to wit: (1) there must be an
actual case or controversy calling for the exercise of judicial power;
(2) the person challenging the act must have the standing to
question the validity of the subject act or issuance; otherwise stated,
he must have a personal and substantial interest in the case such
that he has sustained, or will sustain, direct injury as a result of its
enforcement; (3) the question of constitutionality must be raised at
the earliest opportunity; and (4) the issue of constitutionality must
be the very lis mota of the case.19
Among all these limitations, only the legal standing of the petitioners
has been put at issue.
Legal Standing of the Petitioners
The OSG attacks the legal personality of the petitioners-legislators
to file their petition for failure to demonstrate their personal stake in
the outcome of the case. It argues that the petitioners have not
shown that they have sustained or are in danger of sustaining any
personal injury attributable to the creation of the PTC. Not claiming
to be the subject of the commission’s investigations, petitioners will
not sustain injury in its creation or as a result of its proceedings.20
The Court disagrees with the OSG in questioning the legal standing
of the petitioners-legislators to assail Executive Order No. 1.
Evidently, their petition primarily invokes usurpation of the power of
CONSTI LAW II I ACJUCO 169
the Congress as a body to which they belong as members. This
certainly justifies their resolve to take the cudgels for Congress as
an institution and present the complaints on the usurpation of their
power and rights as members of the legislature before the Court. As
held in Philippine Constitution Association v. Enriquez,21
To the extent the powers of Congress are impaired, so is the power
of each member thereof, since his office confers a right to participate
in the exercise of the powers of that institution.
An act of the Executive which injures the institution of Congress
causes a derivative but nonetheless substantial injury, which can be
questioned by a member of Congress. In such a case, any member
of Congress can have a resort to the courts.
Indeed, legislators have a legal standing to see to it that the
prerogative, powers and privileges vested by the Constitution in
their office remain inviolate. Thus, they are allowed to question the
validity of any official action which, to their mind, infringes on their
prerogatives as legislators.22
With regard to Biraogo, the OSG argues that, as a taxpayer, he has
no standing to question the creation of the PTC and the budget for
its operations.23 It emphasizes that the funds to be used for the
creation and operation of the commission are to be taken from those
funds already appropriated by Congress. Thus, the allocation and
disbursement of funds for the commission will not entail
congressional action but will simply be an exercise of the
President’s power over contingent funds.
As correctly pointed out by the OSG, Biraogo has not shown that he
sustained, or is in danger of sustaining, any personal and direct
injury attributable to the implementation of Executive Order No. 1.
Nowhere in his petition is an assertion of a clear right that may justify
his clamor for the Court to exercise judicial power and to wield the
axe over presidential issuances in defense of the Constitution. The
case of David v. Arroyo24 explained the deep-seated rules on locus
standi. Thus:
Locus standi is defined as "a right of appearance in a court of justice
on a given question." In private suits, standing is governed by the
"real-parties-in interest" rule as contained in Section 2, Rule 3 of the
1997 Rules of Civil Procedure, as amended. It provides that "every
action must be prosecuted or defended in the name of the real party
in interest." Accordingly, the "real-party-in interest" is "the party who
stands to be benefited or injured by the judgment in the suit or the
party entitled to the avails of the suit." Succinctly put, the plaintiff’s
standing is based on his own right to the relief sought.
The difficulty of determining locus standi arises in public suits. Here,
the plaintiff who asserts a "public right" in assailing an allegedly
illegal official action, does so as a representative of the general
public. He may be a person who is affected no differently from any
other person. He could be suing as a "stranger," or in the category
of a "citizen," or ‘taxpayer." In either case, he has to adequately
show that he is entitled to seek judicial protection. In other words,
he has to make out a sufficient interest in the vindication of the public
order and the securing of relief as a "citizen" or "taxpayer.
Case law in most jurisdictions now allows both "citizen" and
"taxpayer" standing in public actions. The distinction was first laid
down in Beauchamp v. Silk, where it was held that the plaintiff in a
taxpayer’s suit is in a different category from the plaintiff in a citizen’s
suit. In the former, the plaintiff is affected by the expenditure of
public funds, while in the latter, he is but the mere instrument of the
public concern. As held by the New York Supreme Court in People
ex rel Case v. Collins: "In matter of mere public right, however…the
people are the real parties…It is at least the right, if not the duty, of
every citizen to interfere and see that a public offence be properly
pursued and punished, and that a public grievance be remedied."
With respect to taxpayer’s suits, Terr v. Jordan held that "the right

of a citizen and a taxpayer to maintain an action in courts to restrain
the unlawful use of public funds to his injury cannot be denied."
However, to prevent just about any person from seeking judicial
interference in any official policy or act with which he disagreed with,
and thus hinders the activities of governmental agencies engaged
in public service, the United State Supreme Court laid down the
more stringent "direct injury" test in Ex Parte Levitt, later reaffirmed
in Tileston v. Ullman. The same Court ruled that for a private
individual to invoke the judicial power to determine the validity of an
executive or legislative action, he must show that he has sustained
a direct injury as a result of that action, and it is not sufficient that he
has a general interest common to all members of the public.
This Court adopted the "direct injury" test in our jurisdiction. In
People v. Vera, it held that the person who impugns the validity of a
statute must have "a personal and substantial interest in the case
such that he has sustained, or will sustain direct injury as a result."
The Vera doctrine was upheld in a litany of cases, such as, Custodio
v. President of the Senate, Manila Race Horse Trainers’ Association
v. De la Fuente, Pascual v. Secretary of Public Works and Anti-
Chinese League of the Philippines v. Felix. [Emphases included.
Citations omitted]
Notwithstanding, the Court leans on the doctrine that "the rule on
standing is a matter of procedure, hence, can be relaxed for
nontraditional plaintiffs like ordinary citizens, taxpayers, and
legislators when the public interest so requires, such as when the
matter is of transcendental importance, of overreaching significance
to society, or of paramount public interest."25
Thus, in Coconut Oil Refiners Association, Inc. v. Torres,26 the
Court held that in cases of paramount importance where serious
constitutional questions are involved, the standing requirements
may be relaxed and a suit may be allowed to prosper even where
there is no direct injury to the party claiming the right of judicial
review. In the first Emergency Powers Cases,27 ordinary citizens
and taxpayers were allowed to question the constitutionality of
several executive orders although they had only an indirect and
general interest shared in common with the public.
The OSG claims that the determinants of transcendental
importance28 laid down in CREBA v. ERC and Meralco29 are non-
existent in this case. The Court, however, finds reason in Biraogo’s
assertion that the petition covers matters of transcendental
importance to justify the exercise of jurisdiction by the Court. There
are constitutional issues in the petition which deserve the attention
of this Court in view of their seriousness, novelty and weight as
precedents. Where the issues are of transcendental and paramount
importance not only to the public but also to the Bench and the Bar,
they should be resolved for the guidance of all.30 Undoubtedly, the
Filipino people are more than interested to know the status of the
President’s first effort to bring about a promised change to the
country. The Court takes cognizance of the petition not due to
overwhelming political undertones that clothe the issue in the eyes
of the public, but because the Court stands firm in its oath to perform
its constitutional duty to settle legal controversies with overreaching
significance to society.
Power of the President to Create the Truth Commission
In his memorandum in G.R. No. 192935, Biraogo asserts that the
Truth Commission is a public office and not merely an adjunct body
of the Office of the President.31 Thus, in order that the President
may create a public office he must be empowered by the
Constitution, a statute or an authorization vested in him by law.
According to petitioner, such power cannot be presumed32 since
there is no provision in the Constitution or any specific law that
authorizes the President to create a truth commission.33 He adds
that Section 31 of the Administrative Code of 1987, granting the
President the continuing authority to reorganize his office, cannot
CONSTI LAW II I ACJUCO 170
serve as basis for the creation of a truth commission considering the
aforesaid provision merely uses verbs such as "reorganize,"
"transfer," "consolidate," "merge," and "abolish."34 Insofar as it
vests in the President the plenary power to reorganize the Office of
the President to the extent of creating a public office, Section 31 is
inconsistent with the principle of separation of powers enshrined in
the Constitution and must be deemed repealed upon the effectivity
thereof.35
Similarly, in G.R. No. 193036, petitioners-legislators argue that the
creation of a public office lies within the province of Congress and
not with the executive branch of government. They maintain that the
delegated authority of the President to reorganize under Section 31
of the Revised Administrative Code: 1) does not permit the
President to create a public office, much less a truth commission; 2)
is limited to the reorganization of the administrative structure of the
Office of the President; 3) is limited to the restructuring of the internal
organs of the Office of the President Proper, transfer of functions
and transfer of agencies; and 4) only to achieve simplicity, economy
and efficiency.36 Such continuing authority of the President to
reorganize his office is limited, and by issuing Executive Order No.
1, the President overstepped the limits of this delegated authority.
The OSG counters that there is nothing exclusively legislative about
the creation by the President of a fact-finding body such as a truth
commission. Pointing to numerous offices created by past
presidents, it argues that the authority of the President to create
public offices within the Office of the President Proper has long been
recognized.37 According to the OSG, the Executive, just like the
other two branches of government, possesses the inherent authority
to create fact-finding committees to assist it in the performance of
its constitutionally mandated functions and in the exercise of its
administrative functions.38 This power, as the OSG explains it, is
but an adjunct of the plenary powers wielded by the President under
Section 1 and his power of control under Section 17, both of Article
VII of the Constitution.39
It contends that the President is necessarily vested with the power
to conduct fact-finding investigations, pursuant to his duty to ensure
that all laws are enforced by public officials and employees of his
department and in the exercise of his authority to assume directly
the functions of the executive department, bureau and office, or
interfere with the discretion of his officials.40 The power of the
President to investigate is not limited to the exercise of his power of
control over his subordinates in the executive branch, but extends
further in the exercise of his other powers, such as his power to
discipline subordinates,41 his power for rule making, adjudication
and licensing purposes42 and in order to be informed on matters
which he is entitled to know.43
The OSG also cites the recent case of Banda v. Ermita,44 where it
was held that the President has the power to reorganize the offices
and agencies in the executive department in line with his
constitutionally granted power of control and by virtue of a valid
delegation of the legislative power to reorganize executive offices
under existing statutes.
Thus, the OSG concludes that the power of control necessarily
includes the power to create offices. For the OSG, the President
may create the PTC in order to, among others, put a closure to the
reported large scale graft and corruption in the government.45
The question, therefore, before the Court is this: Does the creation
of the PTC fall within the ambit of the power to reorganize as
expressed in Section 31 of the Revised Administrative Code?
Section 31 contemplates "reorganization" as limited by the following
functional and structural lines: (1) restructuring the internal
organization of the Office of the President Proper by abolishing,
consolidating or merging units thereof or transferring functions from
one unit to another; (2) transferring any function under the Office of
the President to any other Department/Agency or vice versa; or (3)

transferring any agency under the Office of the President to any
other Department/Agency or vice versa. Clearly, the provision refers
to reduction of personnel, consolidation of offices, or abolition
thereof by reason of economy or redundancy of functions. These
point to situations where a body or an office is already existent but
a modification or alteration thereof has to be effected. The creation
of an office is nowhere mentioned, much less envisioned in said
provision. Accordingly, the answer to the question is in the negative.
To say that the PTC is borne out of a restructuring of the Office of
the President under Section 31 is a misplaced supposition, even in
the plainest meaning attributable to the term "restructure"– an
"alteration of an existing structure." Evidently, the PTC was not part
of the structure of the Office of the President prior to the enactment
of Executive Order No. 1. As held in Buklod ng Kawaning EIIB v.
Hon. Executive Secretary,46
But of course, the list of legal basis authorizing the President to
reorganize any department or agency in the executive branch does
not have to end here. We must not lose sight of the very source of
the power – that which constitutes an express grant of power. Under
Section 31, Book III of Executive Order No. 292 (otherwise known
as the Administrative Code of 1987), "the President, subject to the
policy in the Executive Office and in order to achieve simplicity,
economy and efficiency, shall have the continuing authority to
reorganize the administrative structure of the Office of the
President." For this purpose, he may transfer the functions of other
Departments or Agencies to the Office of the President. In
Canonizado v. Aguirre [323 SCRA 312 (2000)], we ruled that
reorganization "involves the reduction of personnel, consolidation of
offices, or abolition thereof by reason of economy or redundancy of
functions." It takes place when there is an alteration of the existing
structure of government offices or units therein, including the lines
of control, authority and responsibility between them. The EIIB is a
bureau attached to the Department of Finance. It falls under the
Office of the President. Hence, it is subject to the President’s
continuing authority to reorganize. [Emphasis Supplied]
In the same vein, the creation of the PTC is not justified by the
President’s power of control. Control is essentially the power to alter
or modify or nullify or set aside what a subordinate officer had done
in the performance of his duties and to substitute the judgment of
the former with that of the latter.47 Clearly, the power of control is
entirely different from the power to create public offices. The former
is inherent in the Executive, while the latter finds basis from either a
valid delegation from Congress, or his inherent duty to faithfully
execute the laws.
The question is this, is there a valid delegation of power from
Congress, empowering the President to create a public office?
According to the OSG, the power to create a truth commission
pursuant to the above provision finds statutory basis under P.D.
1416, as amended by P.D. No. 1772.48 The said law granted the
President the continuing authority to reorganize the national
government, including the power to group, consolidate bureaus and
agencies, to abolish offices, to transfer functions, to create and
classify functions, services and activities, transfer appropriations,
and to standardize salaries and materials. This decree, in relation to
Section 20, Title I, Book III of E.O. 292 has been invoked in several
cases such as Larin v. Executive Secretary.49
The Court, however, declines to recognize P.D. No. 1416 as a
justification for the President to create a public office. Said decree
is already stale, anachronistic and inoperable. P.D. No. 1416 was a
delegation to then President Marcos of the authority to reorganize
the administrative structure of the national government including the
power to create offices and transfer appropriations pursuant to one
of the purposes of the decree, embodied in its last "Whereas"
clause:
CONSTI LAW II I ACJUCO 171
WHEREAS, the transition towards the parliamentary form of
government will necessitate flexibility in the organization of the
national government.
Clearly, as it was only for the purpose of providing manageability
and resiliency during the interim, P.D. No. 1416, as amended by
P.D. No. 1772, became functus oficio upon the convening of the
First Congress, as expressly provided in Section 6, Article XVIII of
the 1987 Constitution. In fact, even the Solicitor General agrees with
this view. Thus:
ASSOCIATE JUSTICE CARPIO: Because P.D. 1416 was enacted
was the last whereas clause of P.D. 1416 says "it was enacted to
prepare the transition from presidential to parliamentary. Now, in a
parliamentary form of government, the legislative and executive
powers are fused, correct?
SOLICITOR GENERAL CADIZ: Yes, Your Honor.
ASSOCIATE JUSTICE CARPIO: That is why, that P.D. 1416 was
issued. Now would you agree with me that P.D. 1416 should not be
considered effective anymore upon the promulgation, adoption,
ratification of the 1987 Constitution.
SOLICITOR GENERAL CADIZ: Not the whole of P.D. [No.] 1416,
Your Honor.
ASSOCIATE JUSTICE CARPIO: The power of the President to
reorganize the entire National Government is deemed repealed, at
least, upon the adoption of the 1987 Constitution, correct.
SOLICITOR GENERAL CADIZ: Yes, Your Honor.50
While the power to create a truth commission cannot pass muster
on the basis of P.D. No. 1416 as amended by P.D. No. 1772, the
creation of the PTC finds justification under Section 17, Article VII of
the Constitution, imposing upon the President the duty to ensure
that the laws are faithfully executed. Section 17 reads:
Section 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws be
faithfully executed. (Emphasis supplied).
As correctly pointed out by the respondents, the allocation of power
in the three principal branches of government is a grant of all powers
inherent in them. The President’s power to conduct investigations to
aid him in ensuring the faithful execution of laws – in this case,
fundamental laws on public accountability and transparency – is
inherent in the President’s powers as the Chief Executive. That the
authority of the President to conduct investigations and to create
bodies to execute this power is not explicitly mentioned in the
Constitution or in statutes does not mean that he is bereft of such
authority.51 As explained in the landmark case of Marcos v.
Manglapus:52
x x x. The 1987 Constitution, however, brought back the presidential
system of government and restored the separation of legislative,
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. x x x.
Indeed, the Executive is given much leeway in ensuring that our
laws are faithfully executed. As stated above, the powers of the
President are not limited to those specific powers under the
Constitution.53 One of the recognized powers of the President
granted pursuant to this constitutionally-mandated duty is the power
to create ad hoc committees. This flows from the obvious need to
ascertain facts and determine if laws have been faithfully executed.
Thus, in Department of Health v. Camposano,54 the authority of the
President to issue Administrative Order No. 298, creating an
investigative committee to look into the administrative charges filed
against the employees of the Department of Health for the
anomalous purchase of medicines was upheld. In said case, it was
ruled:
The Chief Executive’s power to create the Ad hoc Investigating
Committee cannot be doubted. Having been constitutionally granted
full control of the Executive Department, to which respondents
belong, the President has the obligation to ensure that all executive
officials and employees faithfully comply with the law. With AO 298
as mandate, the legality of the investigation is sustained. Such
validity is not affected by the fact that the investigating team and the
PCAGC had the same composition, or that the former used the
offices and facilities of the latter in conducting the inquiry. [Emphasis
supplied]
It should be stressed that the purpose of allowing ad hoc
investigating bodies to exist is to allow an inquiry into matters which
the President is entitled to know so that he can be properly advised
and guided in the performance of his duties relative to the execution
and enforcement of the laws of the land. And if history is to be
revisited, this was also the objective of the investigative bodies
created in the past like the PCAC, PCAPE, PARGO, the Feliciano
Commission, the Melo Commission and the Zenarosa Commission.
There being no changes in the government structure, the Court is
not inclined to declare such executive power as non-existent just
because the direction of the political winds have changed.
On the charge that Executive Order No. 1 transgresses the power
of Congress to appropriate funds for the operation of a public office,
suffice it to say that there will be no appropriation but only an
allotment or allocations of existing funds already appropriated.
Accordingly, there is no usurpation on the part of the Executive of
the power of Congress to appropriate funds. Further, there is no
need to specify the amount to be earmarked for the operation of the
commission because, in the words of the Solicitor General,
"whatever funds the Congress has provided for the Office of the
President will be the very source of the funds for the commission."55
Moreover, since the amount that would be allocated to the PTC shall
be subject to existing auditing rules and regulations, there is no
impropriety in the funding.
Power of the Truth Commission to Investigate
The President’s power to conduct investigations to ensure that laws
are faithfully executed is well recognized. It flows from the faithful-
execution clause of the Constitution under Article VII, Section 17
thereof.56 As the Chief Executive, the president represents the
government as a whole and sees to it that all laws are enforced by
CONSTI LAW II I ACJUCO 172
the officials and employees of his department. He has the authority
to directly assume the functions of the executive department.57
Invoking this authority, the President constituted the PTC to
primarily investigate reports of graft and corruption and to
recommend the appropriate action. As previously stated, no quasi-
judicial powers have been vested in the said body as it cannot
adjudicate rights of persons who come before it. It has been said
that "Quasi-judicial powers involve the power to hear and determine
questions of fact to which the legislative policy is to apply and to
decide in accordance with the standards laid down by law itself in
enforcing and administering the same law."58 In simpler terms,
judicial discretion is involved in the exercise of these quasi-judicial
power, such that it is exclusively vested in the judiciary and must be
clearly authorized by the legislature in the case of administrative
agencies.
The distinction between the power to investigate and the power to
adjudicate was delineated by the Court in Cariño v. Commission on
Human Rights.59 Thus:
"Investigate," commonly understood, means to examine, explore,
inquire or delve or probe into, research on, study. The dictionary
definition of "investigate" is "to observe or study closely: inquire into
systematically: "to search or inquire into: x x to subject to an official
probe x x: to conduct an official inquiry." The purpose of
investigation, of course, is to discover, to find out, to learn, obtain
information. Nowhere included or intimated is the notion of settling,
deciding or resolving a controversy involved in the facts inquired into
by application of the law to the facts established by the inquiry.
The legal meaning of "investigate" is essentially the same: "(t)o
follow up step by step by patient inquiry or observation. To trace or
track; to search into; to examine and inquire into with care and
accuracy; to find out by careful inquisition; examination; the taking
of evidence; a legal inquiry;" "to inquire; to make an investigation,"
"investigation" being in turn described as "(a)n administrative
function, the exercise of which ordinarily does not require a hearing.
2 Am J2d Adm L Sec. 257; x x an inquiry, judicial or otherwise, for
the discovery and collection of facts concerning a certain matter or
matters."
"Adjudicate," commonly or popularly understood, means to adjudge,
arbitrate, judge, decide, determine, resolve, rule on, settle. The
dictionary defines the term as "to settle finally (the rights and duties
of the parties to a court case) on the merits of issues raised: x x to
pass judgment on: settle judicially: x x act as judge." And "adjudge"
means "to decide or rule upon as a judge or with judicial or quasi-
judicial powers: x x to award or grant judicially in a case of
controversy x x."
In the legal sense, "adjudicate" means: "To settle in the exercise of
judicial authority. To determine finally. Synonymous with adjudge in
its strictest sense;" and "adjudge" means: "To pass on judicially, to
decide, settle or decree, or to sentence or condemn. x x. Implies a
judicial determination of a fact, and the entry of a judgment." [Italics
included. Citations Omitted]
Fact-finding is not adjudication and it cannot be likened to the
judicial function of a court of justice, or even a quasi-judicial agency
or office. The function of receiving evidence and ascertaining
therefrom the facts of a controversy is not a judicial function. To be
considered as such, the act of receiving evidence and arriving at
factual conclusions in a controversy must be accompanied by the
authority of applying the law to the factual conclusions to the end
that the controversy may be decided or resolved authoritatively,
finally and definitively, subject to appeals or modes of review as may
be provided by law.60 Even respondents themselves admit that the
commission is bereft of any quasi-judicial power.61

Contrary to petitioners’ apprehension, the PTC will not supplant the
Ombudsman or the DOJ or erode their respective powers. If at all,
the investigative function of the commission will complement those
of the two offices. As pointed out by the Solicitor General, the
recommendation to prosecute is but a consequence of the overall
task of the commission to conduct a fact-finding investigation."62
The actual prosecution of suspected offenders, much less
adjudication on the merits of the charges against them,63 is
certainly not a function given to the commission. The phrase, "when
in the course of its investigation," under Section 2(g), highlights this
fact and gives credence to a contrary interpretation from that of the
petitioners. The function of determining probable cause for the filing
of the appropriate complaints before the courts remains to be with
the DOJ and the Ombudsman.64
At any rate, the Ombudsman’s power to investigate under R.A. No.
6770 is not exclusive but is shared with other similarly authorized
government agencies. Thus, in the case of Ombudsman v.
Galicia,65 it was written:
This power of investigation granted to the Ombudsman by the 1987
Constitution and The Ombudsman Act is not exclusive but is shared
with other similarly authorized government agencies such as the
PCGG and judges of municipal trial courts and municipal circuit trial
courts. The power to conduct preliminary investigation on charges
against public employees and officials is likewise concurrently
shared with the Department of Justice. Despite the passage of the
Local Government Code in 1991, the Ombudsman retains
concurrent jurisdiction with the Office of the President and the local
Sanggunians to investigate complaints against local elective
officials. [Emphasis supplied].
Also, Executive Order No. 1 cannot contravene the power of the
Ombudsman to investigate criminal cases under Section 15 (1) of
R.A. No. 6770, which states:
(1) Investigate and prosecute on its own or on complaint by any
person, any act or omission of any public officer or employee, office
or agency, when such act or omission appears to be illegal, unjust,
improper or inefficient. It has primary jurisdiction over cases
cognizable by the Sandiganbayan and, in the exercise of its primary
jurisdiction, it may take over, at any stage, from any investigatory
agency of government, the investigation of such cases. [Emphases
supplied]
The act of investigation by the Ombudsman as enunciated above
contemplates the conduct of a preliminary investigation or the
determination of the existence of probable cause. This is
categorically out of the PTC’s sphere of functions. Its power to
investigate is limited to obtaining facts so that it can advise and
guide the President in the performance of his duties relative to the
execution and enforcement of the laws of the land. In this regard,
the PTC commits no act of usurpation of the Ombudsman’s
primordial duties.
The same holds true with respect to the DOJ. Its authority under
Section 3 (2), Chapter 1, Title III, Book IV in the Revised
Administrative Code is by no means exclusive and, thus, can be
shared with a body likewise tasked to investigate the commission of
crimes.
Finally, nowhere in Executive Order No. 1 can it be inferred that the
findings of the PTC are to be accorded conclusiveness. Much like
its predecessors, the Davide Commission, the Feliciano
Commission and the Zenarosa Commission, its findings would, at
best, be recommendatory in nature. And being so, the Ombudsman
and the DOJ have a wider degree of latitude to decide whether or
not to reject the recommendation. These offices, therefore, are not
deprived of their mandated duties but will instead be aided by the
reports of the PTC for possible indictments for violations of graft
laws.
CONSTI LAW II I ACJUCO 173
Violation of the Equal Protection Clause
Although the purpose of the Truth Commission falls within the
investigative power of the President, the Court finds difficulty in
upholding the constitutionality of Executive Order No. 1 in view of its
apparent transgression of the equal protection clause enshrined in
Section 1, Article III (Bill of Rights) of the 1987 Constitution. Section
1 reads:
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.
The petitioners assail Executive Order No. 1 because it is violative
of this constitutional safeguard. They contend that it does not apply
equally to all members of the same class such that the intent of
singling out the "previous administration" as its sole object makes
the PTC an "adventure in partisan hostility."66 Thus, in order to be
accorded with validity, the commission must also cover reports of
graft and corruption in virtually all administrations previous to that of
former President Arroyo.67
The petitioners argue that the search for truth behind the reported
cases of graft and corruption must encompass acts committed not
only during the administration of former President Arroyo but also
during prior administrations where the "same magnitude of
controversies and anomalies"68 were reported to have been
committed against the Filipino people. They assail the classification
formulated by the respondents as it does not fall under the
recognized exceptions because first, "there is no substantial
distinction between the group of officials targeted for investigation
by Executive Order No. 1 and other groups or persons who abused
their public office for personal gain; and second, the selective
classification is not germane to the purpose of Executive Order No.
1 to end corruption."69 In order to attain constitutional permission,
the petitioners advocate that the commission should deal with "graft
and grafters prior and subsequent to the Arroyo administration with
the strong arm of the law with equal force."70
Position of respondents
According to respondents, while Executive Order No. 1 identifies the
"previous administration" as the initial subject of the investigation,
following Section 17 thereof, the PTC will not confine itself to cases
of large scale graft and corruption solely during the said
administration.71 Assuming arguendo that the commission would
confine its proceedings to officials of the previous administration, the
petitioners argue that no offense is committed against the equal
protection clause for "the segregation of the transactions of public
officers during the previous administration as possible subjects of
investigation is a valid classification based on substantial
distinctions and is germane to the evils which the Executive Order
seeks to correct."72 To distinguish the Arroyo administration from
past administrations, it recited the following:
First. E.O. No. 1 was issued in view of widespread reports of large
scale graft and corruption in the previous administration which have
eroded public confidence in public institutions. There is, therefore,
an urgent call for the determination of the truth regarding certain
reports of large scale graft and corruption in the government and to
put a closure to them by the filing of the appropriate cases against
those involved, if warranted, and to deter others from committing the
evil, restore the people’s faith and confidence in the Government
and in their public servants.
Second. The segregation of the preceding administration as the
object of fact-finding is warranted by the reality that unlike with
administrations long gone, the current administration will most likely
bear the immediate consequence of the policies of the previous
administration.

Third. The classification of the previous administration as a separate
class for investigation lies in the reality that the evidence of possible
criminal activity, the evidence that could lead to recovery of public
monies illegally dissipated, the policy lessons to be learned to
ensure that anti-corruption laws are faithfully executed, are more
easily established in the regime that immediately precede the
current administration.
Fourth. Many administrations subject the transactions of their
predecessors to investigations to provide closure to issues that are
pivotal to national life or even as a routine measure of due diligence
and good housekeeping by a nascent administration like the
Presidential Commission on Good Government (PCGG), created by
the late President Corazon C. Aquino under Executive Order No. 1
to pursue the recovery of ill-gotten wealth of her predecessor former
President Ferdinand Marcos and his cronies, and the Saguisag
Commission created by former President Joseph Estrada under
Administrative Order No, 53, to form an ad-hoc and independent
citizens’ committee to investigate all the facts and circumstances
surrounding "Philippine Centennial projects" of his predecessor,
former President Fidel V. Ramos.73 [Emphases supplied]
Concept of the Equal Protection Clause
One of the basic principles on which this government was founded
is that of the equality of right which is embodied in Section 1, Article
III of the 1987 Constitution. The equal protection of the laws is
embraced in the concept of due process, as every unfair
discrimination offends the requirements of justice and fair play. It
has been embodied in a separate clause, however, to provide for a
more specific guaranty against any form of undue favoritism or
hostility from the government. Arbitrariness in general may be
challenged on the basis of the due process clause. But if the
particular act assailed partakes of an unwarranted partiality or
prejudice, the sharper weapon to cut it down is the equal protection
clause.74
"According to a long line of decisions, equal protection simply
requires that all persons or things similarly situated should be
treated alike, both as to rights conferred and responsibilities
imposed."75 It "requires public bodies and institutions to treat
similarly situated individuals in a similar manner."76 "The purpose
of the equal protection clause is to secure every person within a
state’s jurisdiction against intentional and arbitrary discrimination,
whether occasioned by the express terms of a statue or by its
improper execution through the state’s duly constituted
authorities."77 "In other words, the concept of equal justice under
the law requires the state to govern impartially, and it may not draw
distinctions between individuals solely on differences that are
irrelevant to a legitimate governmental objective."78
The equal protection clause is aimed at all official state actions, not
just those of the legislature.79 Its inhibitions cover all the
departments of the government including the political and executive
departments, and extend to all actions of a state denying equal
protection of the laws, through whatever agency or whatever guise
is taken. 80
It, however, does not require the universal application of the laws to
all persons or things without distinction. What it simply requires is
equality among equals as determined according to a valid
classification. Indeed, the equal protection clause permits
classification. Such classification, however, to be valid must pass
the test of reasonableness. The test has four requisites: (1) The
classification rests on substantial distinctions; (2) It is germane to
the purpose of the law; (3) It is not limited to existing conditions only;
and
(4) It applies equally to all members of the same class.81
"Superficial differences do not make for a valid classification."82
CONSTI LAW II I ACJUCO 174
For a classification to meet the requirements of constitutionality, it
must include or embrace all persons who naturally belong to the
class.83 "The classification will be regarded as invalid if all the
members of the class are not similarly treated, both as to rights
conferred and obligations imposed. It is not necessary that the
classification be made with absolute symmetry, in the sense that the
members of the class should possess the same characteristics in
equal degree. Substantial similarity will suffice; and as long as this
is achieved, all those covered by the classification are to be treated
equally. The mere fact that an individual belonging to a class differs
from the other members, as long as that class is substantially
distinguishable from all others, does not justify the non-application
of the law to him."84
The classification must not be based on existing circumstances
only, or so constituted as to preclude addition to the number
included in the class. It must be of such a nature as to embrace all
those who may thereafter be in similar circumstances and
conditions. It must not leave out or "underinclude" those that should
otherwise fall into a certain classification. As elucidated in Victoriano
v. Elizalde Rope Workers' Union85 and reiterated in a long line of
cases,86
The guaranty of equal protection of the laws is not a guaranty of
equality in the application of the laws upon all citizens of the state.
It is not, therefore, a requirement, in order to avoid the constitutional
prohibition against inequality, that every man, woman and child
should be affected alike by a statute. Equality of operation of
statutes does not mean indiscriminate operation on persons merely
as such, but on persons according to the circumstances surrounding
them. It guarantees equality, not identity of rights. The Constitution
does not require that things which are different in fact be treated in
law as though they were the same. The equal protection clause
does not forbid discrimination as to things that are different. It does
not prohibit legislation which is limited either in the object to which it
is directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows
classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or
practice because they agree with one another in certain particulars.
A law is not invalid because of simple inequality. The very idea of
classification is that of inequality, so that it goes without saying that
the mere fact of inequality in no manner determines the matter of
constitutionality. All that is required of a valid classification is that it
be reasonable, which means that the classification should be based
on substantial distinctions which make for real differences, that it
must be germane to the purpose of the law; that it must not be
limited to existing conditions only; and that it must apply equally to
each member of the class. This Court has held that the standard is
satisfied if the classification or distinction is based on a reasonable
foundation or rational basis and is not palpably arbitrary. [Citations
omitted]
Applying these precepts to this case, Executive Order No. 1 should
be struck down as violative of the equal protection clause. The clear
mandate of the envisioned truth commission is to investigate and
find out the truth "concerning the reported cases of graft and
corruption during the previous administration"87 only. The intent to
single out the previous administration is plain, patent and manifest.
Mention of it has been made in at least three portions of the
questioned executive order. Specifically, these are:
WHEREAS, there is a need for a separate body dedicated solely to
investigating and finding out the truth concerning the reported cases
of graft and corruption during the previous administration, and which
will recommend the prosecution of the offenders and secure justice
for all;

SECTION 1. Creation of a Commission. – There is hereby created
the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as
the "COMMISSION," which shall primarily seek and find the truth
on, and toward this end, investigate reports of graft and corruption
of such scale and magnitude that shock and offend the moral and
ethical sensibilities of the people, committed by public officers and
employees, their co-principals, accomplices and accessories from
the private sector, if any, during the previous administration; and
thereafter recommend the appropriate action or measure to be
taken thereon to ensure that the full measure of justice shall be
served without fear or favor.
SECTION 2. Powers and Functions. – The Commission, which shall
have all the powers of an investigative body under Section 37,
Chapter 9, Book I of the Administrative Code of 1987, is primarily
tasked to conduct a thorough fact-finding investigation of reported
cases of graft and corruption referred to in Section 1, involving third
level public officers and higher, their co-principals, accomplices and
accessories from the private sector, if any, during the previous
administration and thereafter submit its finding and
recommendations to the President, Congress and the Ombudsman.
[Emphases supplied]
In this regard, it must be borne in mind that the Arroyo administration
is but just a member of a class, that is, a class of past
administrations. It is not a class of its own. Not to include past
administrations similarly situated constitutes arbitrariness which the
equal protection clause cannot sanction. Such discriminating
differentiation clearly reverberates to label the commission as a
vehicle for vindictiveness and selective retribution.
Though the OSG enumerates several differences between the
Arroyo administration and other past administrations, these
distinctions are not substantial enough to merit the restriction of the
investigation to the "previous administration" only. The reports of
widespread corruption in the Arroyo administration cannot be taken
as basis for distinguishing said administration from earlier
administrations which were also blemished by similar widespread
reports of impropriety. They are not inherent in, and do not inure
solely to, the Arroyo administration. As Justice Isagani Cruz put it,
"Superficial differences do not make for a valid classification."88
The public needs to be enlightened why Executive Order No. 1
chooses to limit the scope of the intended investigation to the
previous administration only. The OSG ventures to opine that "to
include other past administrations, at this point, may unnecessarily
overburden the commission and lead it to lose its effectiveness."89
The reason given is specious. It is without doubt irrelevant to the
legitimate and noble objective of the PTC to stamp out or "end
corruption and the evil it breeds."90
The probability that there would be difficulty in unearthing evidence
or that the earlier reports involving the earlier administrations were
already inquired into is beside the point. Obviously, deceased
presidents and cases which have already prescribed can no longer
be the subjects of inquiry by the PTC. Neither is the PTC expected
to conduct simultaneous investigations of previous administrations,
given the body’s limited time and resources. "The law does not
require the impossible" (Lex non cogit ad impossibilia).91
Given the foregoing physical and legal impossibility, the Court
logically recognizes the unfeasibility of investigating almost a
century’s worth of graft cases. However, the fact remains that
Executive Order No. 1 suffers from arbitrary classification. The PTC,
to be true to its mandate of searching for the truth, must not exclude
the other past administrations. The PTC must, at least, have the
authority to investigate all past administrations. While reasonable
prioritization is permitted, it should not be arbitrary lest it be struck
down for being unconstitutional. In the often quoted language of
Yick Wo v. Hopkins,92
CONSTI LAW II I ACJUCO 175
Though the law itself be fair on its face and impartial in appearance,
yet, if applied and administered by public authority with an evil eye
and an unequal hand, so as practically to make unjust and illegal
discriminations between persons in similar circumstances, material
to their rights, the denial of equal justice is still within the prohibition
of the constitution. [Emphasis supplied]
It could be argued that considering that the PTC is an ad hoc body,
its scope is limited. The Court, however, is of the considered view
that although its focus is restricted, the constitutional guarantee of
equal protection under the laws should not in any way be
circumvented. The Constitution is the fundamental and paramount
law of the nation to which all other laws must conform and in
accordance with which all private rights determined and all public
authority administered.93 Laws that do not conform to the
Constitution should be stricken down for being unconstitutional.94
While the thrust of the PTC is specific, that is, for investigation of
acts of graft and corruption, Executive Order No. 1, to survive, must
be read together with the provisions of the Constitution. To exclude
the earlier administrations in the guise of "substantial distinctions"
would only confirm the petitioners’ lament that the subject executive
order is only an "adventure in partisan hostility." In the case of US
v. Cyprian,95 it was written: "A rather limited number of such
classifications have routinely been held or assumed to be arbitrary;
those include: race, national origin, gender, political activity or
membership in a political party, union activity or membership in a
labor union, or more generally the exercise of first amendment
rights."
To reiterate, in order for a classification to meet the requirements of
constitutionality, it must include or embrace all persons who
naturally belong to the class.96 "Such a classification must not be
based on existing circumstances only, or so constituted as to
preclude additions to the number included within a class, but must
be of such a nature as to embrace all those who may thereafter be
in similar circumstances and conditions. Furthermore, all who are in
situations and circumstances which are relative to the discriminatory
legislation and which are indistinguishable from those of the
members of the class must be brought under the influence of the
law and treated by it in the same way as are the members of the
class."97
The Court is not unaware that "mere underinclusiveness is not fatal
to the validity of a law under the equal protection clause."98
"Legislation is not unconstitutional merely because it is not all-
embracing and does not include all the evils within its reach."99 It
has been written that a regulation challenged under the equal
protection clause is not devoid of a rational predicate simply
because it happens to be incomplete.100 In several instances, the
underinclusiveness was not considered a valid reason to strike
down a law or regulation where the purpose can be attained in future
legislations or regulations. These cases refer to the "step by step"
process.101 "With regard to equal protection claims, a legislature
does not run the risk of losing the entire remedial scheme simply
because it fails, through inadvertence or otherwise, to cover every
evil that might conceivably have been attacked."102
In Executive Order No. 1, however, there is no inadvertence. That
the previous administration was picked out was deliberate and
intentional as can be gleaned from the fact that it was underscored
at least three times in the assailed executive order. It must be noted
that Executive Order No. 1 does not even mention any particular
act, event or report to be focused on unlike the investigative
commissions created in the past. "The equal protection clause is
violated by purposeful and intentional discrimination."103
To disprove petitioners’ contention that there is deliberate
discrimination, the OSG clarifies that the commission does not only
confine itself to cases of large scale graft and corruption committed
during the previous administration.104 The OSG points to Section
17 of Executive Order No. 1, which provides:
 CONSTI LAW II I ACJUCO 176

Thus, the Court, in exercising its power of judicial review, is not

SECTION 17. Special Provision Concerning Mandate. If and when
in the judgment of the President there is a need to expand the
mandate of the Commission as defined in Section 1 hereof to
include the investigation of cases and instances of graft and
corruption during the prior administrations, such mandate may be
so extended accordingly by way of a supplemental Executive Order.
The Court is not convinced. Although Section 17 allows the
President the discretion to expand the scope of investigations of the
PTC so as to include the acts of graft and corruption committed in
other past administrations, it does not guarantee that they would be
covered in the future. Such expanded mandate of the commission
will still depend on the whim and caprice of the President. If he would
decide not to include them, the section would then be meaningless.
This will only fortify the fears of the petitioners that the Executive
Order No. 1 was "crafted to tailor-fit the prosecution of officials and
personalities of the Arroyo administration."105
imposing its own will upon a co-equal body but rather simply making
sure that any act of government is done in consonance with the
authorities and rights allocated to it by the Constitution. And, if after
said review, the Court finds no constitutional violations of any sort,
then, it has no more authority of proscribing the actions under
review. Otherwise, the Court will not be deterred to pronounce said
act as void and unconstitutional.
It cannot be denied that most government actions are inspired with
noble intentions, all geared towards the betterment of the nation and
its people. But then again, it is important to remember this ethical
principle: "The end does not justify the means." No matter how noble
and worthy of admiration the purpose of an act, but if the means to
be employed in accomplishing it is simply irreconcilable with
constitutional parameters, then it cannot still be allowed.108 The
Court cannot just turn a blind eye and simply let it pass. It will
continue to uphold the Constitution and its enshrined principles.

The Court tried to seek guidance from the pronouncement in the
case of Virata v. Sandiganbayan,106 that the "PCGG Charter
(composed of Executive Orders Nos. 1, 2 and 14) does not violate
the equal protection clause." The decision, however, was devoid of
any discussion on how such conclusory statement was arrived at,
the principal issue in said case being only the sufficiency of a cause
of action.
A final word
The issue that seems to take center stage at present is - whether or
not the Supreme Court, in the exercise of its constitutionally
mandated power of Judicial Review with respect to recent initiatives
of the legislature and the executive department, is exercising undue
interference. Is the Highest Tribunal, which is expected to be the
protector of the Constitution, itself guilty of violating fundamental
tenets like the doctrine of separation of powers? Time and again,
this issue has been addressed by the Court, but it seems that the
present political situation calls for it to once again explain the legal
basis of its action lest it continually be accused of being a hindrance
to the nation’s thrust to progress.
The Philippine Supreme Court, according to Article VIII, Section 1
of the 1987 Constitution, is vested with Judicial Power that "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 of abuse of
discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the government."
"The Constitution must ever remain supreme. All must bow to the
mandate of this law. Expediency must not be allowed to sap its
strength nor greed for power debase its rectitude."109
Lest it be misunderstood, this is not the death knell for a truth
commission as nobly envisioned by the present administration.
Perhaps a revision of the executive issuance so as to include the
earlier past administrations would allow it to pass the test of
reasonableness and not be an affront to the Constitution. Of all the
branches of the government, it is the judiciary which is the most
interested in knowing the truth and so it will not allow itself to be a
hindrance or obstacle to its attainment. It must, however, be
emphasized that the search for the truth must be within
constitutional bounds for "ours is still a government of laws and not
of men."110
WHEREFORE, the petitions are GRANTED. Executive Order No. 1
is hereby declared UNCONSTITUTIONAL insofar as it is violative of
the equal protection clause of the Constitution.
As also prayed for, the respondents are hereby ordered to cease
and desist from carrying out the provisions of Executive Order No.
1.
SO ORDERED.

Furthermore, in Section 4(2) thereof, it is vested with the power of

judicial review which is the power to declare a treaty, international
or executive agreement, law, presidential decree, proclamation,
order, instruction, ordinance, or regulation unconstitutional. This
power also includes the duty to rule on the constitutionality of the
application, or operation of presidential decrees, proclamations,
orders, instructions, ordinances, and other regulations. These
provisions, however, have been fertile grounds of conflict between
the Supreme Court, on one hand, and the two co-equal bodies of
government, on the other. Many times the Court has been accused
of asserting superiority over the other departments.

To answer this accusation, the words of Justice Laurel would be a

good source of enlightenment, to wit: "And when the judiciary
mediates to allocate constitutional boundaries, it does not assert
any superiority over the other departments; it does not in reality
nullify or invalidate an act of the legislature, but only asserts the
solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and
to establish for the parties in an actual controversy the rights which
that instrument secures and guarantees to them."107

SEARCH AND SEIZURE
Rule 126, Rules of Court
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.
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.
CONSTI LAW II I ACJUCO 177
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 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.1äwphï1.ñët
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 searched for and seized, to wit:
CONSTI LAW II I ACJUCO 178
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:
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
CONSTI LAW II I ACJUCO 179
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.
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. L-64261 December 26, 1984
JOSE BURGOS, SR., JOSE BURGOS, JR., BAYANI SORIANO
and J. BURGOS MEDIA SERVICES, INC., petitioners,
vs.
THE CHIEF OF STAFF, ARMED FORCES OF THE
PHILIPPINES, THE CHIEF, PHILIPPINE CONSTABULARY, THE
CHIEF LEGAL OFFICER, PRESIDENTIAL SECURITY
COMMAND, THE JUDGE ADVOCATE GENERAL, ET AL.,
respondents.
Lorenzo M. Tañada, Wigberto E. Tañada, Martiniano Vivo,
Augusto Sanchez, Joker P. Arroyo, Jejomar Binay and Rene
Saguisag for petitioners.
The Solicitor General for respondents.
ESCOLIN, J.:
Assailed in this petition for certiorari prohibition and mandamus with
preliminary mandatory and prohibitory injunction is the validity of two
[2] search warrants issued on December 7, 1982 by respondent
Judge Ernani Cruz-Pano, Executive Judge of the then Court of First
Instance of Rizal [Quezon City], under which the premises known
as No. 19, Road 3, Project 6, Quezon City, and 784 Units C & D,
RMS Building, Quezon Avenue, Quezon City, business addresses
of the "Metropolitan Mail" and "We Forum" newspapers,
respectively, were searched, and office and printing machines,
equipment, paraphernalia, motor vehicles and other articles used in
the printing, publication and distribution of the said newspapers, as
well as numerous papers, documents, books and other written
literature alleged to be in the possession and control of petitioner
Jose Burgos, Jr. publisher-editor of the "We Forum" newspaper,
were seized.
Petitioners further pray that a writ of preliminary mandatory and
prohibitory injunction be issued for the return of the seized articles,
and that respondents, "particularly the Chief Legal Officer,
Presidential Security Command, the Judge Advocate General, AFP,
the City Fiscal of Quezon City, their representatives, assistants,
subalterns, subordinates, substitute or successors" be enjoined
from using the articles thus seized as evidence against petitioner
Jose Burgos, Jr. and the othat issued them. 3 But this procedural
flaw notwithstanding, we take cognizance of this petition in view of
the seriousness and urgency of the constitutional issues raised not
to mention the public interest generated by the search of the "We
Forum" offices, which was televised in Channel 7 and widely
publicized in all metropolitan dailies. The existence of this special
circumstance justifies this Court to exercise its inherent power to
suspend its rules. In the words of the revered Mr. Justice Abad
Santos in the case of C. Vda. de Ordoveza v. Raymundo, 4 "it is
always in the power of the court [Supreme Court] to suspend its
rules or to except a particular case from its operation, whenever the
purposes of justice require it...".
Respondents likewise urge dismissal of the petition on ground of
laches. Considerable stress is laid on the fact that while said search
warrants were issued on December 7, 1982, the instant petition
impugning the same was filed only on June 16, 1983 or after the
lapse of a period of more than six [6] months.
Laches is failure or negligence for an unreasonable and
unexplained length of time to do that which, by exercising due
diligence, could or should have been done earlier. It is negligence
or omission to assert a right within a reasonable time, warranting a
presumption that the party entitled to assert it either has abandoned
it or declined to assert it. 5
Petitioners, in their Consolidated Reply, explained the reason for the
delay in the filing of the petition thus:
CONSTI LAW II I ACJUCO 180
Respondents should not find fault, as they now do [p. 1, Answer, p.
3, Manifestation] with the fact that the Petition was filed on June 16,
1983, more than half a year after the petitioners' premises had been
raided.
The climate of the times has given petitioners no other choice. If
they had waited this long to bring their case to court, it was because
they tried at first to exhaust other remedies. The events of the past
eleven fill years had taught them that everything in this country, from
release of public funds to release of detained persons from custody,
has become a matter of executive benevolence or largesse
Hence, as soon as they could, petitioners, upon suggestion of
persons close to the President, like Fiscal Flaminiano, sent a letter
to President Marcos, through counsel Antonio Coronet asking the
return at least of the printing equipment and vehicles. And after such
a letter had been sent, through Col. Balbino V. Diego, Chief
Intelligence and Legal Officer of the Presidential Security
Command, they were further encouraged to hope that the latter
would yield the desired results.
After waiting in vain for five [5] months, petitioners finally decided to
come to Court. [pp. 123-124, Rollo]
Although the reason given by petitioners may not be flattering to our
judicial system, We find no ground to punish or chastise them for an
error in judgment. On the contrary, the extrajudicial efforts exerted
by petitioners quite evidently negate the presumption that they had
abandoned their right to the possession of the seized property,
thereby refuting the charge of laches against them.
Respondents also submit the theory that since petitioner Jose
Burgos, Jr. had used and marked as evidence some of the seized
documents in Criminal Case No. Q- 022872, he is now estopped
from challenging the validity of the search warrants. We do not
follow the logic of respondents. These documents lawfully belong to
petitioner Jose Burgos, Jr. and he can do whatever he pleases with
them, within legal bounds. The fact that he has used them as
evidence does not and cannot in any way affect the validity or
invalidity of the search warrants assailed in this petition.
Several and diverse reasons have been advanced by petitioners to
nullify the search warrants in question.
1. Petitioners fault respondent judge for his alleged failure to
conduct an examination under oath or affirmation of the applicant
and his witnesses, as mandated by the above-quoted constitutional
provision as wen as Sec. 4, Rule 126 of the Rules of Court .6 This
objection, however, may properly be considered moot and
academic, as petitioners themselves conceded during the hearing
on August 9, 1983, that an examination had indeed been conducted
by respondent judge of Col. Abadilla and his witnesses.
2. Search Warrants No. 20-82[a] and No. 20- 82[b] were used to
search two distinct places: No. 19, Road 3, Project 6, Quezon City
and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City,
respectively. Objection is interposed to the execution of Search
Warrant No. 20-82[b] at the latter address on the ground that the
two search warrants pinpointed only one place where petitioner
Jose Burgos, Jr. was allegedly keeping and concealing the articles
listed therein, i.e., No. 19, Road 3, Project 6, Quezon City. This
assertion is based on that portion of Search Warrant No. 20- 82[b]
which states:
Which have been used, and are being used as instruments and
means of committing the crime of subversion penalized under P.D.
885 as amended and he is keeping and concealing the same at 19
Road 3, Project 6, Quezon City.

The defect pointed out is obviously a typographical error. Precisely,
two search warrants were applied for and issued because the
purpose and intent were to search two distinct premises. It would be
quite absurd and illogical for respondent judge to have issued two
warrants intended for one and the same place. Besides, the
addresses of the places sought to be searched were specifically set
forth in the application, and since it was Col. Abadilla himself who
headed the team which executed the search warrants, the ambiguity
that might have arisen by reason of the typographical error is more
apparent than real. The fact is that the place for which Search
Warrant No. 20- 82[b] was applied for was 728 Units C & D, RMS
Building, Quezon Avenue, Quezon City, which address appeared in
the opening paragraph of the said warrant. 7 Obviously this is the
same place that respondent judge had in mind when he issued
Warrant No. 20-82 [b].
In the determination of whether a search warrant describes the
premises to be searched with sufficient particularity, it has been held
"that the executing officer's prior knowledge as to the place intended
in the warrant is relevant. This would seem to be especially true
where the executing officer is the affiant on whose affidavit the
warrant had issued, and when he knows that the judge who issued
the warrant intended the building described in the affidavit, And it
has also been said that the executing officer may look to the affidavit
in the official court file to resolve an ambiguity in the warrant as to
the place to be searched." 8
3. Another ground relied upon to annul the search warrants
is the fact that although the warrants were directed against Jose
Burgos, Jr. alone, articles b belonging to his co-petitioners Jose
Burgos, Sr., Bayani Soriano and the J. Burgos Media Services, Inc.
were seized.
Section 2, Rule 126 of the Rules of Court, enumerates the personal
properties that may be seized under a search warrant, to wit:
Sec. 2. Personal Property to be seized. — A search warrant may be
issued for the search and seizure of the following personal property:
[a] Property subject of the offense;
[b] Property stolen or embezzled and other proceeds or fruits of the
offense; and
[c] Property used or intended to be used as the means of committing
an offense.
The above rule does not require that the property to be seized
should be owned by the person against whom the search warrant is
directed. It may or may not be owned by him. In fact, under
subsection [b] of the above-quoted Section 2, one of the properties
that may be seized is stolen property. Necessarily, stolen property
must be owned by one other than the person in whose possession
it may be at the time of the search and seizure. Ownership,
therefore, is of no consequence, and it is sufficient that the person
against whom the warrant is directed has control or possession of
the property sought to be seized, as petitioner Jose Burgos, Jr. was
alleged to have in relation to the articles and property seized under
the warrants.
4. Neither is there merit in petitioners' assertion that real properties
were seized under the disputed warrants. Under Article 415[5] of the
Civil Code of the Philippines, "machinery, receptables, instruments
or implements intended by the owner of the tenement for an industry
or works which may be carried on in a building or on a piece of land
and which tend directly to meet the needs of the said industry or
works" are considered immovable property. In Davao Sawmill Co.
v. Castillo9 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
CONSTI LAW II I ACJUCO 181
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;
4] TOYOTA-TAMARAW, colored white with Plate No. PBP
665; and,
5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 427
with marking "Bagong Silang."
In Stanford v. State of Texas 16 the search warrant which authorized
the search for "books, records, pamphlets, cards, receipts, lists,
memoranda, pictures, recordings and other written instruments
concerning the Communist Party in Texas," was declared void by
the U.S. Supreme Court for being too general. In like manner,
directions to "seize any evidence in connectionwith the violation of
SDC 13-3703 or otherwise" have been held too general, and that
portion of a search warrant which authorized the seizure of any
"paraphernalia which could be used to violate Sec. 54-197 of the
Connecticut General Statutes [the statute dealing with the crime of
conspiracy]" was held to be a general warrant, and therefore invalid.
17 The description of the articles sought to be seized under the
search warrants in question cannot be characterized differently.
In the Stanford case, the U.S. Supreme Courts calls to mind a
notable chapter in English history: the era of disaccord between the
Tudor Government and the English Press, when "Officers of the
Crown were given roving commissions to search where they
pleased in order to suppress and destroy the literature of dissent
both Catholic and Puritan Reference herein to such historical
episode would not be relevant for it is not the policy of our
government to suppress any newspaper or publication that speaks
with "the voice of non-conformity" but poses no clear and imminent
danger to state security.
As heretofore stated, the premises searched were the business and
printing offices of the "Metropolitan Mail" and the "We Forum
newspapers. As a consequence of the search and seizure, these
CONSTI LAW II I ACJUCO 182
premises were padlocked and sealed, with the further result that the
printing and publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship
abhorrent to the freedom of the press guaranteed under the
fundamental law, 18 and constitutes a virtual denial of petitioners'
freedom to express themselves in print. This state of being is
patently anathematic to a democratic framework where a free, alert
and even militant press is essential for the political enlightenment
and growth of the citizenry.
Respondents would justify the continued sealing of the printing
machines on the ground that they have been sequestered under
Section 8 of Presidential Decree No. 885, as amended, which
authorizes "the sequestration of the property of any person, natural
or artificial, engaged in subversive activities against the government
and its duly constituted authorities ... in accordance with
implementing rules and regulations as may be issued by the
Secretary of National Defense." It is doubtful however, if
sequestration could validly be effected in view of the absence of any
implementing rules and regulations promulgated by the Minister of
National Defense.
Besides, in the December 10, 1982 issue of the Daily Express, it
was reported that no less than President Marcos himself denied the
request of the military authorities to sequester the property seized
from petitioners on December 7, 1982. Thus:
The President denied a request flied by government prosecutors for
sequestration of the WE FORUM newspaper and its printing
presses, according to Information Minister Gregorio S. Cendana.
On the basis of court orders, government agents went to the We
Forum offices in Quezon City and took a detailed inventory of the
equipment and all materials in the premises.
Cendaña said that because of the denial the newspaper and its
equipment remain at the disposal of the owners, subject to the
discretion of the court. 19
That the property seized on December 7, 1982 had not been
sequestered is further confirmed by the reply of then Foreign
Minister Carlos P. Romulo to the letter dated February 10, 1983 of
U.S. Congressman Tony P. Hall addressed to President Marcos,
expressing alarm over the "WE FORUM " case. 20 In this reply
dated February 11, 1983, Minister Romulo stated:
2. Contrary to reports, President Marcos turned down the
recommendation of our authorities to close the paper's printing
facilities and confiscate the equipment and materials it uses. 21
IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a]
and 20-82[b] issued by respondent judge on December 7, 1982 are
hereby declared null and void and are accordingly set aside. The
prayer for a writ of mandatory injunction for the return of the seized
articles is hereby granted and all articles seized thereunder are
hereby ordered released to petitioners. No costs.
SO ORDERED.

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).
CONSTI LAW II I ACJUCO 183
Job Reyes brought out the box in which appellant's packages were
placed and, in the presence of the NBI agents, opened the top flaps,
removed the styro-foam and took out the cellophane wrappers from
inside the gloves. Dried marijuana leaves were found to have been
contained inside the cellophane wrappers (tsn, p. 38, October 6,
1987; Emphasis supplied).
The package which allegedly contained books was likewise opened
by Job Reyes. He discovered that the package contained bricks or
cake-like dried marijuana leaves. The package which allegedly
contained tabacalera cigars was also opened. It turned out that
dried marijuana leaves were neatly stocked underneath the cigars
(tsn, p. 39, October 6, 1987).
The NBI agents made an inventory and took charge of the box and
of the contents thereof, after signing a "Receipt" acknowledging
custody of the said effects (tsn, pp. 2-3, October 7, 1987).
Thereupon, the NBI agents tried to locate appellant but to no avail.
Appellant's stated address in his passport being the Manila Central
Post Office, the agents requested assistance from the latter's Chief
Security. On August 27, 1987, appellant, while claiming his mail at
the Central Post Office, was invited by the NBI to shed light on the
attempted shipment of the seized dried leaves. On the same day
the Narcotics Section of the NBI submitted the dried leaves to the
Forensic Chemistry Section for laboratory examination. It turned out
that the dried leaves were marijuana flowering tops as certified by
the forensic chemist. (Appellee's Brief, pp. 9-11, Rollo, pp. 132-134).
Thereafter, an Information was filed against appellant for violation
of RA 6425, otherwise known as the Dangerous Drugs Act.
After trial, the court a quo rendered the assailed decision.
In this appeal, accused/appellant assigns the following errors, to wit:
THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE
ILLEGALLY SEARCHED AND SEIZED OBJECTS CONTAINED IN
THE FOUR PARCELS.
THE LOWER COURT ERRED IN CONVICTING APPELLANT
DESPITE THE UNDISPUTED FACT THAT HIS RIGHTS UNDER
THE CONSTITUTION WHILE UNDER CUSTODIAL
PROCEEDINGS WERE NOT OBSERVED.
THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO
THE EXPLANATION OF THE APPELLANT ON HOW THE FOUR
PARCELS CAME INTO HIS POSSESSION (Appellant's Brief, p. 1;
Rollo, p. 55)
1. Appellant contends that the evidence subject of the
imputed offense had been obtained in violation of his constitutional
rights against unreasonable search and seizure and privacy of
communication (Sec. 2 and 3, Art. III, Constitution) and therefore
argues that the same should be held inadmissible in evidence (Sec.
3 (2), Art. III).
Sections 2 and 3, Article III of the Constitution provide:
Sec. 2. The right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to
be searched and the persons or things to be seized.
Sec. 3. (1) The privacy of communication and
correspondence shall be inviolable except upon lawful order of the

court, or when public safety or order requires otherwise as
prescribed by law.
(2) Any evidence obtained in violation of this or the preceding
section shall be inadmissible for any purpose in any proceeding.
Our present constitutional provision on the guarantee against
unreasonable search and seizure had its origin in the 1935 Charter
which, worded as follows:
The right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures shall not
be violated, and no warrants shall issue but 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. . . .
CONSTI LAW II I ACJUCO 184
. . . There the state, however powerful, does not as such have the
access except under the circumstances above noted, for in the
traditional formulation, his house, however humble, is his castle.
Thus is outlawed any unwarranted intrusion by government, which
is called upon to refrain from any invasion of his dwelling and to
respect the privacies of his life. . . . (Cf. Schermerber v. California,
384 US 757 [1966] and Boyd v. United States, 116 US 616 [1886];
Emphasis supplied).
In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed.
1048), the Court there in construing the right against unreasonable
searches and seizures declared that:
(t)he Fourth Amendment gives protection against unlawful searches
and seizures, and as shown in previous cases, its protection applies
to governmental action. Its origin and history clearly show that it was
intended as a restraint upon the activities of sovereign authority, and
was not intended to be a limitation upon other than governmental
agencies; as against such authority it was the purpose of the Fourth
Amendment to secure the citizen in the right of unmolested
occupation of his dwelling and the possession of his property,
subject to the right of seizure by process duly served.
The above ruling was reiterated in State v. Bryan (457 P.2d 661
[1968]) where a parking attendant who searched the automobile to
ascertain the owner thereof found marijuana instead, without the
knowledge and participation of police authorities, was declared
admissible in prosecution for illegal possession of narcotics.
And again in the 1969 case of Walker v. State (429 S.W.2d 121), it
was held that the search and seizure clauses are restraints upon
the government and its agents, not upon private individuals (citing
People v. Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892 (1966);
State v. Brown, Mo., 391 S.W.2d 903 (1965); State v. Olsen, Or.,
317 P.2d 938 (1957).
Likewise appropos is the case of Bernas v. US (373 F.2d 517
(1967). The Court there said:
The search of which appellant complains, however, was made by a
private citizen — the owner of a motel in which appellant stayed
overnight and in which he left behind a travel case containing the
evidence*** complained of. The search was made on the motel
owner's own initiative. Because of it, he became suspicious, called
the local police, informed them of the bag's contents, and made it
available to the authorities.
The fourth amendment and the case law applying it do not require
exclusion of evidence obtained through a search by a private citizen.
Rather, the amendment only proscribes governmental action."
The contraband in the case at bar having come into possession of
the Government without the latter transgressing appellant's rights
against unreasonable search and seizure, the Court sees no cogent
reason why the same should not be admitted against him in the
prosecution of the offense charged.
Appellant, however, would like this court to believe that NBI agents
made an illegal search and seizure of the evidence later on used in
prosecuting the case which resulted in his conviction.
The postulate advanced by accused/appellant needs to be clarified
in two days. In both instances, the argument stands to fall on its own
weight, or the lack of it.
First, the factual considerations of the case at bar readily foreclose
the proposition that NBI agents conducted an illegal search and
seizure of the prohibited merchandise. Records of the case clearly
indicate that it was Mr. Job Reyes, the proprietor of the forwarding
agency, who made search/inspection of the packages. Said
inspection was reasonable and a standard operating procedure on

the part of Mr. Reyes as a precautionary measure before delivery of
packages to the Bureau of Customs or the Bureau of Posts (TSN,
October 6 & 7, 1987, pp. 15-18; pp. 7-8; Original Records, pp. 119-
122; 167-168).
It will be recalled that after Reyes opened the box containing the
illicit cargo, he took samples of the same to the NBI and later
summoned the agents to his place of business. Thereafter, he
opened the parcel containing the rest of the shipment and entrusted
the care and custody thereof to the NBI agents. Clearly, the NBI
agents made no search and seizure, much less an illegal one,
contrary to the postulate of accused/appellant.
Second, the mere presence of the NBI agents did not convert the
reasonable search effected by Reyes into a warrantless search and
seizure proscribed by the Constitution. Merely to observe and look
at that which is in plain sight is not a search. Having observed that
which is open, where no trespass has been committed in aid thereof,
is not search (Chadwick v. State, 429 SW2d 135). Where the
contraband articles are identified without a trespass on the part of
the arresting officer, there is not the search that is prohibited by the
constitution (US v. Lee 274 US 559, 71 L.Ed. 1202 [1927]; Ker v.
State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v.
State, 429 SW2d 122 [1968]).
In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held
that where the property was taken into custody of the police at the
specific request of the manager and where the search was initially
made by the owner there is no unreasonable search and seizure
within the constitutional meaning of the term.
That the Bill of Rights embodied in the Constitution is not meant to
be invoked against acts of private individuals finds support in the
deliberations of the Constitutional Commission. True, the liberties
guaranteed by the fundamental law of the land must always be
subject to protection. But protection against whom? Commissioner
Bernas in his sponsorship speech in the Bill of Rights answers the
query which he himself posed, as follows:
First, the general reflections. The protection of fundamental liberties
in the essence of constitutional democracy. Protection against
whom? Protection against the state. The Bill of Rights governs the
relationship between the individual and the state. Its concern is not
the relation between individuals, between a private individual and
other individuals. What the Bill of Rights does is to declare some
forbidden zones in the private sphere inaccessible to any power
holder. (Sponsorship Speech of Commissioner Bernas , Record of
the Constitutional Commission, Vol. 1, p. 674; July 17, 1986;
Emphasis supplied)
The constitutional proscription against unlawful searches and
seizures therefore applies as a restraint directed only against the
government and its agencies tasked with the enforcement of the
law. Thus, it could only be invoked against the State to whom the
restraint against arbitrary and unreasonable exercise of power is
imposed.
If the search is made upon the request of law enforcers, a warrant
must generally be first secured if it is to pass the test of
constitutionality. However, if the search is made at the behest or
initiative of the proprietor of a private establishment for its own and
private purposes, as in the case at bar, and without the intervention
of police authorities, the right against unreasonable search and
seizure cannot be invoked for only the act of private individual, not
the law enforcers, is involved. In sum, the protection against
unreasonable searches and seizures cannot be extended to acts
committed by private individuals so as to bring it within the ambit of
alleged unlawful intrusion by the government.
Appellant argues, however, that since the provisions of the 1935
Constitution has been modified by the present phraseology found in
CONSTI LAW II I ACJUCO 185
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 (See.
5(m), Rule 131) and their testimonies should be given full faith and
credence, there being no evidence to the contrary. What is clear
from the records, on the other hand, is that appellant refused to give
any written statement while under investigation as testified by Atty.
Lastimoso of the NBI, Thus:
Fiscal Formoso:
You said that you investigated Mr. and Mrs. Job Reyes. What about
the accused here, did you investigate the accused together with the
girl?
WITNESS:
Yes, we have interviewed the accused together with the girl but the
accused availed of his constitutional right not to give any written
statement, sir. (TSN, October 8, 1987, p. 62; Original Records, p.
240)
The above testimony of the witness for the prosecution was not
contradicted by the defense on cross-examination. As borne out by
the records, neither was there any proof by the defense that
appellant gave uncounselled confession while being investigated.
What is more, we have examined the assailed judgment of the trial
court and nowhere is there any reference made to the testimony of
appellant while under custodial investigation which was utilized in
 CONSTI LAW II I ACJUCO 186

the finding of conviction. Appellant's second assignment of error is

therefore misplaced.

3. Coming now to appellant's third assignment of error,

appellant would like us to believe that he was not the owner of the
packages which contained prohibited drugs but rather a certain
Michael, a German national, whom appellant met in a pub along
Ermita, Manila: that in the course of their 30-minute conversation,
Michael requested him to ship the packages and gave him
P2,000.00 for the cost of the shipment since the German national
was about to leave the country the next day (October 15, 1987, TSN,
pp. 2-10).

Rather than give the appearance of veracity, we find appellant's

disclaimer as incredulous, self-serving and contrary to human
experience. It can easily be fabricated. An acquaintance with a
complete stranger struck in half an hour could not have pushed a
man to entrust the shipment of four (4) parcels and shell out
P2,000.00 for the purpose and for appellant to readily accede to
comply with the undertaking without first ascertaining its contents.
As stated by the trial court, "(a) person would not simply entrust
contraband and of considerable value at that as the marijuana
flowering tops, and the cash amount of P2,000.00 to a complete
stranger like the Accused. The Accused, on the other hand, would
not simply accept such undertaking to take custody of the packages
and ship the same from a complete stranger on his mere say-so"
(Decision, p. 19, Rollo, p. 91). As to why he readily agreed to do the
errand, appellant failed to explain. Denials, if unsubstantiated by
clear and convincing evidence, are negative self-serving evidence
which deserve no weight in law and cannot be given greater
evidentiary weight than the testimony of credible witnesses who
testify on affirmative matters (People v. Esquillo, 171 SCRA 571
[1989]; People vs. Sariol, 174 SCRA 237 [1989]).

Appellant's bare denial is even made more suspect considering that,

as per records of the Interpol, he was previously convicted of
possession of hashish by the Kleve Court in the Federal Republic of
Germany on January 1, 1982 and that the consignee of the
frustrated shipment, Walter Fierz, also a Swiss national, was
likewise convicted for drug abuse and is just about an hour's drive
from appellant's residence in Zurich, Switzerland (TSN, October 8,
1987, p. 66; Original Records, p. 244; Decision, p. 21; Rollo, p. 93).

Evidence to be believed, must not only proceed from the mouth of

a credible witness, but it must be credible in itself such as the
common experience and observation of mankind can approve as
probable under the circumstances (People v. Alto, 26 SCRA 342
[1968], citing Daggers v. Van Dyke, 37 N.J. Eg. 130; see also
People v. Sarda, 172 SCRA 651 [1989]; People v. Sunga, 123
SCRA 327 [1983]); Castañares v. CA, 92 SCRA 567 [1979]). As
records further show, appellant did not even bother to ask Michael's
full name, his complete address or passport number. Furthermore,
if indeed, the German national was the owner of the merchandise,
appellant should have so indicated in the contract of shipment (Exh.
"B", Original Records, p. 40). On the contrary, appellant signed the
contract as the owner and shipper thereof giving more weight to the
presumption that things which a person possesses, or exercises
acts of ownership over, are owned by him (Sec. 5 [j], Rule 131). At
this point, appellant is therefore estopped to claim otherwise.

Premises considered, we see no error committed by the trial court

in rendering the assailed judgment.

WHEREFORE, the judgment of conviction finding appellant guilty

beyond reasonable doubt of the crime charged is hereby
AFFIRMED. No costs.

SO ORDERED.

G.R. No. 120915 April 3, 1998
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ROSA ARUTA y MENGUIN, accused-appellant.
ROMERO, J.:
With the pervasive proliferation of illegal drugs and its pernicious
effects on our society, our law enforcers tend at times to overreach
themselves in apprehending drug offenders to the extent of failing
to observe well-entrenched constitutional guarantees against illegal
searches and arrests. Consequently, drug offenders manage to
evade the clutches of the law on mere technicalities.
Accused-appellant Rosa Aruta y Menguin was arrested and
charged with violating Section 4, Article II of Republic Act No. 6425
or the Dangerous Drugs Act. The information reads:
That on or about the fourteenth (14th) day of December, 1988, in
the City of Olongapo, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, without being lawfully
authorized, did then and there willfully, unlawfully and knowingly
engage in transporting approximately eight (8) kilos and five
hundred (500) grams of dried marijuana packed in plastic bag
marked "Cash Katutak" placed in a traveling bag, which are
prohibited drugs.
Upon arraignment, she pleaded "not guilty." After trial on the merits,
the Regional Trial Court of Olongapo City convicted and sentenced
her to suffer the penalty of life imprisonment and to pay a fine of
twenty thousand (P20,000.00) pesos.1
The prosecution substantially relied on the testimonies of P/Lt.
Ernesto Abello, Officer-in-Charge of the Narcotics Command
(NARCOM) of Olongapo City and P/Lt. Jose Domingo. Based on
their testimonies, the court a quo found the following:
On December 13, 1988, P/Lt. Abello was tipped off by his informant,
known only as Benjie, that a certain "Aling Rosa" would be arriving
from Baguio City the following day, December 14, 1988, with a large
volume of marijuana. Acting on said tip, P/Lt. Abello assembled a
team composed of P/Lt. Jose Domingo, Sgt. Angel Sudiacal, Sgt.
Oscar Imperial, Sgt. Danilo Santiago and Sgt. Efren Quirubin.
Said team proceeded to West Bajac-Bajac, Olongapo City at around
4:00 in the afternoon of December 14, 1988 and deployed
themselves near the Philippine National Bank (PNB) building along
Rizal Avenue and the Caltex gasoline station. Dividing themselves
into two groups, one group, made up of P/Lt. Abello, P/Lt. Domingo
and the informant posted themselves near the PNB building while
the other group waited near the Caltex gasoline station.
While thus positioned, a Victory Liner Bus with body number 474
and the letters BGO printed on its front and back bumpers stopped
in front of the PNB building at around 6:30 in the evening of the
same day from where two females and a male got off. It was at this
stage that the informant pointed out to the team "Aling Rosa" who
was then carrying a traveling bag.
Having ascertained that accused-appellant was "Aling Rosa," the
team approached her and introduced themselves as NARCOM
agents. When P/Lt. Abello asked "Aling Rosa" about the contents of
her bag, the latter handed it to the former.
Upon inspection, the bag was found to contain dried marijuana
leaves packed in a plastic bag marked "Cash Katutak." The team
confiscated the bag together with the Victory Liner bus ticket to
which Lt. Domingo affixed his signature. Accused-appellant was
then brought to the NARCOM office for investigation where a
CONSTI LAW II I ACJUCO 187
Receipt of Property Seized was prepared for the confiscated
marijuana leaves.
Upon examination of the seized marijuana specimen at the PC/INP
Crime Laboratory, Camp Olivas, Pampanga, P/Maj. Marlene
Salangad, a Forensic Chemist, prepared a Technical Report stating
that said specimen yielded positive results for marijuana, a
prohibited drug.
After the presentation of the testimonies of the arresting officers and
of the above technical report, the prosecution rested its case.
Instead of presenting its evidence, the defense filed a "Demurrer to
Evidence" alleging the illegality of the search and seizure of the
items thereby violating accused-appellant's constitutional right
against unreasonable search and seizure as well as their
inadmissibility in evidence.
The said "Demurrer to Evidence" was, however, denied without the
trial court ruling on the alleged illegality of the search and seizure
and the inadmissibility in evidence of the items seized to avoid pre-
judgment. Instead, the trial court continued to hear the case.
In view of said denial, accused-appellant testified on her behalf. As
expected, her version of the incident differed from that of the
prosecution. She claimed that immediately prior to her arrest, she
had just come from Choice Theater where she watched the movie
"Balweg." While about to cross the road, an old woman asked her
help in carrying a shoulder bag. In the middle of the road, Lt. Abello
and Lt. Domingo arrested her and asked her to go with them to the
NARCOM Office.
During investigation at said office, she disclaimed any knowledge
as to the identity of the woman and averred that the old woman was
nowhere to be found after she was arrested. Moreover, she added
that no search warrant was shown to her by the arresting officers.
After the prosecution made a formal offer of evidence, the defense
filed a "Comment and/or Objection to Prosecution's Formal Offer of
Evidence" contesting the admissibility of the items seized as they
were allegedly a product of an unreasonable search and seizure.
Not convinced with her version of the incident, the Regional Trial
Court of Olongapo City convicted accused-appellant of transporting
eight (8) kilos and five hundred (500) grams of marijuana from
Baguio City to Olongapo City in violation of Section 4, Article 11 of
R.A. No. 6425, as amended, otherwise known as the Dangerous
Drugs Act of 1972 and sentenced her to life imprisonment and to
pay a fine of twenty thousand (P20,000.00) pesos without subsidiary
imprisonment in case of insolvency.2
In this appeal, accused-appellant submits the following:
1. The trial court erred in holding that the NARCOM agents
could not apply for a warrant for the search of a bus or a passenger
who boarded a bus because one of the requirements for applying a
search warrant is that the place to be searched must be specifically
designated and described.
2. The trial court erred in holding or assuming that if a search
warrant was applied for by the NARCOM agents, still no court would
issue a search warrant for the reason that the same would be
considered a general search warrant which may be quashed.
3. The trial court erred in not finding that the warrantless
search resulting to the arrest of accused-appellant violated the
latter's constitutional rights.
4. The trial court erred in not holding that although the
defense of denial is weak yet the evidence of the prosecution is even
weaker.

These submissions are impressed with merit.
In People v. Ramos,3 this Court held 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
Constitution which provides:
Sec. 2. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to
be searched and the persons or things to be seized.
This constitutional guarantee is not a blanket prohibition against all
searches and seizures as it operates only against "unreasonable"
searches and seizures. The plain import of the language of the
Constitution, which in one sentence prohibits unreasonable
searches and seizures and at the same time prescribes the
requisites for a valid warrant, is that searches and seizures are
normally 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 person
and police must stand the protective authority of a magistrate
clothed with power to issue or refuse to issue search warrants or
warrants of arrest.4
Further, articles which are the product of unreasonable searches
and seizures are inadmissible as evidence pursuant to the doctrine
pronounced in Stonehill v. Diokno.5 This exclusionary rule was later
enshrined in Article III, Section 3(2) of the Constitution, thus:
Sec. 3(2). Any evidence obtained in violation of this or the
preceding section shall be inadmissible in evidence for any purpose
in any proceeding.
From the foregoing, it can be said that the State cannot simply
intrude indiscriminately into the houses, papers, effects, and most
importantly, on the person of an individual. The constitutional
provision guaranteed an impenetrable shield against unreasonable
searches and seizures. As such, it protects the privacy and sanctity
of the person himself against unlawful arrests and other forms of
restraint.6
Therewithal, the right of a person to be secured against any
unreasonable seizure of his body and any deprivation of his liberty
is a most basic and fundamental one. A statute, rule or situation
which allows exceptions to the requirement of a warrant of arrest or
search warrant must perforce be strictly construed and their
application limited only to cases specifically provided or allowed by
law. To do otherwise is an infringement upon personal liberty and
would set back a right so basic and deserving of full protection and
vindication yet often violated.7
The following cases are specifically provided or allowed by law:
1. Warrantless search incidental to a lawful arrest
recognized under Section 12, Rule 126 of the Rules of Court8 and
by prevailing jurisprudence;
2. Seizure of evidence in "plain view," the elements of which
are:
(a) a prior valid intrusion based on the valid warrantless arrest
in which the police are legally present in the pursuit of their official
duties;
CONSTI LAW II I ACJUCO 188
(b) the evidence was inadvertently discovered by the police
who had the right to be where they are;
(c) the evidence must be immediately apparent, and
(d) "plain view" justified mere seizure of evidence without
further search;
3. Search of a moving vehicle. Highly regulated by the
government, the vehicle's inherent mobility reduces expectation of
privacy especially when its transit in public thoroughfares furnishes
a highly reasonable suspicion amounting to probable cause that the
occupant committed a criminal activity;
4. Consented warrantless search;
5. Customs search;9
6. Stop and Frisk;10 and
7. Exigent and Emergency Circumstances.11
The above exceptions, however, should not become unbridled
licenses for law enforcement officers to trample upon the
constitutionally guaranteed and more fundamental right of persons
against unreasonable search and seizures. The essential requisite
of probable cause must still be satisfied before a warrantless search
and seizure can be lawfully conducted.
Although probable cause eludes exact and concrete definition, it
generally signifies a reasonable ground of suspicion supported by
circumstances sufficiently strong in themselves to warrant a
cautious man to believe that the person accused is guilty of the
offense with which he is charged. It likewise refers to the existence
of such facts and circumstances which could lead a reasonably
discreet and prudent man to believe that an offense has been
committed and that the item(s), article(s) or object(s) sought in
connection with said offense or subject to seizure and destruction
by law is in the place to be searched.12
It ought to be emphasized that in determining probable cause, the
average man weighs facts and circumstances without resorting to
the calibrations of our rules of evidence of which his knowledge is
technically nil. Rather, he relies on the calculus of common sense
which all reasonable men have in abundance. The same quantum
of evidence is required in determining probable cause relative to
search. Before a search warrant can be issued, it must be shown by
substantial evidence that the items sought are in fact seizable by
virtue of being connected with criminal activity, and that the items
will be found in the place to be searched.13
In searches and seizures effected without a warrant, it is necessary
for probable cause to be present. Absent any probable cause, the
article(s) seized could not be admitted and used as evidence
against the person arrested. Probable cause, in these cases, must
only be based on reasonable ground of suspicion or belief that a
crime has been committed or is about to be committed.
In our jurisprudence, there are instances where information has
become a sufficient probable cause to effect a warrantless search
and seizure.
In People v. Tangliben,14 acting on information supplied by
informers, police officers conducted a surveillance at the Victory
Liner Terminal compound in San Fernando, Pampanga against
persons who may commit misdemeanors and also on those who
may be engaging in the traffic of dangerous drugs. At 9:30 in the
evening, the policemen noticed a person carrying a red traveling
bag who was acting suspiciously. They confronted him and
requested him to open his bag but he refused. He acceded later on
when the policemen identified themselves. Inside the bag were

marijuana leaves wrapped in a plastic wrapper. The police officers
only knew of the activities of Tangliben on the night of his arrest.
In instant case, the apprehending officers already had prior
knowledge from their informant regarding Aruta's alleged activities.
In Tangliben policemen were confronted with an on-the-spot tip.
Moreover, the policemen knew that the Victory Liner compound is
being used by drug traffickers as their "business address". More
significantly, Tangliben was acting suspiciously. His actuations and
surrounding circumstances led the policemen to reasonably suspect
that Tangliben is committing a crime. In instant case, there is no
single indication that Aruta was acting suspiciously.
In People v. Malmstedt,15 the Narcom agents received reports that
vehicles coming from Sagada were transporting marijuana. They
likewise received information that a Caucasian coming from Sagada
had prohibited drugs on his person. There was no reasonable time
to obtain a search warrant, especially since the identity of the
suspect could not be readily ascertained. His actuations also
aroused the suspicion of the officers conducting the operation. The
Court held that in light of such circumstances, to deprive the agents
of the ability and facility to act promptly, including a search without
a warrant, would be to sanction impotence and ineffectiveness in
law enforcement, to the detriment of society.
Note, however, the glaring differences of Malmstedt to the instant
case. In present case, the police officers had reasonable time within
which to secure a search warrant. Second, Aruta's identity was
priorly ascertained. Third, Aruta was not acting suspiciously. Fourth,
Malmstedt was searched aboard a moving vehicle, a legally
accepted exception to the warrant requirement. Aruta, on the other
hand, was searched while about to cross a street.
In People v. Bagista,16 the NARCOM officers had probable cause
to stop and search all vehicles coming from the north to Acop,
Tublay, Benguet in view of the confidential information they received
from their regular informant that a woman having the same
appearance as that of accused-appellant would be bringing
marijuana from up north. They likewise had probable cause to
search accused-appellant's belongings since she fitted the
description given by the NARCOM informant. Since there was a
valid warrantless search by the NARCOM agents, any evidence
obtained in the course of said search is admissible against accused-
appellant. Again, this case differs from Aruta as this involves a
search of a moving vehicle plus the fact that the police officers
erected a checkpoint. Both are exceptions to the requirements of a
search warrant.
In Manalili v. Court of Appeals and People,17 the policemen
conducted a surveillance in an area of the Kalookan Cemetery
based on information that drug addicts were roaming therein. Upon
reaching the place, they chanced upon a man in front of the
cemetery who appeared to be "high" on drugs. He was observed to
have reddish eyes and to be walking in a swaying manner.
Moreover, he appeared to be trying to avoid the policemen. When
approached and asked what he was holding in his hands, he tried
to resist. When he showed his wallet, it contained marijuana. The
Court held that the policemen had sufficient reason to accost
accused-appellant to determine if he was actually "high" on drugs
due to his suspicious actuations, coupled with the fact that based on
information, this area was a haven for drug addicts.
In all the abovecited cases, there was information received which
became the bases for conducting the warrantless search.
Furthermore, additional factors and circumstances were present
which, when taken together with the information, constituted
probable causes which justified the warrantless searches and
seizures in each of the cases.
In the instant case, the determination of the absence or existence of
probable cause necessitates a reexamination of the facts. The
CONSTI LAW II I ACJUCO 189
following have been established: (1) In the morning of December
13, 1988, the law enforcement officers received information from an
informant named "Benjie" that a certain "Aling Rosa" would be
leaving for Baguio City on December 14, 1988 and would be back
in the afternoon of the same day carrying with her a large volume of
marijuana; (2) At 6:30 in the evening of December 14, 1988,
accused-appellant alighted from a Victory Liner Bus carrying a
traveling bag even as the informant pointed her out to the law
enforcement officers; (3) The law enforcement officers approached
her and introduced themselves as NARCOM agents; (4) When
asked by Lt. Abello about the contents of her traveling bag, she gave
the same to him; (5) When they opened the same, they found dried
marijuana leaves; (6) Accused-appellant was then brought to the
NARCOM office for investigation.
This case is similar to People v. Aminnudin where the police
received information two days before the arrival of Aminnudin that
the latter would be arriving from Iloilo on board the M/V Wilcon 9.
His name was known, the vehicle was identified and the date of
arrival was certain. From the information they had received, the
police could have persuaded a judge that there was probable cause,
indeed, to justify the issuance of a warrant. Instead of securing a
warrant first, they proceeded to apprehend Aminnudin. When the
case was brought before this Court, the arrest was held to be illegal;
hence any item seized from Aminnudin could not be used against
him.
Another recent case is People v. Encinada where the police likewise
received confidential information the day before at 4:00 in the
afternoon from their informant that Encinada would be bringing in
marijuana from Cebu City on board M/V Sweet Pearl at 7:00 in the
morning of the following day. This intelligence information regarding
the culprit's identity, the particular crime he allegedly committed and
his exact whereabouts could have been a basis of probable cause
for the lawmen to secure a warrant. This Court held that in
accordance with Administrative Circular No. 13 and Circular No. 19,
series of 1987, the lawmen could have applied for a warrant even
after court hours. The failure or neglect to secure one cannot serve
as an excuse for violating Encinada's constitutional right.
In the instant case, the NARCOM agents were admittedly not armed
with a warrant of arrest. To legitimize the warrantless search and
seizure of accused-appellant's bag, accused-appellant must have
been validly arrested under Section 5 of Rule 113 which provides
inter alia:
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;
xxx xxx xxx
Accused-appellant Aruta cannot be said to be committing a crime.
Neither was she about to commit one nor had she just committed a
crime. Accused-appellant was merely crossing the street and was
not acting in any manner that would engender a reasonable ground
for the NARCOM agents to suspect and conclude that she was
committing a crime. It was only when the informant pointed to
accused-appellant and identified her to the agents as the carrier of
the marijuana that she was singled out as the suspect. The
NARCOM agents would not have apprehended accused-appellant
were it not for the furtive finger of the informant because, as clearly
illustrated by the evidence on record, there was no reason
whatsoever for them to suspect that accused-appellant was
committing a crime, except for the pointing finger of the informant.
This the Court could neither sanction nor tolerate as it is a clear
violation of the constitutional guarantee against unreasonable
search and seizure. Neither was there any semblance of any

compliance with the rigid requirements of probable cause and
warrantless arrests.
Consequently, there was no legal basis for the NARCOM agents to
effect a warrantless search of accused-appellant's bag, there being
no probable cause and the accused-appellant not having been
lawfully arrested. Stated otherwise, the arrest being incipiently
illegal, it logically follows that the subsequent search was similarly
illegal, it being not incidental to a lawful arrest. The constitutional
guarantee against unreasonable search and seizure must perforce
operate in favor of accused-appellant. As such, the articles seized
could not be used as evidence against accused-appellant for these
are "fruits of a poisoned tree" and, therefore, must be rejected,
pursuant to Article III, Sec. 3(2) of the Constitution.
Emphasis is to be laid on the fact that the law requires that the
search be incidental to a lawful arrest, in order that the search itself
may likewise be considered legal. Therefore, it is beyond cavil that
a lawful arrest must precede the search of a person and his
belongings. Where a search is first undertaken, and an arrest
effected based on evidence produced by the search, both such
search and arrest would be unlawful, for being contrary to law.18
As previously discussed, the case in point is People v. Aminnudin19
where, this Court observed that:
. . . accused-appellant was not, at the moment of his arrest,
committing a crime nor was it shown that he was about to do so or
that he had just done so. What he was doing was descending the
gangplank of the M/V Wilcon 9 and there was no outward indication
that called for his arrest. To all appearances, he was like any of the
other passengers innocently disembarking from the vessel. It was
only when the informer pointed to him as the carrier of the marijuana
that he suddenly became suspect and so subject to apprehension.
It was the furtive finger that triggered his arrest. The identification by
the informer was the probable cause as determined by the officers
(and not a judge) that authorized them to pounce upon Aminnudin
and immediately arrest him.
In the absence of probable cause to effect a valid and legal
warrantless arrest, the search and seizure of accused-appellant's
bag would also not be justified as seizure of evidence in "plain view"
under the second exception. The marijuana was obviously not
immediately apparent as shown by the fact that the NARCOM
agents still had to request accused-appellant to open the bag to
ascertain its contents.
Neither would the search and seizure of accused-appellant's bag be
justified as a search of a moving vehicle. There was no moving
vehicle to speak of in the instant case as accused-appellant was
apprehended several minutes after alighting from the Victory Liner
bus. In fact, she was accosted in the middle of the street and not
while inside the vehicle.
People v. Solayao,20 applied the stop and frisk principle which has
been adopted in Posadas v. Court of Appeals.21 In said case,
Solayao attempted to flee when he and his companions were
accosted by government agents. In the instant case, there was no
observable manifestation that could have aroused the suspicion of
the NARCOM agents as to cause them to "stop and frisk" accused-
appellant. To reiterate, accused-appellant was merely crossing the
street when apprehended. Unlike in the abovementioned cases,
accused-appellant never attempted to flee from the NARCOM
agents when the latter identified themselves as such. Clearly, this is
another indication of the paucity of probable cause that would
sufficiently provoke a suspicion that accused-appellant was
committing a crime.
The warrantless search and seizure could not likewise be
categorized under exigent and emergency circumstances, as
applied in People v. De
CONSTI LAW II I ACJUCO 190
Gracia.22 In said case, there were intelligence reports that the
building was being used as headquarters by the RAM during a coup
d' etat. A surveillance team was fired at by a group of armed men
coming out of the building and the occupants of said building refused
to open the door despite repeated requests. There were large
quantities of explosives and ammunitions inside the building.
Nearby courts were closed and general chaos and disorder
prevailed. The existing circumstances sufficiently showed that a
crime was being committed. In short, there was probable cause to
effect a warrantless search of the building. The same could not be
said in the instant case.
The only other exception that could possibly legitimize the
warrantless search and seizure would be consent given by the
accused-appellant to the warrantless search as to amount to a
waiver of her constitutional right. The Solicitor General argues that
accused-appellant voluntarily submitted herself to search and
inspection citing People v. Malasugui23 where this Court ruled:
When one voluntarily submits to a search or consents to have it
made on his person or premises, he is precluded from complaining
later thereof. (Cooley, Constitutional Limitations, 8th ed., [V]ol. I, p.
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.
In support of said argument, the Solicitor General cited the
testimony of Lt. Abello, thus:
Q When this informant by the name of alias Benjie pointed
to Aling Rosa, what happened after that?
A We followed her and introduced ourselves as NARCOM
agents and confronted her with our informant and asked her what
she was carrying and if we can see the bag she was carrying.
Q What was her reaction?
A She gave her bag to me.
Q So what happened after she gave the bag to you?
A I opened it and found out plastic bags of marijuana
inside.24
This Court cannot agree with the Solicitor General's contention for
the Malasugui case is inapplicable to the instant case. In said case,
there was probable cause for the warrantless arrest thereby making
the warrantless search effected immediately thereafter equally
lawful.25 On the contrary, the most essential element of probable
cause, as expounded above in detail, is wanting in the instant case
making the warrantless arrest unjustified and illegal. Accordingly,
the search which accompanied the warrantless arrest was likewise
unjustified and illegal. Thus, all the articles seized from the accused-
appellant could not be used as evidence against her.
Aside from the inapplicability of the abovecited case, the act of
herein accused-appellant in handing over her bag to the NARCOM
agents could not be construed as voluntary submission or an
implied acquiescence to the unreasonable search. The instant case
is similar to People v. Encinada,26 where this Court held:
[T]he Republic's counsel avers that appellant voluntarily handed the
chairs containing the package of marijuana to the arresting officer
and thus effectively waived his right against the warrantless search.
This he gleaned from Bolonia's testimony.
Q: After Roel Encinada alighted from the motor tricycle, what
happened next?
A: I requested to him to see his chairs that he carried.

Q: Are you referring to the two plastic chairs?
A: Yes, sir.
Q: By the way, when Roel Encinada agreed to allow you to
examine the two chairs that he carried, what did you do next?
A: I examined the chairs and I noticed that something inside
in between the two chairs.
We are not convinced. While in principle we agree that consent will
validate an otherwise illegal search, we believe that appellant —
based on the transcript quoted above — did not voluntarily consent
to Bolonia's search of his belongings. Appellant's silence should not
be lightly taken as consent to such search. The implied
acquiescence to the search, if there was any, could not have been
more than mere passive conformity given under intimidating or
coercive circumstances and is thus considered no consent at all
within the purview of the constitutional guarantee. Furthermore,
considering that the search was conducted irregularly, i.e., without
a warrant, we cannot appreciate consent based merely on the
presumption of regularity of the performance of duty." (Emphasis
supplied)
Thus, accused-appellant's lack of objection to the search is not
tantamount to a waiver of her constitutional rights or a voluntary
submission to the warrantless search. As this Court held in People
v. Barros:27
. . . [T]he accused is not to be presumed to have waived the unlawful
search conducted on the occasion of his warrantless arrest "simply
because he failed to object" —
. . . To constitute a waiver, it must appear first that the right exists;
secondly, that the person involved had knowledge, actual or
constructive, of the existence of such right; and lastly, that said
person had an actual intention to relinquish the right (Pasion Vda.
de Garcia v. Locsin, 65 Phil. 698). The fact that the accused failed
to object to the entry into his house does not amount to a permission
to make a search therein (Magoncia v. Palacio, 80 Phil. 770). As
pointed out by Justice Laurel in the case of Pasion Vda. de Garcia
v. Locsin (supra):
xxx xxx xxx
. . . As the constitutional guaranty is not dependent upon any
affirmative act of the citizen, the courts do not place the citizen in
the position of either contesting an officer's authority by force, or
waiving his constitutional rights; but instead they hold that a
peaceful submission to a search or seizure is not a consent or an
invitation thereto, but is merely a demonstration of regard for the
supremacy of the law. (Citation omitted).
We apply the rule 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."28 (Emphasis supplied)
To repeat, to constitute a waiver, there should be an actual intention
to relinquish the right. As clearly illustrated in People v.
Omaweng,29 where prosecution witness Joseph Layong testified
thus:
PROSECUTOR AYOCHOK:
Q— When you and David Fomocod saw the travelling bag,
what did you do?
A— When we saw that traveling bag, we asked the driver if we
could see the contents.
CONSTI LAW II I ACJUCO 191
Q— And what did or what was the reply of the driver, if there
was any?
A— He said "you can see the contents but those are only
clothings" (sic).
Q— When he said that, what did you do?
A— We asked him if we could open and see it.
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. (Emphasis
supplied)
In the above-mentioned case, accused was not subjected to any
search which may be stigmatized as a violation of his Constitutional
right against unreasonable searches and seizures. 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." He willingly gave
prior consent to the search and voluntarily agreed to have it
conducted on his vehicle and traveling bag, which is not the case
with Aruta.
In an attempt to further justify the warrantless search, the Solicitor
General next argues that the police officers would have encountered
difficulty in securing a search warrant as it could be secured only if
accused-appellant's name was known, the vehicle identified and the
date of its arrival certain, as in the Aminnudin case where the
arresting officers had forty-eight hours within which to act.
This argument is untenable.
Article IV, Section 3 of the Constitution provides:
. . . [N]o 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. (Emphasis supplied)
Search warrants to be valid must particularly describe the place to
be searched and the persons or things to be seized. The purpose of
this rule is to limit the things to be seized to those and only those,
particularly described in the warrant so as 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.30
Had the NARCOM agents only applied for a search warrant, they
could have secured one without too much difficulty, contrary to the
assertions of the Solicitor General. The person intended to be
searched has been particularized and the thing to be seized
specified. The time was also sufficiently ascertained to be in the
afternoon of December 14, 1988. "Aling Rosa" turned out to be
accused-appellant and the thing to be seized was marijuana. The
 CONSTI LAW II I ACJUCO 192

vehicle was identified to be a Victory Liner bus. In fact, the NARCOM
agents purposely positioned themselves near the spot where
Victory Liner buses normally unload their passengers. Assuming
that the NARCOM agents failed to particularize the vehicle, this
would not in any way hinder them from securing a search warrant.
The above particulars would have already sufficed. In any case, this
Court has held that the police should particularly describe the place
to be searched and the person or things to be seized, wherever and
whenever it is feasible.31 (Emphasis supplied)
While it may be argued that by entering a plea during arraignment
and by actively participating in the trial, accused-appellant may be
deemed to have waived objections to the illegality of the warrantless
search and to the inadmissibility of the evidence obtained thereby,
the same may not apply in the instant case for the following reasons:
1. The waiver would only apply to objections pertaining to the
illegality of the arrest as her plea of "not guilty" and participation in
the trial are indications of her voluntary submission to the court's
jurisdiction.32 The plea and active participation in the trial would not
cure the illegality of the search and transform the inadmissible
evidence into objects of proof. The waiver simply does not extend
this far.
2. Granting that evidence obtained through a warrantless
search becomes admissible upon failure to object thereto during the
trial of the case, records show that accused-appellant filed a
Demurrer to Evidence and objected and opposed the prosecution's
Formal Offer of Evidence.
It is apropos to quote the case of People v. Barros,33 which stated:
rule is "the only practical means of enforcing the constitutional
injunction" against abuse. This approach is based on the justification
made by Judge Learned Hand that "only in case the prosecution
which itself controls the seizing officials, knows that it cannot profit
by their wrong, will the wrong be repressed."35
Unreasonable searches and seizures are the menace against which
the constitutional guarantees afford full protection. While the power
to search and seize may at times be necessary to the public welfare,
still it may be exercised and the law enforced without transgressing
the constitutional rights of the citizens, for the enforcement of no
statute is of sufficient importance to justify indifference to the basic
principles of government.36
Those who are supposed to enforce the law are not justified in
disregarding the rights of the individual in the name of order. Order
is too high a price to pay for the loss of liberty. As Justice Holmes
declared: "I think it is less evil that some criminals escape than that
the government should play an ignoble part." It is simply not allowed
in free society to violate a law to enforce another, especially if the
law violated is the Constitution itself.37
WHEREFORE, in view of the foregoing, the decision of the Regional
Trial Court, Branch 73, Olongapo City, is hereby REVERSED and
SET ASIDE. For lack of evidence to establish her guilt beyond
reasonable doubt, accused-appellant ROSA ARUTA Y MENGUIN
is hereby ACQUITTED and ordered RELEASED from confinement
unless she is being held for some other legal grounds. No costs.
SO ORDERED.

It might be supposed that the non-admissibility of evidence secured

through an invalid warrantless arrest or a warrantless search and
seizure may be waived by an accused person. The a priori argument
is that the invalidity of an unjustified warrantless arrest, or an arrest
effected with a defective warrant of arrest may be waived by
applying for and posting of bail for provisional liberty, so as to estop
an accused from questioning the legality or constitutionality of his
detention or the failure to accord him a preliminary investigation. We
do not believe, however, that waiver of the latter necessarily
constitutes, or carries with it, waiver of the former — an argument
that the Solicitor General appears to be making impliedly. Waiver of
the non-admissibility of the "fruits" of an invalid warrantless arrest
and of a warrantless search and seizure is not casually to be
presumed, if the constitutional right against unlawful searches and
seizures is to retain its vitality for the protection of our people. In the
case at bar, defense counsel had expressly objected on
constitutional grounds to the admission of the carton box and the
four (4) kilos of marijuana when these were formally offered in
evidence by the prosecution. We consider that appellant's objection
to the admission of such evidence was made clearly and
seasonably and that, under the circumstances, no intent to waive
his rights under the premises can be reasonably inferred from his
conduct before or during the trial. (Emphasis supplied).

In fine, there was really no excuse for the NARCOM agents not to
procure a search warrant considering that they had more than
twenty-four hours to do so. Obviously, this is again an instance of
seizure of the "fruit of the poisonous tree," hence illegal and
inadmissible subsequently in evidence.

The exclusion of such evidence is the only practical means of

enforcing the constitutional injunction against unreasonable
searches and seizure. The non-exclusionary rule is contrary to the
letter and spirit of the prohibition against unreasonable searches
and seizures.34

While conceding that the officer making the unlawful search and
seizure may be held criminally and civilly liable, the Stonehill case
observed that most jurisdictions have realized that the exclusionary

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.
Ricardo C. Valmonte for himself and his co-petitioners.
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.
CONSTI LAW II I ACJUCO 193
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 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.

G.R. No. 104961 October 7, 1994
CONGRESSMAN FRANCISCO B. ANIAG, JR., petitioner,
vs.
COMMISSION ON ELECTIONS and DEPARTMENT OF
JUSTICE SPECIAL TASK FORCE, respondents.
Ronolfo S. Pasamba for petitioner.
BELLOSILLO, JR., J.:
PETITIONER assails in this petition (for declaratory relief, certiorari
and prohibition) the following resolutions of the Commission on
Elections: Resolution No. 2327 dated 26 December 1991 for being
unconstitutional, and Resolution No. 92-0829 dated 6 April 1992
and Resolution No. 92-0999 dated 23 April 1992, for want of legal
and factual bases.
The factual backdrop: In preparation for the synchronized national
and local elections scheduled on 11 May 1992, the Commission on
Elections (COMELEC) issued on 11 December 1991 Resolution No.
2323 otherwise referred to as the "Gun Ban," promulgating rules and
regulations on bearing, carrying and transporting of firearms or other
deadly weapons, on security personnel or bodyguards, on bearing
arms by members of security agencies or police organizations, and
organization or maintenance of reaction forces during the election
period.1 Subsequently, on 26 December 1991 COMELEC issued
Resolution No. 2327 providing for the summary disqualification of
candidates engaged in gunrunning, using and transporting of
firearms, organizing special strike forces, and establishing spot
checkpoints.2
On 10 January 1992, pursuant to the "Gun Ban," Mr. Serapio P.
Taccad, Sergeant-at-Arms, House of Representatives, wrote
petitioner who was then Congressman of the 1st District of Bulacan
requesting the return of the two (2) firearms3 issued to him by the
House of Representatives. Upon being advised of the request on 13
January 1992 by his staff, petitioner immediately instructed his
driver, Ernesto Arellano, to pick up the firearms from petitioner's
house at Valle Verde and return them to Congress.
Meanwhile, at about five o'clock in the afternoon of the same day,
the Philippine National Police (PNP) headed by Senior
Superintendent Danilo Cordero set up a checkpoint outside the
Batasan Complex some twenty (20) meters away from its entrance.
About thirty minutes later, the policemen manning the outpost
flagged down the car driven by Arellano as it approached the
checkpoint. They searched the car and found the firearms neatly
packed in their gun cases and placed in a bag in the trunk of the car.
Arellano was then apprehended and detained. He explained that he
was ordered by petitioner to get the firearms from the house and
return them to Sergeant-at-Arms Taccad of the House of
Representatives.
Thereafter, the police referred Arellano's case to the Office of the
City Prosecutor for inquest. The referral did not include petitioner as
among those charged with an election offense. On 15 January 1992,
the City Prosecutor ordered the release of Arellano after finding the
latter's sworn explanation meritorious.4
On 28 January 1992, the City Prosecutor invited petitioner to shed
light on the circumstances mentioned in Arellano's sworn
explanation. Petitioner not only appeared at the preliminary
investigation to confirm Arellano's statement but also wrote the City
Prosecutor urging him to exonerate Arellano. He explained that
Arellano did not violate the firearms ban as he in fact was complying
with it when apprehended by returning the firearms to Congress;
and, that he was petitioner's driver, not a security officer nor a
bodyguard.5
CONSTI LAW II I ACJUCO 194
On 6 March 1992, the Office of the City Prosecutor issued a
resolution which, among other matters, recommended that the case
against Arellano be dismissed and that the "unofficial" charge
against petitioner be also dismissed.6
Nevertheless, on 6 April 1992, upon recommendation of its Law
Department, COMELEC issued Resolution No. 92-0829 directing
the filing of information against petitioner and Arellano for violation
of Sec. 261, par. (q), of B.P. Blg. 881 otherwise known as the
Omnibus Election Code, in relation to Sec. 32 of R.A. No. 7166;7
and petitioner to show cause why he should not be disqualified from
running for an elective position, pursuant to COMELEC Resolution
No. 2327, in relation to Sec. 32, 33 and 35 of R.A. 7166, and
Sec. 52, par. (c), of B.P. Blg. 881.8
On 13 April 1992, petitioner moved for reconsideration and to hold
in abeyance the administrative proceedings as well as the filing of
the information in court.9 On 23 April 1992, the COMELEC denied
petitioner's motion for reconsideration.10 Hence, this recourse.
Petitioner questions the constitutionality of Resolution No. 2327. He
argues that the rules and regulations of an administrative body must
respect the limits defined by law; that the Omnibus Election Code
provides for the disqualification of any person/candidate from
running for or holding a public office, i.e., any person who has either
been declared by competent authority as insane or incompetent or
has been sentenced by final judgment for subversion, insurrection,
rebellion or for any offense for which he has been sentenced to a
penalty of more than eighteen months or for a crime involving moral
turpitude; that gunrunning, using or transporting firearms or similar
weapons and other acts mentioned in the resolution are not within
the letter or spirit of the provisions of the Code; that the resolution
did away with the requirement of final conviction before the
commission of certain offenses; that instead, it created a
presumption of guilt as a candidate may be disqualified from office
in situations (a) where the criminal charge is still pending, (b) where
there is no pending criminal case, and (c) where the accused has
already been acquitted, all contrary to the requisite quantum of proof
for one to be disqualified from running or holding public office under
the Omnibus Election Code, i.e., proof beyond reasonable doubt.
As a result, petitioner concludes, Resolution No. 2327 violates the
fundamental law thus rendering it fatally defective.
But, the issue on the disqualification of petitioner from running in the
11 May 1992 synchronized elections was rendered moot when he
lost his bid for a seat in Congress in the elections that ensued.
Consequently, it is now futile to discuss the implications of the
charge against him on his qualification to run for public office.
However, there still remains an important question to be resolved,
i.e., whether he can be validly prosecuted for instructing his driver
to return to the Sergeant-at-Arms of the House of Representatives
the two firearms issued to him on the basis of the evidence gathered
from the warrantless search of his car.
Petitioner strongly protests against the manner by which the PNP
conducted the search. According to him, without a warrant and
without informing the driver of his fundamental rights the policemen
searched his car. The firearms were not tucked in the waist nor
within the immediate reach of Arellano but were neatly packed in
their gun cases and wrapped in a bag kept in the trunk of the car.
Thus, the search of his car that yielded the evidence for the
prosecution was clearly violative of Secs. 2 and 3, par. (2), Art. III,
of the Constitution. 11
Petitioner further maintains that he was neither impleaded as party
respondent in the preliminary investigation before the Office of the
City Prosecutor nor included in the charge sheet. Consequently,
making him a respondent in the criminal information would violate
his constitutional right to due process.

Petitioner disputes the charge that he violated Sec. 33 of R.A. 7166,
which prohibits any candidate for public office during the election
period from employing or availing himself or engaging the services
of security personnel or bodyguards since, admittedly, Arellano was
not a security officer or bodyguard but a civilian employee assigned
to him as driver by the House of Representatives. Specifically,
petitioner further argues, Arellano was instructed to return to
Congress, as he did, the firearms in compliance with the directive of
its Sergeant-at-Arms pursuant to the "Gun Ban," thus, no law was
in fact violated. 12
On 25 June 1992, we required COMELEC to file its own comment
on the
petition13 upon manifestation of the Solicitor General that it could
not take the position of COMELEC and prayed instead to be
excused from filing the required comment. 14
COMELEC claims that petitioner is charged with violation of Sec.
261, par. (q), in relation to Sec. 263, of B.P. Blg. 881 which provides
that "the principals, accomplices and accessories, as defined in the
Revised Penal Code, shall be criminally liable for election offenses."
It points out that it was upon petitioner's instruction that Arellano
brought the firearms in question outside petitioner's residence,
submitting that his right to be heard was not violated as he was
invited by the City Prosecutor to explain the circumstances
regarding Arellano's possession of the firearms. Petitioner also filed
a sworn written explanation about the incident. Finally, COMELEC
claims that violation of
the "Gun Ban" is mala prohibita, hence, the intention of the offender
is immaterial. 15
Be that as it may, we find no need to delve into the alleged
constitutional infirmity of Resolution No. 2327 since this petition may
be resolved without passing upon this particular issue. 16
As a rule, a valid search must be authorized by a search warrant
duly issued by an appropriate authority. However, this is not
absolute. Aside from a search incident to a lawful arrest, a
warrantless search had been upheld in cases of moving vehicles
and the seizure of evidence in plain view,17 as well as the search
conducted at police or military checkpoints which we declared are
not illegal per se, and stressed that the warrantless search is not
violative of the Constitution for as long as the vehicle is neither
searched nor its occupants subjected to a body search, and the
inspection of the vehicle is merely limited to a visual search. 18
Petitioner contends that the guns were not tucked in Arellano's waist
nor placed within his reach, and that they were neatly packed in gun
cases and placed inside a bag at the back of the car. Significantly,
COMELEC did not rebut this claim. The records do not show that
the manner by which the package was bundled led the PNP to
suspect that it contained firearms. There was no mention either of
any report regarding any nervous, suspicious or unnatural reaction
from Arellano when the car was stopped and searched. Given these
circumstances and relying on its visual observation, the PNP could
not thoroughly search the car lawfully as well as the package without
violating the constitutional injunction.
An extensive search without warrant could only be resorted to if the
officers conducting the search had reasonable or probable cause to
believe before the search that either the motorist was a law offender
or that they would find the instrumentality or evidence pertaining to
the commission of a crime in the vehicle to be searched.19 The
existence of probable cause justifying the warrantless search is
determined by the facts of each case.20 Thus, we upheld the validity
of the warrantless search in situations where the smell of marijuana
emanated from a plastic bag owned by the accused, or where the
accused was acting suspiciously, and attempted to flee. 21
We also recognize the stop-and-search without warrant conducted
by police officers on the basis of prior confidential information which
CONSTI LAW II I ACJUCO 195
were reasonably corroborated by other attendant matters, e.g.,
where a confidential report that a sizeable volume of marijuana
would be transported along the route where the search was
conducted and appellants were caught in flagrante delicto
transporting drugs at the time of their arrest; 22 where apart from
the intelligence information, there were reports by an undercover
"deep penetration" agent that appellants were bringing prohibited
drugs into the country; 23 where the information that a Caucasian
coming from Sagada bringing prohibited drugs was strengthened by
the conspicuous bulge in accused's waistline, and his suspicious
failure to produce his passport and other identification papers;24
where the physical appearance of the accused fitted the description
given in the confidential information about a woman transporting
marijuana;25 where the accused carrying a bulging black leather
bag were suspiciously quiet and nervous when queried about its
contents;26 or where the identity of the drug courier was already
established by police authorities who received confidential
information about the probable arrival of accused on board one of
the vessels arriving in Dumaguete City. 27
In the case at bench, we find that the checkpoint was set up twenty
(20) meters from the entrance to the Batasan Complex to enforce
Resolution
No. 2327. There was no evidence to show that the policemen were
impelled to do so because of a confidential report leading them to
reasonably believe that certain motorists matching the description
furnished by their informant were engaged in gunrunning,
transporting firearms or in organizing special strike forces. Nor, as
adverted to earlier, was there any indication from the package or
behavior of Arellano that could have triggered the suspicion of the
policemen. Absent such justifying circumstances specifically
pointing to the culpability of petitioner and Arellano, the search could
not be valid. The action then of the policemen unreasonably
intruded into petitioner's privacy and the security of his property, in
violation of Sec. 2, Art. III, of the Constitution. Consequently, the
firearms obtained in violation of petitioner's right against warrantless
search cannot be admitted for any purpose in any proceeding.
It may be argued that the seeming acquiescence of Arellano to the
search constitutes an implied waiver of petitioner's right to question
the reasonableness of the search of the vehicle and the seizure of
the firearms.
While Resolution No. 2327 authorized the setting up of checkpoints,
it however stressed that "guidelines shall be made to ensure that no
infringement of civil and political rights results from the
implementation of this authority," and that "the places and manner
of setting up of checkpoints shall be determined in consultation with
the Committee on Firearms Ban and Security Personnel created
under Sec. 5, Resolution No. 2323."28 The facts show that PNP
installed the checkpoint at about five o'clock in the afternoon of 13
January 1992. The search was made soon thereafter, or thirty
minutes later. It was not shown that news of impending checkpoints
without necessarily giving their locations, and the reason for the
same have been announced in the media to forewarn the citizens.
Nor did the informal checkpoint that afternoon carry signs informing
the public of the purpose of its operation. As a result, motorists
passing that place did not have any inkling whatsoever about the
reason behind the instant exercise. With the authorities in control to
stop and search passing vehicles, the motorists did not have any
choice but to submit to the PNP's scrutiny. Otherwise, any attempt
to turnabout albeit innocent would raise suspicion and provide
probable cause for the police to arrest the motorist and to conduct
an extensive search of his vehicle.
In the case of petitioner, only his driver was at the car at that time it
was stopped for inspection. As conceded by COMELEC, driver
Arellano did not know the purpose of the checkpoint. In the face of
fourteen (14) armed policemen conducting the operation,29 driver
Arellano being alone and a mere employee of petitioner could not
have marshalled the strength and the courage to protest against the
 CONSTI LAW II I ACJUCO 196

extensive search conducted in the vehicle. In such scenario, the 0829 dated 6 April 1992 being violative of the Constitution is SET
"implied acquiescence," if there was any, could not be more than a ASIDE.
mere passive conformity on Arellano's part to the search, and
"consent" given under intimidating or coercive circumstances is no The temporary restraining order we issued on 5 May 1992 is made
consent within the purview of the constitutional guaranty. permanent.

Moreover, the manner by which COMELEC proceeded against SO ORDERED.

petitioner runs counter to the due process clause of the Constitution.
The facts show that petitioner was not among those charged by the
PNP with violation of the Omnibus Election Code. Nor was he
subjected by the City Prosecutor to a preliminary investigation for
such offense. The non-disclosure by the City Prosecutor to the
petitioner that he was a respondent in the preliminary investigation
is violative of due process which requires that the procedure
established by law should be obeyed. 30

COMELEC argues that petitioner was given the change to be heard

because he was invited to enlighten the City Prosecutor regarding
the circumstances leading to the arrest of his driver, and that
petitioner in fact submitted a sworn letter of explanation regarding
the incident. This does not satisfy the requirement of due process
the essence of which is the reasonable opportunity to be heard and
to submit any evidence one may have in support of his defense.31
Due process guarantees the observance of both substantive and
procedural rights, whatever the source of such rights, be it the
Constitution itself or only a statute or a rule of court. 32 In Go v.
Court of Appeals,33 we held
that —

While the right to preliminary investigation is statutory rather than

constitutional in its fundament, since it has in fact been established
by statute, it is a component part of due process in criminal justice.
The right to have a preliminary investigation conducted before being
bound over to trial for a criminal offense and hence formally at risk
of incarceration or some other penalty is not a mere formal or
technical right; it is a substantive right . . . . [T]he right to an
opportunity to avoid a process painful to anyone save, perhaps, to
hardened criminals is a valuable right. To deny petitioner's claim to
a preliminary investigation would be to deprive him of the full
measure of his right to due process.

Apparently, petitioner was merely invited during the preliminary

investigation of Arellano to corroborate the latter's explanation.
Petitioner then was made to believe that he was not a party
respondent in the case, so that his written explanation on the
incident was only intended to exculpate Arellano, not petitioner
himself. Hence, it cannot be seriously contended that petitioner was
fully given the opportunity to meet the accusation against him as he
was not apprised that he was himself a respondent when he
appeared before the City Prosecutor.

Finally, it must be pointed out too that petitioner's filing of a motion

for reconsideration with COMELEC cannot be considered as a
waiver of his claim to a separate preliminary investigation for
himself. The motion itself expresses petitioner's vigorous insistence
on his right. Petitioner's protestation started as soon as he learned
of his inclusion in the charge, and did not ease up even after
COMELEC's denial of his motion for reconsideration. This is
understandably so since the prohibition against carrying firearms
bears the penalty of imprisonment of not less than one (1) year nor
more than six (6) years without probation and with disqualification
from holding public office, and deprivation of the right to suffrage.
Against such strong stance, petitioner clearly did not waive his right
to a preliminary investigation.

WHEREFORE, the instant petition is GRANTED. The warrantless

search conducted by the Philippine National Police on 13 January
1992 is declared illegal and the firearms seized during the
warrantless search cannot be used as evidence in any proceeding
against petitioner. Consequently, COMELEC Resolution No. 92-

G.R. No. 136292 January 15, 2002
RUDY CABALLES y TAIÑO, petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES,
respondents.
PUNO, J.:
This is an appeal by certiorari from the decision1 of respondent
Court of Appeals dated September 15, 1998 which affirmed the
judgment rendered by the Regional Trial Court of Santa Cruz,
Laguna, finding herein petitioner, Rudy Caballes y Taiño, guilty
beyond reasonable doubt of the crime of theft, and the resolution2
dated November 9, 1998 which denied petitioner's motion for
reconsideration.
In an Information3 dated October 16, 1989, petitioner was charged
with the crime of theft committed as follows:
"That on or about the 28th day of June, 1989, in the Municipality of
Pagsanjan, and/or elsewhere in the Province of Laguna, and within
the jurisdiction of this Honorable Court, the above-named accused,
with intent of gain, and without the knowledge and consent of the
owner thereof, the NATIONAL POWER CORPORATION, did then
and there wilfully, unlawfully and feloniously take, steal and carry
away about 630-kg of Aluminum Cable Conductors, valued at P27,
450.00, belonging to and to the damage and prejudice of said owner
National Power Corp., in the aforesaid amount.
CONTRARY TO LAW."
During the arraignment, petitioner pleaded not guilty and hence, trial
on the merits ensued.
The facts are summarized by the appellate court as follows:
"[At] about 9:15 p.m. of June 28, 1989, Sgt. Victorino Noceja and
Pat. Alex de Castro, while on a routine patrol in Barangay
Sampalucan, Pagsanjan, Laguna, spotted a passenger jeep
unusually covered with "kakawati" leaves.
Suspecting that the jeep was loaded with smuggled goods, the two
police officers flagged down the vehicle. The jeep was driven by
appellant. When asked what was loaded on the jeep, he did not
answer; he appeared pale and nervous.
With appellant's consent, the police officers checked the cargo and
they discovered bundles of 3.08 mm aluminum/galvanized
conductor wires exclusively owned by National Power Corporation
(NPC). The conductor wires weighed 700 kilos and valued at P55,
244.45. Noceja asked appellant where the wires came from and
appellant answered that they came from Cavinti, a town
approximately 8 kilometers away from Sampalucan. Thereafter,
appellant and the vehicle with the high-voltage wires were brought
to the Pagsanjan Police Station. Danilo Cabale took pictures of the
appellant and the jeep loaded with the wires which were turned over
to the Police Station Commander of Pagsanjan, Laguna. Appellant
was incarcerated for 7 days in the Municipal jail.
In defense, appellant interposed denial and alibi. He testified that he
is a driver and resident of Pagsanjan, Laguna; a NARCOM civilian
agent since January, 1988 although his identification card (ID) has
already expired. In the afternoon of June 28, 1989, while he was
driving a passenger jeepney, he was stopped by one Resty
Fernandez who requested him to transport in his jeepney conductor
wires which were in Cavinti, Laguna. He told Resty to wait until he
had finished his last trip for the day from Santa Cruz, Laguna. On
his way to Santa Cruz, Laguna, he dropped by the NARCOM
headquarters and informed his superior, Sgt. Callos, that something
unlawful was going to happen. Sgt. Callos advised him to proceed
CONSTI LAW II I ACJUCO 197
with the loading of the wires and that the former would act as back-
up and intercept the vehicle at the Sambat Patrol Base in
Pagsanjan.
After receiving those instructions, he went back to see Resty.
Although Resty had his own vehicle, its tires were old so the cable
wires were loaded in appellant's jeep and covered with kakawati
leaves. The loading was done by about five (5) masked men. He
was promised ₱1,000.00 for the job. Upon crossing a bridge, the
two vehicles separated but in his case, he was intercepted by Sgt.
Noceja and Pat. De Castro. When they discovered the cables, he
told the police officers that the cables were loaded in his jeep by the
owner, Resty Fernandez. But despite his explanation, he was
ordered to proceed to police headquarters where he was
interrogated. The police officers did not believe him and instead
locked him up in jail for a week."4
On April 27, 1993, the court a quo rendered judgment5 the
dispositive portion of which reads:
"WHEREFORE, finding the accused guilty beyond reasonable
doubt of the crime of Theft of property worth ₱55,244.45, the Court
hereby sentences him to suffer imprisonment from TWO (2)
[YEARS], FOUR (4) MONTHS, and ONE (1) DAY of Prision
Correccional, as minimum, to TEN (10) YEARS of Prision Mayor, as
maximum, to indemnify the complainant National Power
Corporation in the amount of ₱55, 244.45, and to pay the costs."
On appeal, the Court of Appeals affirmed the judgment of conviction
but deleted the award for damages on the ground that the stolen
materials were recovered and modified the penalty imposed, to wit:
"WHEREFORE, the appealed decision is hereby AFFIRMED with
the modification that appellant RUDY CABALLES is found guilty
beyond reasonable doubt as principal in theft, defined and penalized
under Articles 308 and 309, par. 1, Revised Penal Code, and there
being no modifying circumstances, he is hereby meted an
indeterminate penalty of Four (4) years, Nine (9) months and Eleven
(11) days of prision correccional, as minimum term, to Eight (8)
years, Eight (8) months and one (1) day of prision mayor, as
maximum term. No civil indemnity and no costs."6
Petitioner comes before us and raises the following issues:
"(a) Whether or not the constitutional right of petitioner was violated
when the police officers searched his vehicle and seized the wires
found therein without a search warrant and when samples of the
wires and references to them were admitted in evidence as basis
for his conviction;
(b) Whether or not respondent Court erred in rejecting petitioner's
defense that he was engaged in an entrapment operation and in
indulging in speculation and conjecture in rejecting said defense;
and
(c) Whether or not the evidence of the prosecution failed to establish
the guilt of petitioner beyond reasonable doubt and thus failed to
overcome the constitutional right of petitioner to presumption of
innocence."
The conviction or acquittal of petitioner hinges primarily on the
validity of the warrantless search and seizure made by the police
officers, and the admissibility of the evidence obtained by virtue
thereof.
In holding that the warrantless search and seizure is valid, the trial
court ruled that:
"As his last straw of argument, the accused questions the
constitutionality of the search and validity of his arrest on the ground
that no warrant was issued to that effect. The Court cannot again

sustain such view. In the case of People v. Lo Ho [Wing], G.R. No.
88017, January 21, 1991, it has been held that 'considering that
before a warrant can be obtained, the place, things and persons to
be searched must be described to the satisfaction of the issuing
judge - a requirement which borders on the impossible in the case
of smuggling effected by the use of a moving vehicle that can
transport contraband from one place to another with impunity, a
warrantless search of a moving vehicle is justified on grounds of
practicability.' The doctrine is not of recent vintage. In the case of
Valmonte vs. de Villa, G.R. No. 83988, May 24, 1990 (Resolution
on Motion for Reconsideration, September 29, 1989), it was ruled
that 'automobiles because of their mobility may be searched without
a warrant upon facts not justifying warrantless search of a resident
or office. x x x To hold that no criminal can, in any case, be arrested
and searched for the evidence and tokens of his crime without a
warrant, would be to leave society, to a large extent, at the mercy of
the shrewdest, the most expert, and the most depraved of criminals,
facilitating their escape in many instances' (Ibid.). In Umil v. Ramos,
187 SCRA 311, and People vs. Ortiz, 191 SCRA 836, the Supreme
Court held that a search may be made even without a warrant where
the accused is caught in flagrante. Under the circumstances, the
police officers are not only authorized but are also under obligation
to arrest the accused even without a warrant."7
Petitioner contends that the flagging down of his vehicle by police
officers who were on routine patrol, merely on "suspicion" that "it
might contain smuggled goods," does not constitute probable cause
that will justify a warrantless search and seizure. He insists that,
contrary to the findings of the trial court as adopted by the appellate
court, he did not give any consent, express or implied, to the search
of the vehicle. Perforce, any evidence obtained in violation of his
right against unreasonable search and seizure shall be deemed
inadmissible.
Enshrined in our Constitution is the inviolable right of the people to
be secure in their persons and properties against unreasonable
searches and seizures, as defined under Section 2, Article III
thereof, which reads:
"Sec. 2. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to
be searched and the persons or things to be seized."
The exclusionary rule under Section 3(2), Article III of the
Constitution bars the admission of evidence obtained in violation of
such right.
The constitutional proscription against warrantless searches and
seizures is not absolute but admits of certain exceptions, namely:
(1) warrantless search incidental to a lawful arrest recognized under
Section 12, Rule 126 of the Rules of Court and by prevailing
jurisprudence;8 (2) seizure of evidence in plain view;9 (3) search of
moving vehicles;10 (4) consented warrantless search;11 (5)
customs search; (6) stop and frisk situations (Terry search);12 and
(7) exigent and emergency circumstances.13
In cases where warrant is necessary, the steps prescribed by the
Constitution and reiterated in the Rules of Court must be complied
with. In the exceptional events where warrant is not necessary to
effect a valid search or seizure, or when the latter cannot be
performed except without a warrant, what constitutes a reasonable
or unreasonable search or seizure is purely a judicial question,
determinable from the uniqueness of the circumstances involved,
including the purpose of the search or seizure, the presence or
absence of probable cause, the manner in which the search and
CONSTI LAW II I ACJUCO 198
seizure was made, the place or thing searched and the character of
the articles procured.14
It is not controverted that the search and seizure conducted by the
police officers in the case at bar was not authorized by a search
warrant. The main issue is whether the evidence taken from the
warrantless search is admissible against the appellant. Without said
evidence, the prosecution cannot prove the guilt of the appellant
beyond reasonable doubt.1âwphi1.nêt
I. Search of moving vehicle
Highly regulated by the government, the vehicle's inherent mobility
reduces expectation of privacy especially when its transit in public
thoroughfares furnishes a highly reasonable suspicion amounting to
probable cause that the occupant committed a criminal activity.15
Thus, the rules governing search and seizure have over the years
been steadily liberalized whenever a moving vehicle is the object of
the search on the basis of practicality. This is so considering that
before a warrant could be obtained, the place, things and persons
to be searched must be described to the satisfaction of the issuing
judge — a requirement which borders on the impossible in the case
of smuggling effected by the use of a moving vehicle that can
transport contraband from one place to another with impunity. We
might add that a warrantless search of a moving vehicle is justified
on the ground that it is not practicable to secure a warrant because
the vehicle can be quickly moved out of the locality or jurisdiction in
which the warrant must be sought.16 Searches without warrant of
automobiles is also allowed for the purpose of preventing violations
of smuggling or immigration laws, provided such searches are made
at borders or 'constructive borders' like checkpoints near the
boundary lines of the State.17
The mere mobility of these vehicles, however, does not give the
police officers unlimited discretion to conduct indiscriminate
searches without warrants if made within the interior of the territory
and in the absence of probable cause.18 Still and all, the important
thing is that there was probable cause to conduct the warrantless
search, which must still be present in such a case.
Although the term eludes exact definition, probable cause signifies
a reasonable ground of suspicion supported by circumstances
sufficiently strong in themselves to warrant a cautious man's belief
that the person accused is guilty of the offense with which he is
charged; or the existence of such facts and circumstances which
could lead a reasonably discreet and prudent man to believe that an
offense has been committed and that the items, articles or objects
sought in connection with said offense or subject to seizure and
destruction by law is in the place to be searched.19 The required
probable cause that will justify a warrantless search and seizure is
not determined by a fixed formula but is resolved according to the
facts of each case.20
One such form of search of moving vehicles is the "stop-and-search"
without warrant at military or police checkpoints which has been
declared to be not illegal per se,21 for as long as it is warranted by
the exigencies of public order22 and conducted in a way least
intrusive to motorists.23 A checkpoint may either be a mere routine
inspection or it may involve an extensive search.
Routine inspections are not regarded as violative of an individual's
right against unreasonable search. The search which is normally
permissible in this instance is limited to the following instances: (1)
where the officer merely draws aside the curtain of a vacant vehicle
which is parked on the public fair grounds;24 (2) simply looks into a
vehicle;25 (3) flashes a light therein without opening the car's
doors;26 (4) where the occupants are not subjected to a physical or
body search;27 (5) where the inspection of the vehicles is limited to
a visual search or visual inspection;28 and (6) where the routine
check is conducted in a fixed area.29

None of the foregoing circumstances is obtaining in the case at bar.
The police officers did not merely conduct a visual search or visual
inspection of herein petitioner's vehicle. They had to reach inside
the vehicle, lift the kakawati leaves and look inside the sacks before
they were able to see the cable wires. It cannot be considered a
simple routine check.
In the case of United States vs. Pierre,30 the Court held that the
physical intrusion of a part of the body of an agent into the vehicle
goes beyond the area protected by the Fourth Amendment, to wit:
"The Agent . . . stuck his head through the driver's side window. The
agent thus effected a physical intrusion into the vehicle. . . [W]e are
aware of no case holding that an officer did not conduct a search
when he physically intruded part of his body into a space in which
the suspect had a reasonable expectation of privacy. [The] Agent['s]
. . . physical intrusion allowed him to see and to smell things he could
not see or smell from outside the vehicle. . . In doing so, his
inspection went beyond that portion of the vehicle which may be
viewed from outside the vehicle by either inquisitive passersby or
diligent police officers, and into the area protected by the Fourth
amendment, just as much as if he had stuck his head inside the
open window of a home."
On the other hand, when a vehicle is stopped and subjected to an
extensive search, such a warrantless search would be
constitutionally permissible only if the officers conducting the search
have reasonable or probable cause to believe, before the search,
that either the motorist is a law-offender or they will find the
instrumentality or evidence pertaining to a crime in the vehicle to be
searched.31
This Court has in the past found probable cause to conduct without
a judicial warrant an extensive search of moving vehicles in
situations where (1) there had emanated from a package the
distinctive smell of marijuana; (2) agents of the Narcotics Command
("Narcom") of the Philippine National Police ("PNP") had received a
confidential report from informers that a sizeable volume of
marijuana would be transported along the route where the search
was conducted; (3) 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; (4) Narcom agents
had received confidential information that a woman having the same
physical appearance as that of the accused would be transporting
marijuana;32 (5) 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 large
quantity of marijuana; and (6) 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 belonged - that said accused were bringing
prohibited drugs into the country.33
In the case at bar, the vehicle of the petitioner was flagged down
because the police officers who were on routine patrol became
suspicious when they saw that the back of the vehicle was covered
with kakawati leaves which, according to them, was unusual and
uncommon.
Pat. Alex de Castro recounted the incident as follows:
"ATTY. SANTOS
Q Now on said date and time do you remember of any unusual
incident while you were performing your duty?
CONSTI LAW II I ACJUCO 199
A Yes, sir, at that time and date myself and Police Sgt. Noceja
were conducting patrol in the said place when we spotted a
suspicious jeepney so we stopped the jeepney and searched the
load of the jeepney and we found out (sic) these conductor wires.
Q You mentioned about the fact that when you saw the jeepney
you became suspicious, why did you become suspicious?
A Because the cargo was covered with leaves and branches,
sir.
Q When you became suspicious upon seeing those leaves on
top of the load what did you do next, if any?
A We stopped the jeepney and searched the contents thereof,
sir."34
The testimony of Victorino Noceja did not fare any better:
"ATTY SANTOS
Q When you saw the accused driving the said vehicle, what did
you do?
A Because I saw that the vehicle being drawn by Caballes was
covered by kakawati leaves, I became suspicious since such vehicle
should not be covered by those and I flagged him, sir."35
We hold that the fact that the vehicle looked suspicious simply
because it is not common for such to be covered with kakawati
leaves does not constitute "probable cause" as would justify the
conduct of a search without a warrant.
In People vs. Chua Ho San,36 we held that the fact that the
watercraft used by the accused was different in appearance from
the usual fishing boats that commonly cruise over the Bacnotan
seas coupled with the suspicious behavior of the accused when he
attempted to flee from the police authorities do not sufficiently
establish probable cause. Thus:
"In the case at bar, the Solicitor General proposes that the following
details are suggestive of probable cause - persistent reports of
rampant smuggling of firearm and other contraband articles,
CHUA's watercraft differing in appearance from the usual fishing
boats that commonly cruise over the Bacnotan seas, CHUA's illegal
entry into the Philippines x x x, CHUA's suspicious behavior, i.e., he
attempted to flee when he saw the police authorities, and the
apparent ease by which CHUA can return to and navigate his
speedboat with immediate dispatch towards the high seas, beyond
the reach of Philippine laws.
This Court, however, finds that these do not constitute "probable
cause." None of the telltale clues, e.g., bag or package emanating
the pungent odor of marijuana or other prohibited drug, confidential
report and/or positive identification by informers of courier of
prohibited drug and/or the time and place where they will
transport/deliver the same, suspicious demeanor or behavior, and
suspicious bulge in the waist - accepted by this Court as sufficient
to justify a warrantless arrest exists in this case. There was no
classified information that a foreigner would disembark at
Tammocalao beach bearing prohibited drug on the date in question.
CHUA was not identified as a drug courier by a police informer or
agent. The fact that the vessel that ferried him to shore bore no
resemblance to the fishing boats of the area did not automatically
mark him as in the process of perpetrating an offense. x x x."
(emphasis supplied)
In addition, the police authorities do not claim to have received any
confidential report or tipped information that petitioner was carrying
stolen cable wires in his vehicle which could otherwise have
sustained their suspicion. Our jurisprudence is replete with cases

where tipped information has become a sufficient probable cause to
effect a warrantless search and seizure.37 Unfortunately, none
exists in this case.
II. Plain view doctrine
It cannot likewise be said that the cable wires found in petitioner's
vehicle were in plain view, making its warrantless seizure valid.
Jurisprudence is to the effect that an object is in plain view if the
object itself is plainly exposed to sight. Where the object seized was
inside a closed package, the object itself is not in plain view and
therefore cannot be seized without a warrant. However, if the
package proclaims its contents, whether by its distinctive
configuration, its transparency, or if its contents are obvious to an
observer, then the contents are in plain view and may be seized. In
other words, if the package is such that an experienced observer
could infer from its appearance that it contains the prohibited article,
then the article is deemed in plain view. It must be immediately
apparent to the police that the items that they observe may be
evidence of a crime, contraband or otherwise subject to seizure.38
It is clear from the records of this case that the cable wires were not
exposed to sight because they were placed in sacks39 and covered
with leaves. The articles were neither transparent nor immediately
apparent to the police authorities. They had no clue as to what was
hidden underneath the leaves and branches. As a matter of fact,
they had to ask petitioner what was loaded in his vehicle. In such a
case, it has been held that the object is not in plain view which could
have justified mere seizure of the articles without further search.40
III. Consented search
Petitioner contends that the statement of Sgt. Victorino Noceja that
he checked the vehicle "with the consent of the accused" is too
vague to prove that petitioner consented to the search. He claims
that there is no specific statement as to how the consent was asked
and how it was given, nor the specific words spoken by petitioner
indicating his alleged "consent." At most, there was only an implied
acquiescence, a mere passive conformity, which is no "consent" at
all within the purview of the constitutional guarantee.
Doubtless, the constitutional immunity against unreasonable
searches and seizures is a personal right which may be waived. The
consent must be voluntary in order to validate an otherwise illegal
detention and search, i.e., the consent is unequivocal, specific, and
intelligently given, uncontaminated by any duress or coercion.41
Hence, consent to a search is not to be lightly inferred, but must be
shown by clear and convincing evidence.42 The question whether
a consent to a search was in fact voluntary is a question of fact to
be determined from the totality of all the circumstances.43 Relevant
to this determination are the following characteristics of the person
giving consent and the environment in which consent is given: (1)
the age of the defendant; (2) whether he was in a public or secluded
location; (3) whether he objected to the search or passively looked
on;44 (4) the education and intelligence of the defendant; (5) the
presence of coercive police procedures; (6) the defendant's belief
that no incriminating evidence will be found;45 (7) the nature of the
police questioning; (8) the environment in which the questioning
took place; and (9) the possibly vulnerable subjective state of the
person consenting.46 It is the State which has the burden of proving,
by clear and positive testimony, that the necessary consent was
obtained and that it was freely and voluntarily given.47
In the case at bar, Sgt. Victorino Noceja testified on the manner in
which the search was conducted in this wise:
"WITNESS
Q On June 28, 1989, where were you?
CONSTI LAW II I ACJUCO 200
A We were conducting patrol at the poblacion and some
barangays, sir.
xxx xxx xxx
Q After conducting the patrol operation, do you remember of any
unusual incident on said date and time?
A Yes, sir.
Q What is that incident?
A While I was conducting my patrol at barangay Sampalucan, I
saw Rudy Caballes driving a vehicle and the vehicle contained
aluminum wires, sir.
xxx xxx xxx
Q When you saw the accused driving the said vehicle, what did
you do?
A Because I saw that the vehicle being driven by Caballes was
covered by kakawati leaves, I became suspicious since such vehicle
should not be covered by those and I flagged him, sir.
Q Did the vehicle stop?
A Yes, sir, and after said vehicle stop[ped], I removed the cover
of said vehicle and by so doing, I saw the aluminum wires.
Q Before you saw the aluminum wires, did you talk to the
accused?
A Yes, sir, I asked him what his load was.
Q What was the answer of Caballes?
A He did not answer and I observed him to be pale,
"nagpapamutla" (sic), so I told him I will look at the contents of his
vehicle and he answered in the positive.
Q And after you saw for yourself the aluminum wires loaded on
the jeep, what did you do?
A I asked him where those wires came from and he answered
those came from the Cavinti area, sir."48
This Court is not unmindful of cases upholding the validity of
consented warrantless searches and seizure. But in these cases,
the police officers' request to search personnel effects was orally
articulated to the accused and in such language that left no room for
doubt that the latter fully understood what was requested. In some
instance, the accused even verbally replied to the request
demonstrating that he also understood the nature and
consequences of such request.49
In Asuncion vs. Court of Appeals,50 the apprehending officers
sought the permission of petitioner to search the car, to which the
latter agreed. Petitioner therein himself freely gave his consent to
said search. In People vs. Lacerna,51 the appellants who were
riding in a taxi were stopped by two policemen who asked
permission to search the vehicle and the appellants readily agreed.
In upholding the validity of the consented search, the Court held that
appellant himself who was "urbanized in mannerism and speech"
expressly said that he was consenting to the search as he allegedly
had nothing to hide and had done nothing wrong. In People vs.
Cuizon,52 the accused admitted that they signed a written
permission stating that they freely consented to the search of their
luggage by the NBI agents to determine if they were carrying shabu.
In People vs. Montilla,53 it was held that the accused spontaneously
performed affirmative acts of volition by himself opening the bag
 CONSTI LAW II I ACJUCO 201

without being forced or intimidated to do so, which acts should

properly be construed as a clear waiver of his right. In People vs.
Omaweng,54 the police officers asked the accused if they could see
the contents of his bag to which the accused said "you can see the
contents but those are only clothings." Then the policemen asked if
they could open and see it, and accused answered "you can see it."
The Court said there was a valid consented search.1âwphi1.nêt
WHEREFORE, the impugned decision is REVERSED and SET
ASIDE, and accused Rudy Caballes is hereby ACQUITTED of the
crime charged. Cost de oficio.
SO ORDERED.

In case of consented searches or waiver of the constitutional

guarantee against obtrusive searches, it is fundamental that to
constitute a waiver, it must first appear that (1) the right exists; (2)
that the person involved had knowledge, either actual or
constructive, of the existence of such right; and (3) the said person
had an actual intention to relinquish the right.55

In the case at bar, the evidence is lacking that the petitioner

intentionally surrendered his right against unreasonable searches.
The manner by which the two police officers allegedly obtained the
consent of petitioner for them to conduct the search leaves much to
be desired. When petitioner's vehicle was flagged down, Sgt.
Noceja approached petitioner and "told him I will look at the contents
of his vehicle and he answered in the positive." We are hard put to
believe that by uttering those words, the police officers were asking
or requesting for permission that they be allowed to search the
vehicle of petitioner. For all intents and purposes, they were
informing, nay, imposing upon herein petitioner that they will search
his vehicle. The "consent" given under intimidating or coercive
circumstances is no consent within the purview of the constitutional
guaranty. In addition, in cases where this Court upheld the validity
of consented search, it will be noted that the police authorities
expressly asked, in no uncertain terms, for the consent of the
accused to be searched. And the consent of the accused was
established by clear and positive proof. In the case of herein
petitioner, the statements of the police officers were not asking for
his consent; they were declaring to him that they will look inside his
vehicle. Besides, it is doubtful whether permission was actually
requested and granted because when Sgt. Noceja was asked
during his direct examination what he did when the vehicle of
petitioner stopped, he answered that he removed the cover of the
vehicle and saw the aluminum wires. It was only after he was asked
a clarificatory question that he added that he told petitioner he will
inspect the vehicle. To our mind, this was more of an afterthought.
Likewise, when Pat. de Castro was asked twice in his direct
examination what they did when they stopped the jeepney, his
consistent answer was that they searched the vehicle. He never
testified that he asked petitioner for permission to conduct the
search.56

Neither can petitioner's passive submission be construed as an

implied acquiescence to the warrantless search. In People vs.
Barros,57 appellant Barros, who was carrying a carton box, boarded
a bus where two policemen were riding. The policemen inspected
the carton and found marijuana inside. When asked who owned the
box, appellant denied ownership of the box and failed to object to
the search. The Court there struck down the warrantless search as
illegal and held that the accused is not to be presumed to have
waived the unlawful search conducted simply because he failed to
object, citing the ruling in the case of People vs. Burgos,58 to wit:

"As the constitutional guaranty is not dependent upon any

affirmative act of the citizen, the courts do not place the citizens in
the position of either contesting an officer's authority by force, or
waiving his constitutional rights; but instead they hold that a
peaceful submission to a search or seizure is not a consent or an
invitation thereto, but is merely a demonstration of regard for the
supremacy of the law."

Casting aside the cable wires as evidence, the remaining evidence

on record are insufficient to sustain petitioner's conviction. His guilt
can only be established without violating the constitutional right of
the accused against unreasonable search and seizure.

PRIVACY OF COMMUNICATION
G.R. No. L-69809 October 16, 1986
EDGARDO A. GAANAN, petitioner,
vs.
INTERMEDIATE APPELLATE COURT and PEOPLE OF THE
PHILIPPINES, respondents.
GUTIERREZ, JR., J.:
This petition for certiorari asks for an interpretation of Republic Act
(RA) No. 4200, otherwise known as the Anti-Wiretapping Act, on the
issue of whether or not an extension telephone is among the
prohibited devices in Section 1 of the Act, such that its use to
overhear a private conversation would constitute unlawful
interception of communications between the two parties using a
telephone line.
The facts presented by the People and narrated in the respondent
court's decision are not disputed by the petitioner.
In the morning of October 22, 1975, complainant Atty. Tito Pintor
and his client Manuel Montebon were in the living room of
complainant's residence discussing the terms for the withdrawal of
the complaint for direct assault which they filed with the Office of the
City Fiscal of Cebu against Leonardo Laconico. After they had
decided on the proposed conditions, complainant made a telephone
call to Laconico (tsn, August 26, 1981, pp. 3-5).
That same morning, Laconico telephoned appellant, who is a
lawyer, to come to his office and advise him on the settlement of the
direct assault case because his regular lawyer, Atty. Leon Gonzaga,
went on a business trip. According to the request, appellant went to
the office of Laconico where he was briefed about the problem.
(Exhibit 'D', tsn, April 22, 1982, pp. 4-5).
When complainant called up, Laconico requested appellant to
secretly listen to the telephone conversation through a telephone
extension so as to hear personally the proposed conditions for the
settlement. Appellant heard complainant enumerate the following
conditions for withdrawal of the complaint for direct assault.
(a) the P5,000.00 was no longer acceptable, and that the
figure had been increased to P8,000.00. A breakdown of the
P8,000.00 had been made together with other demands, to wit: (a)
P5,000.00 no longer for the teacher Manuel Montebon, but for Atty.
Pintor himself in persuading his client to withdraw the case for Direct
Assault against Atty. Laconico before the Cebu City Fiscal's Office;
(b) Public apology to be made by Atty. Laconico before the
students of Don Bosco Technical High School;
(c) Pl,000.00 to be given to the Don Bosco Faculty club;
(d) transfer of son of Atty. Laconico to another school or
another section of Don Bosco Technical High School;
(e) Affidavit of desistance by Atty. Laconico on the
Maltreatment case earlier filed against Manuel Montebon at the
Cebu City Fiscal's Office, whereas Montebon's affidavit of
desistance on the Direct Assault Case against Atty. Laconico to be
filed later;
(f) Allow Manuel Montebon to continue teaching at the Don
Bosco Technical School;
(g) Not to divulge the truth about the settlement of the Direct
Assault Case to the mass media;
CONSTI LAW II I ACJUCO 202
(h) P2,000.00 attorney s fees for Atty. Pintor. (tsn, August 26,
1981, pp. 47-48).
Twenty minutes later, complainant called up again to ask Laconico
if he was agreeable to the conditions. Laconico answered 'Yes'.
Complainant then told Laconico to wait for instructions on where to
deliver the money. (tsn, March 10, 1983, pp. 2-12).
Complainant called up again and instructed Laconico to give the
money to his wife at the office of the then Department of Public
Highways. Laconico who earlier alerted his friend Colonel Zulueta
of the Criminal Investigation Service of the Philippine Constabulary,
insisted that complainant himself should receive the money. (tsn,
March 10, 1982, pp. 26-33). When he received the money at the
Igloo Restaurant, complainant was arrested by agents of the
Philippine Constabulary.
Appellant executed on the following day an affidavit stating that he
heard complainant demand P8,000.00 for the withdrawal of the case
for direct assault. Laconico attached the affidavit of appellant to the
complainant for robbery/extortion which he filed against
complainant. Since appellant listened to the telephone conversation
without complainant's consent, complainant charged appellant and
Laconico with violation of the Anti-Wiretapping Act.
After trial on the merits, the lower court, in a decision dated
November 22, 1982, found both Gaanan and Laconico guilty of
violating Section 1 of Republic Act No. 4200. The two were each
sentenced to one (1) year imprisonment with costs. Not satisfied
with the decision, the petitioner appealed to the appellate court.
On August 16, 1984, the Intermediate Appellate Court affirmed the
decision of the trial court, holding that the communication between
the complainant and accused Laconico was private in nature and,
therefore, covered by Rep. Act No. 4200; that the petitioner
overheard such communication without the knowledge and consent
of the complainant; and that the extension telephone which was
used by the petitioner to overhear the telephone conversation
between complainant and Laconico is covered in the term "device'
as provided in Rep. Act No. 4200.
In this petition for certiorari, the petitioner assails the decision of the
appellate court and raises the following issues; (a) whether or not
the telephone conversation between the complainant and accused
Laconico was private in nature; (b) whether or not an extension
telephone is covered by the term "device or arrangement" under
Rep. Act No. 4200; (c) whether or not the petitioner had authority to
listen or overhear said telephone conversation and (d) whether or
not Rep. Act No. 4200 is ambiguous and, therefore, should be
construed in favor of the petitioner.
Section 1 of Rep. Act No. 4200 provides:
Section 1. It shall be unlawful for any person, not being authorized
by all the parties to any private communication or spoken word, to
tap any wire or cable or by using any other device or arrangement,
to secretly overhear, intercept, or record such communication or
spoken word by using a device commonly known as a dictaphone
or dictagraph or detectaphone or walkie-talkie or tape-recorder, or
however otherwise described:
It shall be unlawful for any person, be he a participant or not in the
act or acts penalized in the next preceeding sentence, to knowingly
possess any tape record, wire record, disc record, or any other such
record, or copies thereof, of any communication or spoken word
secured either before or after the effective date of this Act in the
manner prohibited by this law; or to replay the same for any other
person or persons; or to communicate the contents thereof, either
verbally or in writing, or to furnish transcriptions thereof, whether
complete or partial, to any other person: Provided, that the use of
such record or any copies thereof as evidence in any civil, criminal

investigation or trial of offenses mentioned in Section 3 hereof, shall
not be covered by this prohibition.
We rule for the petitioner.
We are confronted in this case with the interpretation of a penal
statute and not a rule of evidence. The issue is not the admissibility
of evidence secured over an extension line of a telephone by a third
party. The issue is whether or not the person called over the
telephone and his lawyer listening to the conversation on an
extension line should both face prison sentences simply because
the extension was used to enable them to both listen to an alleged
attempt at extortion.
There is no question that the telephone conversation between
complainant Atty. Pintor and accused Atty. Laconico was "private"
in the sense that the words uttered were made between one person
and another as distinguished from words between a speaker and a
public. It is also undisputed that only one of the parties gave the
petitioner the authority to listen to and overhear the caller's message
with the use of an extension telephone line. Obviously, complainant
Pintor, a member of the Philippine bar, would not have discussed
the alleged demand for an P8,000.00 consideration in order to have
his client withdraw a direct assault charge against Atty. Laconico
filed with the Cebu City Fiscal's Office if he knew that another lawyer
was also listening. We have to consider, however, that affirmance
of the criminal conviction would, in effect, mean that a caller by
merely using a telephone line can force the listener to secrecy no
matter how obscene, criminal, or annoying the call may be. It would
be the word of the caller against the listener's.
Because of technical problems caused by the sensitive nature of
electronic equipment and the extra heavy loads which telephone
cables are made to carry in certain areas, telephone users often
encounter what are called "crossed lines". An unwary citizzen who
happens to pick up his telephone and who overhears the details of
a crime might hesitate to inform police authorities if he knows that
he could be accused under Rep. Act 4200 of using his own
telephone to secretly overhear the private communications of the
would be criminals. Surely the law was never intended for such
mischievous results.
The main issue in the resolution of this petition, however, revolves
around the meaning of the phrase "any other device or
arrangement." Is an extension of a telephone unit such a device or
arrangement as would subject the user to imprisonment ranging
from six months to six years with the accessory penalty of perpetual
absolute disqualification for a public officer or deportation for an
alien? Private secretaries with extension lines to their bosses'
telephones are sometimes asked to use answering or recording
devices to record business conversations between a boss and
another businessman. Would transcribing a recorded message for
the use of the boss be a proscribed offense? or for that matter,
would a "party line" be a device or arrangement under the law?
The petitioner contends that telephones or extension telephones are
not included in the enumeration of "commonly known" listening or
recording devices, nor do they belong to the same class of
enumerated electronic devices contemplated by law. He maintains
that in 1964, when Senate Bill No. 9 (later Rep. Act No. 4200) was
being considered in the Senate, telephones and extension
telephones were already widely used instruments, probably the
most popularly known communication device.
Whether or not listening over a telephone party line would be
punishable was discussed on the floor of the Senate. Yet, when the
bill was finalized into a statute, no mention was made of telephones
in the enumeration of devices "commonly known as a dictaphone or
dictagraph, detectaphone or walkie talkie or tape recorder or
however otherwise described." The omission was not a mere
CONSTI LAW II I ACJUCO 203
oversight. Telephone party lines were intentionally deleted from the
provisions of the Act.
The respondent People argue that an extension telephone is
embraced and covered by the term "device" within the context of the
aforementioned law because it is not a part or portion of a complete
set of a telephone apparatus. It is a separate device and distinct set
of a movable apparatus consisting of a wire and a set of telephone
receiver not forming part of a main telephone set which can be
detached or removed and can be transferred away from one place
to another and to be plugged or attached to a main telephone line
to get the desired communication corning from the other party or
end.
The law refers to a "tap" of a wire or cable or the use of a "device or
arrangement" for the purpose of secretly overhearing, intercepting,
or recording the communication. There must be either a physical
interruption through a wiretap or the deliberate installation of a
device or arrangement in order to overhear, intercept, or record the
spoken words.
An extension telephone cannot be placed in the same category as
a dictaphone, dictagraph or the other devices enumerated in
Section 1 of RA No. 4200 as the use thereof cannot be considered
as "tapping" the wire or cable of a telephone line. The telephone
extension in this case was not installed for that purpose. It just
happened to be there for ordinary office use. It is a rule in statutory
construction that in order to determine the true intent of the
legislature, the particular clauses and phrases of the statute should
not be taken as detached and isolated expressions, but the whole
and every part thereof must be considered in fixing the meaning of
any of its parts. (see Commissioner of Customs v. Esso Estandard
Eastern, Inc., 66 SCRA 113,120).
In the case of Empire Insurance Com any v. Rufino (90 SCRA 437,
443-444), we ruled:
Likewise, Article 1372 of the Civil Code stipulates that 'however
general the terms of a contract may be, they shall not be understood
to comprehend things that are distinct and cases that are different
from those upon which the parties intended to agree.' Similarly,
Article 1374 of the same Code provides that 'the various stipulations
of a contract shall be interpreted together, attributing to the doubtful
ones that sense which may result from all of them taken jointly.
xxx xxx xxx
Consequently, the phrase 'all liabilities or obligations of the
decedent' used in paragraph 5(c) and 7(d) should be then restricted
only to those listed in the Inventory and should not be construed as
to comprehend all other obligations of the decedent. The rule that
'particularization followed by a general expression will ordinarily be
restricted to the former' is based on the fact in human experience
that usually the minds of parties are addressed specially to the
particularization, and that the generalities, though broad enough to
comprehend other fields if they stood alone, are used in
contemplation of that upon which the minds of the parties are
centered. (Hoffman v. Eastern Wisconsin R., etc., Co., 134 Wis.
603, 607, 115 NW 383, cited in Francisco, Revised Rules of Court
(Evidence), 1973 ed, pp. 180-181).
Hence, the phrase "device or arrangement" in Section 1 of RA No.
4200, although not exclusive to that enumerated therein, should be
construed to comprehend instruments of the same or similar nature,
that is, instruments the use of which would be tantamount to tapping
the main line of a telephone. It refers to instruments whose
installation or presence cannot be presumed by the party or parties
being overheard because, by their very nature, they are not of
common usage and their purpose is precisely for tapping,
intercepting or recording a telephone conversation.
 CONSTI LAW II I ACJUCO 204

An extension telephone is an instrument which is very common
especially now when the extended unit does not have to be
connected by wire to the main telephone but can be moved from
place ' to place within a radius of a kilometer or more. A person
should safely presume that the party he is calling at the other end of
the line probably has an extension telephone and he runs the risk of
a third party listening as in the case of a party line or a telephone
unit which shares its line with another. As was held in the case of
Rathbun v. United States (355, U.S. 107, 2 L Ed 2d 137-138):
Senator Diokno. In the same way, under this provision, neither party
could record and, therefore, the court would be limited to saying:
"Okay, who is more credible, the police officers or the defendant?"
In these cases, as experienced lawyers, we know that the Court go
with the peace offices.
(Congressional Record, Vol. 111, No. 33, p. 628, March 12, 1964).
xxx xxx xxx

Common experience tells us that a call to a particular telephone
number may cause the bell to ring in more than one ordinarily used
instrument. Each party to a telephone conversation takes the risk
that the other party may have an extension telephone and may allow
another to overhear the conversation. When such takes place there
has been no violation of any privacy of which the parties may
complain. Consequently, one element of 605, interception, has not
occurred.
In the same case, the Court further ruled that the conduct of the
party would differ in no way if instead of repeating the message he
held out his hand-set so that another could hear out of it and that
there is no distinction between that sort of action and permitting an
outsider to use an extension telephone for the same purpose.
Senator Diokno. The point I have in mind is that under these
conditions, with an agent outside listening in, he could falsify the
testimony and there is no way of checking it. But if you allow him to
record or make a recording in any form of what is happening, then
the chances of falsifying the evidence is not very much.
Senator Tañada. Your Honor, this bill is not intended to prevent the
presentation of false testimony. If we could devise a way by which
we could prevent the presentation of false testimony, it would be
wonderful. But what this bill intends to prohibit is the use of tape
record and other electronic devices to intercept private
conversations which later on will be used in court.
(Congressional Record, Vol. III, No. 33, March 12, 1964, p. 629).

Furthermore, it is a general rule that penal statutes must be
construed strictly in favor of the accused. Thus, in case of doubt as
in the case at bar, on whether or not an extension telephone is
included in the phrase "device or arrangement", the penal statute
must be construed as not including an extension telephone. In the
case of People v. Purisima, 86 SCRA 542, 562, we explained the
rationale behind the rule:
American jurisprudence sets down the reason for this rule to be the
tenderness of the law of the rights of individuals; the object is to
establish a certain rule by conformity to which mankind would be
safe, and the discretion of the court limited. (United States v. Harris,
177 US 305, 44 L Ed 780, 20 S Ct 609; Braffith v. Virgin Islands
(CA3) 26 F2d 646; Caudill v. State, 224 Ind 531, 69 NE2d; Jennings
v. Commonwealth, 109 VA 821,63 SE 1080, all cited in 73 Am Jur
2d 452). The purpose is not to enable a guilty person to escape
punishment through a technicality but to provide a precise definition
of forbidden acts." (State v. Zazzaro, 20 A 2d 737, quoted in Martin's
Handbook on Statutory Construction, Rev. Ed. pp. 183-184).
It can be readily seen that our lawmakers intended to discourage,
through punishment, persons such as government authorities or
representatives of organized groups from installing devices in order
to gather evidence for use in court or to intimidate, blackmail or gain
some unwarranted advantage over the telephone users.
Consequently, the mere act of listening, in order to be punishable
must strictly be with the use of the enumerated devices in RA No.
4200 or others of similar nature. We are of the view that an
extension telephone is not among such devices or arrangements.
WHEREFORE, the petition is GRANTED. The decision of the then
Intermediate Appellate Court dated August 16, 1984 is ANNULLED
and SET ASIDE. The petitioner is hereby ACQUITTED of the crime
of violation of Rep. Act No. 4200, otherwise known as the Anti-
Wiretapping Act.
SO ORDERED.

In the same case of Purisima, we also ruled that on the construction

or interpretation of a legislative measure, the primary rule is to
search for and determine the intent and spirit of the law. A perusal
of the Senate Congressional Records will show that not only did our
lawmakers not contemplate the inclusion of an extension telephone
as a prohibited device or arrangement" but of greater importance,
they were more concerned with penalizing the act of recording than
the act of merely listening to a telephone conversation.

xxx xxx xxx

Senator Tañada. Another possible objection to that is entrapment

which is certainly objectionable. It is made possible by special
amendment which Your Honor may introduce.

Senator Diokno.Your Honor, I would feel that entrapment would be

less possible with the amendment than without it, because with the
amendment the evidence of entrapment would only consist of
government testimony as against the testimony of the defendant.
With this amendment, they would have the right, and the
government officials and the person in fact would have the right to
tape record their conversation.

Senator Tañada. In case of entrapment, it would be the government.

 CONSTI LAW II I ACJUCO 205

G.R. No. 93833 September 28, 1995 CHUCHI — Eh, di sana —

SOCORRO D. RAMIREZ, petitioner, ESG — Huwag mong ipagmalaki na may utak ka kasi
vs. wala kang utak. Akala mo ba makukuha ka dito kung hiniminal case
HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, before the Regional Trial Court of Pasay City for violation of
respondents. Republic Act 4200, entitled "An Act to prohibit and penalize wire
tapping and other related violations of private communication, and
other purposes." An information charging petitioner of violation of
KAPUNAN, J.: the said Act, dated October 6, 1988 is quoted herewith:

A civil case damages was filed by petitioner Socorro D. Ramirez in INFORMATION

the Regional Trial Court of Quezon City alleging that the private
respondent, Ester S. Garcia, in a confrontation in the latter's office,
allegedly vexed, insulted and humiliated her in a "hostile and furious
mood" and in a manner offensive to petitioner's dignity and
personality," contrary to morals, good customs and public policy."1
In support of her claim, petitioner produced a verbatim transcript of
the event and sought moral damages, attorney's fees and other
expenses of litigation in the amount of P610,000.00, in addition to
costs, interests and other reliefs awardable at the trial court's
discretion. The transcript on which the civil case was based was
culled from a tape recording of the confrontation made by
petitioner.2 The transcript reads as follows:
The Undersigned Assistant City Fiscal Accusses Socorro D.
Ramirez of Violation of Republic Act No. 4200, committed as
follows:
That on or about the 22nd day of February, 1988, in Pasay City
Metro Manila, Philippines, and within the jurisdiction of this
honorable court, the above-named accused, Socorro D. Ramirez
not being authorized by Ester S. Garcia to record the latter's
conversation with said accused, did then and there willfully,
unlawfully and feloniously, with the use of a tape recorder secretly
record the said conversation and thereafter communicate in writing
the contents of the said recording to other person.

Plaintiff Soccoro D. Ramirez (Chuchi) — Good Afternoon Contrary to law.

M'am.
Pasay City, Metro Manila, September 16, 1988.
Defendant Ester S. Garcia (ESG) — Ano ba ang
nangyari sa 'yo, nakalimot ka na kung paano ka napunta rito, porke MARIANO M. CUNETA
member ka na, magsumbong ka kung ano ang gagawin ko sa 'yo. Asst. City Fiscal

CHUCHI — Kasi, naka duty ako noon. Upon arraignment, in lieu of a plea, petitioner filed a Motion to
Quash the Information on the ground that the facts charged do not
ESG — Tapos iniwan no. (Sic) constitute an offense, particularly a violation of R.A. 4200. In an
order May 3, 1989, the trial court granted the Motion to Quash,
CHUCHI — Hindi m'am, pero ilan beses na nila akong agreeing with petitioner that 1) the facts charged do not constitute
binalikan, sabing ganoon — an offense under R.A. 4200; and that 2) the violation punished by
R.A. 4200 refers to a the taping of a communication by a person
ESG — Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) other than a participant to the communication.4
mag explain ka, kasi hanggang 10:00 p.m., kinabukasan hindi ka na
pumasok. Ngayon ako ang babalik sa 'yo, nag-aaply ka sa States, From the trial court's Order, the private respondent filed a Petition
nag-aaply ka sa review mo, kung kakailanganin ang certification mo, for Review on Certiorari with this Court, which forthwith referred the
kalimutan mo na kasi hindi ka sa akin makakahingi. case to the Court of Appeals in a Resolution (by the First Division)
of June 19, 1989.
CHUCHI — Hindi M'am. Kasi ang ano ko talaga noon i-
cocontinue ko up to 10:00 p.m. On February 9, 1990, respondent Court of Appeals promulgated its
assailed Decision declaring the trial court's order of May 3, 1989 null
ESG — Bastos ka, nakalimutan mo na kung paano ka and void, and holding that:
pumasok dito sa hotel. Magsumbong ka sa Union kung gusto mo.
Nakalimutan mo na kung paano ka nakapasok dito "Do you think [T]he allegations sufficiently constitute an offense punishable under
that on your own makakapasok ka kung hindi ako. Panunumbyoyan Section 1 of R.A. 4200. In thus quashing the information based on
na kita (Sinusumbatan na kita). the ground that the facts alleged do not constitute an offense, the
respondent judge acted in grave abuse of discretion correctible by
CHUCHI — Itutuloy ko na M'am sana ang duty ko. certiorari.5

ESG — Kaso ilang beses na akong binabalikan doon ng Consequently, on February 21, 1990, petitioner filed a Motion for
mga no (sic) ko. Reconsideration which respondent Court of Appeals denied in its
Resolution6 dated June 19, 1990. Hence, the instant petition.
ESG — Nakalimutan mo na ba kung paano ka pumasok
sa hotel, kung on your own merit alam ko naman kung gaano ka "ka Petitioner vigorously argues, as her "main and principal issue"7 that
bobo" mo. Marami ang nag-aaply alam kong hindi ka papasa. the applicable provision of Republic Act 4200 does not apply to the
taping of a private conversation by one of the parties to the
CHUCHI — Kumuha kami ng exam noon. conversation. She contends that the provision merely refers to the
unauthorized taping of a private conversation by a party other than
ESG — Oo, pero hindi ka papasa. those involved in the communication.8 In relation to this, petitioner
avers that the substance or content of the conversation must be
CHUCHI — Eh, bakit ako ang nakuha ni Dr. Tamayo alleged in the Information, otherwise the facts charged would not
constitute a violation of R.A. 4200.9 Finally, petitioner agues that
ESG — Kukunin ka kasi ako. R.A. 4200 penalizes the taping of a "private communication," not a
"private conversation" and that consequently, her act of secretly

taping her conversation with private respondent was not illegal
under the said act. 10
We disagree.
First, legislative intent is determined principally from the language
of a statute. Where the language of a statute is clear and
unambiguous, the law is applied according to its express terms, and
interpretation would be resorted to only where a literal interpretation
would be either impossible 11 or absurb or would lead to an
injustice. 12
Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized
Wire Tapping and Other Related Violations of Private
Communication and Other Purposes," provides:
Sec. 1. It shall be unlawfull for any person, not being authorized
by all the parties to any private communication or spoken word, to
tap any wire or cable, or by using any other device or arrangement,
to secretly overhear, intercept, or record such communication or
spoken word by using a device commonly known as a dictaphone
or dictagraph or detectaphone or walkie-talkie or tape recorder, or
however otherwise described.
The aforestated provision clearly and unequivocally makes it illegal
for any person, not authorized by all the parties to any private
communication to secretly record such communication by means of
a tape recorder. The law makes no distinction as to whether the
party sought to be penalized by the statute ought to be a party other
than or different from those involved in the private communication.
The statute's intent to penalize all persons unauthorized to make
such recording is underscored by the use of the qualifier "any".
Consequently, as respondent Court of Appeals correctly concluded,
"even a (person) privy to a communication who records his private
conversation with another without the knowledge of the latter (will)
qualify as a violator" 13 under this provision of R.A. 4200.
A perusal of the Senate Congressional Records, moreover,
supports the respondent court's conclusion that in enacting R.A.
4200 our lawmakers indeed contemplated to make illegal,
unauthorized tape recording of private conversations or
communications taken either by the parties themselves or by third
persons. Thus:
xxx xxx xxx
Senator Tañada: That qualified only "overhear".
Senator Padilla: So that when it is intercepted or recorded, the
element of secrecy would not appear to be material. Now, suppose,
Your Honor, the recording is not made by all the parties but by some
parties and involved not criminal cases that would be mentioned
under section 3 but would cover, for example civil cases or special
proceedings whereby a recording is made not necessarily by all the
parties but perhaps by some in an effort to show the intent of the
parties because the actuation of the parties prior, simultaneous
even subsequent to the contract or the act may be indicative of their
intention. Suppose there is such a recording, would you say, Your
Honor, that the intention is to cover it within the purview of this bill
or outside?
Senator Tañada: That is covered by the purview of this bill, Your
Honor.
Senator Padilla: Even if the record should be used not in the
prosecution of offense but as evidence to be used in Civil Cases or
special proceedings?
Senator Tañada: That is right. This is a complete ban on tape
recorded conversations taken without the authorization of all the
parties.
CONSTI LAW II I ACJUCO 206
Senator Padilla: Now, would that be reasonable, your Honor?
Senator Tañada: I believe it is reasonable because it is not
sporting to record the observation of one without his knowing it and
then using it against him. It is not fair, it is not sportsmanlike. If the
purpose; Your honor, is to record the intention of the parties. I
believe that all the parties should know that the observations are
being recorded.
Senator Padilla: This might reduce the utility of recorders.
Senator Tañada: Well no. For example, I was to say that in
meetings of the board of directors where a tape recording is taken,
there is no objection to this if all the parties know. It is but fair that
the people whose remarks and observations are being made should
know that the observations are being recorded.
Senator Padilla: Now, I can understand.
Senator Tañada: That is why when we take statements of
persons, we say: "Please be informed that whatever you say here
may be used against you." That is fairness and that is what we
demand. Now, in spite of that warning, he makes damaging
statements against his own interest, well, he cannot complain any
more. But if you are going to take a recording of the observations
and remarks of a person without him knowing that it is being taped
or recorded, without him knowing that what is being recorded may
be used against him, I think it is unfair.
xxx xxx xxx
(Congression Record, Vol. III, No. 31, p. 584, March 12, 1964)
Senator Diokno: Do you understand, Mr. Senator, that under
Section 1 of the bill as now worded, if a party secretly records a
public speech, he would be penalized under Section 1? Because
the speech is public, but the recording is done secretly.
Senator Tañada: Well, that particular aspect is not contemplated
by the bill. It is the communication between one person and another
person — not between a speaker and a public.
xxx xxx xxx
(Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964)
xxx xxx xxx
The unambiguity of the express words of the provision, taken
together with the above-quoted deliberations from the
Congressional Record, therefore plainly supports the view held by
the respondent court that the provision seeks to penalize even those
privy to the private communications. Where the law makes no
distinctions, one does not distinguish.
Second, the nature of the conversations is immaterial to a violation
of the statute. The substance of the same need not be specifically
alleged in the information. What R.A. 4200 penalizes are the acts of
secretly overhearing, intercepting or recording private
communications by means of the devices enumerated therein. The
mere allegation that an individual made a secret recording of a
private communication by means of a tape recorder would suffice to
constitute an offense under Section 1 of R.A. 4200. As the Solicitor
General pointed out in his COMMENT before the respondent court:
"Nowhere (in the said law) is it required that before one can be
regarded as a violator, the nature of the conversation, as well as its
communication to a third person should be professed." 14
Finally, petitioner's contention that the phrase "private
communication" in Section 1 of R.A. 4200 does not include "private
 CONSTI LAW II I ACJUCO 207

conversations" narrows the ordinary meaning of the word

"communication" to a point of absurdity. The word communicate
comes from the latin word communicare, meaning "to share or to
impart." In its ordinary signification, communication connotes the act
of sharing or imparting signification, communication connotes the
act of sharing or imparting, as in a conversation, 15 or signifies the
"process by which meanings or thoughts are shared between
individuals through a common system of symbols (as language
signs or gestures)" 16 These definitions are broad enough to include
verbal or non-verbal, written or expressive communications of
"meanings or thoughts" which are likely to include the emotionally-
charged exchange, on February 22, 1988, between petitioner and
private respondent, in the privacy of the latter's office. Any doubts
about the legislative body's meaning of the phrase "private
communication" are, furthermore, put to rest by the fact that the
terms "conversation" and "communication" were interchangeably
used by Senator Tañada in his Explanatory Note to the bill quoted
below:

It has been said that innocent people have nothing to fear from their
conversations being overheard. But this statement ignores the usual
nature of conversations as well the undeniable fact that most, if not
all, civilized people have some aspects of their lives they do not wish
to expose. Free conversations are often characterized by
exaggerations, obscenity, agreeable falsehoods, and the
expression of anti-social desires of views not intended to be taken
seriously. The right to the privacy of communication, among others,
has expressly been assured by our Constitution. Needless to state
here, the framers of our Constitution must have recognized the
nature of conversations between individuals and the significance of
man's spiritual nature, of his feelings and of his intellect. They must
have known that part of the pleasures and satisfactions of life are to
be found in the unaudited, and free exchange of communication
between individuals — free from every unjustifiable intrusion by
whatever means.17

In Gaanan vs. Intermediate Appellate Court, 18 a case which dealt

with the issue of telephone wiretapping, we held that the use of a
telephone extension for the purpose of overhearing a private
conversation without authorization did not violate R.A. 4200
because a telephone extension devise was neither among those
"device(s) or arrangement(s)" enumerated therein, 19 following the
principle that "penal statutes must be construed strictly in favor of
the accused."20 The instant case turns on a different note, because
the applicable facts and circumstances pointing to a violation of R.A.
4200 suffer from no ambiguity, and the statute itself explicitly
mentions the unauthorized "recording" of private communications
with the use of tape-recorders as among the acts punishable.

WHEREFORE, because the law, as applied to the case at bench is

clear and unambiguous and leaves us with no discretion, the instant
petition is hereby DENIED. The decision appealed from is
AFFIRMED. Costs against petitioner.

SO ORDERED.

RIGHT TO PRIVACY
G.R. No. 127685 July 23, 1998
BLAS F. OPLE, petitioner,
vs.
RUBEN D. TORRES, ALEXANDER AGUIRRE, HECTOR
VILLANUEVA, CIELITO HABITO, ROBERT BARBERS,
CARMENCITA REODICA, CESAR SARINO, RENATO
VALENCIA, TOMAS P. AFRICA, HEAD OF THE NATIONAL
COMPUTER CENTER and CHAIRMAN OF THE COMMISSION
ON AUDIT, respondents.
PUNO, J.:
The petition at bar is a commendable effort on the part of Senator
Blas F. Ople to prevent the shrinking of the right to privacy, which
the revered Mr. Justice Brandeis considered as "the most
comprehensive of rights and the right most valued by civilized men."
1 Petitioner Ople prays that we invalidate Administrative Order No.
308 entitled "Adoption of a National Computerized Identification
Reference System" on two important constitutional grounds, viz:
one, it is a usurpation of the power of Congress to legislate, and two,
it impermissibly intrudes on our citizenry's protected zone of privacy.
We grant the petition for the rights sought to be vindicated by the
petitioner need stronger barriers against further erosion.
A.O. No. 308 was issued by President Fidel V. Ramos On
December 12, 1996 and reads as follows:
ADOPTION OF A NATIONAL COMPUTERIZED
IDENTIFICATION REFERENCE SYSTEM
WHEREAS, there is a need to provide Filipino citizens and foreign
residents with the facility to conveniently transact business with
basic service and social security providers and other government
instrumentalities;
WHEREAS, this will require a computerized system to properly and
efficiently identify persons seeking basic services on social security
and reduce, if not totally eradicate fraudulent transactions and
misrepresentations;
WHEREAS, a concerted and collaborative effort among the various
basic services and social security providing agencies and other
government intrumentalities is required to achieve such a system;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the
Republic of the Philippines, by virtue of the powers vested in me by
law, do hereby direct the following:
Sec. 1. Establishment of a National Compoterized Identification
Reference System. A decentralized Identification Reference
System among the key basic services and social security providers
is hereby established.
Sec. 2. Inter-Agency Coordinating Committee. An Inter-Agency
Coordinating Committee (IACC) to draw-up the implementing
guidelines and oversee the implementation of the System is hereby
created, chaired by the Executive Secretary, with the following as
members:
Head, Presidential Management Staff
Secretary, National Economic Development Authority
Secretary, Department of the Interior and Local Government
CONSTI LAW II I ACJUCO 208
Secretary, Department of Health
Administrator, Government Service Insurance System,
Administrator, Social Security System,
Administrator, National Statistics Office
Managing Director, National Computer Center.
Sec. 3. Secretariat. The National Computer Center (NCC) is
hereby designated as secretariat to the IACC and as such shall
provide administrative and technical support to the IACC.
Sec. 4. Linkage Among Agencies. The Population Reference
Number (PRN) generated by the NSO shall serve as the common
reference number to establish a linkage among concerned
agencies. The IACC Secretariat shall coordinate with the different
Social Security and Services Agencies to establish the standards in
the use of Biometrics Technology and in computer application
designs of their respective systems.
Sec. 5. Conduct of Information Dissemination Campaign. The
Office of the Press Secretary, in coordination with the National
Statistics Office, the GSIS and SSS as lead agencies and other
concerned agencies shall undertake a massive tri-media
information dissemination campaign to educate and raise public
awareness on the importance and use of the PRN and the Social
Security Identification Reference.
Sec. 6. Funding. The funds necessary for the implementation of
the system shall be sourced from the respective budgets of the
concerned agencies.
Sec. 7. Submission of Regular Reports. The NSO, GSIS and SSS
shall submit regular reports to the Office of the President through
the IACC, on the status of implementation of this undertaking.
Sec. 8. Effectivity. This Administrative Order shall take effect
immediately.
DONE in the City of Manila, this 12th day of December in the year
of Our Lord, Nineteen Hundred and Ninety-Six.
(SGD.) FIDEL V. RAMOS
A.O. No. 308 was published in four newspapers of general
circulation on January 22, 1997 and January 23, 1997. On January
24, 1997, petitioner filed the instant petition against respondents,
then Executive Secretary Ruben Torres and the heads of the
government agencies, who as members of the Inter-Agency
Coordinating Committee, are charged with the implementation of
A.O. No. 308. On April 8, 1997, we issued a temporary restraining
order enjoining its implementation.
Petitioner contends:
A. THE ESTABLISNMENT OF A NATIONAL
COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM
REQUIRES A LEGISLATIVE ACT. THE ISSUANCE OF A.O. NO.
308 BY THE PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES IS, THEREFORE, AN UNCONSTITUTIONAL
USURPATION OF THE LEGISLATIVE POWERS OF THE
CONGRESS OF THE REPUBLIC OF THE PHILIPPINES.
B. THE APPROPRIATION OF PUBLIC FUNDS BY THE
PRESIDENT FOR THE IMPLEMENTATION OF A.O. NO. 308 IS
AN UNCONSTITUTIONAL USURPATION OF THE EXCLUSIVE
RIGHT OF CONGRESS TO APPROPRIATE PUBLIC FUNDS FOR
EXPENDITURE.

C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY
LAYS THE GROUNDWORK FOR A SYSTEM WHICH WILL
VIOLATE THE BILL OF RIGHTS ENSHRINED IN THE
CONSTITUTION. 2
Respondents counter-argue:
A. THE INSTANT PETITION IS NOT A JUSTICIABLE CASE
AS WOULD WARRANT A JUDICIAL REVIEW;
B. A.O. NO. 308 [1996] WAS ISSUED WITHIN THE
EXECUTIVE AND ADMINISTRATIVE POWERS OF THE
PRESIDENT WITHOUT ENCROACHING ON THE LEGISLATIVE
POWERS OF CONGRESS;
C. THE FUNDS NECESSARY FOR THE
IMPLEMENTATION OF THE IDENTIFICATION REFERENCE
SYSTEM MAY BE SOURCED FROM THE BUDGETS OF THE
CONCERNED AGENCIES;
D. A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S
INTEREST IN PRIVACY. 3
We now resolve.
I practical operation and enforcing their due observance. 17
As is usual in constitutional litigation, respondents raise the
threshold issues relating to the standing to sue of the petitioner and
the justiciability of the case at bar. More specifically, respondents
aver that petitioner has no legal interest to uphold and that the
implementing rules of A.O. No. 308 have yet to be promulgated.
These submissions do not deserve our sympathetic ear. Petitioner
Ople is a distinguished member of our Senate. As a Senator,
petitioner is possessed of the requisite standing to bring suit raising
the issue that the issuance of A.O. No. 308 is a usurpation of
legislative power. 4 As taxpayer and member of the Government
Service Insurance System (GSIS), petitioner can also impugn the
legality of the misalignment of public funds and the misuse of GSIS
funds to implement A.O. No. 308. 5
The ripeness for adjudication of the Petition at bar is not affected by
the fact that the implementing rules of A.O. No. 308 have yet to be
promulgated. Petitioner Ople assails A.O. No. 308 as invalid per se
and as infirmed on its face. His action is not premature for the rules
yet to be promulgated cannot cure its fatal defects. Moreover, the
respondents themselves have started the implementation of A.O.
No. 308 without waiting for the rules. As early as January 19, 1997,
respondent Social Security System (SSS) caused the publication of
a notice to bid for the manufacture of the National Identification (ID)
card. 6 Respondent Executive Secretary Torres has publicly
announced that representatives from the GSIS and the SSS have
completed the guidelines for the national identification system. 7 All
signals from the respondents show their unswerving will to
implement A.O. No. 308 and we need not wait for the formality of
the rules to pass judgment on its constitutionality. In this light, the
dissenters insistence that we tighten the rule on standing is not a
commendable stance as its result would be to throttle an important
constitutional principle and a fundamental right.
II
We now come to the core issues. Petitioner claims that A.O. No.
308 is not a mere administrative order but a law and hence, beyond
the power of the President to issue. He alleges that A.O. No. 308
establishes a system of identification that is all-encompassing in
scope, affects the life and liberty of every Filipino citizen and foreign
resident, and more particularly, violates their right to privacy.
CONSTI LAW II I ACJUCO 209
Petitioner's sedulous concern for the Executive not to trespass on
the lawmaking domain of Congress is understandable. The blurring
of the demarcation line between the power of the Legislature to
make laws and the power of the Executive to execute laws will
disturb their delicate balance of power and cannot be allowed.
Hence, the exercise by one branch of government of power
belonging to another will be given a stricter scrutiny by this Court.
The line that delineates Legislative and Executive power is not
indistinct. Legislative power is "the authority, under the Constitution,
to make laws, and to alter and repeal them." 8 The Constitution, as
the will of the people in their original, sovereign and unlimited
capacity, has vested this power in the Congress of the Philippines.
9 The grant of legislative power to Congress is broad, general and
comprehensive. 10 The legislative body possesses plenary power
for all purposes of civil government. 11 Any power, deemed to be
legislative by usage and tradition, is necessarily possessed by
Congress, unless the Constitution has lodged it elsewhere. 12 In
fine, except as limited by the Constitution, either expressly or
impliedly, legislative power embraces all subjects and extends to
matters of general concern or common interest. 13
While Congress is vested with the power to enact laws, the
President executes the laws. 14 The executive power is vested in
the Presidents. 15 It is generally defined as the power to enforce
and administer the laws. 16 It is the power of carrying the laws into
As head of the Executive Department, the President is the Chief
Executive. He represents the government as a whole and sees to it
that all laws are enforced by the officials and employees of his
department. 18 He has control over the executive department,
bureaus and offices. This means that he has the authority to assume
directly the functions of the executive department, bureau and office
or interfere with the discretion of its officials.19 Corollary to the
power of control, the President also has the duty of supervising the
enforcement of laws for the maintenance of general peace and
public order. Thus, he is granted administrative power over bureaus
and offices under his control to enable him to discharge his duties
effectively. 20
Administrative power is concerned with the work of applying policies
and enforcing orders as determined by proper governmental
organs. 21 It enables the President to fix a uniform standard of
administrative efficiency and check the official conduct of his agents.
22 To this end, he can issue administrative orders, rules and
regulations.
Prescinding from these precepts, we hold that A.O. No. 308 involves
a subject that is not appropriate to be covered by an administrative
order. An administrative order is:
Sec. 3. Administrative Orders. — Acts of the President which
relate to particular aspects of governmental operation in pursuance
of his duties as administrative head shall be promulgated in
administrative orders. 23
An administrative order is an ordinance issued by the President
which relates to specific aspects in the administrative operation of
government. It must be in harmony with the law and should be for
the sole purpose of implementing the law and carrying out the
legislative policy. 24 We reject the argument that A.O. No. 308
implements the legislative policy of the Administrative Code of 1987.
The Code is a general law and "incorporates in a unified document
the major structural, functional and procedural principles of
governance." 25 and "embodies changes in administrative structure
and procedures designed to serve the
people." 26 The Code is divided into seven (7) Books: Book I deals
with Sovereignty and General Administration, Book II with the
Distribution of Powers of the three branches of Government, Book
III on the Office of the President, Book IV on the Executive Branch,

Book V on Constitutional Commissions, Book VI on National
Government Budgeting, and Book VII on Administrative Procedure.
These Books contain provisions on the organization, powers and
general administration of the executive, legislative and judicial
branches of government, the organization and administration of
departments, bureaus and offices under the executive branch, the
organization and functions of the Constitutional Commissions and
other constitutional bodies, the rules on the national government
budget, as well as guideline for the exercise by administrative
agencies of quasi-legislative and quasi-judicial powers. The Code
covers both the internal administration of government, i.e, internal
organization, personnel and recruitment, supervision and discipline,
and the effects of the functions performed by administrative officials
on private individuals or parties outside government. 27
It cannot be simplistically argued that A.O. No. 308 merely
implements the Administrative Code of 1987. It establishes for the
first time a National Computerized Identification Reference System.
Such a System requires a delicate adjustment of various contending
state policies — the primacy of national security, the extent of
privacy interest against dossier-gathering by government, the
choice of policies, etc. Indeed, the dissent of Mr. Justice Mendoza
states that the A.O. No. 308 involves the all-important freedom of
thought. As said administrative order redefines the parameters of
some basic rights of our citizenry vis-a-vis the State as well as the
line that separates the administrative power of the President to
make rules and the legislative power of Congress, it ought to be
evident that it deals with a subject that should be covered by law.
Nor is it correct to argue as the dissenters do that A.D. No. 308 is
not a law because it confers no right, imposes no duty, affords no
proctection, and creates no office. Under A.O. No. 308, a citizen
cannot transact business with government agencies delivering basic
services to the people without the contemplated identification card.
No citizen will refuse to get this identification card for no one can
avoid dealing with government. It is thus clear as daylight that
without the ID, a citizen will have difficulty exercising his rights and
enjoying his privileges. Given this reality, the contention that A.O.
No. 308 gives no right and imposes no duty cannot stand.
Again, with due respect, the dissenting opinions unduly expand the
limits of administrative legislation and consequently erodes the
plenary power of Congress to make laws. This is contrary to the
established approach defining the traditional limits of administrative
legislation. As well stated by Fisher: ". . . Many regulations however,
bear directly on the public. It is here that administrative legislation
must he restricted in its scope and application. Regulations are not
supposed to be a substitute for the general policy-making that
Congress enacts in the form of a public law. Although administrative
regulations are entitled to respect, the authority to prescribe rules
and regulations is not an independent source of power to make
laws." 28
III
Assuming, arguendo, that A.O. No. 308 need not be the subject of
a law, still it cannot pass constitutional muster as an administrative
legislation because facially it violates the right to privacy. The
essence of privacy is the "right to be let alone." 29 In the 1965 case
of Griswold v. Connecticut, 30 the United States Supreme Court
gave more substance to the right of privacy when it ruled that the
right has a constitutional foundation. It held that there is a right of
privacy which can be found within the penumbras of the First, Third,
Fourth, Fifth and Ninth Amendments, 31 viz:
Specific guarantees in the Bill of Rights have penumbras formed by
emanations from these guarantees that help give them life and
substance . . . various guarantees create zones of privacy. The right
of association contained in the penumbra of the First Amendment is
one, as we have seen. The Third Amendment in its prohibition
against the quartering of soldiers "in any house" in time of peace
CONSTI LAW II I ACJUCO 210
without the consent of the owner is another facet of that privacy. The
Fourth Amendment explicitly affirms the ''right of the people to be
secure in their persons, houses and effects, against unreasonable
searches and seizures." The Fifth Amendment in its Self-
Incrimination Clause enables the citizen to create a zone of privacy
which government may not force him to surrender to his detriment.
The Ninth Amendment provides: "The enumeration in the
Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people."
In the 1968 case of Morfe v. Mutuc, 32 we adopted the Griswold
ruling that there is a constitutional right to privacy. Speaking thru Mr.
Justice, later Chief Justice, Enrique Fernando, we held:
xxx xxx xxx
The Griswold case invalidated a Connecticut statute which made
the use of contraceptives a criminal offence on the ground of its
amounting to an unconstitutional invasion of the right of privacy of
married persons; rightfully it stressed "a relationship lying within the
zone of privacy created by several fundamental constitutional
guarantees." It has wider implications though. The constitutional
right to privacy has come into its own.
So it is likewise in our jurisdiction. The right to privacy as such is
accorded recognition independently of its identification with liberty;
in itself, it is fully deserving of constitutional protection. The
language of Prof. Emerson is particularly apt: "The concept of
limited government has always included the idea that governmental
powers stop short of certain intrusions into the personal life of the
citizen. This is indeed one of the basic distinctions between absolute
and limited government. Ultimate and pervasive control of the
individual, in all aspects of his life, is the hallmark of the absolute
state. In contrast, a system of limited government safeguards a
private sector, which belongs to the individual, firmly distinguishing
it from the public sector, which the state can control. Protection of
this private sector — protection, in other words, of the dignity and
integrity of the individual — has become increasingly important as
modern society has developed. All the forces of a technological age
— industrialization, urbanization, and organization — operate to
narrow the area of privacy and facilitate intrusion into it. In modern
terms, the capacity to maintain and support this enclave of private
life marks the difference between a democratic and a totalitarian
society."
Indeed, if we extend our judicial gaze we will find that the right of
privacy is recognized and enshrined in several provisions of our
Constitution. 33 It is expressly recognized in section 3 (1) of the Bill
of Rights:
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.
Other facets of the right to privacy are protectad in various
provisions of the Bill of Rights, viz: 34
Sec. 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the equal
protection of the laws.
Sec. 2. The right of the people to be secure in their persons,
houses papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to
be searched and the persons or things to be seized.
xxx xxx xxx

Sec. 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.
xxx xxx xxx
Sec. 8. The 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 be abridged.
Sec. 17. No person shall be compelled to be a witness against
himself.
Zones of privacy are likewise recognized and protected in our laws.
The Civil Code provides that "[e]very person shall respect the
dignity, personality, privacy and peace of mind of his neighbors and
other persons" and punishes as actionable torts several acts by a
person of meddling and prying into the privacy of another. 35 It also
holds a public officer or employee or any private individual liable for
damages for any violation of the rights and liberties of another
person, 36 and recognizes the privacy of letters and other private
communications. 37 The Revised Penal Code makes a crime the
violation of secrets by an officer, 38 the revelation of trade and
industrial secrets, 39 and trespass to dwelling. 40 Invasion of
privacy is an offense in special laws like the Anti-Wiretapping Law,
41 the Secrecy of Bank Deposits Act 42 and the Intellectual Property
Code. 43 The Rules of Court on privileged communication likewise
recognize the privacy of certain information. 44
Unlike the dissenters, we prescind from the premise that the right to
privacy is a fundamental right guaranteed by the Constitution,
hence, it is the burden of government to show that A.O. No. 308 is
justified by some compelling state interest and that it is narrowly
drawn. A.O. No. 308 is predicated on two considerations: (1) the
need to provides our citizens and foreigners with the facility to
conveniently transact business with basic service and social
security providers and other government instrumentalities and (2)
the need to reduce, if not totally eradicate, fraudulent transactions
and misrepresentations by persons seeking basic services. It is
debatable whether these interests are compelling enough to warrant
the issuance of A.O. No. 308. But what is not arguable is the
broadness, the vagueness, the overbreadth of A.O. No. 308 which
if implemented will put our people's right to privacy in clear and
present danger.
The heart of A.O. No. 308 lies in its Section 4 which provides for a
Population Reference Number (PRN) as a "common reference
number to establish a linkage among concerned agencies" through
the use of "Biometrics Technology" and "computer application
designs."
Biometry or biometrics is "the science of the applicatin of statistical
methods to biological facts; a mathematical analysis of biological
data." 45 The term "biometrics" has evolved into a broad category
of technologies which provide precise confirmation of an individual's
identity through the use of the individual's own physiological and
behavioral characteristics. 46 A physiological characteristic is a
relatively stable physical characteristic such as a fingerprint, retinal
scan, hand geometry or facial features. A behavioral characteristic
is influenced by the individual's personality and includes voice print,
signature and keystroke. 47 Most biometric idenfication systems
use a card or personal identificatin number (PIN) for initial
identification. The biometric measurement is used to verify that the
individual holding the card or entering the PIN is the legitimate
owner of the card or PIN. 48
A most common form of biological encoding is finger-scanning
where technology scans a fingertip and turns the unique pattern
CONSTI LAW II I ACJUCO 211
therein into an individual number which is called a biocrypt. The
biocrypt is stored in computer data banks 49 and becomes a means
of identifying an individual using a service. This technology requires
one's fingertip to be scanned every time service or access is
provided. 50 Another method is the retinal scan. Retinal scan
technology employs optical technology to map the capillary pattern
of the retina of the eye. This technology produces a unique print
similar to a finger print. 51 Another biometric method is known as
the "artificial nose." This device chemically analyzes the unique
combination of substances excreted from the skin of people. 52 The
latest on the list of biometric achievements is the thermogram.
Scientists have found that by taking pictures of a face using infra-
red cameras, a unique heat distribution pattern is seen. The different
densities of bone, skin, fat and blood vessels all contribute to the
individual's personal "heat signature." 53
In the last few decades, technology has progressed at a galloping
rate. Some science fictions are now science facts. Today,
biometrics is no longer limited to the use of fingerprint to identify an
individual. It is a new science that uses various technologies in
encoding any and all biological characteristics of an individual for
identification. It is noteworthy that A.O. No. 308 does not state what
specific biological characteristics and what particular biometrics
technology shall be used to identify people who will seek its
coverage. Considering the banquest of options available to the
implementors of A.O. No. 308, the fear that it threatens the right to
privacy of our people is not groundless.
A.O. No. 308 should also raise our antennas for a further look will
show that it does not state whether encoding of data is limited to
biological information alone for identification purposes. In fact, the
Solicitor General claims that the adoption of the Identification
Reference System will contribute to the "generation of population
data for development planning." 54 This is an admission that the
PRN will not be used solely for identification but the generation of
other data with remote relation to the avowed purposes of A.O. No.
308. Clearly, the indefiniteness of A.O. No. 308 can give the
government the roving authority to store and retrieve information for
a purpose other than the identification of the individual through his
PRN.
The potential for misuse of the data to be gathered under A.O. No.
308 cannot be undarplayed as the dissenters do. Pursuant to said
administrative order, an individual must present his PRN everytime
he deals with a government agency to avail of basic services and
security. His transactions with the government agency will
necessarily be recorded — whether it be in the computer or in the
documentary file of the agency. The individual's file may include his
transactions for loan availments, income tax returns, statement of
assets and liabilities, reimbursements for medication,
hospitalization, etc. The more frequent the use of the PRN, the
better the chance of building a huge formidable informatin base
through the electronic linkage of the files. 55 The data may be
gathered for gainful and useful government purposes; but the
existence of this vast reservoir of personal information constitutes a
covert invitation to misuse, a temptation that may be too great for
some of our authorities to resist. 56
We can even grant, arguendo, that the computer data file will be
limited to the name, address and other basic personal infomation
about the individual. 57 Even that hospitable assumption will not
save A.O. No. 308 from constitutional infirmity for again said order
does not tell us in clear and categorical terms how these information
gathered shall he handled. It does not provide who shall control and
access the data, under what circumstances and for what purpose.
These factors are essential to safeguard the privacy and guaranty
the integrity of the information. 58 Well to note, the computer linkage
gives other government agencies access to the information. Yet,
there are no controls to guard against leakage of information. When
the access code of the control programs of the particular computer
system is broken, an intruder, without fear of sanction or penalty,

can make use of the data for whatever purpose, or worse,
manipulate the data stored within the system. 59
It is plain and we hold that A.O. No. 308 falls short of assuring that
personal information which will be gathered about our people will
only be processed for unequivocally specified purposes. 60 The lack
of proper safeguards in this regard of A.O. No. 308 may interfere
with the individual's liberty of abode and travel by enabling
authorities to track down his movement; it may also enable
unscrupulous persons to access confidential information and
circumvent the right against self-incrimination; it may pave the way
for "fishing expeditions" by government authorities and evade the
right against unreasonable searches and seizures. 61 The
possibilities of abuse and misuse of the PRN, biometrics and
computer technology are accentuated when we consider that the
individual lacks control over what can be read or placed on his ID,
much less verify the correctness of the data encoded. 62 They
threaten the very abuses that the Bill of Rights seeks to prevent. 63
The ability of sophisticated data center to generate a
comprehensive cradle-to-grave dossier on an individual and
transmit it over a national network is one of the most graphic threats
of the computer revolution. 64 The computer is capable of producing
a comprehensive dossier on individuals out of information given at
different times and for varied purposes. 65 It can continue adding to
the stored data and keeping the information up to date. Retrieval of
stored date is simple. When information of a privileged character
finds its way into the computer, it can be extracted together with
other data on the subject. 66 Once extracted, the information is putty
in the hands of any person. The end of privacy begins.
Though A.O. No. 308 is undoubtedly not narrowly drawn, the
dissenting opinions would dismiss its danger to the right to privacy
as speculative and hypothetical. Again, we cannot countenance
such a laidback posture. The Court will not be true to its role as the
ultimate guardian of the people's liberty if it would not immediately
smother the sparks that endanger their rights but would rather wait
for the fire that could consume them.
We reject the argument of the Solicitor General that an individual
has a reasonable expectation of privacy with regard to the Natioal
ID and the use of biometrics technology as it stands on quicksand.
The reasonableness of a person's expectation of privacy depends
on a two-part test: (1) whether by his conduct, the individual has
exhibited an expectation of privacy; and (2) whether this expectation
is one that society recognizes as reasonable. 67 The factual
circumstances of the case determines the reasonableness of the
expectation. 68 However, other factors, such as customs, physical
surroundings and practices of a particular activity, may serve to
create or diminish this expectation. 69 The use of biometrics and
computer technology in A.O. No. 308 does not assure the individual
of a reasonable expectation of privacy. 70 As technology advances,
the level of reasonably expected privacy decreases. 71 The
measure of protection granted by the reasonable expectation
diminishes as relevant technology becomes more widely accepted.
72 The security of the computer data file depends not only on the
physical inaccessibility of the file but also on the advances in
hardware and software computer technology. A.O. No. 308 is so
widely drawn that a minimum standard for a reasonable expectation
of privacy, regardless of technology used, cannot be inferred from
its provisions.
The rules and regulations to be by the IACC cannot remedy this fatal
defect. Rules and regulations merely implement the policy of the law
or order. On its face, A.O. No. gives the IACC virtually infettered
discretion to determine the metes and bounds of the ID System.
Nor do your present laws prvide adequate safeguards for a
reasonable expectation of privacy. Commonwealth Act. No. 591
penalizes the disclosure by any person of data furnished by the
individual to the NSO with imprisonment and fine. 73 Republic Act.
CONSTI LAW II I ACJUCO 212
No. 1161 prohibits public disclosure of SSS employment records
and reports. 74 These laws, however, apply to records and data with
the NSO and the SSS. It is not clear whether they may be applied
to data with the other government agencies forming part of the
National ID System. The need to clarify the penal aspect of A.O. No.
308 is another reason why its enactment should be given to
Congress.
Next, the Solicitor General urges us to validate A.O. No. 308's
abridgment of the right of privacy by using the rational relationship
test. 75 He stressed that the purposes of A.O. No. 308 are: (1) to
streamline and speed up the implementation of basic government
services, (2) eradicate fraud by avoiding duplication of services, and
(3) generate population data for development planning. He cocludes
that these purposes justify the incursions into the right to privacy for
the means are rationally related to the end. 76
We are not impressed by the argument. In Morfe v. Mutuc, 77 we
upheld the constitutionality of R.A. 3019, the Anti-Graft and Corrupt
Practices Act, as a valid police power measure. We declared that
the law, in compelling a public officer to make an annual report
disclosing his assets and liabilities, his sources of income and
expenses, did not infringe on the individual's right to privacy. The
law was enacted to promote morality in public administration by
curtailing and minimizing the opportunities for official corruption and
maintaining a standard of honesty in the public service. 78
The same circumstances do not obtain in the case at bar. For one,
R.A. 3019 is a statute, not an administrative order. Secondly, R.A.
3019 itself is sufficiently detailed. The law is clear on what practices
were prohibited and penalized, and it was narrowly drawn to avoid
abuses. IN the case at bar, A.O. No. 308 may have been impelled
by a worthy purpose, but, it cannot pass constitutional scrutiny for it
is not narrowly drawn. And we now hod that when the integrity of a
fundamental right is at stake, this court will give the challenged law,
administrative order, rule or regulation a stricter scrutiny. It will not
do for the authorities to invoke the presumption of regularity in the
performance of official duties. Nor is it enough for the authorities to
prove that their act is not irrational for a basic right can be
diminished, if not defeated, even when the government does not act
irrationally. They must satisfactorily show the presence of
compelling state interests and that the law, rule or regulation is
narrowly drawn to preclude abuses. This approach is demanded by
the 1987 Constitution whose entire matrix is designed to protect
human rights and to prevent authoritarianism. In case of doubt, the
least we can do is to lean towards the stance that will not put in
danger the rights protected by the Constitutions.
The case of Whalen v. Roe 79 cited by the Solicitor General is also
off-line. In Whalen, the United States Supreme Court was presented
with the question of whether the State of New York could keep a
centralized computer record of the names and addresses of all
persons who obtained certain drugs pursuant to a doctor's
prescription. The New York State Controlled Substance Act of 1972
required physicians to identify parties obtaining prescription drugs
enumerated in the statute, i.e., drugs with a recognized medical use
but with a potential for abuse, so that the names and addresses of
the patients can be recorded in a centralized computer file of the
State Department of Health. The plaintiffs, who were patients and
doctors, claimed that some people might decline necessary
medication because of their fear that the computerized data may be
readily available and open to public disclosure; and that once
disclosed, it may stigmatize them as drug addicts. 80 The plaintiffs
alleged that the statute invaded a constitutionally protected zone of
privacy, i.e., the individual interest in avoiding disclosure of personal
matters, and the interest in independence in making certain kinds of
important decisions. The U.S. Supreme Court held that while an
individual's interest in avoiding disclosuer of personal matter is an
aspect of the right to privacy, the statute did not pose a grievous
threat to establish a constitutional violation. The Court found that the
statute was necessary to aid in the enforcement of laws designed to
 CONSTI LAW II I ACJUCO 213

minimize the misuse of dangerous drugs. The patient-identification record-keeping power of the computer, only the indifferent fail to
requirement was a product of an orderly and rational legislative perceive the danger that A.O. No. 308 gives the government the
decision made upon recommmendation by a specially appointed power to compile a devastating dossier against unsuspecting
commission which held extensive hearings on the matter. Moreover, citizens. It is timely to take note of the well-worded warning of Kalvin,
the statute was narrowly drawn and contained numerous Jr., "the disturbing result could be that everyone will live burdened
safeguards against indiscriminate disclosure. The statute laid down by an unerasable record of his past and his limitations. In a way, the
the procedure and requirements for the gathering, storage and threat is that because of its record-keeping, the society will have lost
retrieval of the informatin. It ebumerated who were authorized to its benign capacity to forget." 89 Oblivious to this counsel, the
access the data. It also prohibited public disclosure of the data by dissents still say we should not be too quick in labelling the right to
imposing penalties for its violation. In view of these safeguards, the privacy as a fundamental right. We close with the statement that the
infringement of the patients' right to privacy was justified by a valid right to privacy was not engraved in our Constitution for flattery.
exercise of police power. As we discussed above, A.O. No. 308
lacks these vital safeguards. IN VIEW WHEREOF, the petition is granted and Adminisrative
Order No. 308 entitled "Adoption of a National Computerized
Even while we strike down A.O. No. 308, we spell out in neon that Identification Reference System" declared null and void for being
the Court is not per se agains the use of computers to accumulate, unconstitutional.
store, process, retvieve and transmit data to improve our
bureaucracy. Computers work wonders to achieve the efficiency SO ORDERED.
which both government and private industry seek. Many information
system in different countries make use of the computer to facilitate
important social objective, such as better law enforcement, faster
delivery of public services, more efficient management of credit and
insurance programs, improvement of telecommunications and
streamlining of financial activities. 81 Used wisely, data stored in the
computer could help good administration by making accurate and
comprehensive information for those who have to frame policy and
make key decisions. 82 The benefits of the computer has
revolutionized information technology. It developed the internet, 83
introduced the concept of cyberspace 84 and the information
superhighway where the individual, armed only with his personal
computer, may surf and search all kinds and classes of information
from libraries and databases connected to the net.

In no uncertain terms, we also underscore that the right to privacy

does not bar all incursions into individual privacy. The right is not
intended to stifle scientific and technological advancements that
enhance public service and the common good. It merely requires
that the law be narrowly focused 85 and a compelling interest justify
such intrusions. 86 Intrusions into the right must be accompanied
by proper safeguards and well-defined standards to prevent
unconstitutional invasions. We reiterate that any law or order that
invades individual privacy will be subjected by this Court to strict
scrutiny. The reason for this stance was laid down in Morfe v. Mutuc,
to wit:

The concept of limited government has always included the idea

that governmental powers stop short of certain intrusions into the
personal life of the citizen. This is indeed one of the basic
disctinctions between absolute and limited government. Ultimate
and pervasive control of the individual, in all aspects of his life, is
the hallmark of the absolute state. In contrast, a system of limited
government safeguards a private sector, which belongs to the
individual, firmly distinguishing it from the public sector, which the
state can control. Protection of this private sector — protection, in
other words, of the dignity and integrity of the individual — has
become increasingly important as modern society has developed.
All the forces of a technological age — industrialization,
urbanization, and organization — operate to narrow the area of
privacy and facilitate intrusion into it. In modern terms, the capacity
to maintain and support this enclave of private life marks the
difference between a democratic and a totalitarian society. 87

IV

The right to privacy is one of the most threatened rights of man living
in a mass society. The threats emanate from various sources —
governments, journalists, employers, social scientists, etc. 88 In th
case at bar, the threat comes from the executive branch of
government which by issuing A.O. No. 308 pressures the people to
surrender their privacy by giving information about themselves on
the pretext that it will facilitate delivery of basic services. Given the

G.R. No. 82380 April 29, 1988
AYER PRODUCTIONS PTY. LTD. and McELROY & McELROY
FILM PRODUCTIONS, petitioners,
vs.
HON.IGNACIO M. CAPULONG and JUAN PONCE ENRILE,
respondents.
G.R. No. 82398 April 29, 1988
HAL MCELROY petitioner,
vs.
HON. IGNACIO M. CAPULONG, in his capacity as Presiding
Judge of the Regional Trial Court of Makati, Branch 134 and
JUAN PONCE ENRILE, respondents.
FELICIANO, J.:
Petitioner Hal McElroy an Australian film maker, and his movie
production company, Petitioner Ayer Productions pty Ltd. (Ayer
Productions), 1 envisioned, sometime in 1987, the for commercial
viewing and for Philippine and international release, the histolic
peaceful struggle of the Filipinos at EDSA (Epifanio de los Santos
Avenue). Petitioners discussed this Project with local movie
producer Lope V. Juban who suggested th they consult with the
appropriate government agencies and also with General Fidel V.
Ramos and Senator Juan Ponce Enrile, who had played major roles
in the events proposed to be filmed.
The proposed motion picture entitled "The Four Day Revolution"
was endorsed by the Movie Television Review and Classification
Board as wel as the other government agencies consulted. General
Fidel Ramos also signified his approval of the intended film
production.
In a letter dated 16 December 1987, petitioner Hal McElroy informed
private respondent Juan Ponce Enrile about the projected motion
picture enclosing a synopsis of it, the full text of which is set out
below:
The Four Day Revolution is a six hour mini-series about People
Power—a unique event in modern history that-made possible the
Peaceful revolution in the Philippines in 1986.
Faced with the task of dramatising these rerkble events,
screenwriter David Williamson and history Prof Al McCoy have
chosen a "docu-drama" style and created [four] fictitious characters
to trace the revolution from the death of Senator Aquino, to the Feb
revolution and the fleeing of Marcos from the country.
These character stories have been woven through the real events
to help our huge international audience understand this ordinary
period inFilipino history.
First, there's Tony O'Neil, an American television journalist working
for major network. Tony reflects the average American attitude to
the Phihppinence —once a colony, now the home of crucially
important military bases. Although Tony is aware of the corruption
and of Marcos' megalomania, for him, there appears to be no
alternative to Marcos except the Communists.
Next, Angie Fox a fiery Australian photo-journalist. A 'new girl in
town,' she is quickly caught up in the events as it becomes dear that
the time has come for a change. Through Angle and her relationship
with one of the Reform Army Movement Colonels (a fictitious
character), we follow the developing discontent in the armed forces.
Their dislike for General Ver, their strong loyalty to Defense Minister
Enrile, and ultimately their defection from Marcos.
CONSTI LAW II I ACJUCO 214
The fourth fictitious character is Ben Balano, a middle-aged editor
of a Manila newspaper who despises the Marcos regime and is a
supporter an promoter of Cory Aquino. Ben has two daughters,
Cehea left wing lawyer who is a secret member of the New People's
Army, and Eva--a -P.R. girl, politically moderate and very much in
love with Tony. Ultimately, she must choose between her love and
the revolution.
Through the interviews and experiences of these central characters,
we show the complex nature of Filipino society, and thintertwining
series of events and characters that triggered these remarkable
changes. Through them also, we meet all of the principal characters
and experience directly dramatic recreation of the revolution. The
story incorporates actual documentary footage filmed during the
period which we hope will capture the unique atmosphere and
forces that combined to overthrow President Marcos.
David Williamson is Australia's leading playwright with some 14
hugely successful plays to his credit(Don's Party,' 'The Club,'
Travelling North) and 11 feature films (The Year of Living
Dangerously,' Gallipoli,' 'Phar Lap').
Professor McCoy (University of New South Wales) is an American
historian with a deep understanding of the Philippines, who has
worked on the research for this project for some 18 months.
Together with Davi Wilhamgon they have developed a script we
believe accurately depicts the complex issues and events that
occurred during th period .
The six hour series is a McElroy and McElroy co-production with
Home Box Office in American, the Australian Broadcast Corporation
in Australia and Zenith Productions in the United Kingdom
The proposed motion picture would be essentially a re-enact. ment
of the events that made possible the EDSA revolution; it is designed
to be viewed in a six-hour mini-series television play, presented in a
"docu-drama" style, creating four (4) fictional characters interwoven
with real events, and utilizing actual documentary footage as
background.
On 21 December 1987, private respondent Enrile replied that "[he]
would not and will not approve of the use, appropriation,
reproduction and/or exhibition of his name, or picture, or that of any
member of his family in any cinema or television production, film or
other medium for advertising or commercial exploitation" and further
advised petitioners that 'in the production, airing, showing,
distribution or exhibition of said or similar film, no reference
whatsoever (whether written, verbal or visual) should not be made
to [him] or any member of his family, much less to any matter purely
personal to them.
It appears that petitioners acceded to this demand and the name of
private respondent Enrile was deleted from the movie script, and
petitioners proceeded to film the projected motion picture.
On 23 February 1988, private respondent filed a Complaint with
application for Temporary Restraining Order and Wilt of Pretion with
the Regional Trial Court of Makati, docketed as Civil Case No. 88-
151 in Branch 134 thereof, seeking to enjoin petitioners from
producing the movie "The Four Day Revolution". The complaint
alleged that petitioners' production of the mini-series without private
respondent's consent and over his objection, constitutes an obvious
violation of his right of privacy. On 24 February 1988, the trial court
issued ex-parte a Temporary Restraining Order and set for hearing
the application for preliminary injunction.
On 9 March 1988, Hal McElroy flied a Motion to Dismiss with
Opposition to the Petition for Preliminary Injunction contending that
the mini-series fim would not involve the private life of Juan Ponce
Enrile nor that of his family and that a preliminary injunction would
amount to a prior restraint on their right of free expression. Petitioner

Ayer Productions also filed its own Motion to Dismiss alleging lack
of cause of action as the mini-series had not yet been completed.
In an Order 2 dated 16 March 1988, respondent court issued a writ
of Preliminary Injunction against the petitioners, the dispositive
portion of which reads thus:
WHEREFORE, let a writ of preliminary injunction be issued,
ordering defendants, and all persons and entities employed or under
contract with them, including actors, actresses and members of the
production staff and crew as well as all persons and entities acting
on defendants' behalf, to cease and desist from producing and
filming the mini-series entitled 'The Four Day Revolution" and from
making any reference whatsoever to plaintiff or his family and from
creating any fictitious character in lieu of plaintiff which nevertheless
is based on, or bears rent substantial or marked resemblance or
similarity to, or is otherwise Identifiable with, plaintiff in the
production and any similar film or photoplay, until further orders from
this Court, upon plaintiff's filing of a bond in the amount of P
2,000,000.00, to answer for whatever damages defendants may
suffer by reason of the injunction if the Court should finally decide
that plaintiff was not entitled thereto.
xxx xxx xxx
(Emphasis supplied)
On 22 March 1988, petitioner Ayer Productions came to this Court
by a Petition for certiorari dated 21 March 1988 with an urgent
prayer for Preliminary Injunction or Restraining Order, which petition
was docketed as G.R. No. L-82380.
A day later, or on 23 March 1988, petitiioner Hal McElroy also filed
separate Petition for certiorari with Urgent Prayer for a Restraining
Order or Preliminary Injunction, dated 22 March 1988, docketed as
G.R. No. L-82398.
By a Resolution dated 24 March 1988, the petitions were
consolidated and private respondent was required to file a
consolidated Answer. Further, in the same Resolution, the Court
granted a Temporary Restraining Order partially enjoining the
implementation of the respondent Judge's Order of 16 March 1988
and the Writ of Preliminary Injunction issued therein, and allowing
the petitioners to resume producing and filming those portions of the
projected mini-series which do not make any reference to private
respondent or his family or to any fictitious character based on or
respondent.
Private respondent seasonably filed his Consolidated Answer on 6
April 1988 invoking in the main a right of privacy.
I the life of Moises Padilla, a mayoralty candidate of the Nacionalista
The constitutional and legal issues raised by the present Petitions
are sharply drawn. Petitioners' claim that in producing and "The Four
Day Revolution," they are exercising their freedom of speech and of
expression protected under our Constitution. Private respondent,
upon the other hand, asserts a right of privacy and claims that the
production and filming of the projected mini-series would constitute
an unlawful intrusion into his privacy which he is entitled to enjoy.
Considering first petitioners' claim to freedom of speech and of
expression the Court would once more stress that this freedom
includes the freedom to film and produce motion pictures and to
exhibit such motion pictures in theaters or to diffuse them through
television. In our day and age, motion pictures are a univesally
utilized vehicle of communication and medium Of expression. Along
with the press, radio and television, motion pictures constitute a
principal medium of mass communication for information, education
and entertainment. In Gonzales v. Katigbak, 3 former Chief Justice
Fernando, speaking for the Court, explained:
CONSTI LAW II I ACJUCO 215
1. Motion pictures are important both as a medium for the
communication of Ideas and the expression of the artistic impulse.
Their effect on the perception by our people of issues and public
officials or public figures as well as the pre cultural traits is
considerable. Nor as pointed out in Burstyn v. Wilson (343 US 495
[19421) is the Importance of motion pictures as an organ of public
opinion lessened by the fact that they are designed to entertain as
well as to inform' (Ibid, 501). There is no clear dividing line between
what involves knowledge and what affords pleasure. If such a
distinction were sustained, there is a diminution of the basic right to
free expression. ...4
This freedom is available in our country both to locally-owned and
to foreign-owned motion picture companies. Furthermore the
circumstance that the production of motion picture films is a
commercial activity expected to yield monetary profit, is not a
disqualification for availing of freedom of speech and of expression.
In our community as in many other countries, media facilities are
owned either by the government or the private sector but the private
sector-owned media facilities commonly require to be sustained by
being devoted in whole or in pailt to revenue producing activities.
Indeed, commercial media constitute the bulk of such facilities
available in our country and hence to exclude commercially owned
and operated media from the exerciseof constitutionally protected
om of speech and of expression can only result in the drastic
contraction of such constitutional liberties in our country.
The counter-balancing of private respondent is to a right of privacy.
It was demonstrated sometime ago by the then Dean Irene R.
Cortes that our law, constitutional and statutory, does include a right
of privacy. 5 It is left to case law, however, to mark out the precise
scope and content of this right in differing types of particular
situations. The right of privacy or "the right to be let alone," 6 like the
right of free expression, is not an absolute right. A limited intrusion
into a person's privacy has long been regarded as permissible
where that person is a public figure and the information sought to be
elicited from him or to be published about him constitute of apublic
character. 7 Succinctly put, the right of privacy cannot be invoked
resist publication and dissemination of matters of public interest. 8
The interest sought to be protected by the right of privacy is the right
to be free from unwarranted publicity, from the wrongful publicizing
of the private affairs and activities of an individual which are outside
the realm of legitimate public concern. 9
Lagunzad v. Vda. de Gonzales, 10 on which private respondent
relies heavily, recognized a right to privacy in a context which
included a claim to freedom of speech and of expression. Lagunzad
involved a suit fortion picture producer as licensee and the widow
and family of the late Moises Padilla as licensors. This agreement
gave the licensee the right to produce a motion Picture Portraying
Party for the Municipality of Magallon, Negros Occidental during the
November 1951 elections and for whose murder, Governor Rafael
Lacson, a member of the Liberal Party then in power and his men
were tried and convicted. 11 In the judgment of the lower court
enforcing the licensing agreement against the licensee who had
produced the motion picture and exhibited it but refused to pay the
stipulated royalties, the Court, through Justice Melencio-Herrera,
said:
Neither do we agree with petitioner's subon that the Licensing
Agreement is null and void for lack of, or for having an illegal cause
or consideration, while it is true that petitioner bad pled the rights to
the book entitled "The Moises Padilla Story," that did not dispense
with the need for prior consent and authority from the deceased
heirs to portray publicly episodes in said deceased's life and in that
of his mother and the member of his family. As held in Schuyler v.
Curtis, ([1895],147 NY 434,42 NE 31 LRA 286.49 Am St Rep 671),
'a privilege may be given the surviving relatives of a deperson to
protect his memory, but the privilege wts for the benefit of the living,

to protect their feelings and to preventa violation of their own rights
in the character and memory of the deceased.'
Petitioners averment that private respondent did not have any
property right over the life of Moises Padilla since the latter was a
public figure, is neither well taken. Being a public figure ipso facto
does not automatically destroy in toto a person's right to privacy.
The right to invade a person's privacy to disseminate public
information does not extend to a fictional or novelized
representation of a person, no matter how public a he or she may
be (Garner v. Triangle Publications, DCNY 97 F. Supp., SU 549
[1951]). In the case at bar, while it is true that petitioner exerted
efforts to present a true-to-life Story Of Moises Padilla, petitioner
admits that he included a little romance in the film because without
it, it would be a drab story of torture and brutality. 12
In Lagunzad, the Court had need, as we have in the instant case, to
deal with contraposed claims to freedom of speech and of
expression and to privacy. Lagunzad the licensee in effect claimed,
in the name of freedom of speech and expression, a right to produce
a motion picture biography at least partly "fictionalized" of Moises
Padilla without the consent of and without paying pre-agreed
royalties to the widow and family of Padilla. In rejecting the
licensee's claim, the Court said:
Lastly, neither do we find merit in petitioners contention that the
Licensing Agreement infringes on the constitutional right of freedom
of speech and of the press, in that, as a citizen and as a
newspaperman, he had the right to express his thoughts in film on
the public life of Moises Padilla without prior restraint.The right
freedom of expression, indeed, occupies a preferred position in the
"hierarchy of civil liberties" (Philippine Blooming Mills Employees
Organization v. Philippine Blooming Mills Co., Inc., 51 SCRA 191
[1963]). It is not, however, without limitations. As held in Gonzales
v. Commission on Elections, 27 SCRA 835, 858 [1960]:
xxx xxx xxx
The prevailing doctine is that the clear and present danger rule is
such a limitation. Another criterion for permissible limitation on
freedom of speech and the press, which includes such vehicles of
the mass media as radio, television and the movies, is the
"balancing of interest test" (Chief Justice Enrique M. Fernando on
the Bill of Rights, 1970 ed. p. 79). The principle "requires a court to
take conscious and detailed consideration of the interplay of
interests observable in given situation or type of situation"
(Separation Opinion of the late Chief Justice Castro in Gonzales v.
Commission on Elections, supra, p. 899).
In the case at bar, the interests observable are the right to privacy
asserted by respondent and the right of freedom of expression
invoked by petitioner. taking into account the interplay of those
interests, we hold that under the particular circumstances
presented, and considering the obligations assumed in the
Licensing Agreement entered into by petitioner, the validity of such
agreement will have to be upheld particularly because the limits of
freedom of expression are reached when expression touches upon
matters of essentially private concern." 13
Whether the "balancing of interests test" or the clear and present
danger test" be applied in respect of the instant Petitions, the Court
believes that a different conclusion must here be reached: The
production and filming by petitioners of the projected motion picture
"The Four Day Revolution" does not, in the circumstances of this
case, constitute an unlawful intrusion upon private respondent's
"right of privacy."
1. It may be observed at the outset that what is involved in
the instant case is a prior and direct restraint on the part of the
respondent Judge upon the exercise of speech and of expression
by petitioners. The respondent Judge has restrained petitioners
CONSTI LAW II I ACJUCO 216
from filming and producing the entire proposed motion picture. It is
important to note that in Lagunzad, there was no prior restrain of
any kind imposed upon the movie producer who in fact completed
and exhibited the film biography of Moises Padilla. Because of the
speech and of expression, a weighty presumption of invalidity
vitiates. 14 The invalidity of a measure of prior restraint doesnot, of
course, mean that no subsequent liability may lawfully be imposed
upon a person claiming to exercise such constitutional freedoms.
The respondent Judge should have stayed his hand, instead of
issuing an ex-parte Temporary Restraining Order one day after filing
of a complaint by the private respondent and issuing a Preliminary
Injunction twenty (20) days later; for the projected motion picture
was as yet uncompleted and hence not exhibited to any audience.
Neither private respondent nor the respondent trial Judge knew
what the completed film would precisely look like. There was, in
other words, no "clear and present danger" of any violation of any
right to privacy that private respondent could lawfully assert.
2. The subject matter of "The Four Day Revolution" relates
to the non-bloody change of government that took place at Epifanio
de los Santos Avenue in February 1986, and the trian of events
which led up to that denouement. Clearly, such subject matter is one
of public interest and concern. Indeed, it is, petitioners' argue, of
international interest. The subject thus relates to a highly critical
stage in the history of this countryand as such, must be regarded as
having passed into the public domain and as an appropriate subject
for speech and expression and coverage by any form of mass
media. The subject mater, as set out in the synopsis provided by the
petitioners and quoted above, does not relate to the individual life
and certainly not to the private life of private respondent Ponce
Enrile. Unlike in Lagunzad, which concerned the life story of Moises
Padilla necessarily including at least his immediate family, what we
have here is not a film biography, more or less fictionalized, of
private respondent Ponce Enrile. "The Four Day Revolution" is not
principally about, nor is it focused upon, the man Juan Ponce Enrile'
but it is compelled, if it is to be historical, to refer to the role played
by Juan Ponce Enrile in the precipitating and the constituent events
of the change of government in February 1986.
3. The extent of the instrusion upon the life of private
respondent Juan Ponce Enrile that would be entailed by the
production and exhibition of "The Four Day Revolution" would,
therefore, be limited in character. The extent of that intrusion, as this
Court understands the synopsis of the proposed film, may be
generally described as such intrusion as is reasonably necessary to
keep that film a truthful historical account. Private respondent does
not claim that petitioners threatened to depict in "The Four Day
Revolution" any part of the private life of private respondent or that
of any member of his family.
4. At all relevant times, during which the momentous events,
clearly of public concern, that petitioners propose to film were taking
place, private respondent was what Profs. Prosser and Keeton have
referred to as a "public figure:"
A public figure has been defined as a person who, by his
accomplishments, fame, or mode of living, or by adopting a
profession or calling which gives the public a legitimate interest in
his doings, his affairs, and his character, has become a 'public
personage.' He is, in other words, a celebrity. Obviously to be
included in this category are those who have achieved some degree
of reputation by appearing before the public, as in the case of an
actor, a professional baseball player, a pugilist, or any other
entertainment. The list is, however, broader than this. It includes
public officers, famous inventors and explorers, war heroes and
even ordinary soldiers, an infant prodigy, and no less a personage
than the Grand Exalted Ruler of a lodge. It includes, in short, anyone
who has arrived at a position where public attention is focused upon
him as a person.

Such public figures were held to have lost, to some extent at least,
their tight to privacy. Three reasons were given, more or less
indiscrimately, in the decisions" that they had sought publicity and
consented to it, and so could not complaint when they received it;
that their personalities and their affairs has already public, and could
no longer be regarded as their own private business; and that the
press had a privilege, under the Constitution, to inform the public
about those who have become legitimate matters of public interest.
On one or another of these grounds, and sometimes all, it was held
that there was no liability when they were given additional publicity,
as to matters legitimately within the scope of the public interest they
had aroused.
The privilege of giving publicity to news, and other matters of public
interest, was held to arise out of the desire and the right of the public
to know what is going on in the world, and the freedom of the press
and other agencies of information to tell it. "News" includes all
events and items of information which are out of the ordinary hum-
drum routine, and which have 'that indefinable quality of information
which arouses public attention.' To a very great extent the press,
with its experience or instinct as to what its readers will want, has
succeeded in making its own definination of news, as a glance at
any morning newspaper will sufficiently indicate. It includes
homicide and othe crimes, arrests and police raides, suicides,
marriages and divorces, accidents, a death from the use of
narcotics, a woman with a rare disease, the birth of a child to a
twelve year old girl, the reappearance of one supposed to have been
murdered years ago, and undoubtedly many other similar matters
of genuine, if more or less deplorable, popular appeal.
The privilege of enlightening the public was not, however, limited, to
the dissemination of news in the scene of current events. It extended
also to information or education, or even entertainment and
amusement, by books, articles, pictures, films and broadcasts
concerning interesting phases of human activity in general, as well
as the reproduction of the public scene in newsreels and
travelogues. In determining where to draw the line, the courts were
invited to exercise a species of censorship over what the public may
be permitted to read; and they were understandably liberal in
allowing the benefit of the doubt. 15
Private respondent is a "public figure" precisely because, inter alia,
of his participation as a principal actor in the culminating events of
the change of government in February 1986. Because his
participation therein was major in character, a film reenactment of
the peaceful revolution that fails to make reference to the role played
by private respondent would be grossly unhistorical. The right of
privacy of a "public figure" is necessarily narrower than that of an
ordinary citizen. Private respondent has not retired into the
seclusion of simple private citizenship. he continues to be a "public
figure." After a successful political campaign during which his
participation in the EDSA Revolution was directly or indirectly
referred to in the press, radio and television, he sits in a very public
place, the Senate of the Philippines.
5. The line of equilibrium in the specific context of the instant
case between the constitutional freedom of speech and of
expression and the right of privacy, may be marked out in terms of
a requirement that the proposed motion picture must be fairly
truthful and historical in its presentation of events. There must, in
other words, be no knowing or reckless disregard of truth in
depicting the participation of private respondent in the EDSA
Revolution. 16 There must, further, be no presentation of the private
life of the unwilling private respondent and certainly no revelation of
intimate or embarrassing personal facts. 17 The proposed motion
picture should not enter into what Mme. Justice Melencio-Herrera in
Lagunzad referred to as "matters of essentially private concern." 18
To the extent that "The Four Day Revolution" limits itself in
portraying the participation of private respondent in the EDSA
Revolution to those events which are directly and reasonably related
to the public facts of the EDSA Revolution, the intrusion into private
CONSTI LAW II I ACJUCO 217
respondent's privacy cannot be regarded as unreasonable and
actionable. Such portrayal may be carried out even without a license
from private respondent.
II
In a Manifestation dated 30 March 1988, petitioner Hal McElroy
informed this Court that a Temporary Restraining Order dated 25
March 1988, was issued by Judge Teofilo Guadiz of the Regional
Trial Court of Makati, Branch 147, in Civil Case No. 88-413, entitled
"Gregorio B. Honasan vs. Ayer Productions Pty. Ltd., McElroy Film
Productions, Hal McElroy, Lope Juban and PMP Motion for Pictures
Production" enjoining him and his production company from further
filimg any scene of the projected mini-series film. Petitioner alleged
that Honasan's complaint was a "scissors and paste" pleading, cut
out straight grom the complaint of private respondent Ponce Enrile
in Civil Case No. 88-151. Petitioner Ayer Productions, in a separate
Manifestation dated 4 April 1988, brought to the attention of the
Court the same information given by petitoner Hal McElroy,
reiterating that the complaint of Gregorio B. Honasan was
substantially identical to that filed by private respondent herein and
stating that in refusing to join Honasan in Civil Case No. 88-151,
counsel for private respondent, with whom counsel for Gregorio
Honasan are apparently associated, deliberately engaged in "forum
shopping."
Private respondent filed a Counter-Manifestation on 13 April 1988
stating that the "slight similarity" between private respondent's
complaint and that on Honasan in the construction of their legal
basis of the right to privacy as a component of the cause of action
is understandable considering that court pleadings are public
records; that private respondent's cause of action for invasion of
privacy is separate and distinct from that of Honasan's although they
arose from the same tortious act of petitioners' that the rule on
permissive joinder of parties is not mandatory and that, the cited
cases on "forum shopping" were not in point because the parties
here and those in Civil Case No. 88-413 are not identical.
For reasons that by now have become clear, it is not necessary for
the Court to deal with the question of whether or not the lawyers of
private respondent Ponce Enrile have engaged in "forum shopping."
It is, however, important to dispose to the complaint filed by former
Colonel Honasan who, having refused to subject himself to the legal
processes of the Republic and having become once again in fugitive
from justice, must be deemed to have forfeited any right the might
have had to protect his privacy through court processes.
WHEREFORE,
a) the Petitions for Certiorari are GRANTED DUE COURSE,
and the Order dated 16 March 1988 of respondent trial court
granting a Writ of Preliminary Injunction is hereby SET ASIDE. The
limited Temporary Restraining Order granted by this Court on 24
March 1988 is hereby MODIFIED by enjoining unqualifiedly the
implementation of respondent Judge's Order of 16 March 1988 and
made PERMANENT, and
b) Treating the Manifestations of petitioners dated 30 March
1988 and 4 April 1988 as separate Petitions for Certiorari with
Prayer for Preliminary Injunction or Restraining Order, the Court, in
the exercise of its plenary and supervisory jurisdiction, hereby
REQUIRES Judge Teofilo Guadiz of the Regional Trial Court of
Makati, Branch 147, forthwith to DISMISS Civil Case No. 88-413
and accordingly to SET ASIDE and DISSOLVE his Temporary
Restraining Order dated 25 March 1988 and any Preliminary
Injunction that may have been issued by him.
No pronouncement as to costs.
SO ORDERED.

G.R. No. 157870 November 3, 2008
SOCIAL JUSTICE SOCIETY (SJS), petitioner
vs.
DANGEROUS DRUGS BOARD and PHILIPPINE DRUG
ENFORCEMENT AGENCY (PDEA), respondents.
x-----------------------------------------------
x
G.R. No. 158633 November 3, 2008
ATTY. MANUEL J. LASERNA, JR., petitioner
vs.
DANGEROUS DRUGS BOARD and PHILIPPINE DRUG
ENFORCEMENT AGENCY, respondents.
x-----------------------------------------------
x on the mandatory drug testing of candidates for public office in
G.R. No. 161658 November 3, 2008
AQUILINO Q. PIMENTEL, JR., petitioner
vs.
COMMISSION ON ELECTIONS, respondents.
DECISION
VELASCO, JR., J.:
In these kindred petitions, the constitutionality of Section 36 of
Republic Act No. (RA) 9165, otherwise known as the
Comprehensive Dangerous Drugs Act of 2002, insofar as it requires
mandatory drug testing of candidates for public office, students of
secondary and tertiary schools, officers and employees of public
and private offices, and persons charged before the prosecutor's
office with certain offenses, among other personalities, is put in
issue.
As far as pertinent, the challenged section reads as follows:
SEC. 36. Authorized Drug Testing. - Authorized drug testing shall
be done by any government forensic laboratories or by any of the
drug testing laboratories accredited and monitored by the DOH to
safeguard the quality of the test results. x x x The drug testing shall
employ, among others, two (2) testing methods, the screening test
which will determine the positive result as well as the type of drug
used and the confirmatory test which will confirm a positive
screening test. x x x The following shall be subjected to undergo
drug testing:
xxxx
(c) Students of secondary and tertiary schools. - Students of
secondary and tertiary schools shall, pursuant to the related rules
and regulations as contained in the school's student handbook and
with notice to the parents, undergo a random drug testing x x x;
(d) Officers and employees of public and private offices. - Officers
and employees of public and private offices, whether domestic or
overseas, shall be subjected to undergo a random drug test as
contained in the company's work rules and regulations, x x x for
purposes of reducing the risk in the workplace. Any officer or
employee found positive for use of dangerous drugs shall be dealt
with administratively which shall be a ground for suspension or
termination, subject to the provisions of Article 282 of the Labor
Code and pertinent provisions of the Civil Service Law;
xxxx
CONSTI LAW II I ACJUCO 218
(f) All persons charged before the prosecutor's office with a criminal
offense having an imposable penalty of imprisonment of not less
than six (6) years and one (1) day shall undergo a mandatory drug
test;
(g) All candidates for public office whether appointed or elected both
in the national or local government shall undergo a mandatory drug
test.
In addition to the above stated penalties in this Section, those found
to be positive for dangerous drugs use shall be subject to the
provisions of Section 15 of this Act.
G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on
Elections)
On December 23, 2003, the Commission on Elections (COMELEC)
issued Resolution No. 6486, prescribing the rules and regulations
connection with the May 10, 2004 synchronized national and local
elections. The pertinent portions of the said resolution read as
follows:
WHEREAS, Section 36 (g) of Republic Act No. 9165 provides:
SEC. 36. Authorized Drug Testing. - x x x
xxxx
(g) All candidates for public office x x x both in the national or local
government shall undergo a mandatory drug test.
WHEREAS, Section 1, Article XI of the 1987 Constitution provides
that public officers and employees must at all times be accountable
to the people, serve them with utmost responsibility, integrity, loyalty
and efficiency;
WHEREAS, by requiring candidates to undergo mandatory drug
test, the public will know the quality of candidates they are electing
and they will be assured that only those who can serve with utmost
responsibility, integrity, loyalty, and efficiency would be elected x x
x.
NOW THEREFORE, The [COMELEC], pursuant to the authority
vested in it under the Constitution, Batas Pambansa Blg. 881
(Omnibus Election Code), [RA] 9165 and other election laws,
RESOLVED to promulgate, as it hereby promulgates, the following
rules and regulations on the conduct of mandatory drug testing to
candidates for public office[:]
SECTION 1. Coverage. - All candidates for public office, both
national and local, in the May 10, 2004 Synchronized National and
Local Elections shall undergo mandatory drug test in government
forensic laboratories or any drug testing laboratories monitored and
accredited by the Department of Health.
SEC. 3. x x x
On March 25, 2004, in addition to the drug certificates filed with their
respective offices, the Comelec Offices and employees concerned
shall submit to the Law Department two (2) separate lists of
candidates. The first list shall consist of those candidates who
complied with the mandatory drug test while the second list shall
consist of those candidates who failed to comply x x x.
SEC. 4. Preparation and publication of names of candidates. -
Before the start of the campaign period, the [COMELEC] shall
prepare two separate lists of candidates. The first list shall consist
of those candidates who complied with the mandatory drug test
while the second list shall consist of those candidates who failed to
comply with said drug test. x x x

SEC. 5. Effect of failure to undergo mandatory drug test and file drug
test certificate. - No person elected to any public office shall enter
upon the duties of his office until he has undergone mandatory drug
test and filed with the offices enumerated under Section 2 hereof
the drug test certificate herein required. (Emphasis supplied.)
Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a
candidate for re - election in the May 10, 2004 elections,1 filed a
Petition for Certiorari and Prohibition under Rule 65. In it, he seeks
(1) to nullify Sec. 36(g) of RA 9165 and COMELEC Resolution No.
6486 dated December 23, 2003 for being unconstitutional in that
they impose a qualification for candidates for senators in addition to
those already provided for in the 1987 Constitution; and (2) to enjoin
the COMELEC from implementing Resolution No. 6486.
Pimentel invokes as legal basis for his petition Sec. 3, Article VI of
the Constitution, which states:
SECTION 3. No person shall be a Senator unless he is a natural -
born citizen of the Philippines, and, on the day of the election, is at
least thirty - five years of age, able to read and write, a registered
voter, and a resident of the Philippines for not less than two years
immediately preceding the day of the election.
According to Pimentel, the Constitution only prescribes a maximum
of five (5) qualifications for one to be a candidate for, elected to, and
be a member of the Senate. He says that both the Congress and
COMELEC, by requiring, via RA 9165 and Resolution No. 6486, a
senatorial aspirant, among other candidates, to undergo a
mandatory drug test, create an additional qualification that all
candidates for senator must first be certified as drug free. He adds
that there is no provision in the Constitution authorizing the
Congress or COMELEC to expand the qualification requirements of
candidates for senator.
G.R. No. 157870 (Social Justice Society v. Dangerous
Drugs Board and Philippine Drug Enforcement Agency)
In its Petition for Prohibition under Rule 65, petitioner Social Justice
Society (SJS), a registered political party, seeks to prohibit the
Dangerous Drugs Board (DDB) and the Philippine Drug
Enforcement Agency (PDEA) from enforcing paragraphs (c), (d), (f),
and (g) of Sec. 36 of RA 9165 on the ground that they are
constitutionally infirm. For one, the provisions constitute undue
delegation of legislative power when they give unbridled discretion
to schools and employers to determine the manner of drug testing.
For another, the provisions trench in the equal protection clause
inasmuch as they can be used to harass a student or an employee
deemed undesirable. And for a third, a person's constitutional right
against unreasonable searches is also breached by said provisions.
G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous
Drugs Board and Philippine Drug Enforcement Agency)
Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also
seeks in his Petition for Certiorari and Prohibition under Rule 65 that
Sec. 36(c), (d), (f), and (g) of RA 9165 be struck down as
unconstitutional for infringing on the constitutional right to privacy,
the right against unreasonable search and seizure, and the right
against self - incrimination, and for being contrary to the due process
and equal protection guarantees.
The Issue on Locus Standi
First off, we shall address the justiciability of the cases at bench and
the matter of the standing of petitioners SJS and Laserna to sue. As
respondents DDB and PDEA assert, SJS and Laserna failed to
allege any incident amounting to a violation of the constitutional
rights mentioned in their separate petitions.2
CONSTI LAW II I ACJUCO 219
It is basic that the power of judicial review can only be exercised in
connection with a bona fide controversy which involves the statute
sought to be reviewed.3 But even with the presence of an actual
case or controversy, the Court may refuse to exercise judicial review
unless the constitutional question is brought before it by a party
having the requisite standing to challenge it.4 To have standing, one
must establish that he or she has suffered some actual or
threatened injury as a result of the allegedly illegal conduct of the
government; the injury is fairly traceable to the challenged action;
and the injury is likely to be redressed by a favorable action.5
The rule on standing, however, is a matter of procedure; hence, it
can be relaxed for non - traditional plaintiffs, like ordinary citizens,
taxpayers, and legislators when the public interest so requires, such
as when the matter is of transcendental importance, of overarching
significance to society, or of paramount public interest.6 There is no
doubt that Pimentel, as senator of the Philippines and candidate for
the May 10, 2004 elections, possesses the requisite standing since
he has substantial interests in the subject matter of the petition,
among other preliminary considerations. Regarding SJS and
Laserna, this Court is wont to relax the rule on locus standi owing
primarily to the transcendental importance and the paramount public
interest involved in the enforcement of Sec. 36 of RA 9165.
The Consolidated Issues
The principal issues before us are as follows:
(1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486
impose an additional qualification for candidates for senator?
Corollarily, can Congress enact a law prescribing qualifications for
candidates for senator in addition to those laid down by the
Constitution? and
(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165
unconstitutional? Specifically, do these paragraphs violate the right
to privacy, the right against unreasonable searches and seizure,
and the equal protection clause? Or do they constitute undue
delegation of legislative power?
Pimentel Petition
(Constitutionality of Sec. 36[g] of RA 9165 and
COMELEC Resolution No. 6486)
In essence, Pimentel claims that Sec. 36(g) of RA 9165 and
COMELEC Resolution No. 6486 illegally impose an additional
qualification on candidates for senator. He points out that, subject
to the provisions on nuisance candidates, a candidate for senator
needs only to meet the qualifications laid down in Sec. 3, Art. VI of
the Constitution, to wit: (1) citizenship, (2) voter registration, (3)
literacy, (4) age, and (5) residency. Beyond these stated
qualification requirements, candidates for senator need not possess
any other qualification to run for senator and be voted upon and
elected as member of the Senate. The Congress cannot validly
amend or otherwise modify these qualification standards, as it
cannot disregard, evade, or weaken the force of a constitutional
mandate,7 or alter or enlarge the Constitution.
Pimentel's contention is well - taken. Accordingly, Sec. 36(g) of RA
9165 should be, as it is hereby declared as, unconstitutional. It is
basic that if a law or an administrative rule violates any norm of the
Constitution, that issuance is null and void and has no effect. The
Constitution is the basic law to which all laws must conform; no act
shall be valid if it conflicts with the Constitution.8 In the discharge of
their defined functions, the three departments of government have
no choice but to yield obedience to the commands of the
Constitution. Whatever limits it imposes must be observed.9
Congress' inherent legislative powers, broad as they may be, are
subject to certain limitations. As early as 1927, in Government v.

Springer, the Court has defined, in the abstract, the limits on
legislative power in the following wise:
Someone has said that the powers of the legislative department of
the Government, like the boundaries of the ocean, are unlimited. In
constitutional governments, however, as well as governments
acting under delegated authority, the powers of each of the
departments x x x are limited and confined within the four walls of
the constitution or the charter, and each department can only
exercise such powers as are necessarily implied from the given
powers. The Constitution is the shore of legislative authority against
which the waves of legislative enactment may dash, but over which
it cannot leap.10
Thus, legislative power remains limited in the sense that it is subject
to substantive and constitutional limitations which circumscribe both
the exercise of the power itself and the allowable subjects of
legislation.11 The substantive constitutional limitations are chiefly
found in the Bill of Rights12 and other provisions, such as Sec. 3,
Art. VI of the Constitution prescribing the qualifications of candidates
for senators.
In the same vein, the COMELEC cannot, in the guise of enforcing
and administering election laws or promulgating rules and
regulations to implement Sec. 36(g), validly impose qualifications on
candidates for senator in addition to what the Constitution
prescribes. If Congress cannot require a candidate for senator to
meet such additional qualification, the COMELEC, to be sure, is also
without such power. The right of a citizen in the democratic process
of election should not be defeated by unwarranted impositions of
requirement not otherwise specified in the Constitution.13
Sec. 36(g) of RA 9165, as sought to be implemented by the assailed
COMELEC resolution, effectively enlarges the qualification
requirements enumerated in the Sec. 3, Art. VI of the Constitution.
As couched, said Sec. 36(g) unmistakably requires a candidate for
senator to be certified illegal - drug clean, obviously as a pre -
condition to the validity of a certificate of candidacy for senator or,
with like effect, a condition sine qua non to be voted upon and, if
proper, be proclaimed as senator - elect. The COMELEC resolution
completes the chain with the proviso that "[n]o person elected to any
public office shall enter upon the duties of his office until he has
undergone mandatory drug test." Viewed, therefore, in its proper
context, Sec. 36(g) of RA 9165 and the implementing COMELEC
Resolution add another qualification layer to what the 1987
Constitution, at the minimum, requires for membership in the
Senate. Whether or not the drug - free bar set up under the
challenged provision is to be hurdled before or after election is really
of no moment, as getting elected would be of little value if one
cannot assume office for non - compliance with the drug - testing
requirement.
It may of course be argued, in defense of the validity of Sec. 36(g)
of RA 9165, that the provision does not expressly state that non -
compliance with the drug test imposition is a disqualifying factor or
would work to nullify a certificate of candidacy. This argument may
be accorded plausibility if the drug test requirement is optional. But
the particular section of the law, without exception, made drug -
testing on those covered mandatory, necessarily suggesting that the
obstinate ones shall have to suffer the adverse consequences for
not adhering to the statutory command. And since the provision
deals with candidates for public office, it stands to reason that the
adverse consequence adverted to can only refer to and revolve
around the election and the assumption of public office of the
candidates. Any other construal would reduce the mandatory nature
of Sec. 36(g) of RA 9165 into a pure jargon without meaning and
effect whatsoever.
While it is anti - climactic to state it at this juncture, COMELEC
Resolution No. 6486 is no longer enforceable, for by its terms, it was
intended to cover only the May 10, 2004 synchronized elections and
CONSTI LAW II I ACJUCO 220
the candidates running in that electoral event. Nonetheless, to
obviate repetition, the Court deems it appropriate to review and rule,
as it hereby rules, on its validity as an implementing issuance.
It ought to be made abundantly clear, however, that the
unconstitutionality of Sec. 36(g) of RA 9165 is rooted on its having
infringed the constitutional provision defining the qualification or
eligibility requirements for one aspiring to run for and serve as
senator.
SJS Petition
(Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)
The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165
for secondary and tertiary level students and public and private
employees, while mandatory, is a random and suspicionless
arrangement. The objective is to stamp out illegal drug and
safeguard in the process "the well being of [the] citizenry,
particularly the youth, from the harmful effects of dangerous drugs."
This statutory purpose, per the policy - declaration portion of the law,
can be achieved via the pursuit by the state of "an intensive and
unrelenting campaign against the trafficking and use of dangerous
drugs x x x through an integrated system of planning,
implementation and enforcement of anti - drug abuse policies,
programs and projects."14 The primary legislative intent is not
criminal prosecution, as those found positive for illegal drug use as
a result of this random testing are not necessarily treated as
criminals. They may even be exempt from criminal liability should
the illegal drug user consent to undergo rehabilitation. Secs. 54 and
55 of RA 9165 are clear on this point:
Sec. 54. Voluntary Submission of a Drug Dependent to
Confinement, Treatment and Rehabilitation. - A drug dependent or
any person who violates Section 15 of this Act may, by
himself/herself or through his/her parent, [close relatives] x x x apply
to the Board x x x for treatment and rehabilitation of the drug
dependency. Upon such application, the Board shall bring forth the
matter to the Court which shall order that the applicant be examined
for drug dependency. If the examination x x x results in the
certification that the applicant is a drug dependent, he/she shall be
ordered by the Court to undergo treatment and rehabilitation in a
Center designated by the Board x x x.
xxxx
Sec. 55. Exemption from the Criminal Liability Under the Voluntary
Submission Program. - A drug dependent under the voluntary
submission program, who is finally discharged from confinement,
shall be exempt from the criminal liability under Section 15 of this
Act subject to the following conditions:
xxxx
School children, the US Supreme Court noted, are most vulnerable
to the physical, psychological, and addictive effects of drugs.
Maturing nervous systems of the young are more critically impaired
by intoxicants and are more inclined to drug dependency. Their
recovery is also at a depressingly low rate.15
The right to privacy has been accorded recognition in this
jurisdiction as a facet of the right protected by the guarantee against
unreasonable search and seizure16 under Sec. 2, Art. III17 of the
Constitution. But while the right to privacy has long come into its
own, this case appears to be the first time that the validity of a state
- decreed search or intrusion through the medium of mandatory
random drug testing among students and employees is, in this
jurisdiction, made the focal point. Thus, the issue tendered in these
proceedings is veritably one of first impression.
US jurisprudence is, however, a rich source of persuasive
jurisprudence. With respect to random drug testing among school

children, we turn to the teachings of Vernonia School District 47J v.
Acton (Vernonia) and Board of Education of Independent School
District No. 92 of Pottawatomie County, et al. v. Earls, et al. (Board
of Education),18 both fairly pertinent US Supreme Court - decided
cases involving the constitutionality of governmental search.
In Vernonia, school administrators in Vernonia, Oregon wanted to
address the drug menace in their respective institutions following
the discovery of frequent drug use by school athletes. After
consultation with the parents, they required random urinalysis drug
testing for the school's athletes. James Acton, a high school student,
was denied participation in the football program after he refused to
undertake the urinalysis drug testing. Acton forthwith sued, claiming
that the school's drug testing policy violated, inter alia, the Fourth
Amendment19 of the US Constitution.
The US Supreme Court, in fashioning a solution to the issues raised
in Vernonia, considered the following: (1) schools stand in loco
parentis over their students; (2) school children, while not shedding
their constitutional rights at the school gate, have less privacy rights;
(3) athletes have less privacy rights than non - athletes since the
former observe communal undress before and after sports events;
(4) by joining the sports activity, the athletes voluntarily subjected
themselves to a higher degree of school supervision and regulation;
(5) requiring urine samples does not invade a student's privacy
since a student need not undress for this kind of drug testing; and
(6) there is need for the drug testing because of the dangerous
effects of illegal drugs on the young. The US Supreme Court held
that the policy constituted reasonable search under the Fourth20
and 14th Amendments and declared the random drug - testing
policy constitutional.
In Board of Education, the Board of Education of a school in
Tecumseh, Oklahoma required a drug test for high school students
desiring to join extra - curricular activities. Lindsay Earls, a member
of the show choir, marching band, and academic team declined to
undergo a drug test and averred that the drug - testing policy made
to apply to non - athletes violated the Fourth and 14th Amendments.
As Earls argued, unlike athletes who routinely undergo physical
examinations and undress before their peers in locker rooms, non -
athletes are entitled to more privacy.
The US Supreme Court, citing Vernonia, upheld the constitutionality
of drug testing even among non - athletes on the basis of the
school's custodial responsibility and authority. In so ruling, said court
made no distinction between a non - athlete and an athlete. It
ratiocinated that schools and teachers act in place of the parents
with a similar interest and duty of safeguarding the health of the
students. And in holding that the school could implement its random
drug - testing policy, the Court hinted that such a test was a kind of
search in which even a reasonable parent might need to engage.
In sum, what can reasonably be deduced from the above two cases
and applied to this jurisdiction are: (1) schools and their
administrators stand in loco parentis with respect to their students;
(2) minor students have contextually fewer rights than an adult, and
are subject to the custody and supervision of their parents,
guardians, and schools; (3) schools, acting in loco parentis, have a
duty to safeguard the health and well - being of their students and
may adopt such measures as may reasonably be necessary to
discharge such duty; and (4) schools have the right to impose
conditions on applicants for admission that are fair, just, and non-
discriminatory.
Guided by Vernonia and Board of Education, the Court is of the view
and so holds that the provisions of RA 9165 requiring mandatory,
random, and suspicionless drug testing of students are
constitutional. Indeed, it is within the prerogative of educational
institutions to require, as a condition for admission, compliance with
reasonable school rules and regulations and policies. To be sure,
CONSTI LAW II I ACJUCO 221
the right to enroll is not absolute; it is subject to fair, reasonable, and
equitable requirements.
The Court can take judicial notice of the proliferation of prohibited
drugs in the country that threatens the well - being of the people,21
particularly the youth and school children who usually end up as
victims. Accordingly, and until a more effective method is
conceptualized and put in motion, a random drug testing of students
in secondary and tertiary schools is not only acceptable but may
even be necessary if the safety and interest of the student
population, doubtless a legitimate concern of the government, are
to be promoted and protected. To borrow from Vernonia, "[d]eterring
drug use by our Nation's schoolchildren is as important as
enhancing efficient enforcement of the Nation's laws against the
importation of drugs"; the necessity for the State to act is magnified
by the fact that the effects of a drug - infested school are visited not
just upon the users, but upon the entire student body and faculty.22
Needless to stress, the random testing scheme provided under the
law argues against the idea that the testing aims to incriminate
unsuspecting individual students.
Just as in the case of secondary and tertiary level students, the
mandatory but random drug test prescribed by Sec. 36 of RA 9165
for officers and employees of public and private offices is justifiable,
albeit not exactly for the same reason. The Court notes in this regard
that petitioner SJS, other than saying that "subjecting almost
everybody to drug testing, without probable cause, is unreasonable,
an unwarranted intrusion of the individual right to privacy,"23 has
failed to show how the mandatory, random, and suspicionless drug
testing under Sec. 36(c) and (d) of RA 9165 violates the right to
privacy and constitutes unlawful and/or unconsented search under
Art. III, Secs. 1 and 2 of the Constitution.24 Petitioner Laserna's
lament is just as simplistic, sweeping, and gratuitous and does not
merit serious consideration. Consider what he wrote without
elaboration:
The US Supreme Court and US Circuit Courts of Appeals have
made various rulings on the constitutionality of mandatory drug tests
in the school and the workplaces. The US courts have been
consistent in their rulings that the mandatory drug tests violate a
citizen's constitutional right to privacy and right against
unreasonable search and seizure. They are quoted extensively
hereinbelow.25
The essence of privacy is the right to be left alone.26 In context, the
right to privacy means the right to be free from unwarranted
exploitation of one's person or from intrusion into one's private
activities in such a way as to cause humiliation to a person's
ordinary sensibilities. 27 And while there has been general
agreement as to the basic function of the guarantee against
unwarranted search, "translation of the abstract prohibition against
‘unreasonable searches and seizures' into workable broad
guidelines for the decision of particular cases is a difficult task," to
borrow from C. Camara v. Municipal Court.28 Authorities are agreed
though that the right to privacy yields to certain paramount rights of
the public and defers to the state's exercise of police power.29
As the warrantless clause of Sec. 2, Art III of the Constitution is
couched and as has been held, "reasonableness" is the touchstone
of the validity of a government search or intrusion.30 And whether
a search at issue hews to the reasonableness standard is judged by
the balancing of the government - mandated intrusion on the
individual's privacy interest against the promotion of some
compelling state interest.31 In the criminal context, reasonableness
requires showing of probable cause to be personally determined by
a judge. Given that the drug - testing policy for employees--and
students for that matter--under RA 9165 is in the nature of
administrative search needing what was referred to in Vernonia as
"swift and informal disciplinary procedures," the probable - cause
standard is not required or even practicable. Be that as it may, the

review should focus on the reasonableness of the challenged
administrative search in question.
The first factor to consider in the matter of reasonableness is the
nature of the privacy interest upon which the drug testing, which
effects a search within the meaning of Sec. 2, Art. III of the
Constitution, intrudes. In this case, the office or workplace serves
as the backdrop for the analysis of the privacy expectation of the
employees and the reasonableness of drug testing requirement.
The employees' privacy interest in an office is to a large extent
circumscribed by the company's work policies, the collective
bargaining agreement, if any, entered into by management and the
bargaining unit, and the inherent right of the employer to maintain
discipline and efficiency in the workplace. Their privacy expectation
in a regulated office environment is, in fine, reduced; and a degree
of impingement upon such privacy has been upheld.
Just as defining as the first factor is the character of the intrusion
authorized by the challenged law. Reduced to a question form, is
the scope of the search or intrusion clearly set forth, or, as
formulated in Ople v. Torres, is the enabling law authorizing a
search "narrowly drawn" or "narrowly focused"?32
The poser should be answered in the affirmative. For one, Sec. 36
of RA 9165 and its implementing rules and regulations (IRR), as
couched, contain provisions specifically directed towards preventing
a situation that would unduly embarrass the employees or place
them under a humiliating experience. While every officer and
employee in a private establishment is under the law deemed
forewarned that he or she may be a possible subject of a drug test,
nobody is really singled out in advance for drug testing. The goal is
to discourage drug use by not telling in advance anyone when and
who is to be tested. And as may be observed, Sec. 36(d) of RA 9165
itself prescribes what, in Ople, is a narrowing ingredient by providing
that the employees concerned shall be subjected to "random drug
test as contained in the company's work rules and regulations x x x
for purposes of reducing the risk in the work place."
For another, the random drug testing shall be undertaken under
conditions calculated to protect as much as possible the employee's
privacy and dignity. As to the mechanics of the test, the law specifies
that the procedure shall employ two testing methods, i.e., the
screening test and the confirmatory test, doubtless to ensure as
much as possible the trustworthiness of the results. But the more
important consideration lies in the fact that the test shall be
conducted by trained professionals in access - controlled
laboratories monitored by the Department of Health (DOH) to
safeguard against results tampering and to ensure an accurate
chain of custody.33 In addition, the IRR issued by the DOH provides
that access to the drug results shall be on the "need to know"
basis;34 that the "drug test result and the records shall be [kept]
confidential subject to the usual accepted practices to protect the
confidentiality of the test results."35 Notably, RA 9165 does not
oblige the employer concerned to report to the prosecuting agencies
any information or evidence relating to the violation of the
Comprehensive Dangerous Drugs Act received as a result of the
operation of the drug testing. All told, therefore, the intrusion into the
employees' privacy, under RA 9165, is accompanied by proper
safeguards, particularly against embarrassing leakages of test
results, and is relatively minimal.
To reiterate, RA 9165 was enacted as a measure to stamp out illegal
drug in the country and thus protect the well - being of the citizens,
especially the youth, from the deleterious effects of dangerous
drugs. The law intends to achieve this through the medium, among
others, of promoting and resolutely pursuing a national drug abuse
policy in the workplace via a mandatory random drug test.36 To the
Court, the need for drug testing to at least minimize illegal drug use
is substantial enough to override the individual's privacy interest
under the premises. The Court can consider that the illegal drug
menace cuts across gender, age group, and social - economic lines.
CONSTI LAW II I ACJUCO 222
And it may not be amiss to state that the sale, manufacture, or
trafficking of illegal drugs, with their ready market, would be an
investor's dream were it not for the illegal and immoral components
of any of such activities. The drug problem has hardly abated since
the martial law public execution of a notorious drug trafficker. The
state can no longer assume a laid back stance with respect to this
modern - day scourge. Drug enforcement agencies perceive a
mandatory random drug test to be an effective way of preventing
and deterring drug use among employees in private offices, the
threat of detection by random testing being higher than other
modes. The Court holds that the chosen method is a reasonable
and enough means to lick the problem.
Taking into account the foregoing factors, i.e., the reduced
expectation of privacy on the part of the employees, the compelling
state concern likely to be met by the search, and the well - defined
limits set forth in the law to properly guide authorities in the conduct
of the random testing, we hold that the challenged drug test
requirement is, under the limited context of the case, reasonable
and, ergo, constitutional.
Like their counterparts in the private sector, government officials
and employees also labor under reasonable supervision and
restrictions imposed by the Civil Service law and other laws on
public officers, all enacted to promote a high standard of ethics in
the public service.37 And if RA 9165 passes the norm of
reasonableness for private employees, the more reason that it
should pass the test for civil servants, who, by constitutional
command, are required to be accountable at all times to the people
and to serve them with utmost responsibility and efficiency.38
Petitioner SJS' next posture that Sec. 36 of RA 9165 is objectionable
on the ground of undue delegation of power hardly commends itself
for concurrence. Contrary to its position, the provision in question is
not so extensively drawn as to give unbridled options to schools and
employers to determine the manner of drug testing. Sec. 36
expressly provides how drug testing for students of secondary and
tertiary schools and officers/employees of public/private offices
should be conducted. It enumerates the persons who shall undergo
drug testing. In the case of students, the testing shall be in
accordance with the school rules as contained in the student
handbook and with notice to parents. On the part of
officers/employees, the testing shall take into account the
company's work rules. In either case, the random procedure shall
be observed, meaning that the persons to be subjected to drug test
shall be picked by chance or in an unplanned way. And in all cases,
safeguards against misusing and compromising the confidentiality
of the test results are established.
Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue,
in consultation with the DOH, Department of the Interior and Local
Government, Department of Education, and Department of Labor
and Employment, among other agencies, the IRR necessary to
enforce the law. In net effect then, the participation of schools and
offices in the drug testing scheme shall always be subject to the IRR
of RA 9165. It is, therefore, incorrect to say that schools and
employers have unchecked discretion to determine how often,
under what conditions, and where the drug tests shall be conducted.
The validity of delegating legislative power is now a quiet area in the
constitutional landscape.39 In the face of the increasing complexity
of the task of the government and the increasing inability of the
legislature to cope directly with the many problems demanding its
attention, resort to delegation of power, or entrusting to
administrative agencies the power of subordinate legislation, has
become imperative, as here.
Laserna Petition (Constitutionality of Sec. 36[c], [d],
[f], and [g] of RA 9165)
 CONSTI LAW II I ACJUCO 223

Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the
Court finds no valid justification for mandatory drug testing for
persons accused of crimes. In the case of students, the
constitutional viability of the mandatory, random, and suspicionless
drug testing for students emanates primarily from the waiver by the
students of their right to privacy when they seek entry to the school,
and from their voluntarily submitting their persons to the parental
authority of school authorities. In the case of private and public
employees, the constitutional soundness of the mandatory, random,
and suspicionless drug testing proceeds from the reasonableness
of the drug test policy and requirement.

We find the situation entirely different in the case of persons charged

before the public prosecutor's office with criminal offenses
punishable with six (6) years and one (1) day imprisonment. The
operative concepts in the mandatory drug testing are "randomness"
and "suspicionless." In the case of persons charged with a crime
before the prosecutor's office, a mandatory drug testing can never
be random or suspicionless. The ideas of randomness and being
suspicionless are antithetical to their being made defendants in a
criminal complaint. They are not randomly picked; neither are they
beyond suspicion. When persons suspected of committing a crime
are charged, they are singled out and are impleaded against their
will. The persons thus charged, by the bare fact of being haled
before the prosecutor's office and peaceably submitting themselves
to drug testing, if that be the case, do not necessarily consent to the
procedure, let alone waive their right to privacy.40 To impose
mandatory drug testing on the accused is a blatant attempt to
harness a medical test as a tool for criminal prosecution, contrary to
the stated objectives of RA 9165. Drug testing in this case would
violate a persons' right to privacy guaranteed under Sec. 2, Art. III
of the Constitution. Worse still, the accused persons are veritably
forced to incriminate themselves.

WHEREFORE, the Court resolves to GRANT the petition in G.R.

No. 161658 and declares Sec. 36(g) of RA 9165 and COMELEC
Resolution No. 6486 as UNCONSTITUTIONAL; and to PARTIALLY
GRANT the petition in G.R. Nos. 157870 and 158633 by declaring
Sec. 36(c) and (d) of RA 9165 CONSTITUTIONAL, but declaring its
Sec. 36(f) UNCONSTITUTIONAL. All concerned agencies are,
accordingly, permanently enjoined from implementing Sec. 36(f)
and (g) of RA 9165. No costs.

SO ORDERED.

G.R. No. 202666 September 29, 2014
RHONDA AVE S. VIVARES and SPS. MARGARITA and DAVID
SUZARA, Petitioners,
vs.
ST. THERESA'S COLLEGE, MYLENE RHEZA T. ESCUDERO,
and JOHN DOES, Respondents.
DECISION
VELASCO, JR., J.:
The individual's desire for privacy is never absolute, since
participation in society is an equally powerful desire. Thus each
individual is continually engaged in a personal adjustment process
in which he balances the desire for privacy with the desire for
disclosure and communicateacher at STC’s high school
department, learned from her students that some seniors at STC
posted pictures online, depicting themselves from the waist up,
dressed only in brassieres. Escudero then asked her students if they
knew who the girls in the photos are. In turn, they readily identified
Julia, Julienne, and Chloe Lourdes Taboada (Chloe), among others.
Using STC’s computers, Escudero’s students logged in to their
respective personal Facebook accounts and showed her photos of
the identified students, which include: (a) Julia and Julienne drinking
hard liquor and smoking cigarettes inside a bar; and (b) Julia and
Julienne along the streets of Cebu wearing articles of clothing that
show virtually the entirety of their black brassieres. What is more,
Escudero’s students claimed that there were times when access to
or the availability of the identified students’ photos was not confined
to the girls’ Facebook friends,4 but were, in fact, viewable by any
Facebook user.5
Upon discovery, Escudero reported the matter and, through one of
her student’s Facebook page, showed the photosto Kristine Rose
Tigol (Tigol), STC’s Discipline-in-Charge, for appropriate action.
Thereafter, following an investigation, STC found the identified
students to have deported themselves in a manner proscribed by
the school’s Student Handbook, to wit:
1. Possession of alcoholic drinks outside the school campus;
2. Engaging in immoral, indecent, obscene or lewd acts;
3. Smoking and drinking alcoholicbeverages in public places;
4. Apparel that exposes the underwear;
5. Clothing that advocates unhealthy behaviour; depicts obscenity;
contains sexually suggestive messages, language or symbols; and
6. Posing and uploading pictures on the Internet that entail ample
body exposure.
On March 1, 2012, Julia, Julienne, Angela, and the other students
in the pictures in question, reported, as required, to the office of Sr.
Celeste Ma. Purisima Pe (Sr. Purisima), STC’s high school principal
and ICM6 Directress. They claimed that during the meeting, they
were castigated and verbally abused by the STC officials present in
the conference, including Assistant Principal Mussolini S. Yap
(Yap), Roswinda Jumiller, and Tigol. What is more, Sr. Purisima
informed their parents the following day that, as part of their penalty,
they are barred from joining the commencement exercises
scheduled on March 30, 2012.
A week before graduation, or on March 23, 2012, Angela’s mother,
Dr. Armenia M. Tan (Tan), filed a Petition for Injunction and
Damages before the RTC of Cebu City against STC, et al., docketed
as Civil Case No. CEB-38594.7 In it, Tan prayed that defendants
therein be enjoined from implementing the sanction that precluded
Angela from joining the commencement exercises.
CONSTI LAW II I ACJUCO 224
On March 25, 2012,petitioner Rhonda Ave Vivares (Vivares), the
mother of Julia, joined the fray as an intervenor. On March 28, 2012,
defendants inCivil Case No. CEB-38594 filed their memorandum,
containing printed copies of the photographs in issue as annexes.
That same day, the RTC issued a temporary restraining order (TRO)
allowing the students to attend the graduation ceremony, to which
STC filed a motion for reconsideration.
Despite the issuance of the TRO,STC, nevertheless, barred the
sanctioned students from participating in the graduation rites,
arguing that, on the date of the commencement exercises, its
adverted motion for reconsideration on the issuance ofthe TRO
remained unresolved.
Thereafter, petitioners filed before the RTC a Petition for the
Issuance of a Writ of Habeas Data, docketed as SP. Proc. No.
19251-CEB8 on the basis of the following considerations:
1. The photos of their children in their undergarments (e.g., bra)
were taken for posterity before they changed into their swimsuits on
the occasion of a birthday beach party;
2. The privacy setting of their children’s Facebook accounts was set
at "Friends Only." They, thus, have a reasonable expectation of
privacy which must be respected.
3. Respondents, being involved in the field of education, knew or
ought to have known of laws that safeguard the right to privacy.
Corollarily, respondents knew or ought to have known that the girls,
whose privacy has been invaded, are the victims in this case, and
not the offenders. Worse, after viewing the photos, the minors were
called "immoral" and were punished outright;
4. The photos accessed belong to the girls and, thus, cannot be
used and reproduced without their consent. Escudero, however,
violated their rights by saving digital copies of the photos and by
subsequently showing them to STC’s officials. Thus, the Facebook
accounts of petitioners’ children were intruded upon;
5. The intrusion into the Facebook accounts, as well as the copying
of information, data, and digital images happened at STC’s
Computer Laboratory; and
6. All the data and digital images that were extracted were boldly
broadcasted by respondents through their memorandum submitted
to the RTC in connection with Civil Case No. CEB-38594. To
petitioners, the interplay of the foregoing constitutes an invasion of
their children’s privacy and, thus, prayed that: (a) a writ of habeas
databe issued; (b) respondents be ordered to surrender and deposit
with the court all soft and printed copies of the subjectdata before or
at the preliminary hearing; and (c) after trial, judgment be rendered
declaring all information, data, and digital images accessed, saved
or stored, reproduced, spread and used, to have been illegally
obtained inviolation of the children’s right to privacy.
Finding the petition sufficient in form and substance, the RTC,
through an Order dated July 5, 2012, issued the writ of habeas data.
Through the same Order, herein respondents were directed to file
their verified written return, together with the supporting affidavits,
within five (5) working days from service of the writ.
In time, respondents complied with the RTC’s directive and filed
their verified written return, laying down the following grounds for the
denial of the petition, viz: (a) petitioners are not the proper parties to
file the petition; (b) petitioners are engaging in forum shopping; (c)
the instant case is not one where a writ of habeas data may
issue;and (d) there can be no violation of their right to privacy as
there is no reasonable expectation of privacy on Facebook.
Ruling of the Regional Trial Court

On July 27, 2012, the RTC rendered a Decision dismissing the
petition for habeas data. The dispositive portion of the Decision
pertinently states:
WHEREFORE, in view of the foregoing premises, the Petition is
hereby DISMISSED.
The parties and media must observe the aforestated confidentiality.
xxxx
SO ORDERED.9
To the trial court, petitioners failed to prove the existence of an
actual or threatened violation of the minors’ right to privacy, one of
the preconditions for the issuance of the writ of habeas data.
Moreover, the court a quoheld that the photos, having been
uploaded on Facebook without restrictions as to who may view
them, lost their privacy in some way. Besides, the RTC noted, STC
gathered the photographs through legal means and for a legal
purpose, that is, the implementation of the school’s policies and
rules on discipline.
Not satisfied with the outcome, petitioners now come before this
Court pursuant to Section 19 of the Rule on Habeas Data.10
The Issues
The main issue to be threshed out inthis case is whether or not a
writ of habeas datashould be issued given the factual milieu. Crucial
in resolving the controversy, however, is the pivotal point of whether
or not there was indeed an actual or threatened violation of the right
to privacy in the life, liberty, or security of the minors involved in this
case.
Our Ruling
We find no merit in the petition.
Procedural issues concerning the availability of the Writ of Habeas
Data
The writ of habeas datais a remedy available to any person whose
right to privacy in life, liberty or security is violated or threatened by
an unlawful act or omission of a public official or employee, or of a
private individual or entity engaged in the gathering, collecting or
storing of data or information regarding the person, family, home
and correspondence of the aggrieved party.11 It is an independent
and summary remedy designed to protect the image, privacy, honor,
information, and freedom of information of an individual, and to
provide a forum to enforce one’s right to the truth and to
informational privacy. It seeks to protect a person’s right to control
information regarding oneself, particularly in instances in which such
information is being collected through unlawful means in order to
achieve unlawful ends.12
In developing the writ of habeas data, the Court aimed to protect an
individual’s right to informational privacy, among others. A
comparative law scholar has, in fact, defined habeas dataas "a
procedure designed to safeguard individual freedom from abuse in
the information age."13 The writ, however, will not issue on the basis
merely of an alleged unauthorized access to information about a
person.Availment of the writ requires the existence of a nexus
between the right to privacy on the one hand, and the right to life,
liberty or security on the other.14 Thus, the existence of a person’s
right to informational privacy and a 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 are indispensable before the
privilege of the writ may be extended.15
CONSTI LAW II I ACJUCO 225
Without an actionable entitlement in the first place to the right to
informational privacy, a habeas datapetition will not prosper. Viewed
from the perspective of the case at bar,this requisite begs this
question: given the nature of an online social network (OSN)––(1)
that it facilitates and promotes real-time interaction among millions,
if not billions, of users, sans the spatial barriers,16 bridging the gap
created by physical space; and (2) that any information uploaded in
OSNs leavesan indelible trace in the provider’s databases, which
are outside the control of the end-users––is there a right to
informational privacy in OSN activities of its users? Before
addressing this point, We must first resolve the procedural issues in
this case.
a. The writ of habeas data is not only confined to cases of extralegal
killings and enforced disappearances
Contrary to respondents’ submission, the Writ of Habeas Datawas
not enacted solely for the purpose of complementing the Writ of
Amparoin cases of extralegal killings and enforced disappearances.
Section 2 of the Rule on the Writ of Habeas Data provides:
Sec. 2. Who May File. – Any aggrieved party may file a petition for
the writ of habeas data. However, in cases of extralegal killings and
enforced disappearances, the petition may be filed by:
(a) Any member of the immediate family of the aggrieved party,
namely: the spouse, children and parents; or
(b) Any ascendant, descendant or collateral relative of the aggrieved
party within the fourth civil degreeof consanguinity or affinity, in
default of those mentioned in the preceding paragraph. (emphasis
supplied)
Had the framers of the Rule intended to narrow the operation of the
writ only to cases of extralegal killings or enforced disappearances,
the above underscored portion of Section 2, reflecting a variance of
habeas data situations, would not have been made.
Habeas data, to stress, was designed "to safeguard individual
freedom from abuse in the information age."17 As such, it is
erroneous to limit its applicability to extralegal killings and enforced
disappearances only. In fact, the annotations to the Rule
preparedby the Committee on the Revision of the Rules of Court,
after explaining that the Writ of Habeas Data complements the Writ
of Amparo, pointed out that:
The writ of habeas data, however, can be availed of as an
independent remedy to enforce one’s right to privacy, more
specifically the right to informational privacy. The remedies against
the violation of such right can include the updating, rectification,
suppression or destruction of the database or information or files in
possession or in control of respondents.18 (emphasis Ours) Clearly
then, the privilege of the Writ of Habeas Datamay also be availed of
in cases outside of extralegal killings and enforced disappearances.
b. Meaning of "engaged" in the gathering, collecting or storing of
data or information
Respondents’ contention that the habeas data writ may not issue
against STC, it not being an entity engaged in the gathering,
collecting or storing of data or information regarding the person,
family, home and correspondence of the aggrieved party, while valid
to a point, is, nonetheless, erroneous.
To be sure, nothing in the Rule would suggest that the habeas data
protection shall be available only against abuses of a person or
entity engaged in the businessof gathering, storing, and collecting
of data. As provided under Section 1 of the Rule:

Section 1. Habeas Data. – The writ of habeas datais a remedy
available to any person whose right to privacy in life, liberty or
security is violated or threatened by an unlawful act or omission of
a public official or employee, or of a private individual or entity
engaged in the gathering, collecting or storing of data or information
regarding the person, family, home and correspondence of the
aggrieved party. (emphasis Ours)
The provision, when taken in its proper context, as a whole,
irresistibly conveys the idea that habeas data is a protection against
unlawful acts or omissions of public officials and of private
individuals or entities engaged in gathering, collecting, or storing
data about the aggrieved party and his or her correspondences, or
about his or her family. Such individual or entity need not be in the
business of collecting or storing data.
To "engage" in something is different from undertaking a business
endeavour. To "engage" means "to do or take part in something."19
It does not necessarily mean that the activity must be done in pursuit
of a business. What matters is that the person or entity must be
gathering, collecting or storing said data or information about the
aggrieved party or his or her family. Whether such undertaking
carries the element of regularity, as when one pursues a business,
and is in the nature of a personal endeavour, for any other reason
or even for no reason at all, is immaterial and such will not prevent
the writ from getting to said person or entity.
To agree with respondents’ above argument, would mean unduly
limiting the reach of the writ to a very small group, i.e., private
persons and entities whose business is data gathering and storage,
and in the process decreasing the effectiveness of the writ asan
instrument designed to protect a right which is easily violated in view
of rapid advancements in the information and communications
technology––a right which a great majority of the users of
technology themselves are not capable of protecting.
Having resolved the procedural aspect of the case, We now proceed
to the core of the controversy.
The right to informational privacy on Facebook
a. The Right to Informational Privacy
The concept of privacyhas, through time, greatly evolved, with
technological advancements having an influential part therein. This
evolution was briefly recounted in former Chief Justice Reynato S.
Puno’s speech, The Common Right to Privacy,20 where he
explained the three strands of the right to privacy, viz: (1) locational
or situational privacy;21 (2) informational privacy; and (3) decisional
privacy.22 Of the three, what is relevant to the case at bar is the
right to informational privacy––usually defined as the right of
individuals to control information about themselves.23
With the availability of numerous avenues for information gathering
and data sharing nowadays, not to mention each system’s inherent
vulnerability to attacks and intrusions, there is more reason that
every individual’s right to control said flow of information should be
protected and that each individual should have at least a reasonable
expectation of privacy in cyberspace. Several commentators
regarding privacy and social networking sites, however, all agree
that given the millions of OSN users, "[i]n this [Social Networking]
environment, privacy is no longer grounded in reasonable
expectations, but rather in some theoretical protocol better known
as wishful thinking."24
It is due to this notion that the Court saw the pressing need to
provide for judicial remedies that would allow a summary hearing of
the unlawful use of data or information and to remedy possible
violations of the right to privacy.25 In the same vein, the South
African High Court, in its Decision in the landmark case, H v. W,26
promulgated on January30, 2013, recognized that "[t]he law has to
CONSTI LAW II I ACJUCO 226
take into account the changing realities not only technologically but
also socially or else it will lose credibility in the eyes of the people. x
x x It is imperative that the courts respond appropriately to changing
times, acting cautiously and with wisdom." Consistent with this, the
Court, by developing what may be viewed as the Philippine model
of the writ of habeas data, in effect, recognized that, generally
speaking, having an expectation of informational privacy is not
necessarily incompatible with engaging in cyberspace activities,
including those that occur in OSNs.
The question now though is up to whatextent is the right to privacy
protected in OSNs? Bear in mind that informational privacy involves
personal information. At the same time, the very purpose of OSNs
is socializing––sharing a myriad of information,27 some of which
would have otherwise remained personal.
b. Facebook’s Privacy Tools: a response to the clamor for privacy in
OSN activities
Briefly, the purpose of an OSN is precisely to give users the ability
to interact and to stay connected to other members of the same or
different social media platform through the sharing of statuses,
photos, videos, among others, depending on the services provided
by the site. It is akin to having a room filled with millions of personal
bulletin boards or "walls," the contents of which are under the control
of each and every user. In his or her bulletin board, a user/owner
can post anything––from text, to pictures, to music and videos––
access to which would depend on whether he or she allows one,
some or all of the other users to see his or her posts. Since gaining
popularity, the OSN phenomenon has paved the way to the creation
of various social networking sites, includingthe one involved in the
case at bar, www.facebook.com (Facebook), which, according to its
developers, people use "to stay connected with friends and family,
to discover what’s going on in the world, and to share and express
what matters to them."28
Facebook connections are established through the process of
"friending" another user. By sending a "friend request," the user
invites another to connect their accounts so that they can view any
and all "Public" and "Friends Only" posts of the other.Once the
request is accepted, the link is established and both users are
permitted to view the other user’s "Public" or "Friends Only" posts,
among others. "Friending," therefore, allows the user to form or
maintain one-to-one relationships with other users, whereby the
user gives his or her "Facebook friend" access to his or her profile
and shares certain information to the latter.29
To address concerns about privacy,30 but without defeating its
purpose, Facebook was armed with different privacy tools designed
to regulate the accessibility of a user’s profile31 as well as
information uploaded by the user. In H v. W,32 the South Gauteng
High Court recognized this ability of the users to "customize their
privacy settings," but did so with this caveat: "Facebook states in its
policies that, although it makes every effort to protect a user’s
information, these privacy settings are not foolproof."33
For instance, a Facebook user canregulate the visibility and
accessibility of digital images(photos), posted on his or her personal
bulletin or "wall," except for the user’sprofile picture and ID, by
selecting his or her desired privacy setting:
(a) Public - the default setting; every Facebook user can view the
photo;
(b) Friends of Friends - only the user’s Facebook friends and their
friends can view the photo;
(b) Friends - only the user’s Facebook friends can view the photo;
(c) Custom - the photo is made visible only to particular friends
and/or networks of the Facebook user; and

(d) Only Me - the digital image can be viewed only by the user.
The foregoing are privacy tools, available to Facebook users,
designed to set up barriers to broaden or limit the visibility of his or
her specific profile content, statuses, and photos, among others,
from another user’s point of view. In other words, Facebook extends
its users an avenue to make the availability of their Facebook
activities reflect their choice as to "when and to what extent to
disclose facts about [themselves] – and to put others in the position
of receiving such confidences."34 Ideally, the selected setting will
be based on one’s desire to interact with others, coupled with the
opposing need to withhold certain information as well as to regulate
the spreading of his or her personal information. Needless to say,
as the privacy setting becomes more limiting, fewer Facebook users
can view that user’s particular post.
STC did not violate petitioners’ daughters’ right to privacy
Without these privacy settings, respondents’ contention that there is
no reasonable expectation of privacy in Facebook would, in context,
be correct. However, such is not the case. It is through the
availability of said privacy tools that many OSN users are said to
have a subjective expectation that only those to whomthey grant
access to their profile will view the information they post or upload
thereto.35
This, however, does not mean thatany Facebook user automatically
has a protected expectation of privacy inall of his or her Facebook
activities.
Before one can have an expectation of privacy in his or her OSN
activity, it is first necessary that said user, in this case the children
of petitioners,manifest the intention to keepcertain posts private,
through the employment of measures to prevent access thereto or
to limit its visibility.36 And this intention can materialize in
cyberspace through the utilization of the OSN’s privacy tools. In
other words, utilization of these privacy tools is the manifestation,in
cyber world, of the user’s invocation of his or her right to
informational privacy.37
Therefore, a Facebook user who opts to make use of a privacy tool
to grant or deny access to his or her post orprofile detail should not
be denied the informational privacy right which necessarily
accompanies said choice.38 Otherwise, using these privacy tools
would be a feckless exercise, such that if, for instance, a user
uploads a photo or any personal information to his or her Facebook
page and sets its privacy level at "Only Me" or a custom list so that
only the user or a chosen few can view it, said photo would still be
deemed public by the courts as if the user never chose to limit the
photo’s visibility and accessibility. Such position, if adopted, will not
only strip these privacy tools of their function but it would also
disregard the very intention of the user to keep said photo or
information within the confines of his or her private space.
We must now determine the extent that the images in question were
visible to other Facebook users and whether the disclosure was
confidential in nature. In other words, did the minors limit the
disclosure of the photos such that the images were kept within their
zones of privacy? This determination is necessary in resolving the
issue of whether the minors carved out a zone of privacy when the
photos were uploaded to Facebook so that the images will be
protected against unauthorized access and disclosure.
Petitioners, in support of their thesis about their children’s privacy
right being violated, insist that Escudero intruded upon their
children’s Facebook accounts, downloaded copies ofthe pictures
and showed said photos to Tigol. To them, this was a breach of the
minors’ privacy since their Facebook accounts, allegedly, were
under "very private" or "Only Friends" setting safeguarded with a
password.39 Ultimately, they posit that their children’s disclosure
CONSTI LAW II I ACJUCO 227
was only limited since their profiles were not open to public viewing.
Therefore, according to them, people who are not their Facebook
friends, including respondents, are barred from accessing said post
without their knowledge and consent. Aspetitioner’s children
testified, it was Angelawho uploaded the subjectphotos which were
only viewable by the five of them,40 although who these five are do
not appear on the records.
Escudero, on the other hand, stated in her affidavit41 that "my
students showed me some pictures of girls cladin brassieres. This
student [sic] of mine informed me that these are senior high school
[students] of STC, who are their friends in [F]acebook. x x x They
then said [that] there are still many other photos posted on the
Facebook accounts of these girls. At the computer lab, these
students then logged into their Facebook account [sic], and
accessed from there the various photographs x x x. They even told
me that there had been times when these photos were ‘public’ i.e.,
not confined to their friends in Facebook."
In this regard, We cannot give muchweight to the minors’
testimonies for one key reason: failure to question the students’ act
of showing the photos to Tigol disproves their allegation that the
photos were viewable only by the five of them. Without any evidence
to corroborate their statement that the images were visible only to
the five of them, and without their challenging Escudero’s claim that
the other students were able to view the photos, their statements
are, at best, self-serving, thus deserving scant consideration.42
It is well to note that not one of petitioners disputed Escudero’s
sworn account that her students, who are the minors’ Facebook
"friends," showed her the photos using their own Facebook
accounts. This only goes to show that no special means to be able
to viewthe allegedly private posts were ever resorted to by
Escudero’s students,43 and that it is reasonable to assume,
therefore, that the photos were, in reality, viewable either by (1) their
Facebook friends, or (2) by the public at large.
Considering that the default setting for Facebook posts is"Public," it
can be surmised that the photographs in question were viewable to
everyone on Facebook, absent any proof that petitioners’ children
positively limited the disclosure of the photograph. If suchwere the
case, they cannot invoke the protection attached to the right to
informational privacy. The ensuing pronouncement in US v. Gines-
Perez44 is most instructive:
[A] person who places a photograph on the Internet precisely
intends to forsake and renounce all privacy rights to such imagery,
particularly under circumstances suchas here, where the Defendant
did not employ protective measures or devices that would have
controlled access to the Web page or the photograph itself.45
Also, United States v. Maxwell46 held that "[t]he more open the
method of transmission is, the less privacy one can reasonably
expect. Messages sent to the public at large inthe chat room or e-
mail that is forwarded from correspondent to correspondent loses
any semblance of privacy."
That the photos are viewable by "friends only" does not necessarily
bolster the petitioners’ contention. In this regard, the cyber
community is agreed that the digital images under this setting still
remain to be outside the confines of the zones of privacy in view of
the following:
(1) Facebook "allows the world to be more open and connected by
giving its users the tools to interact and share in any conceivable
way;"47
(2) A good number of Facebook users "befriend" other users who
are total strangers;48

(3) The sheer number of "Friends" one user has, usually by the
hundreds; and
(4) A user’s Facebook friend can "share"49 the former’s post, or
"tag"50 others who are not Facebook friends with the former,
despite its being visible only tohis or her own Facebook friends.
It is well to emphasize at this point that setting a post’s or profile
detail’s privacy to "Friends" is no assurance that it can no longer be
viewed by another user who is not Facebook friends with the source
of the content. The user’s own Facebook friend can share said
content or tag his or her own Facebook friend thereto, regardless of
whether the user tagged by the latter is Facebook friends or not with
the former. Also, when the post is shared or when a person is
tagged, the respective Facebook friends of the person who shared
the post or who was tagged can view the post, the privacy setting of
which was set at "Friends."
To illustrate, suppose A has 100 Facebook friends and B has 200.
A and B are not Facebook friends. If C, A’s Facebook friend, tags B
in A’s post, which is set at "Friends," the initial audience of 100 (A’s
own Facebook friends) is dramatically increased to 300 (A’s 100
friends plus B’s 200 friends or the public, depending upon B’s
privacy setting). As a result, the audience who can view the post is
effectively expanded––and to a very large extent.
This, along with its other features and uses, is confirmation of
Facebook’s proclivity towards user interaction and socialization
rather than seclusion or privacy, as it encourages broadcasting of
individual user posts. In fact, it has been said that OSNs have
facilitated their users’ self-tribute, thereby resulting into the
"democratization of fame."51 Thus, it is suggested, that a profile, or
even a post, with visibility set at "Friends Only" cannot easily, more
so automatically, be said to be "very private," contrary to petitioners’
argument.
As applied, even assuming that the photos in issue are visible only
to the sanctioned students’ Facebook friends, respondent STC can
hardly be taken to task for the perceived privacy invasion since it
was the minors’ Facebook friends who showed the pictures to Tigol.
Respondents were mere recipients of what were posted. They did
not resort to any unlawful means of gathering the information as it
was voluntarily given to them by persons who had legitimate access
to the said posts. Clearly, the fault, if any, lies with the friends of the
minors. Curiously enough, however, neither the minors nor their
parents imputed any violation of privacy against the students who
showed the images to Escudero.
Furthermore, petitioners failed to prove their contention that
respondents reproduced and broadcasted the photographs. In fact,
what petitioners attributed to respondents as an act of offensive
disclosure was no more than the actuality that respondents
appended said photographs in their memorandum submitted to the
trial court in connection with Civil Case No. CEB-38594.52 These
are not tantamount to a violation of the minor’s informational privacy
rights, contrary to petitioners’ assertion.
In sum, there can be no quibbling that the images in question, or to
be more precise, the photos of minor students scantily clad, are
personal in nature, likely to affect, if indiscriminately circulated, the
reputation of the minors enrolled in a conservative institution.
However, the records are bereft of any evidence, other than bare
assertions that they utilized Facebook’s privacy settings to make the
photos visible only to them or to a select few. Without proof that they
placed the photographs subject of this case within the ambit of their
protected zone of privacy, they cannot now insist that they have an
expectation of privacy with respect to the photographs in question.
Had it been proved that the access tothe pictures posted were
limited to the original uploader, through the "Me Only" privacy
setting, or that the user’s contact list has been screened to limit
CONSTI LAW II I ACJUCO 228
access to a select few, through the "Custom" setting, the result may
have been different, for in such instances, the intention to limit
access to the particular post, instead of being broadcasted to the
public at large or all the user’s friends en masse, becomes more
manifest and palpable.
On Cyber Responsibility
It has been said that "the best filter is the one between your
children’s ears."53 This means that self-regulation on the part of
OSN users and internet consumers ingeneral is the best means of
avoiding privacy rights violations.54 As a cyberspace
communitymember, one has to be proactive in protecting his or her
own privacy.55 It is in this regard that many OSN users, especially
minors, fail.Responsible social networking or observance of the
"netiquettes"56 on the part of teenagers has been the concern of
many due to the widespreadnotion that teenagers can sometimes
go too far since they generally lack the people skills or general
wisdom to conduct themselves sensibly in a public forum.57
Respondent STC is clearly aware of this and incorporating lessons
on good cyber citizenship in its curriculum to educate its students
on proper online conduct may be mosttimely. Too, it is not only STC
but a number of schools and organizations have already deemed it
important to include digital literacy and good cyber citizenshipin their
respective programs and curricula in view of the risks that the
children are exposed to every time they participate in online
activities.58 Furthermore, considering the complexity of the cyber
world and its pervasiveness,as well as the dangers that these
children are wittingly or unwittingly exposed to in view of their
unsupervised activities in cyberspace, the participation of the
parents in disciplining and educating their children about being a
good digital citizen is encouraged by these institutions and
organizations. In fact, it is believed that "to limit such risks, there’s
no substitute for parental involvement and supervision."59
As such, STC cannot be faulted for being steadfast in its duty of
teaching its students to beresponsible in their dealings and activities
in cyberspace, particularly in OSNs, whenit enforced the disciplinary
actions specified in the Student Handbook, absenta showing that, in
the process, it violated the students’ rights.
OSN users should be aware of the risks that they expose
themselves to whenever they engage incyberspace
activities.1âwphi1 Accordingly, they should be cautious enough to
control their privacy and to exercise sound discretion regarding how
much information about themselves they are willing to give up.
Internet consumers ought to be aware that, by entering or uploading
any kind of data or information online, they are automatically and
inevitably making it permanently available online, the perpetuation
of which is outside the ambit of their control. Furthermore, and more
importantly, information, otherwise private, voluntarily surrendered
by them can be opened, read, or copied by third parties who may or
may not be allowed access to such.
It is, thus, incumbent upon internet users to exercise due diligence
in their online dealings and activities and must not be negligent in
protecting their rights. Equity serves the vigilant. Demanding relief
from the courts, as here, requires that claimants themselves take
utmost care in safeguarding a right which they allege to have been
violated. These are indispensable. We cannot afford protection to
persons if they themselves did nothing to place the matter within the
confines of their private zone. OSN users must be mindful enough
to learn the use of privacy tools, to use them if they desire to keep
the information private, and to keep track of changes in the available
privacy settings, such as those of Facebook, especially because
Facebook is notorious for changing these settings and the site's
layout often.
 CONSTI LAW II I ACJUCO 229

In finding that respondent STC and its officials did not violate the
minors' privacy rights, We find no cogent reason to disturb the
findings and case disposition of the court a quo.

In light of the foregoing, the Court need not belabor the other
assigned errors.

WHEREFORE, premises considered, the petition is hereby

DENIED. The Decision dated July 27, 2012 of the Regional Trial
Court, Branch 14 in Cebu City in SP. Proc. No. 19251-CEB is hereby
AFFIRMED.

No pronouncement as to costs.

SO ORDERED.

FREEDOM OF SPEECH
G.R. No. 168338 February 15, 2008
FRANCISCO CHAVEZ, petitioner,
vs.
RAUL M. GONZALES, in his capacity as the Secretary of the
Department of Justice; and NATIONAL
TELECOMMUNICATIONS COMMISSION (NTC), respondents.
CARPIO, J.:
The Case
This is a petition for the writs of certiorari and prohibition to set aside
"acts, issuances, and orders" of respondents Secretary of Justice
Raul M. Gonzalez (respondent Gonzales) and the National
Telecommunications Commission (NTC), particularly an NTC
"press release" dated 11 June 2005, warning radio and television
stations against airing taped conversations allegedly between
President Gloria Macapagal-Arroyo and Commission on Elections
(COMELEC) Commissioner Virgilio Garcillano (Garcillano)1 under
pain of suspension or revocation of their airwave licenses.
The Facts
On 24 June 2004, Congress, acting as national board of
canvassers, proclaimed President Arroyo winner in the 2004
presidential elections.2 President Arroyo received a total of
12,905,808 votes, 1,123,576 more than the votes of her nearest
rival, Fernando Poe, Jr. Sometime before 6 June 2005, the radio
station dzMM aired the Garci Tapes where the parties to the
conversation discussed "rigging" the results of the 2004 elections to
favor President Arroyo. On 6 June 2005, Presidential spokesperson
Ignacio Bunye (Bunye) held a press conference in Malacañang
Palace, where he played before the presidential press corps two
compact disc recordings of conversations between a woman and a
man. Bunye identified the woman in both recordings as President
Arroyo but claimed that the contents of the second compact disc
had been "spliced" to make it appear that President Arroyo was
talking to Garcillano.
However, on 9 June 2005, Bunye backtracked and stated that the
woman's voice in the compact discs was not President Arroyo’s after
all.3 Meanwhile, other individuals went public, claiming possession
of the genuine copy of the Garci Tapes.4 Respondent Gonzalez
ordered the National Bureau of Investigation to investigate media
organizations which aired the Garci Tapes for possible violation of
Republic Act No. 4200 or the Anti-Wiretapping Law.
On 11 June 2005, the NTC issued a press release warning radio
and television stations that airing the Garci Tapes is a "cause for the
suspension, revocation and/or cancellation of the licenses or
authorizations" issued to them.5 On 14 June 2005, NTC officers met
with officers of the broadcasters group, Kapisanan ng mga
Broadcasters sa Pilipinas (KBP), to dispel fears of censorship. The
NTC and KBP issued a joint press statement expressing
commitment to press freedom.6
On 21 June 2005, petitioner Francisco I. Chavez (petitioner), as
citizen, filed this petition to nullify the "acts, issuances, and orders"
of the NTC and respondent Gonzalez (respondents) on the following
grounds: (1) respondents’ conduct violated freedom of expression
and the right of the people to information on matters of public
concern under Section 7, Article III of the Constitution, and (2) the
NTC acted ultra vires when it warned radio and television stations
against airing the Garci Tapes.
In their Comment to the petition, respondents raised threshold
objections that (1) petitioner has no standing to litigate and (2) the
petition fails to meet the case or controversy requirement in
CONSTI LAW II I ACJUCO 230
constitutional adjudication. On the merits, respondents claim that (1)
the NTC's press release of 11 June 2005 is a mere "fair warning,"
not censorship, cautioning radio and television networks on the lack
of authentication of the Garci Tapes and of the consequences of
airing false or fraudulent material, and (2) the NTC did not act ultra
vires in issuing the warning to radio and television stations.
In his Reply, petitioner belied respondents' claim on his lack of
standing to litigate, contending that his status as a citizen asserting
the enforcement of a public right vested him with sufficient interest
to maintain this suit. Petitioner also contests respondents' claim that
the NTC press release of 11 June 2005 is a mere warning as it
already prejudged the Garci Tapes as inauthentic and violative of
the Anti-Wiretapping Law, making it a "cleverly disguised x x x gag
order."
ISSUE
The principal issue for resolution is whether the NTC warning
embodied in the press release of 11 June 2005 constitutes an
impermissible prior restraint on freedom of expression.
I vote to (1) grant the petition, (2) declare the NTC warning,
embodied in its press release dated 11 June 2005, an
unconstitutional prior restraint on protected expression, and (3)
enjoin the NTC from enforcing the same.
1. Standing to File Petition
Petitioner has standing to file this petition. When the issue involves
freedom of expression, as in the present case, any citizen has the
right to bring suit to question the constitutionality of a government
action in violation of freedom of expression, whether or not the
government action is directed at such citizen. The government
action may chill into silence those to whom the action is directed.
Any citizen must be allowed to take up the cudgels for those who
have been cowed into inaction because freedom of expression is a
vital public right that must be defended by everyone and anyone.
Freedom of expression, being fundamental to the preservation of a
free, open and democratic society, is of transcendental importance
that must be defended by every patriotic citizen at the earliest
opportunity. We have held that any concerned citizen has standing
to raise an issue of transcendental importance to the nation,7 and
petitioner in this present petition raises such issue.
2. Overview of Freedom of Expression, Prior Restraint and
Subsequent Punishment
Freedom of expression is the foundation of a free, open and
democratic society. Freedom of expression is an indispensable
condition8 to the exercise of almost all other civil and political rights.
No society can remain free, open and democratic without freedom
of expression. Freedom of expression guarantees full, spirited, and
even contentious discussion of all social, economic and political
issues. To survive, a free and democratic society must zealously
safeguard freedom of expression.
Freedom of expression allows citizens to expose and check abuses
of public officials. Freedom of expression allows citizens to make
informed choices of candidates for public office. Freedom of
expression crystallizes important public policy issues, and allows
citizens to participate in the discussion and resolution of such
issues. Freedom of expression allows the competition of ideas, the
clash of claims and counterclaims, from which the truth will likely
emerge. Freedom of expression allows the airing of social
grievances, mitigating sudden eruptions of violence from
marginalized groups who otherwise would not be heard by
government. Freedom of expression provides a civilized way of
engagement among political, ideological, religious or ethnic

opponents for if one cannot use his tongue to argue, he might use
his fist instead.
Freedom of expression is the freedom to disseminate ideas and
beliefs, whether competing, conforming or otherwise. It is the
freedom to express to others what one likes or dislikes, as it is the
freedom of others to express to one and all what they favor or
disfavor. It is the free expression for the ideas we love, as well as
the free expression for the ideas we hate.9 Indeed, the function of
freedom of expression is to stir disputes:
[I]t may indeed best serve its high purpose when it induces a
condition of unrest, creates dissatisfaction with conditions as they
are, or even stirs people to anger. Speech is often provocative and
challenging. It may strike at prejudices and preconceptions and
have profound unsettling effects as it presses for acceptance of an
idea.10
Section 4, Article III of the Constitution prohibits the enactment of
any law curtailing freedom of expression:
No law shall be passed abridging the freedom of speech, of
expression, or the press, or the right of the people peaceably to
assemble and petition the government for redress of grievances.
Thus, the rule is that expression is not subject to any prior restraint
or censorship because the Constitution commands that freedom of
expression shall not be abridged. Over time, however, courts have
carved out narrow and well defined exceptions to this rule out of
necessity.
The exceptions, when expression may be subject to prior restraint,
apply in this jurisdiction to only four categories of expression,
namely: pornography,11 false or misleading advertisement,12
advocacy of imminent lawless action,13 and danger to national
security.14 All other expression is not subject to prior restraint. As
stated in Turner Broadcasting System v. Federal Communication
Commission, "[T]he First Amendment (Free Speech Clause),
subject only to narrow and well understood exceptions, does not
countenance governmental control over the content of messages
expressed by private individuals."15
Expression not subject to prior restraint is protected expression or
high-value expression. Any content-based prior restraint on
protected expression is unconstitutional without exception. A
protected expression means what it says – it is absolutely protected
from censorship. Thus, there can be no prior restraint on public
debates on the amendment or repeal of existing laws, on the
ratification of treaties, on the imposition of new tax measures, or on
proposed amendments to the Constitution.
Prior restraint on expression is content-based if the restraint is
aimed at the message or idea of the expression. Courts will subject
to strict scrutiny content-based restraint. If the content-based prior
restraint is directed at protected expression, courts will strike down
the restraint as unconstitutional because there can be no content-
based prior restraint on protected expression. The analysis thus
turns on whether the prior restraint is content-based, and if so,
whether such restraint is directed at protected expression, that is,
those not falling under any of the recognized categories of
unprotected expression.
If the prior restraint is not aimed at the message or idea of the
expression, it is content-neutral even if it burdens expression. A
content-neutral restraint is a restraint which regulates the time,
place or manner of the expression in public places16 without any
restraint on the content of the expression. Courts will subject
content-neutral restraints to intermediate scrutiny.17
An example of a content-neutral restraint is a permit specifying the
date, time and route of a rally passing through busy public streets.
CONSTI LAW II I ACJUCO 231
A content-neutral prior restraint on protected expression which does
not touch on the content of the expression enjoys the presumption
of validity and is thus enforceable subject to appeal to the courts.18
Courts will uphold time, place or manner restraints if they are
content-neutral, narrowly tailored to serve a significant government
interest, and leave open ample alternative channels of
expression.19
In content-neutral prior restraint on protected speech, there should
be no prior restraint on the content of the expression itself. Thus,
submission of movies or pre-taped television programs to a
government review board is constitutional only if the review is for
classification and not for censoring any part of the content of the
submitted materials.20 However, failure to submit such materials to
the review board may be penalized without regard to the content of
the materials.21 The review board has no power to reject the airing
of the submitted materials. The review board’s power is only to
classify the materials, whether for general patronage, for adults
only, or for some other classification. The power to classify
expressions applies only to movies and pre-taped television
programs22 but not to live television programs. Any classification of
live television programs necessarily entails prior restraint on
expression.
Expression that may be subject to prior restraint is unprotected
expression or low-value expression. By definition, prior restraint on
unprotected expression is content-based23 since the restraint is
imposed because of the content itself. In this jurisdiction, there are
currently only four categories of unprotected expression that may be
subject to prior restraint. This Court recognized false or misleading
advertisement as unprotected expression only in October 2007.24
Only unprotected expression may be subject to prior restraint.
However, any such prior restraint on unprotected expression must
hurdle a high barrier. First, such prior restraint is presumed
unconstitutional. Second, the government bears a heavy burden of
proving the constitutionality of the prior restraint.25
Courts will subject to strict scrutiny any government action imposing
prior restraint on unprotected expression.26 The government action
will be sustained if there is a compelling State interest, and prior
restraint is necessary to protect such State interest. In such a case,
the prior restraint shall be narrowly drawn - only to the extent
necessary to protect or attain the compelling State interest.
Prior restraint is a more severe restriction on freedom of expression
than subsequent punishment. Although subsequent punishment
also deters expression, still the ideas are disseminated to the public.
Prior restraint prevents even the dissemination of ideas to the
public.
While there can be no prior restraint on protected expression, such
expression may be subject to subsequent punishment,27 either
civilly or criminally. Thus, the publication of election surveys cannot
be subject to prior restraint,28 but an aggrieved person can sue for
redress of injury if the survey turns out to be fabricated. Also, while
Article 201 (2)(b)(3) of the Revised Penal Code punishing "shows
which offend any race or religion" cannot be used to justify prior
restraint on religious expression, this provision can be invoked to
justify subsequent punishment of the perpetrator of such offensive
shows.29
Similarly, if the unprotected expression does not warrant prior
restraint, the same expression may still be subject to subsequent
punishment, civilly or criminally. Libel falls under this class of
unprotected expression. However, if the expression cannot be
subject to the lesser restriction of subsequent punishment, logically
it cannot also be subject to the more severe restriction of prior
restraint. Thus, since profane language or "hate speech" against a
religious minority is not subject to subsequent punishment in this
jurisdiction,30 such expression cannot be subject to prior restraint.

If the unprotected expression warrants prior restraint, necessarily
the same expression is subject to subsequent punishment. There
must be a law punishing criminally the unprotected expression
before prior restraint on such expression can be justified. The
legislature must punish the unprotected expression because it
creates a substantive evil that the State must prevent. Otherwise,
there will be no legal basis for imposing a prior restraint on such
expression.
The prevailing test in this jurisdiction to determine the
constitutionality of government action imposing prior restraint on
three categories of unprotected expression – pornography,31
advocacy of imminent lawless action, and danger to national
security - is the clear and present danger test.32 The expression
restrained must present a clear and present danger of bringing
about a substantive evil that the State has a right and duty to
prevent, and such danger must be grave and imminent.33
Prior restraint on unprotected expression takes many forms - it may
be a law, administrative regulation, or impermissible pressures like
threats of revoking licenses or withholding of benefits.34 The
impermissible pressures need not be embodied in a government
agency regulation, but may emanate from policies, advisories or
conduct of officials of government agencies.
3. Government Action in the Present Case
The government action in the present case is a warning by the NTC
that the airing or broadcasting of the Garci Tapes by radio and
television stations is a "cause for the suspension, revocation and/or
cancellation of the licenses or authorizations" issued to radio and
television stations. The NTC warning, embodied in a press release,
relies on two grounds. First, the airing of the Garci Tapes "is a
continuing violation of the Anti-Wiretapping Law and the conditions
of the Provisional Authority and/or Certificate of Authority issued to
radio and TV stations." Second, the Garci Tapes have not been
authenticated, and subsequent investigation may establish that the
tapes contain false information or willful misrepresentation.
Specifically, the NTC press release contains the following
categorical warning:
Taking into consideration the country’s unusual situation, and in
order not to unnecessarily aggravate the same, the NTC warns all
radio stations and television networks owners/operators that the
conditions of the authorizations and permits issued to them by
Government like the Provisional Authority and/or Certificate of
Authority explicitly provides that said companies shall not use its
stations for the broadcasting or telecasting of false information or
willful misrepresentation. Relative thereto, it has come to the
attention of the Commission that certain personalities are in
possession of alleged taped conversation which they claim, (sic)
involve the President of the Philippines and a Commissioner of the
COMELEC regarding their supposed violation of election laws.
These personalities have admitted that the taped conversations are
product of illegal wiretapping operations.
Considering that these taped conversations have not been duly
authenticated nor could it be said at this time that the tapes contain
an accurate or truthful representation of what was recorded therein,
(sic) it is the position of the Commission that the continuous airing
or broadcast of the said taped conversations by radio and television
stations is a continuing violation of the Anti-Wiretapping Law and the
conditions of the Provisional Authority and/or Certificate of Authority
issued to these radio and television stations. If it has been (sic)
subsequently established that the said tapes are false and/or
fraudulent after a prosecution or appropriate investigation, the
concerned radio and television companies are hereby warned that
their broadcast/airing of such false information and/or willful
misrepresentation shall be just cause for the suspension, revocation
CONSTI LAW II I ACJUCO 232
and/or cancellation of the licenses or authorizations issued to the
said companies. (Boldfacing and underscoring supplied)
The NTC does not claim that the public airing of the Garci Tapes
constitutes unprotected expression that may be subject to prior
restraint. The NTC does not specify what substantive evil the State
seeks to prevent in imposing prior restraint on the airing of the Garci
Tapes. The NTC does not claim that the public airing of the Garci
Tapes constitutes a clear and present danger of a substantive evil,
of grave and imminent character, that the State has a right and duty
to prevent.
The NTC did not conduct any hearing in reaching its conclusion that
the airing of the Garci Tapes constitutes a continuing violation of the
Anti-Wiretapping Law. At the time of issuance of the NTC press
release, and even up to now, the parties to the conversations in the
Garci Tapes have not complained that the wire-tapping was without
their consent, an essential element for violation of the Anti-
Wiretapping Law.35 It was even the Office of the President, through
the Press Secretary, that played and released to media the Garci
Tapes containing the alleged "spliced" conversation between
President Arroyo and Commissioner Garcillano. There is also the
issue of whether a wireless cellular phone conversation is covered
by the Anti-Wiretapping Law.
Clearly, the NTC has no factual or legal basis in claiming that the
airing of the Garci Tapes constitutes a violation of the Anti-
Wiretapping Law. The radio and television stations were not even
given an opportunity to be heard by the NTC. The NTC did not
observe basic due process as mandated in Ang Tibay v. Court of
Industrial Relations.36
The NTC claims that the Garci Tapes, "after a prosecution or the
appropriate investigation," may constitute "false information and/or
willful misrepresentation." However, the NTC does not claim that
such possible false information or willful misrepresentation
constitutes misleading commercial advertisement. In the United
States, false or deceptive commercial speech is categorized as
unprotected expression that may be subject to prior restraint.
Recently, this Court upheld the constitutionality of Section 6 of the
Milk Code requiring the submission to a government screening
committee of advertising materials for infant formula milk to prevent
false or deceptive claims to the public.37 There is, however, no
claim here by respondents that the Garci Tapes constitute false or
misleading commercial advertisement.
The NTC concedes that the Garci Tapes have not been
authenticated as accurate or truthful. The NTC also concedes that
only "after a prosecution or appropriate investigation" can it be
established that the Garci Tapes constitute "false information and/or
willful misrepresentation." Clearly, the NTC admits that it does not
even know if the Garci Tapes contain false information or willful
misrepresentation.
4. Nature of Prior Restraint in the Present Case
The NTC action restraining the airing of the Garci Tapes is a
content-based prior restraint because it is directed at the message
of the Garci Tapes. The NTC’s claim that the Garci Tapes might
contain "false information and/or willful misrepresentation," and thus
should not be publicly aired, is an admission that the restraint is
content-based.
5. Nature of Expression in the Present Case
The public airing of the Garci Tapes is a protected expression
because it does not fall under any of the four existing categories of
unprotected expression recognized in this jurisdiction. The airing of
the Garci Tapes is essentially a political expression because it
exposes that a presidential candidate had allegedly improper

conversations with a COMELEC Commissioner right after the close
of voting in the last presidential elections.
Obviously, the content of the Garci Tapes affects gravely the
sanctity of the ballot. Public discussion on the sanctity of the ballot
is indisputably a protected expression that cannot be subject to prior
restraint. Public discussion on the credibility of the electoral process
is one of the highest political expressions of any electorate, and thus
deserves the utmost protection. If ever there is a hierarchy of
protected expressions, political expression would occupy the
highest rank,38 and among different kinds of political expression,
the subject of fair and honest elections would be at the top. In any
event, public discussion on all political issues should always remain
uninhibited, robust and wide open.
The rule, which recognizes no exception, is that there can be no
content-based prior restraint on protected expression. On this
ground alone, the NTC press release is unconstitutional. Of course,
if the courts determine that the subject matter of a wiretapping,
illegal or not, endangers the security of the State, the public airing
of the tape becomes unprotected expression that may be subject to
prior restraint. However, there is no claim here by respondents that
the subject matter of the Garci Tapes involves national security and
publicly airing the tapes would endanger the security of the State.39
The alleged violation of the Anti-Wiretapping Law is not in itself a
ground to impose a prior restraint on the airing of the Garci Tapes
because the Constitution expressly prohibits the enactment of any
law, and that includes anti-wiretapping laws, curtailing freedom of
expression.40 The only exceptions to this rule are the four
recognized categories of unprotected expression. However, the
content of the Garci Tapes does not fall under any of these
categories of unprotected expression.
The airing of the Garci Tapes does not violate the right to privacy
because the content of the Garci Tapes is a matter of important
public concern. The Constitution guarantees the people’s right to
information on matters of public concern.41 The remedy of any
person aggrieved by the public airing of the Garci Tapes is to file a
complaint for violation of the Anti-Wiretapping Law after the
commission of the crime. Subsequent punishment, absent a lawful
defense, is the remedy available in case of violation of the Anti-
Wiretapping Law.
The present case involves a prior restraint on protected expression.
Prior restraint on protected expression differs significantly from
subsequent punishment of protected expression. While there can
be no prior restraint on protected expression, there can be
subsequent punishment for protected expression under libel, tort or
other laws. In the present case, the NTC action seeks prior restraint
on the airing of the Garci Tapes, not punishment of personnel of
radio and television stations for actual violation of the Anti-
Wiretapping Law.
6. Only the Courts May Impose Content-Based Prior Restraint
The NTC has no power to impose content-based prior restraint on
expression. The charter of the NTC does not vest NTC with any
content-based censorship power over radio and television stations.
In the present case, the airing of the Garci Tapes is a protected
expression that can never be subject to prior restraint. However,
even assuming for the sake of argument that the airing of the Garci
Tapes constitutes unprotected expression, only the courts have the
power to adjudicate on the factual and legal issue of whether the
airing of the Garci Tapes presents a clear and present danger of
bringing about a substantive evil that the State has a right and duty
to prevent, so as to justify the prior restraint.
Any order imposing prior restraint on unprotected expression
requires prior adjudication by the courts on whether the prior
CONSTI LAW II I ACJUCO 233
restraint is constitutional. This is a necessary consequence from the
presumption of invalidity of any prior restraint on unprotected
expression. Unless ruled by the courts as a valid prior restraint,
government agencies cannot implement outright such prior restraint
because such restraint is presumed unconstitutional at inception.
As an agency that allocates frequencies or airwaves, the NTC may
regulate the bandwidth position, transmitter wattage, and location of
radio and television stations, but not the content of the broadcasts.
Such content-neutral prior restraint may make operating radio and
television stations more costly. However, such content-neutral
restraint does not restrict the content of the broadcast.
7. Government Failed to Overcome Presumption of Invalidity
Assuming that the airing of the Garci Tapes constitutes unprotected
expression, the NTC action imposing prior restraint on the airing is
presumed unconstitutional. The Government bears a heavy burden
to prove that the NTC action is constitutional. The Government has
failed to meet this burden.
In their Comment, respondents did not invoke any compelling State
interest to impose prior restraint on the public airing of the Garci
Tapes. The respondents claim that they merely "fairly warned" radio
and television stations to observe the Anti-Wiretapping Law and
pertinent NTC circulars on program standards. Respondents have
not explained how and why the observance by radio and television
stations of the Anti-Wiretapping Law and pertinent NTC circulars
constitutes a compelling State interest justifying prior restraint on the
public airing of the Garci Tapes.
Violation of the Anti-Wiretapping Law, like the violation of any
criminal statute, can always be subject to criminal prosecution after
the violation is committed. Respondents have not explained why
there is a need in the present case to impose prior restraint just to
prevent a possible future violation of the Anti-Wiretapping Law.
Respondents have not explained how the violation of the Anti-
Wiretapping Law, or of the pertinent NTC circulars, can incite
imminent lawless behavior or endanger the security of the State. To
allow such restraint is to allow prior restraint on all future broadcasts
that may possibly violate any of the existing criminal statutes. That
would be the dawn of sweeping and endless censorship on
broadcast media.
8. The NTC Warning is a Classic Form of Prior Restraint
The NTC press release threatening to suspend or cancel the
airwave permits of radio and television stations constitutes
impermissible pressure amounting to prior restraint on protected
expression. Whether the threat is made in an order, regulation,
advisory or press release, the chilling effect is the same: the threat
freezes radio and television stations into deafening silence. Radio
and television stations that have invested substantial sums in capital
equipment and market development suddenly face suspension or
cancellation of their permits. The NTC threat is thus real and potent.
In Burgos v. Chief of Staff,42 this Court ruled that the closure of the
We Forum newspapers under a general warrant "is in the nature of
a previous restraint or censorship abhorrent to the freedom of the
press guaranteed under the fundamental law." The NTC warning to
radio and television stations not to air the Garci Tapes or else their
permits will be suspended or cancelled has the same effect – a prior
restraint on constitutionally protected expression.
In the recent case of David v. Macapagal-Arroyo,43 this Court
declared unconstitutional government threats to close down mass
media establishments that refused to comply with government
prescribed "standards" on news reporting following the declaration
of a State of National Emergency by President Arroyo on 24
February 2006. The Court described these threats in this manner:
 CONSTI LAW II I ACJUCO 234

Thereafter, a wave of warning[s] came from government officials.

Presidential Chief of Staff Michael Defensor was quoted as saying
that such raid was "meant to show a 'strong presence,' to tell media
outlets not to connive or do anything that would help the rebels in
bringing down this government." Director General Lomibao further
stated that "if they do not follow the standards — and the standards
are if they would contribute to instability in the government, or if they
do not subscribe to what is in General Order No. 5 and Proc. No.
1017 — we will recommend a 'takeover.'" National
Telecommunications Commissioner Ronald Solis urged television
and radio networks to "cooperate" with the government for the
duration of the state of national emergency. He warned that his
agency will not hesitate to recommend the closure of any broadcast
outfit that violates rules set out for media coverage during times
when the national security is threatened.44 (Emphasis supplied)

The Court struck down this "wave of warning[s]" as impermissible

restraint on freedom of expression. The Court ruled that "the
imposition of standards on media or any form of prior restraint on
the press, as well as the warrantless search of the Tribune offices
and whimsical seizure of its articles for publication and other
materials, are declared UNCONSTITUTIONAL."45

The history of press freedom has been a constant struggle against

the censor whose weapon is the suspension or cancellation of
licenses to publish or broadcast. The NTC warning resurrects the
weapon of the censor. The NTC warning is a classic form of prior
restraint on protected expression, which in the words of Near v.
Minnesota is "the essence of censorship."46 Long before the
American Declaration of Independence in 1776, William Blackstone
had already written in his Commentaries on the Law of England,
"The liberty of the press x x x consists in laying no previous restraints
upon publication x x x."47

Although couched in a press release and not in an administrative

regulation, the NTC threat to suspend or cancel permits remains
real and effective, for without airwaves or frequencies, radio and
television stations will fall silent and die. The NTC press release
does not seek to advance a legitimate regulatory objective, but to
suppress through coercion information on a matter of vital public
concern.

9. Conclusion

In sum, the NTC press release constitutes an unconstitutional prior

restraint on protected expression. There can be no content-based
prior restraint on protected expression. This rule has no exception.

I therefore vote to (1) grant the petition, (2) declare the NTC warning,
embodied in its press release dated 11 June 2005, an
unconstitutional prior restraint on protected expression, and (3)
enjoin the NTC from enforcing the same.

New York Times Co. v. Sullivan,
376 U.S. 254 (1964)
Annotate this Case
Argued January 6, 1964
Decided March 9, 1964*
376 U.S. 254
CERTIORARI TO THE SUPREME COURT OF ALABAMA
Syllabus
Respondent, an elected official in Montgomery, Alabama, brought
suit in a state court alleging that he had been libeled by an
advertisement in corporate petitioner's newspaper, the text of which
appeared over the names of the four individual petitioners and many
others. The advertisement included statements, some of which were
false, about police action allegedly directed against students who
participated in a civil rights demonstration and against a leader of
the civil rights movement; respondent claimed the statements
referred to him because his duties included supervision of the police
department. The trial judge instructed the jury that such statements
were "libelous per se," legal injury being implied without proof of
actual damages, and that, for the purpose of compensatory
damages, malice was presumed, so that such damages could be
awarded against petitioners if the statements were found to have
been published by them and to have related to respondent. As to
punitive damages, the judge instructed that mere negligence was
not evidence of actual malice, and would not justify an award of
punitive damages; he refused to instruct that actual intent to harm
or recklessness had to be found before punitive damages could be
awarded, or that a verdict for respondent should differentiate
between compensatory and punitive damages. The jury found for
respondent, and the State Supreme Court affirmed.
Held: A State cannot, under the First and Fourteenth Amendments,
award damages to a public official for defamatory falsehood relating
to his official conduct unless he proves "actual malice" -- that the
statement was made with knowledge of its falsity or with reckless
disregard of whether it was true or false. Pp. 376 U. S. 265-292.
(a) Application by state courts of a rule of law, whether statutory or
not, to award a judgment in a civil action, is "state action" under the
Fourteenth Amendment. P. 376 U. S. 265.
(b) Expression does not lose constitutional protection to which it
would otherwise be entitled because it appears in the form of a paid
advertisement.
(c) Factual error, content defamatory of official reputation, or both,
are insufficient to warrant an award of damages for false statements
unless "actual malice" -- knowledge that statements are false or in
reckless disregard of the truth -- is alleged and proved.
(d) State court judgment entered upon a general verdict which does
not differentiate between punitive damages, as to which, under state
law, actual malice must be proved, and general damages, as to
which it is "presumed," precludes any determination as to the basis
of the verdict, and requires reversal, where presumption of malice
is inconsistent with federal constitutional requirements.
(e) The evidence was constitutionally insufficient to support the
judgment for respondent, since it failed to support a finding that the
statements were made with actual malice or that they related to
respondent.
Reversed and remanded.
CONSTI LAW II I ACJUCO 235
MR. JUSTICE BRENNAN delivered the opinion of the Court.
We are required in this case to determine for the first time the extent
to which the constitutional protections for speech and press limit a
State's power to award damages in a libel action brought by a public
official against critics of his official conduct.
Respondent L. B. Sullivan is one of the three elected
Commissioners of the City of Montgomery, Alabama. He testified
that he was
"Commissioner of Public Affairs, and the duties are supervision of
the Police Department, Fire Department, Department of Cemetery
and Department of Scales."
He brought this civil libel action against the four individual
petitioners, who are Negroes and Alabama clergymen, and against
petitioner the New York Times Company, a New York corporation
which publishes the New York Times, a daily newspaper. A jury in
the Circuit Court of Montgomery County awarded him damages of
$500,000, the full amount claimed, against all the petitioners, and
the Supreme Court of Alabama affirmed.
Respondent's complaint alleged that he had been libeled by
statements in a full-page advertisement that was carried in the New
York Times on March 29, 1960. [Footnote 1] Entitled "Heed Their
Rising Voices," the advertisement began by stating that,
"As the whole world knows by now, thousands of Southern Negro
students are engaged in widespread nonviolent demonstrations in
positive affirmation of the right to live in human dignity as
guaranteed by the U.S. Constitution and the Bill of Rights."
It went on to charge that,
"in their efforts to uphold these guarantees, they are being met by
an unprecedented wave of terror by those who would deny and
negate that document which the whole world looks upon as setting
the pattern for modern freedom. . . ."
Succeeding paragraphs purported to illustrate the "wave of terror"
by describing certain alleged events. The text concluded with an
appeal for funds for three purposes: support of the student
movement, "the struggle for the right to vote," and the legal defense
of Dr. Martin Luther King, Jr., leader of the movement, against a
perjury indictment then pending in Montgomery.
The text appeared over the names of 64 persons, many widely
known for their activities in public affairs, religion, trade unions, and
the performing arts. Below these names, and under a line reading
"We in the south who are struggling daily for dignity and freedom
warmly endorse this appeal," appeared the names of the four
individual petitioners and of 16 other persons, all but two of whom
were identified as clergymen in various Southern cities. The
advertisement was signed at the bottom of the page by the
"Committee to Defend Martin Luther King and the Struggle for
Freedom in the South," and the officers of the Committee were
listed.
Of the 10 paragraphs of text in the advertisement, the third and a
portion of the sixth were the basis of respondent's claim of libel.
They read as follows:
Third paragraph:
"In Montgomery, Alabama, after students sang 'My Country, 'Tis of
Thee' on the State Capitol steps, their leaders were expelled from
school, and truckloads of police armed with shotguns and tear-gas
ringed the Alabama State College Campus. When the entire student
body protested to state authorities by refusing to reregister, their

dining hall was padlocked in an attempt to starve them into
submission."
Sixth paragraph:
"Again and again, the Southern violators have answered Dr. King's
peaceful protests with intimidation and violence. They have bombed
his home, almost killing his wife and child. They have assaulted his
person. They have arrested him seven times -- for 'speeding,'
'loitering' and similar 'offenses.' And now they have charged him with
'perjury' -- a felony under which they could imprison him for ten
years. . . ."
Although neither of these statements mentions respondent by
name, he contended that the word "police" in the third paragraph
referred to him as the Montgomery Commissioner who supervised
the Police Department, so that he was being accused of "ringing"
the campus with police. He further claimed that the paragraph would
be read as imputing to the police, and hence to him, the padlocking
of the dining hall in order to starve the students into submission.
[Footnote 2] As to the sixth paragraph, he contended that, since
arrests are ordinarily made by the police, the statement "They have
arrested [Dr. King] seven times" would be read as referring to him;
he further contended that the "They" who did the arresting would be
equated with the "They" who committed the other described acts
and with the "Southern violators." Thus, he argued, the paragraph
would be read as accusing the Montgomery police, and hence him,
of answering Dr. King's protests with "intimidation and violence,"
bombing his home, assaulting his person, and charging him with
perjury. Respondent and six other Montgomery residents testified
that they read some or all of the statements as referring to him in his
capacity as Commissioner.
It is uncontroverted that some of the statements contained in the two
paragraphs were not accurate descriptions of events which
occurred in Montgomery. Although Negro students staged a
demonstration on the State Capitol steps, they sang the National
Anthem and not "My Country, 'Tis of Thee." Although nine students
were expelled by the State Board of Education, this was not for
leading the demonstration at the Capitol, but for demanding service
at a lunch counter in the Montgomery County Courthouse on
another day. Not the entire student body, but most of it, had
protested the expulsion, not by refusing to register, but by boycotting
classes on a single day; virtually all the students did register for the
ensuing semester. The campus dining hall was not padlocked on
any occasion, and the only students who may have been barred
from eating there were the few who had neither signed a
preregistration application nor requested temporary meal tickets.
Although the police were deployed near the campus in large
numbers on three occasions, they did not at any time "ring" the
campus, and they were not called to the campus in connection with
the demonstration on the State Capitol steps, as the third paragraph
implied. Dr. King had not been arrested seven times, but only four,
and although he claimed to have been assaulted some years earlier
in connection with his arrest for loitering outside a courtroom, one of
the officers who made the arrest denied that there was such an
assault.
On the premise that the charges in the sixth paragraph could be
read as referring to him, respondent was allowed to prove that he
had not participated in the events described. Although Dr. King's
home had, in fact, been bombed twice when his wife and child were
there, both of these occasions antedated respondent's tenure as
Commissioner, and the police were not only not implicated in the
bombings, but had made every effort to apprehend those who were.
Three of Dr. King's four arrests took place before respondent
became Commissioner. Although Dr. King had, in fact, been
indicted (he was subsequently acquitted) on two counts of perjury,
each of which carried a possible five-year sentence, respondent had
nothing to do with procuring the indictment.
CONSTI LAW II I ACJUCO 236
Respondent made no effort to prove that he suffered actual
pecuniary loss as a result of the alleged libel. [Footnote 3] One of
his witnesses, a former employer, testified that, if he had believed
the statements, he doubted whether he "would want to be
associated with anybody who would be a party to such things that
are stated in that ad," and that he would not reemploy respondent if
he believed "that he allowed the Police Department to do the things
that the paper say he did." But neither this witness nor any of the
others testified that he had actually believed the statements in their
supposed reference to respondent. The cost of the advertisement
was approximately $4800, and it was published by the Times upon
an order from a New York advertising agency acting for the
signatory Committee. The agency submitted the advertisement with
a letter from A. Philip Randolph, Chairman of the Committee,
certifying that the persons whose names appeared on the
advertisement had given their permission. Mr. Randolph was known
to the Times' Advertising Acceptability Department as a responsible
person, and, in accepting the letter as sufficient proof of
authorization, it followed its established practice. There was
testimony that the copy of the advertisement which accompanied
the letter listed only the 64 names appearing under the text, and that
the statement, "We in the south . . . warmly endorse this appeal,"
and the list of names thereunder, which included those of the
individual petitioners, were subsequently added when the first proof
of the advertisement was received. Each of the individual petitioners
testified that he had not authorized the use of his name, and that he
had been unaware of its use until receipt of respondent's demand
for a retraction. The manager of the Advertising Acceptability
Department testified that he had approved the advertisement for
publication because he knew nothing to cause him to believe that
anything in it was false, and because it bore the endorsement of "a
number of people who are well known and whose reputation" he
"had no reason to question." Neither he nor anyone else at the
Times made an effort to confirm the accuracy of the advertisement,
either by checking it against recent Times news stories relating to
some of the described events or by any other means.
Alabama law denies a public officer recovery of punitive damages
in a libel action brought on account of a publication concerning his
official conduct unless he first makes a written demand for a public
retraction and the defendant fails or refuses to comply. Alabama
Code, Tit. 7, § 914. Respondent served such a demand upon each
of the petitioners. None of the individual petitioners responded to the
demand, primarily because each took the position that he had not
authorized the use of his name on the advertisement, and therefore
had not published the statements that respondent alleged had
libeled him. The Times did not publish a retraction in response to
the demand, but wrote respondent a letter stating, among other
things, that "we . . . are somewhat puzzled as to how you think the
statements in any way reflect on you," and "you might, if you desire,
let us know in what respect you claim that the statements in the
advertisement reflect on you." Respondent filed this suit a few days
later without answering the letter. The Times did, however,
subsequently publish a retraction of the advertisement upon the
demand of Governor John Patterson of Alabama, who asserted that
the publication charged him with "grave misconduct and . . .
improper actions and omissions as Governor of Alabama and Ex-
Officio Chairman of the State Board of Education of Alabama."
When asked to explain why there had been a retraction for the
Governor but not for respondent, the Secretary of the Times
testified:
"We did that because we didn't want anything that was published by
The Times to be a reflection on the State of Alabama, and the
Governor was, as far as we could see, the embodiment of the State
of Alabama and the proper representative of the State, and,
furthermore, we had by that time learned more of the actual facts
which the and purported to recite and, finally, the ad did refer to the
action of the State authorities and the Board of Education,
presumably of which the Governor is the ex-officio chairman. . . ."

On the other hand, he testified that he did not think that "any of the
language in there referred to Mr. Sullivan."
The trial judge submitted the case to the jury under instructions that
the statements in the advertisement were "libelous per se," and
were not privileged, so that petitioners might be held liable if the jury
found that they had published the advertisement and that the
statements were made "of and concerning" respondent. The jury
was instructed that, because the statements were libelous per se,
"the law . . . implies legal injury from the bare fact of publication
itself," "falsity and malice are presumed," "general damages need
not be alleged or proved, but are presumed," and "punitive damages
may be awarded by the jury even though the amount of actual
damages is neither found nor shown." An award of punitive
damages -- as distinguished from "general" damages, which are
compensatory in nature -- apparently requires proof of actual malice
under Alabama law, and the judge charged that "mere negligence
or carelessness is not evidence of actual malice or malice in fact,
and does not justify an award of exemplary or punitive damages."
He refused to charge, however, that the jury must be "convinced" of
malice, in the sense of "actual intent" to harm or "gross negligence
and recklessness," to make such an award, and he also refused to
require that a verdict for respondent differentiate between
compensatory and punitive damages. The judge rejected
petitioners' contention that his rulings abridged the freedoms of
speech and of the press that are guaranteed by the First and
Fourteenth Amendments.
In affirming the judgment, the Supreme Court of Alabama sustained
the trial judge's rulings and instructions in all respects. 273 Ala. 656,
144 So.2d 25. It held that, "where the words published tend to injure
a person libeled by them in his reputation, profession, trade or
business, or charge him with an indictable offense, or tend to bring
the individual into public contempt," they are "libelous per se"; that
"the matter complained of is, under the above doctrine, libelous per
se, if it was published of and concerning the plaintiff", and that it was
actionable without "proof of pecuniary injury . . . . such injury being
implied." Id. at 673, 676, 144 So.2d at 37, 41. It approved the trial
court's ruling that the jury could find the statements to have been
made "of and concerning" respondent, stating:
"We think it common knowledge that the average person knows that
municipal agents, such as police and firemen, and others, are under
the control and direction of the city governing body, and, more
particularly, under the direction and control of a single
commissioner. In measuring the performance or deficiencies of
such groups, praise or criticism is usually attached to the official in
complete control of the body."
Id. at 674-675, 144 So.2d at 39. In sustaining the trial court's
determination that the verdict was not excessive, the court said that
malice could be inferred from the Times' "irresponsibility" in printing
the advertisement while
"the Times, in its own files, had articles already published which
would have demonstrated the falsity of the allegations in the
advertisement;"
from the Times' failure to retract for respondent while retracting for
the Governor, whereas the falsity of some of the allegations was
then known to the Times and "the matter contained in the
advertisement was equally false as to both parties", and from the
testimony of the Times' Secretary that, apart from the statement that
the dining hall was padlocked, he thought the two paragraphs were
"substantially correct." Id. at 686-687, 144 So.2d at 50-51. The court
reaffirmed a statement in an earlier opinion that "There is no legal
measure of damages in cases of this character." Id. at 686, 144
So.2d at 50. It rejected petitioners' constitutional contentions with
the brief statements that "The First Amendment of the U.S.
CONSTI LAW II I ACJUCO 237
Constitution does not protect libelous publications," and "The
Fourteenth Amendment is directed against State action, and not
private action." Id. at 676, 144 So.2d at 40.
Because of the importance of the constitutional issues involved, we
granted the separate petitions for certiorari of the individual
petitioners and of the Times. 371 U.S. 946. We reverse the
judgment. We hold that the rule of law applied by the Alabama
courts is constitutionally deficient for failure to provide the
safeguards for freedom of speech and of the press that are required
by the First and Fourteenth Amendments in a libel action brought by
a public official against critics of his official conduct. [Footnote 4] We
further hold that, under the proper safeguards, the evidence
presented in this case is constitutionally insufficient to support the
judgment for respondent.
I
.
We may dispose at the outset of two grounds asserted to insulate
the judgment of the Alabama courts from constitutional scrutiny. The
first is the proposition relied on by the State Supreme Court -- that
"The Fourteenth Amendment is directed against State action, and
not private action." That proposition has no application to this case.
Although this is a civil lawsuit between private parties, the Alabama
courts have applied a state rule of law which petitioners claim to
impose invalid restrictions on their constitutional freedoms of
speech and press. It matters not that that law has been applied in a
civil action and that it is common law only, though supplemented by
statute. See, e.g., Alabama Code, Tit. 7, §§ 908-917. The test is not
the form in which state power has been applied but, whatever the
form, whether such power has, in fact, been exercised. See Ex parte
Virginia, 100 U. S. 339, 100 U. S. 346-347; American Federation of
Labor v. Swing.
The second contention is that the constitutional guarantees of
freedom of speech and of the press are inapplicable here, at least
so far as the Times is concerned, because the allegedly libelous
statements were published as part of a paid, "commercial"
advertisement. The argument relies on Valentine v. Chrestensen,
316 U. S. 52, where the Court held that a city ordinance forbidding
street distribution of commercial and business advertising matter did
not abridge the First Amendment freedoms, even as applied to a
handbill having a commercial message on one side but a protest
against certain official action, on the other. The reliance is wholly
misplaced. The Court in Chrestensen reaffirmed the constitutional
protection for "the freedom of communicating information and
disseminating opinion"; its holding was based upon the factual
conclusions that the handbill was "purely commercial advertising"
and that the protest against official action had been added only to
evade the ordinance.
The publication here was not a "commercial" advertisement in the
sense in which the word was used in Chrestensen. It communicated
information, expressed opinion, recited grievances, protested
claimed abuses, and sought financial support on behalf of a
movement whose existence and objectives are matters of the
highest public interest and concern. See NAACP v. Button, 371 U.
S. 415, 371 U. S. 435. That the Times was paid for publishing the
advertisement is as immaterial in this connection as is the fact that
newspapers and books are sold. Smith v. California, 361 U. S. 147,
361 U. S. 150; cf. Bantam Books, Inc., v. Sullivan, 372 U. S. 58, 372
U. S. 64, n. 6. Any other conclusion would discourage newspapers
from carrying "editorial advertisements" of this type, and so might
shut off an important outlet for the promulgation of information and
ideas by persons who do not themselves have access to publishing
facilities -- who wish to exercise their freedom of speech even
though they are not members of the press. Cf. Lovell v. Griffin, 303
U. S. 444, 303 U. S. 452; Schneider v. State, 308 U. S. 147, 308 U.
S. 164. The effect would be to shackle the First Amendment in its
attempt to secure "the widest possible dissemination of information
from diverse and antagonistic sources." Associated Press v. United

States, 326 U. S. 1, 326 U. S. 20. To avoid placing such a handicap
upon the freedoms of expression, we hold that, if the allegedly
libelous statements would otherwise be constitutionally protected
from the present judgment, they do not forfeit that protection
because they were published in the form of a paid advertisement.
[Footnote 5]
II
Under Alabama law, as applied in this case, a publication is "libelous
per se" if the words "tend to injure a person . . . in his reputation" or
to "bring [him] into public contempt"; the trial court stated that the
standard was met if the words are such as to "injure him in his public
office, or impute misconduct to him in his office, or want of official
integrity, or want of fidelity to a public trust. . . ." The jury must find
that the words were published "of and concerning" the plaintiff, but,
where the plaintiff is a public official, his place in the governmental
hierarchy is sufficient evidence to support a finding that his
reputation has been affected by statements that reflect upon the
agency of which he is in charge. Once "libel per se" has been
established, the defendant has no defense as to stated facts unless
he can persuade the jury that they were true in all their particulars.
Alabama Ride Co. v. Vance, 235 Ala. 263, 178 So. 438 (1938);
Johnson Publishing Co. v. Davis, 271 Ala. 474, 494 495, 124 So.2d
441, 457-458 (1960). His privilege of "fair comment" for expressions
of opinion depends on the truth of the facts upon which the comment
is based. Parsons v. Age-Herald Publishing Co., 181 Ala. 439, 450,
61 So. 345, 350 (1913). Unless he can discharge the burden of
proving truth, general damages are presumed, and may be awarded
without proof of pecuniary injury. A showing of actual malice is
apparently a prerequisite to recovery of punitive damages, and the
defendant may, in any event, forestall a punitive award by a
retraction meeting the statutory requirements. Good motives and
belief in truth do not negate an inference of malice, but are relevant
only in mitigation of punitive damages if the jury chooses to accord
them weight. Johnson Publishing Co. v. Davis, supra, 271 Ala., at
495, 124 So.2d at 458.
The question before us is whether this rule of liability, as applied to
an action brought by a public official against critics of his official
conduct, abridges the freedom of speech and of the press that is
guaranteed by the First and Fourteenth Amendments.
Respondent relies heavily, as did the Alabama courts, on
statements of this Court to the effect that the Constitution does not
protect libelous publications. [Footnote 6] Those statements do not
foreclose our inquiry here. None of the cases sustained the use of
libel laws to impose sanctions upon expression critical of the official
conduct of public officials. The dictum in Pennekamp v. Florida, 328
U. S. 331, 328 U. S. 348-349, that "when the statements amount to
defamation, a judge has such remedy in damages for libel as do
other public servants," implied no view as to what remedy might
constitutionally be afforded to public officials. In Beauharnais v.
Illinois, 343 U. S. 250, the Court sustained an Illinois criminal libel
statute as applied to a publication held to be both defamatory of a
racial group and "liable to cause violence and disorder." But the
Court was careful to note that it "retains and exercises authority to
nullify action which encroaches on freedom of utterance under the
guise of punishing libel"; for "public men are, as it were, public
property," and "discussion cannot be denied, and the right, as well
as the duty, of criticism must not be stifled." Id. at 343 U. S. 263-
264, and n. 18. In the only previous case that did present the
question of constitutional limitations upon the power to award
damages for libel of a public official, the Court was equally divided
and the question was not decided. Schenectady Union Pub. Co. v.
Sweeney, 316 U.S. 642.
In deciding the question now, we are compelled by neither
precedent nor policy to give any more weight to the epithet "libel"
than we have to other "mere labels" of state law. NAACP v. Button,
CONSTI LAW II I ACJUCO 238
371 U. S. 415, 371 U. S. 429. Like insurrection, [Footnote 7]
contempt, [Footnote 8] advocacy of unlawful acts, [Footnote 9]
breach of the peace, [Footnote 10] obscenity, [Footnote 11]
solicitation of legal business, [Footnote 12] and the various other
formulae for the repression of expression that have been challenged
in this Court, libel can claim no talismanic immunity from
constitutional limitations. It must be measured by standards that
satisfy the First Amendment.
The general proposition that freedom of expression upon public
questions is secured by the First Amendment has long been settled
by our decisions. The constitutional safeguard, we have said, "was
fashioned to assure unfettered interchange of ideas for the bringing
about of political and social changes desired by the people." Roth v.
United States, "The maintenance of the opportunity for free political
discussion to the end that government may be responsive to the will
of the people and that changes may be obtained by lawful means,
an opportunity essential to the security of the Republic, is a
fundamental principle of our constitutional system."
Stromberg v. California, 283 U. S. 359, 283 U. S. 369. "[I]t is a prized
American privilege to speak one's mind, although not always with
perfect good taste, on all public institutions," Bridges v. California,
314 U. S. 252, 314 U. S. 270, and this opportunity is to be afforded
for "vigorous advocacy" no less than "abstract discussion." NAACP
v. Button, The First Amendment, said Judge Learned
Hand,"presupposes that right conclusions are more likely to be
gathered out of a multitude of tongues than through any kind of
authoritative selection. To many, this is, and always will be, folly, but
we have staked upon it our all."
United States v. Associated Press, 52 F.Supp. 362, 372
(D.C.S.D.N.Y.1943). Mr. Justice Brandeis, in his concurring opinion
in Whitney v. California, 274 U. S. 357, 274 U. S. 375-376, gave the
principle its classic formulation:
"Those who won our independence believed . . . that public
discussion is a political duty, and that this should be a fundamental
principle of the American government. They recognized the risks to
which all human institutions are subject. But they knew that order
cannot be secured merely through fear of punishment for its
infraction; that it is hazardous to discourage thought, hope and
imagination; that fear breeds repression; that repression breeds
hate; that hate menaces stable government; that the path of safety
lies in the opportunity to discuss freely supposed grievances and
proposed remedies, and that the fitting remedy for evil counsels is
good ones. Believing in the power of reason as applied through
public discussion, they eschewed silence coerced by law -- the
argument of force in its worst form. Recognizing the occasional
tyrannies of governing majorities, they amended the Constitution so
that free speech and assembly should be guaranteed."
Thus, we consider this case against the background of a profound
national commitment to the principle that debate on public issues
should be uninhibited, robust, and wide-open, and that it may well
include vehement, caustic, and sometimes unpleasantly sharp
attacks on government and public officials. See Terminiello v.
Chicago, 337 U. S. 1, 337 U. S. 4; De Jonge v. Oregon, 299 U. S.
353, 299 U. S. 365. The present advertisement, as an expression of
grievance and protest on one of the major public issues of our time,
would seem clearly to qualify for the constitutional protection. The
question is whether it forfeits that protection by the falsity of some
of its factual statements and by its alleged defamation of
respondent.
Authoritative interpretations of the First Amendment guarantees
have consistently refused to recognize an exception for any test of
truth -- whether administered by judges, juries, or administrative
officials -- and especially one that puts the burden of proving truth
on the speaker. Cf. Speiser v. Randall, 357 U. S. 513, 357 U. S.
525-526. The constitutional protection does not turn upon "the truth,

popularity, or social utility of the ideas and beliefs which are offered."
NAACP v. Button, 371 U. S. 415, 371 U. S. 445. As Madison said,
"Some degree of abuse is inseparable from the proper use of every
thing, and in no instance is this more true than in that of the press."
4 Elliot's Debates on the Federal Constitution (1876), p. 571. In
Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 310, the Court
declared:
"In the realm of religious faith, and in that of political belief, sharp
differences arise. In both fields, the tenets of one man may seem
the rankest error to his neighbor. To persuade others to his own
point of view, the pleader, as we know, at times resorts to
exaggeration, to vilification of men who have been, or are,
prominent in church or state, and even to false statement. But the
people of this nation have ordained, in the light of history, that, in
spite of the probability of excesses and abuses, these liberties are,
in the long view, essential to enlightened opinion and right conduct
on the part of the citizens of a democracy."
That erroneous statement is inevitable in free debate, and that it
must be protected if the freedoms of expression are to have the
"breathing space" that they "need . . . to survive," NAACP v. Button,
371 U. S. 415, 371 U. S. 433, was also recognized by the Court of
Appeals for the District of Columbia Circuit in Sweeney v. Patterson,
76 U.S.App.D.C. 23, 24, 128 F.2d 457, 458 (1942), cert. denied, 317
U.S. 678. Judge Edgerton spoke for a unanimous court which
affirmed the dismissal of a Congressman's libel suit based upon a
newspaper article charging him with anti-Semitism in opposing a
judicial appointment. He said:
"Cases which impose liability for erroneous reports of the political
conduct of officials reflect the obsolete doctrine that the governed
must not criticize their governors. . . . The interest of the public here
outweighs the interest of appellant or any other individual. The
protection of the public requires not merely discussion, but
information. Political conduct and views which some respectable
people approve, and others condemn, are constantly imputed to
Congressmen. Errors of fact, particularly in regard to a man's mental
states and processes, are inevitable. . . . Whatever is added to the
field of libel is taken from the field of free debate. [Footnote 13]"
Injury to official reputation affords no more warrant for repressing
speech that would otherwise be free than does factual error. Where
judicial officers are involved, this Court has held that concern for the
dignity and reputation of the courts does not justify the punishment
as criminal contempt of criticism of the judge or his decision. Bridges
v. California, 314 U. S. 252. This is true even though the utterance
contains "half-truths" and "misinformation." Pennekamp v. Florida,
328 U. S. 331, 328 U. S. 342, 328 U. S. 343, n. 5, 328 U. S. 345.
Such repression can be justified, if at all, only by a clear and present
danger of the obstruction of justice. See also Craig v. Harney, 331
U. S. 367; Wood v. Georgia, 370 U. S. 375. If judges are to be
treated as "men of fortitude, able to thrive in a hardy climate," Craig
v. Harney, supra, 331 U.S. at 331 U. S. 376, surely the same must
be true of other government officials, such as elected city
commissioners. [Footnote 14] Criticism of their official conduct does
not lose its constitutional protection merely because it is effective
criticism, and hence diminishes their official reputations.
If neither factual error nor defamatory content suffices to remove the
constitutional shield from criticism of official conduct, the
combination of the two elements is no less inadequate. This is the
lesson to be drawn from the great controversy over the Sedition Act
of 1798, 1 Stat. 596, which first crystallized a national awareness of
the central meaning of the First Amendment. See Levy, Legacy of
Suppression (1960), at 258 et seq.; Smith, Freedom's Fetters
(1956), at 426, 431, and passim. That statute made it a crime,
punishable by a $5,000 fine and five years in prison,
"if any person shall write, print, utter or publish . . . any false,
scandalous and malicious writing or writings against the government
CONSTI LAW II I ACJUCO 239
of the United States, or either house of the Congress . . . or the
President . . . with intent to defame . . . or to bring them, or either of
them, into contempt or disrepute; or to excite against them, or either
or any of them, the hatred of the good people of the United States."
The Act allowed the defendant the defense of truth, and provided
that the jury were to be judges both of the law and the facts. Despite
these qualifications, the Act was vigorously condemned as
unconstitutional in an attack joined in by Jefferson and Madison. In
the famous Virginia Resolutions of 1798, the General Assembly of
Virginia resolved that it "doth particularly protest against the
palpable and alarming infractions of the Constitution in the two late
cases of the 'Alien and Sedition Acts,' passed at the last session of
Congress. . . . [The Sedition Act] exercises . . . a power not
delegated by the Constitution, but, on the contrary, expressly and
positively forbidden by one of the amendments thereto -- a power
which, more than any other, ought to produce universal alarm
because it is leveled against the right of freely examining public
characters and measures, and of free communication among the
people thereon, which has ever been justly deemed the only
effectual guardian of every other right."
4 Elliot's Debates, supra, pp. 553-554. Madison prepared the Report
in support of the protest. His premise was that the Constitution
created a form of government under which "The people, not the
government, possess the absolute sovereignty." The structure of
the government dispersed power in reflection of the people's distrust
of concentrated power, and of power itself at all levels. This form of
government was "altogether different" from the British form, under
which the Crown was sovereign and the people were subjects. "Is it
not natural and necessary, under such different circumstances," he
asked, "that a different degree of freedom in the use of the press
should be contemplated?" Id., pp. 569-570. Earlier, in a debate in
the House of Representatives, Madison had said:
"If we advert to the nature of Republican Government, we shall find
that the censorial power is in the people over the Government, and
not in the Government over the people."
4 Annals of Congress, p. 934 (1794). Of the exercise of that power
by the press, his Report said:
"In every state, probably, in the Union, the press has exerted a
freedom in canvassing the merits and measures of public men, of
every description, which has not been confined to the strict limits of
the common law. On this footing, the freedom of the press has
stood; on this foundation it yet stands. . . ."
4 Elliot's Debates, supra, p. 570. The right of free public discussion
of the stewardship of public officials was thus, in Madison's view, a
fundamental principle of the American form of government.
[Footnote 15]
Although the Sedition Act was never tested in this Court, [Footnote
16] the attack upon its validity has carried the day in the court of
history. Fines levied in its prosecution were repaid by Act of
Congress on the ground that it was unconstitutional. See, e.g., Act
of July 4, 1840, c. 45, 6 Stat. 802, accompanied by H.R.Rep. No.
86, 26th Cong., 1st Sess. (1840). Calhoun, reporting to the Senate
on February 4, 1836, assumed that its invalidity was a matter "which
no one now doubts." Report with Senate bill No. 122, 24th Cong.,
1st Sess., p. 3. Jefferson, as President, pardoned those who had
been convicted and sentenced under the Act and remitted their
fines, stating:
"I discharged every person under punishment or prosecution under
the sedition law because I considered, and now consider, that law
to be a nullity, as absolute and as palpable as if Congress had
ordered us to fall down and worship a golden image."

Letter to Mrs. Adams, July 22, 1804, 4 Jefferson's Works
(Washington ed.), pp. 555, 556. The invalidity of the Act has also
been assumed by Justices of this Court. See Holmes, J., dissenting
and joined by Brandeis, J., in Abrams v. United States, 250 U. S.
616, 250 U. S. 630; Jackson, J., dissenting in Beauharnais v. Illinois,
343 U. S. 250, 343 U. S. 288-289; Douglas, The Right of the People
(1958), p. 47. See also Cooley, Constitutional Limitations (8th ed.,
Carrington, 1927), pp. 899-900; Chafee, Free Speech in the United
States (1942), pp. 27-28. These views reflect a broad consensus
that the Act, because of the restraint it imposed upon criticism of
government and public officials, was inconsistent with the First
Amendment.
There is no force in respondent's argument that the constitutional
limitations implicit in the history of the Sedition Act apply only to
Congress, and not to the States. It is true that the First Amendment
was originally addressed only to action by the Federal Government,
and that Jefferson, for one, while denying the power of Congress "to
controul the freedom of the press," recognized such a power in the
States. See the 1804 Letter to Abigail Adams quoted in Dennis v.
United States, 341 U. S. 494, 341 U. S. 522, n. 4 (concurring
opinion). But this distinction was eliminated with the adoption of the
Fourteenth Amendment and the application to the States of the First
Amendment's restrictions. See, e.g., Gitlow v. New York, 268 U. S.
652, 268 U. S. 666; Schneider v. State, 308 U. S. 147, 308 U. S.
160; Bridges v. California, 314 U. S. 252, 314 U. S. 268; Edwards v.
South Carolina, 372 U. S. 229, 372 U. S. 235.
What a State may not constitutionally bring about by means of a
criminal statute is likewise beyond the reach of its civil law of libel.
[Footnote 17] The fear of damage awards under a rule such as that
invoked by the Alabama courts here may be markedly more
inhibiting than the fear of prosecution under a criminal statute. See
City of Chicago v. Tribune Co., 307 Ill. 595, 607, 139 N.E. 86, 90
(1923). Alabama, for example, has a criminal libel law which
subjects to prosecution "any person who speaks, writes, or prints of
and concerning another any accusation falsely and maliciously
importing the commission by such person of a felony, or any other
indictable offense involving moral turpitude," and which allows as
punishment upon conviction a fine not exceeding $500 and a prison
sentence of six months. Alabama Code, Tit. 14, § 350. Presumably,
a person charged with violation of this statute enjoys ordinary
criminal law safeguards such as the requirements of an indictment
and of proof beyond a reasonable doubt. These safeguards are not
available to the defendant in a civil action. The judgment awarded
in this case -- without the need for any proof of actual pecuniary loss
-- was one thousand times greater than the maximum fine provided
by the Alabama criminal statute, and one hundred times greater
than that provided by the Sedition Act.
And since there is no double jeopardy limitation applicable to civil
lawsuits, this is not the only judgment that may be awarded against
petitioners for the same publication. [Footnote 18] Whether or not a
newspaper can survive a succession of such judgments, the pall of
fear and timidity imposed upon those who would give voice to public
criticism is an atmosphere in which the First Amendment freedoms
cannot survive. Plainly the Alabama law of civil libel is
"a form of regulation that creates hazards to protected freedoms
markedly greater than those that attend reliance upon the criminal
law."
Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 372 U. S. 70.
The state rule of law is not saved by its allowance of the defense of
truth. A defense for erroneous statements honestly made is no less
essential here than was the requirement of proof of guilty knowledge
which, in Smith v. California, 361 U. S. 147, we held indispensable
to a valid conviction of a bookseller for possessing obscene writings
for sale. We said:
CONSTI LAW II I ACJUCO 240
"For, if the bookseller is criminally liable without knowledge of the
contents, . . . He will tend to restrict the books he sells to those he
has inspected, and thus the State will have imposed a restriction
upon the distribution of constitutionally protected, as well as
obscene, literature. . . . And the bookseller's burden would become
the public's burden, for, by restricting him, the public's access to
reading matter would be restricted. . . . [H]is timidity in the face of
his absolute criminal liability thus would tend to restrict the public's
access to forms of the printed word which the State could not
constitutionally suppress directly. The bookseller's self-censorship,
compelled by the State, would be a censorship affecting the whole
public, hardly less virulent for being privately administered. Through
it, the distribution of all books, both obscene and not obscene, would
be impeded."
A rule compelling the critic of official conduct to guarantee the truth
of all his factual assertions -- and to do so on pain of libel judgments
virtually unlimited in amount -- leads to a comparable "self-
censorship." Allowance of the defense of truth, with the burden of
proving it on the defendant, does not mean that only false speech
will be deterred. [Footnote 19] Even courts accepting this defense
as an adequate safeguard have recognized the difficulties of
adducing legal proofs that the alleged libel was true in all its factual
particulars. See, e.g., Post Publishing Co. v. Hallam, 59 F. 530, 540
(C.A. 6th Cir. 1893); see also Noel, Defamation of Public Officers
and Candidates, 49 Col.L.Rev. 875, 892 (1949). Under such a rule,
would-be critics of official conduct may be deterred from voicing
their criticism, even though it is believed to be true and even though
it is, in fact, true, because of doubt whether it can be proved in court
or fear of the expense of having to do so. They tend to make only
statements which "steer far wider of the unlawful zone." Speiser v.
Randall, supra, 357 U.S. at 357 U. S. 526. The rule thus dampens
the vigor and limits the variety of public debate. It is inconsistent with
the First and Fourteenth Amendments. The constitutional
guarantees require, we think, a federal rule that prohibits a public
official from recovering damages for a defamatory falsehood relating
to his official conduct unless he proves that the statement was made
with "actual malice" -- that is, with knowledge that it was false or with
reckless disregard of whether it was false or not. An oft-cited
statement of a like rule, which has been adopted by a number of
state courts, [Footnote 20] is found in the Kansas case of Coleman
v. MacLennan, 78 Kan. 711, 98 P. 281 (1908). The State Attorney
General, a candidate for reelection and a member of the
commission charged with the management and control of the state
school fund, sued a newspaper publisher for alleged libel in an
article purporting to state facts relating to his official conduct in
connection with a school-fund transaction. The defendant pleaded
privilege and the trial judge, over the plaintiff's objection, instructed
the jury that "where an article is published and circulated among
voters for the sole purpose of giving what the defendant believes to
be truthful information concerning a candidate for public office and
for the purpose of enabling such voters to cast their ballot more
intelligently, and the whole thing is done in good faith and without
malice, the article is privileged, although the principal matters
contained in the article may be untrue, in fact, and derogatory to the
character of the plaintiff, and in such a case the burden is on the
plaintiff to show actual malice in the publication of the article."
In answer to a special question, the jury found that the plaintiff had
not proved actual malice, and a general verdict was returned for the
defendant. On appeal, the Supreme Court of Kansas, in an opinion
by Justice Burch, reasoned as follows (78 Kan., at 724, 98 P. at
286):
"It is of the utmost consequence that the people should discuss the
character and qualifications of candidates for their suffrages. The
importance to the state and to society of such discussions is so vast,
and the advantages derived are so great, that they more than
counterbalance the inconvenience of private persons whose
conduct may be involved, and occasional injury to the reputations of
individuals must yield to the public welfare, although at times such

injury may be great. The public benefit from publicity is so great, and
the chance of injury to private character so small, that such
discussion must be privileged."
The court thus sustained the trial court's instruction as a correct
statement of the law, saying:
"In such a case the occasion gives rise to a privilege, qualified to
this extent: any one claiming to be defamed by the communication
must show actual malice or go remediless. This privilege extends to
a great variety of subjects, and includes matters of public concern,
public men, and candidates for office."
Such a privilege for criticism of official conduct [Footnote 21] is
appropriately analogous to the protection accorded a public official
when he is sued for libel by a private citizen. In Barr v. Matteo, 360
U. S. 564, 360 U. S. 575, this Court held the utterance of a federal
official to be absolutely privileged if made "within the outer
perimeter" of his duties. The States accord the same immunity to
statements of their highest officers, although some differentiate their
lesser officials and qualify the privilege they enjoy. [Footnote 22] But
all hold that all officials are protected unless actual malice can be
proved. The reason for the official privilege is said to be that the
threat of damage suits would otherwise "inhibit the fearless,
vigorous, and effective administration of policies of government"
and "dampen the ardor of all but the most resolute, or the most
irresponsible, in the unflinching discharge of their duties." Barr v.
Matteo, supra, 360 U.S. at 360 U. S. 571. Analogous considerations
support the privilege for the citizen-critic of government. It is as
much his duty to criticize as it is the official's duty to administer. See
Whitney v. California, 274 U. S. 357, 274 U. S. 375 (concurring
opinion of Mr. Justice Brandeis), quoted supra, p. 376 U. S. 270. As
Madison said, see supra p. 376 U. S. 275, "the censorial power is in
the people over the Government, and not in the Government over
the people." It would give public servants an unjustified preference
over the public they serve, if critics of official conduct did not have a
fair equivalent of the immunity granted to the officials themselves.
We conclude that such a privilege is required by the First and
Fourteenth Amendments.
III
We hold today that the Constitution delimits a State's power to
award damages for libel in actions brought by public officials against
critics of their official conduct. Since this is such an action, [Footnote
23] the rule requiring proof of actual malice is applicable. While
Alabama law apparently requires proof of actual malice for an award
of punitive damages, [Footnote 24] where general damages are
concerned malice is "presumed." Such a presumption is
inconsistent with the federal rule. "The power to create
presumptions is not a means of escape from constitutional
restrictions," Bailey v. Alabama, 219 U. S. 219, 219 U. S. 239, "the
showing of malice required for the forfeiture of the privilege is not
presumed but is a matter for proof by the plaintiff. . . ." Lawrence v.
Fox, 357 Mich. 134, 146, 97 N.W.2d 719, 725 (1959). [Footnote 25]
Since the trial judge did not instruct the jury to differentiate between
general and punitive damages, it may be that the verdict was wholly
an award of one or the other. But it is impossible to know, in view of
the general verdict returned. Because of this uncertainty, the
judgment must be reversed and the case remanded. Stromberg v.
California, 283 U. S. 359, 283 U. S. 367-368; Williams v. North
Carolina, 317 U. S. 287, 317 U. S. 291-292; see Yates v. United
States, 354 U. S. 298, 354 U. S. 311-312; Cramer v. United States,
325 U. S. 1, 325 U. S. 36, n. 45.
Since respondent may seek a new trial, we deem that
considerations of effective judicial administration require us to
review the evidence in the present record to determine whether it
could constitutionally support a judgment for respondent. This
Court's duty is not limited to the elaboration of constitutional
principles; we must also in proper cases review the evidence to
CONSTI LAW II I ACJUCO 241
make certain that those principles have been constitutionally
applied. This is such a case, particularly since the question is one
of alleged trespass across "the line between speech unconditionally
guaranteed and speech which may legitimately be regulated."
Speiser v. Randall, 357 U. S. 513, 357 U. S. 525. In cases where
that line must be drawn, the rule is that we
"examine for ourselves the statements in issue and the
circumstances under which they were made to see . . . whether they
are of a character which the principles of the First Amendment, as
adopted by the Due Process Clause of the Fourteenth Amendment,
protect."
Pennekamp v. Florida, 328 U. S. 331, 328 U. S. 335; see also One,
Inc., v. Olesen, 355 U. S. 371; Sunshine Book Co. v. Summerfield,
355 U. S. 372. We must "make an independent examination of the
whole record," Edwards v. South Carolina, 372 U. S. 229, 372 U. S.
235, so as to assure ourselves that the judgment does not constitute
a forbidden intrusion on the field of free expression. [Footnote 26]
Applying these standards, we consider that the proof presented to
show actual malice lacks the convincing clarity which the
constitutional standard demands, and hence that it would not
constitutionally sustain the judgment for respondent under the
proper rule of law. The case of the individual petitioners requires
little discussion. Even assuming that they could constitutionally be
found to have authorized the use of their names on the
advertisement, there was no evidence whatever that they were
aware of any erroneous statements or were in any way reckless in
that regard. The judgment against them is thus without constitutional
support.
As to the Times, we similarly conclude that the facts do not support
a finding of actual malice. The statement by the Times' Secretary
that, apart from the padlocking allegation, he thought the
advertisement was "substantially correct," affords no constitutional
warrant for the Alabama Supreme Court's conclusion that it was a
"cavalier ignoring of the falsity of the advertisement [from which] the
jury could not have but been impressed with the bad faith of The
Times, and its maliciousness inferable therefrom."
The statement does not indicate malice at the time of the
publication; even if the advertisement was not "substantially correct"
-- although respondent's own proofs tend to show that it was -- that
opinion was at least a reasonable one, and there was no evidence
to impeach the witness' good faith in holding it. The Times' failure to
retract upon respondent's demand, although it later retracted upon
the demand of Governor Patterson, is likewise not adequate
evidence of malice for constitutional purposes. Whether or not a
failure to retract may ever constitute such evidence, there are two
reasons why it does not here. First, the letter written by the Times
reflected a reasonable doubt on its part as to whether the
advertisement could reasonably be taken to refer to respondent at
all. Second, it was not a final refusal, since it asked for an
explanation on this point -- a request that respondent chose to
ignore. Nor does the retraction upon the demand of the Governor
supply the necessary proof. It may be doubted that a failure to
retract, which is not itself evidence of malice, can retroactively
become such by virtue of a retraction subsequently made to another
party. But, in any event, that did not happen here, since the
explanation given by the Times' Secretary for the distinction drawn
between respondent and the Governor was a reasonable one, the
good faith of which was not impeached.
Finally, there is evidence that the Times published the
advertisement without checking its accuracy against the news
stories in the Times' own files. The mere presence of the stories in
the files does not, of course, establish that the Times "knew" the
advertisement was false, since the state of mind required for actual
malice would have to be brought home to the persons in the Times'
organization having responsibility for the publication of the
 CONSTI LAW II I ACJUCO 242

advertisement. With respect to the failure of those persons to make overruling the demurrer [of the Times] in the aspect that the libelous
the check, the record shows that they relied upon their knowledge matter was not of and concerning the [plaintiff,]" based its ruling on
of the good reputation of many of those whose names were listed the proposition that:
as sponsors of the advertisement, and upon the letter from A. Philip
Randolph, known to them as a responsible individual, certifying that "We think it common knowledge that the average person knows that
the use of the names was authorized. There was testimony that the municipal agents, such as police and firemen, and others, are under
persons handling the advertisement saw nothing in it that would the control and direction of the city governing body, and more
render it unacceptable under the Times' policy of rejecting particularly under the direction and control of a single commissioner.
advertisements containing "attacks of a personal character"; In measuring the performance or deficiencies of such groups, praise
[Footnote 27] their failure to reject it on this ground was not or criticism is usually attached to the official in complete control of
unreasonable. We think the evidence against the Times supports, the body."
at most, a finding of negligence in failing to discover the
misstatements, and is constitutionally insufficient to show the This proposition has disquieting implications for criticism of
recklessness that is required for a finding of actual malice. Cf. governmental conduct. For good reason,
Charles Parker Co. v. Silver City Crystal Co., 142 Conn. 605, 618,
116 A.2d 440, 446 (1955); Phoenix Newspapers, Inc., v. Choisser, "no court of last resort in this country has ever held, or even
82 Ariz. 271, 277-278, 312 P.2d 150, 154-155 (1957). suggested, that prosecutions for libel on government have any place
in the American system of jurisprudence."
We also think the evidence was constitutionally defective in another
respect: it was incapable of supporting the jury's finding that the City of Chicago v. Tribune Co., 307 Ill. 595, 601, 139 N.E. The
allegedly libelous statements were made "of and concerning" present proposition would sidestep this obstacle by transmuting
respondent. Respondent relies on the words of the advertisement criticism of government, however impersonal it may seem on its
and the testimony of six witnesses to establish a connection face, into personal criticism, and hence potential libel, of the officials
between it and himself. Thus, in his brief to this Court, he states: of whom the government is composed. There is no legal alchemy
by which a State may thus create the cause of action that would
"The reference to respondent as police commissioner is clear from otherwise be denied for a publication which, as respondent himself
the ad. In addition, the jury heard the testimony of a newspaper said of the advertisement, "reflects not only on me but on the other
editor . . . ; a real estate and insurance man . . . ; the sales manager Commissioners and the community." Raising as it does the
of a men's clothing store . . . ; a food equipment man . . . ; a service possibility that a good faith critic of government will be penalized for
station operator . . . , and the operator of a truck line for whom his criticism, the proposition relied on by the Alabama courts strikes
respondent had formerly worked. . . . Each of these witnesses stated at the very center of the constitutionally protected area of free
that he associated the statements with respondent. . . ." expression. [Footnote 30] We hold that such a proposition may not
constitutionally be utilized to establish that an otherwise impersonal
(Citations to record omitted.) There was no reference to respondent attack on governmental operations was a libel of an official
in the advertisement, either by name or official position. A number responsible for those operations. Since it was relied on exclusively
of the allegedly libelous statements -- the charges that the dining here, and there was no other evidence to connect the statements
hall was padlocked and that Dr. King's home was bombed, his with respondent, the evidence was constitutionally insufficient to
person assaulted, and a perjury prosecution instituted against him - support a finding that the statements referred to respondent.
- did not even concern the police; despite the ingenuity of the
arguments which would attach this significance to the word "They," The judgment of the Supreme Court of Alabama is reversed, and
it is plain that these statements could not reasonably be read as the case is remanded to that court for further proceedings not
accusing respondent of personal involvement in the acts in inconsistent with this opinion.
question. The statements upon which respondent principally relies
as referring to him are the two allegations that did concern the police Reversed and remanded.
or police functions: that "truckloads of police . . . ringed the Alabama
State College Campus" after the demonstration on the State Capitol
steps, and that Dr. King had been "arrested . . . seven times." These
statements were false only in that the police had been "deployed
near" the campus, but had not actually "ringed" it, and had not gone
there in connection with the State Capitol demonstration, and in that
Dr. King had been arrested only four times. The ruling that these
discrepancies between what was true and what was asserted were
sufficient to injure respondent's reputation may itself raise
constitutional problems, but we need not consider them here.
Although the statements may be taken as referring to the police,
they did not, on their face, make even an oblique reference to
respondent as an individual. Support for the asserted reference
must, therefore, be sought in the testimony of respondent's
witnesses. But none of them suggested any basis for the belief that
respondent himself was attacked in the advertisement beyond the
bare fact that he was in overall charge of the Police Department and
thus bore official responsibility for police conduct; to the extent that
some of the witnesses thought respondent to have been charged
with ordering or approving the conduct or otherwise being
personally involved in it, they based this notion not on any
statements in the advertisement, and not on any evidence that he
had, in fact, been so involved, but solely on the unsupported
assumption that, because of his official position, he must have been.
[Footnote 28] This reliance on the bare fact of respondent's official
position [Footnote 29] was made explicit by the Supreme Court of
Alabama. That court, in holding that the trial court "did not err in

G.R. No. 147571 May 5, 2001
SOCIAL WEATHER STATIONS, INCORPORATED and
KAMAHALAN PUBLISHING CORPORATION, doing business
as MANILA STANDARD, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.
MENDOZA, J.:
Petitioner, Social Weather Stations, Inc. (SWS), is a private non-
stock, non-profit social research institution conducting surveys in
various fields, including economics, politics, demography, and
social development, and thereafter processing, analyzing, and
publicly reporting the results thereof. On the other hand, petitioner
Kamahalan Publishing Corporation publishes the Manila Standard,
a newspaper of general circulation, which features news- worthy
items of information including election surveys. 1âwphi1.nêt
Petitioners brought this action for prohibition to enjoin the
Commission on Elections from enforcing §5.4 of RA. No.9006 (Fair
Election Act), which provides:
Surveys affecting national candidates shall not be published fifteen
(15) days before an election and surveys affecting local candidates
shall not be published seven (7) days be- fore an election.
The term "election surveys" is defined in §5.1 of the law as follows:
Election surveys refer to the measurement of opinions and
perceptions of the voters as regards a candidate's popularity,
qualifications, platforms or a matter of public discussion in relation
to the election, including voters preference for candidates or publicly
discussed issues during the campaign period (hereafter referred to
as "Survey").
The implement §5.4, Resolution 3636, §24(h), dated March I, 2001,
of the COMELEC enjoins –
Surveys affecting national candidates shall not be published fifteen
(15) days before an election and surveys affecting local candidates
shall not be published seven (7) days be- fore an election.
Petitioner SWS states that it wishes to conduct an election survey
throughout the period of the elections both at the national and local
levels and release to the media the results of such survey as well
as publish them directly. Petitioner Kamahalan Publishing
Corporation, on the other hand, states that it intends to publish
election survey results up to the last day of the elections on May
14,2001.
Petitioners argue that the restriction on the publication of election
survey results constitutes a prior restraint on the exercise of
freedom of speech without any clear and present danger to justify
such restraint. They claim that SWS and other pollsters conducted
and published the results of surveys prior to the 1992, 1995, and
1998 elections up to as close as two days before the election day
without causing confusion among the voters and that there is neither
empirical nor historical evidence to support the conclusion that there
is an immediate and inevitable danger to tile voting process posed
by election surveys. They point out that no similar restriction is
imposed on politicians from explaining their opinion or on
newspapers or broadcast media from writing and publishing articles
concerning political issues up to the day of the election.
Consequently, they contend that there is no reason for ordinary
voters to be denied access to the results of election surveys, which
are relatively objective. 1âwphi1.nêt
Respondent Commission on Elections justifies the restrictions in
§5.4 of R.A. No. 9006 as necessary to prevent the manipulation and
corruption of the electoral process by unscrupulous and erroneous
CONSTI LAW II I ACJUCO 243
surveys just before the election. It contends that (1) the prohibition
on the publication of election survey results during the period
proscribed by law bears a rational connection to the objective of the
law, i.e., the prevention of the debasement of the electoral process
resulting from manipulated surveys, bandwagon effect, and
absence of reply; (2) it is narrowly tailored to meet the "evils" sought
to be prevented; and (3) the impairment of freedom of expression is
minimal, the restriction being limited both in duration, i.e., the last 15
days before the national election and the last 7 days before a local
election, and in scope as it does not prohibit election survey results
but only require timeliness. Respondent claims that in National
Press Club v. COMELEC,1 a total ban on political advertisements,
with candidates being merely allocated broadcast time during the
so-called COMELEC space or COMELEC hour, was upheld by this
Court. In contrast, according to respondent, it states that the
prohibition in §5.4 of RA. No. 9006 is much more limited.
For reasons hereunder given, we hold that §5.4 of R.A. No. 9006
constitutes an unconstitutional abridgment of freedom of speech,
expression, and the press.
To be sure, §5.4Iays a prior restraint on freedom of speech,
expression, and the press prohibiting the publication of election
survey results affecting candidates within the prescribed periods of
fifteen (15) days immediately preceding a national election seven
(7) days before a local election. Because of tile preferred status of
tile constitutional rights of speech, expression, and he press, such
a measure is vitiated by a weighty presumption of invalidity.2
Indeed, any system of prior restraints of expression comes to this
Court bearing a heavy Presumption against its constitutional
validity. ...The Government thus carries a heavy burden of showing
justification for in enforcement of such restraint. "'3 There, thus a
reversal of the normal presumption of validity that inheres in every
legislation.
Nor may it be argued that because of Art. IX-C, §4 of the
Constitution, which gives the COMELEC supervisory power to
regulate the enjoyment or utilization of franchise for the operation of
media of communication, no presumption of invalidity attaches to a
measure like §5.4. For as we have pointed out in sustaining tile ban
on media political advertisements, the grant of power to the
COMELEC under Art. IX-C, §4 is limited to ensuring "equal
opportunity, time, space, and the right to reply" as well as uniform
and reasonable rates of charges for the use of such media facilities
"public information campaigns and forums among candidates."4
This Court stated:
The technical effect of Article IX (C) (4) of the Constitution may be
seen to be that no presumption of invalidity arises in respect of
exercises of supervisory or regulatory authority on the part of the
Comelec for the Purpose of securing equal opportunity among
candidates for political office, although such supervision or
regulation may result in some limitation of the rights of free speech
and free press.5
MR JUSTICE KAPUNAN dissents. He rejects as inappropriate the
test of clear and present danger for determining the validity of §5.4.
Indeed, as has been pointed out in Osmeña v. COMELEC,6 this test
was originally formulated for the criminal law and only later
appropriated for free speech cases. Hence, while it may be useful
for determining the validity of laws dealing with inciting to sedition or
incendiary speech, it may not be adequate for such regulations as
the one in question. For such a test is concerned with questions of
the gravity and imminence of the danger as basis for curtailing free
speech, which is not the case of §5.4 and similar regulations.
Instead, MR JUSTICE KAPUNAN purports to engage in a form of
balancing by "weighing and balancing the circumstances to
determine whether public interest [in free, orderly, honest, peaceful
and credible elections] is served by the regulation of the free
enjoyment of the rights" (page 7). After canvassing the reasons for

the prohibition, i.e., to prevent last-minute pressure on voters, the
creation of bandwagon effect to favor candidates, misinformation,
the junking" of weak and "losing" candidates by their parties, and
the form of election cheating called "dagdag-bawas" and invoking
the State's power to supervise media of information during the
election period (pages 11-16), the dissenting opinion simply
concludes:
Viewed in the light of the legitimate and significant objectives of
Section 5.4, It may be seen that its limiting impact on the rights of
free speech and of the press is not unduly repressive or
unreasonable. In Indeed, it is a mere restriction, not an absolute
prohibition, on the publication of election surveys. It is limited in
duration; it applies only during the period when the voters are
presumably contemplating whom they should elect and when they
are most susceptible to such unwarranted persuasion. These
surveys may be published thereafter. (Pages 17-18)
The dissent does not, however, show why, on balance, these
considerations should outweigh the value of freedom of expression.
Instead, reliance is placed on Art. IX-C, §4. As already stated, the
purpose of Art. IX-C, §4 is to "ensure equal opportunity, time, and
space and the right of reply, including reasonable, equal rates
therefor for public information campaigns and forums among
candidates. " Hence the validity of the ban on media advertising. It
is noteworthy that R.A. No. 9006, § 14 has lifted the ban and now
allows candidates to advertise their candidacies in print and
broadcast media. Indeed, to sustain the ban on the publication of
survey results would sanction the censorship of all speaking by
candidates in an election on the ground that the usual bombasts and
hyperbolic claims made during the campaigns can confuse voters
and thus debase the electoral process.
In sum, the dissent has engaged only in a balancing at the margin.
This form of ad hoc balancing predictably results in sustaining the
challenged legislation and leaves freedom of speech, expression,
and the press with little protection. For anyone who can bring a
plausible justification forward can easily show a rational connection
between the statute and a legitimate governmental purpose. In
contrast, the balancing of interest undertaken by then Justice Castro
in Gonzales v. COMELEC,7 from which the dissent in this case
takes its cue, was a strong one resulting in his conclusion that , §50-
B of R.A. No. 4880, which limited the period of election campaign
and partisan political activity, was an unconstitutional abridgment of
freedom of expression.
Nor can the ban on election surveys be justified on the ground that
there are other countries - 78, according to the Solicitor General,
while the dissent cites 28 - which similarly impose restrictions on the
publication of election surveys. At best this survey is inconclusive. It
is note worthy that in the United States no restriction on the
publication of election survey results exists. It cannot be argued that
this is because the United States is a mature democracy. Neither
are there laws imposing an embargo on survey results, even for a
limited period, in other countries. As pointed out by petitioners, the
United Kingdom, Austria, Belgium, Denmark, Estonia, Finland,
Iceland, Ireland, Latvia, Malta, Macedonia, the Netherlands,
Norway, Sweden, and Ukraine, some of which are no older nor more
mature than the Philippines in political development, do not restrict
the publication of election survey results.
What test should then be employed to determine the constitutional
validity of §5.4? The United States Supreme Court, through Chief
Justice Warren, held in United States v. O 'Brien:
[A] Government regulation is sufficiently justified [1] if it is within the
constitutional power of the Government; [2] if it furthers an important
or substantial governmental interest; [3] if the governmental interest
is unrelated to the suppression of free expression; and [4] if the
incidental restriction on alleged First Amendment freedoms [of
CONSTI LAW II I ACJUCO 244
speech, expression and press] is no greater than is essential to the
furtherance of that interest.8
This is so far the most influential test for distinguishing content-
based from content neutral regulations and is said to have "become
canonical in the review of such laws."9 is noteworthy that the O
'Brien test has been applied by this Court in at least two cases.10
Under this test, even if a law furthers an important or substantial
governmental interest, it should be invalidated if such governmental
interest is "not unrelated to the Expression of free expression."
Moreover, even if the purpose is unrelated to the suppression of free
speech, the law should nevertheless be invalidated if the restriction
on freedom of expression is greater than is necessary to achieve
the governmental purpose in question.
Our inquiry should accordingly focus on these two considerations as
applied to §5.4.
>First. Sec. 5.4 fails to meet criterion [3] of the O 'Brien test because
the causal connection of expression to the asserted governmental
interest makes such interest "not related to the suppression of free
expression." By prohibiting the publication of election survey results
because of the possibility that such publication might undermine the
integrity of the election, §5.4 actually suppresses a whole class of
expression, while allowing the expression of opinion concerning the
same subject matter by newspaper columnists, radio and TV
commentators, armchair theorists, and other opinion takers. In
effect, §5.4 shows a bias for a particular subject matter, if not
viewpoint, by referring personal opinion to statistical results. The
constitutional guarantee of freedom of expression means that "the
government has no power to restrict expression because of its
message, its ideas, its subject matter, or its content."11 The
inhibition of speech should be upheld only if the expression falls
within one of the few unprotected categories dealt with in Chaplinsky
v. New Hampshire, 12 thus:
There are certain well-defined and narrowly limited classes of
speech, the prevention and punishment of which have never been
thought to raise any Constitutional problem. These include the lewd
and obscene, the profane, the libelous, and the insulting or 'fighting'
words - those which by their very utterance inflict injury or tend to
incite an immediate breach of the peace. [S]uch utterances are no
essential part of any exposition of ideas, and are of such slight social
value as a step to truth that any benefit that may be derived from
them is clearly outweighed by the social interest in order and
morality
Nor is there justification for the prior restraint which §5.4Iays on
protected speech. Near v. Minnesota,13 it was held:
[The] protection even as to previous restraint is not absolutely
unlimited. But the limitation has been recognized only in exceptional
cases…. No one would question but that a government might
prevent actual obstruction to its recruiting service or the publication
of the sailing dates transports or the number and location of troops.
On similar grounds, the primary requirements of decency may be
enforced against obscene publications. The security of the
community life may be protected against incitements to acts of
violence and overthrow by force of orderly government…
Thus, contrary to the claim of the Solicitor General, the prohibition
imposed by §5.4 cannot be justified on the ground that it is only for
a limited period and is only incidental. The prohibition may be for a
limited time, but the curtailment of the right of expression is direct,
absolute, and substantial. It constitutes a total suppression of a
category of speech and is not made less so because it is only for a
period of fifteen (15) days immediately before a national election
and seven (7) days immediately before a local election. ..
 CONSTI LAW II I ACJUCO 245

This sufficiently distinguishes §5.4 from R.A. No. 6646, §11(b), WHEREFORE, the petition for prohibited GRANTED and §5.4 of
which this Court found to be valid in National Press Club v. R.A. No. 9006 §24(h) of COMELEC Resolution 3636, March 1,
COMELEC,14 and Osmeña v. COMELEC.15 For the ban imposed 2001, are declared unconstitutional. 1âwphi1.nêt
by R.A. No. 6646, §11(b) is not only authorized by a specific
constitutional provision,16 but it also provided an alternative so that, SO ORDERED.
as this Court pointed out in Osmeña, there was actually no ban but
only a substitution of media advertisements by the COMELEC
space and COMELEC hour.

Second. Even if the governmental interest sought to be promoted is

unrelated to the suppression of speech and the resulting restriction
of free expression is only incidental, §5.4 nonetheless fails to meet
criterion [4] of the O 'Brien test, namely, that the restriction be not
greater than is necessary to further the governmental interest. As
already stated, §5.4 aims at the prevention of last-minute pressure
on voters, the creation of bandwagon effect, "junking" of weak or
"losing" candidates, and resort to the form of election cheating called
"dagdag-bawas." Praiseworthy as these aims of the regulation
might be, they cannot be attained at the sacrifice of the fundamental
right of expression, when such aim can be more narrowly pursued
by punishing unlawful acts, rather than speech because of
apprehension that such speech creates the danger of such evils.
Thus, under the Administrative Code of 1987,17 the COMELEC is
given the power:

To stop any illegal activity, or confiscate, tear down, and stop any
unlawful, libelous, misleading or false election propaganda, after
due notice and hearing.

This is surely a less restrictive means than the prohibition contained

in §5.4. Pursuant to this power of the COMELEC, it can confiscate
bogus survey results calculated to mislead voters. Candidates can
have their own surveys conducted. No right of reply can be invoked
by others. No principle of equality is involved. It is a free market to
which each candidate brings his ideas. As for the purpose of the law
to prevent bandwagon effects, it is doubtful whether the
Government can deal with this natural-enough tendency of some
voters. Some voters want to be identified with the "winners." Some
are susceptible to the herd mentality. Can these be legitimately
prohibited by suppressing the publication of survey results, which
are a form of expression? It has been held that "[mere] legislative
preferences or beliefs respecting matters of public convenience may
well support regulation directed at other personal activities, but be
insufficient to justify such as diminishes the exercise of rights so vital
to the maintenance of democratic institutions."18

To summarize then, we hold that §5.4 is invalid because (1) it

imposes a prior restraint on the freedom of expression, (2) it is a
direct and total suppression of a category of expression even though
such suppression is only for a limited period, and (3) the
governmental interest sought to be promoted can be achieved by
means other than suppression of freedom of expression.

On the other hand, the COMELEC contends that under Art. IX-A, §7
of the Constitution, its decisions, orders, or resolution may be
reviewed by this Court only certiorari. The flaws in this argument is
that it assumes that its Resolution 3636, March 1, 2001 is a
"decision, order, or resolution" within the meaning of Art. IX-A, §7.
Indeed, counsel for COMELEC maintain that Resolution 3636 was
"rendered" by the Commission. However, the Resolution does not
purport to adjudicate the right of any party. It is not an exercise by
the COMELEC of its adjudicatory power to settle the claims of
parties. To the contrary, Resolution 3636 clearly states that it is
promulgated to implement the provisions of R.A. No. 9006. Hence,
there is no basis for COMELEC's claim that this petition for
prohibition is inappropriate. Prohibition has been fund appropriate
for testing the constitutionality of various election laws, rules, and
regulations.19

G.R. No. 205357 September 2, 2014
GMA NETWORK, INC., Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
SENATOR ALAN PETER "COMPAÑERO" S.
CAYETANO,Petitioner-Intervenor.
x-----------------------x
G.R. No. 205374
ABC DEVELOPMENT CORPORATION, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 205592
MANILA BROADCASTING COMPANY, INC. and NEWSOUNDS
BROADCASTING NETWORK, INC., Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 205852
KAPISANAN NG MGA BRODKASTER NG PILIPINAS (KBP)
and ABS-CBN CORPORATION, Petitioners,
vs.
COMMISSION ON ELECTIONS, Respondent.
x-----------------------x
G.R. No. 206360
RADIO MINDANAO NETWORK, INC., Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
DECISION
PERALTA, J.:
"The clash of rights demands a delicate balancing of interests
approach which is a 'fundamental postulate of constitutional law.'"1
Once again the Court is asked to draw a carefully drawn balance in
the incessant conflicts between rights and regulations, liberties and
limitations, and competing demands of the different segments of
society. Here, we are confronted with the need to strike a workable
and viable equilibrium between a constitutional mandate to maintain
free, orderly, honest, peaceful and credible elections, together with
the aim of ensuring equal opportunity, time and space, and the right
to reply, including reasonable, equal rates therefor, for public
information campaigns and forums among candidates,2 on one
hand, and the imperatives of a republican and democratic state,3
together with its guaranteed rights of suffrage,4 freedom of speech
and of the press,5 and the people's right to information,6 on the
other.
In a nutshell, the present petitions may be seen as in search of the
answer to the question - how does the Charter of a republican and
democratic State achieve a viable and acceptable balance between
liberty, without which, government becomes an unbearable tyrant,
and authority, without which, society becomes an intolerable and
dangerous arrangement?
CONSTI LAW II I ACJUCO 246
Assailed in these petitions are certain regulations promulgated by
the Commission on Elections (COMELEC) relative to the conduct of
the 2013 national and local elections dealing with political
advertisements. Specifically, the petitions question the
constitutionality of the limitations placed on aggregate airtime
allowed to candidates and political parties, as well as the
requirements incident thereto, such as the need to report the same,
and the sanctions imposed for violations.
The five (5) petitions before the Court put in issue the alleged
unconstitutionality of Section 9 (a) of COMELEC Resolution No.
9615 (Resolution) limiting the broadcast and radio advertisements
of candidates and political parties for national election positions to
an aggregate total of one hundred twenty (120) minutes and one
hundred eighty (180) minutes, respectively. They contend that such
restrictive regulation on allowable broadcast time violates freedom
of the press, impairs the people's right to suffrage as well as their
right to information relative to the exercise of their right to choose
who to elect during the forth coming elections.
The heart of the controversy revolves upon the proper interpretation
of the limitation on the number of minutes that candidates may use
for television and radio advertisements, as provided in Section 6 of
Republic Act No. 9006 (R.A. No. 9006), otherwise known as the Fair
Election Act. Pertinent portions of said provision state, thus:
Sec. 6. Equal Access to Media Time and Space. - All registered
parties and bona fide candidates shall have equal access to media
time and space. The following guidelines may be amplified on by
the COMELEC:
xxxx
6.2 (a) Each bona fide candidate or registered political party for a
nationally elective office shall be entitled to not more than one
hundred twenty (120) minutes of television advertisement and one
hundred eighty (180) minutes of radio advertisement whether by
purchase or donation.
b. Each bona fide candidate or registered political party for a locally
elective office shall be entitled to not more than sixty ( 60) minutes
of television advertisement and ninety (90) minutes of radio
advertisement whether by purchase or donation.
For this purpose, the COMELEC shall require any broadcast station
or entity to submit to the COMELEC a copy of its broadcast logs and
certificates of performance for the review and verification of the
frequency, date, time and duration of advertisements broadcast for
any candidate or political party.
During the previous elections of May 14, 2007 and May 10, 2010,
COMELEC issued Resolutions implementing and interpreting
Section 6 of R.A. No. 9006, regarding airtime limitations, to mean
that a candidate is entitled to the aforestated number of minutes "per
station."7 For the May 2013 elections, however, respondent
COMELEC promulgated Resolution No. 9615 dated January 15,
2013, changing the interpretation of said candidates' and political
parties' airtime limitation for political campaigns or advertisements
from a "per station" basis, to a "total aggregate" basis.
Petitioners ABS-CBN Corporation (ABS-CBN), ABC Development
Corporation (ABC), GMA Network, Incorporated ( GMA), Manila
Broadcasting Company, Inc. (MBC), Newsounds Broadcasting
Network, Inc. (NBN), and Radio Mindanao Network, Inc. (RMN) are
owners/operators of radio and television networks in the Philippines,
while petitioner Kapisanan ng mga Brodkaster ng Pilipinas (KBP) is
the national organization of broadcasting companies in the
Philippines representing operators of radio and television stations
and said stations themselves. They sent their respective letters to
the COMELEC questioning the provisions of the aforementioned
Resolution, thus, the COMELEC held public hearings. Thereafter,

on February 1, 2013, respondent issued Resolution No. 9631
amending provisions of Resolution No. 9615. Nevertheless,
petitioners still found the provisions objectionable and oppressive,
hence, the present petitions.
All of the petitioners assail the following provisions of the Resolution:
a) Section 7 (d),8 which provides for a penalty of suspension or
revocation of an offender's franchise or permit, imposes criminal
liability against broadcasting entities and their officers in the event
they sell airtime in excess of the size, duration, or frequency
authorized in the new rules;
b) Section 9 (a),9 which provides for an "aggregate total" airtime
instead of the previous "per station" airtime for political campaigns
or dvertisements, and also required prior COMELEC approval for
candidates' television and radio guestings and appearances; and
c) Section 14,10 which provides for a candidate's "right to reply."
In addition, petitioner ABC also questions Section 1 (4) 11 thereof,
which defines the term "political advertisement" or "election
propaganda," while petitioner GMA further assails Section 35, 12
which states that any violation of said Rules shall constitute an
election offense.
On March 15, 2013, Senator Alan Peter S. Cayetano (Petitioner-
Intervenor) filed a Motion for Leave to Intervene and to File and
Admit the Petition-in-Intervention, which was granted by the Court
per its Resolution dated March 19, 2013. Petitioner-Intervenor also
assails Section 9 (a) of the Resolution changing the interpretation of
candidates' and political parties' airtime limitation for political
campaigns or advertisements from a "per station" basis, to a "total
aggregate" basis. Petitioners allege that Resolutions No. 9615 and
9631, amending the earlier Resolution, are unconstitutional and
issued without jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction, for the reasons set forth
hereunder.
Petitioners posit that Section 9 (a) of the assailed Resolution
provides for a very restrictive aggregate airtime limit and a vague
meaning for a proper computation of "aggregate total" airtime, and
violates the equal protection guarantee, thereby defeating the intent
and purpose of R.A. No. 9006.
Petitioners contend that Section 9 (a), which imposes a notice
requirement, is vague and infringes on the constitutionally protected
freedom of speech, of the press and of expression, and on the right
of people to be informed on matters of public concern
Also, Section 9 (a) is a cruel and oppressive regulation as it imposes
an unreasonable and almost impossible burden on broadcast mass
media of monitoring a candidate's or political party's aggregate
airtime, otherwise, it may incur administrative and criminal liability.
Further, petitioners claim that Section 7 (d) is null and void for
unlawfully criminalizing acts not prohibited and penalized as criminal
offenses by R.A. No. 9006.
Section 14 of Resolution No. 9615, providing for a candidate's or
political party's "right to reply," is likewise assailed to be
unconstitutional for being an improper exercise of the COMELEC's
regulatory powers; for constituting prior restraint and infringing
petitioners' freedom of expression, speech and the press; and for
being violative of the equal protection guarantee. In addition to the
foregoing, petitioner GMA further argues that the Resolution was
promulgated without public consultations, in violation of petitioners'
right to due process. Petitioner ABC also avers that the Resolution's
definition of the terms "political advertisement" and "election
propaganda" suffers from overbreadth, thereby producing a "chilling
effect," constituting prior restraint.
CONSTI LAW II I ACJUCO 247
On the other hand, respondent posits in its Comment and
Opposition13 dated March 8, 2013, that the petition should be
denied based on the following reasons:
Respondent contends that the remedies of certiorari and prohibition
are not available to petitioners, because the writ of certiorari is only
available against the COMELEC's adjudicatory or quasi-judicial
powers, while the writ of prohibition only lies against the exercise of
judicial, quasijudicial or ministerial functions. Said writs do not lie
against the COMELEC's administrative or rule-making powers.
Respondent likewise alleges that petitioners do not have locus
standi, as the constitutional rights and freedoms they enumerate are
not personal to them, rather, they belong to candidates, political
parties and the Filipino electorate in general, as the limitations are
imposed on candidates, not on media outlets. It argues that
petitioners' alleged risk of exposure to criminal liability is insufficient
to give them legal standing as said "fear of injury" is highly
speculative and contingent on a future act.
Respondent then parries petitioners' attack on the alleged infirmities
of the Resolution's provisions.
Respondent maintains that the per candidate rule or total aggregate
airtime limit is in accordance with R.A. No. 9006 as this would truly
give life to the constitutional objective to equalize access to media
during elections. It sees this as a more effective way of levelling the
playing field between candidates/political parties with enormous
resources and those without much. Moreover, the COMELEC's
issuance of the assailed Resolution is pursuant to Section 4, Article
IX (C) of the Constitution which vests on the COMELEC the power
to supervise and regulate, during election periods, transportation
and other public utilities, as well as mass media, to wit:
Sec. 4. The Commission may, during the election period, supervise
or regulate the enjoyment or utilization of all franchises or permits
for the operation of transportation and other public utilities, media of
communication or information, all grants, special privileges, or
concessions granted by the Government or any subdivision,
agency, or instrumentality thereof, including any government-owned
or controlled corporation or its subsidiary. Such supervision or
regulation shall aim to ensure equal opportunity, and equal rates
therefor, for public information campaigns and forums among
candidates in connection with the objective of holding free, orderly,
honest, peaceful, and credible elections.
This being the case, then the Resolutions cannot be said to have
been issued with grave abuse of discretion amounting to lack of
jurisdiction.
Next, respondent claims that the provisions are not vague because
the assailed Resolutions have given clear and adequate
mechanisms to protect broadcast stations from potential liability
arising from a candidate's or party's violation of airtime limits by
putting in the proviso that the station "may require buyer to warrant
under oath that such purchase [of airtime] is not in excess of size,
duration or frequency authorized by law or these rules."
Furthermore, words should be understood in the sense that they
have in common usage, and should be given their ordinary
meaning. Thus, in the provision for the right to reply, "charges"
against candidates or parties must be understood in the ordinary
sense, referring to accusations or criticisms.
Respondent also sees no prior restraint in the provisions requiring
notice to the COMELEC for appearances or guestings of candidates
in bona fide news broadcasts. It points out that the fact that notice
may be given 24 hours after first broadcast only proves that the
mechanism is for monitoring purposes only, not for censorship.
Further, respondent argues, that for there to be prior restraint,
official governmental restrictions on the press or other forms of

expression must be done in advance of actual publication or
dissemination. Moreover, petitioners are only required to inform the
COMELEC of candidates'/parties' guestings, but there is no
regulation as to the content of the news or the expressions in news
interviews or news documentaries. Respondent then emphasized
that the Supreme Court has held that freedom of speech and the
press may be limited in light of the duty of the COMELEC to ensure
equal access to opportunities for public service.
With regard to the right to reply provision, respondent also does not
consider it as restrictive of the airing of bona fide news broadcasts.
More importantly, it stressed, the right to reply is enshrined in the
Constitution, and the assailed Resolutions provide that said right
can only be had after going through administrative due process. The
provision was also merely lifted from Section 10 of R.A. No. 9006,
hence, petitioner ABC is actually attacking the constitutionality of
R.A. No. 9006, which cannot be done through a collateral attack.
Next, respondent counters that there is no merit to ABC's claim that
the Resolutions' definition of "political advertisement" or "election
propaganda" suffers from overbreadth, as the extent or scope of
what falls under said terms is clearly stated in Section 1 (4) of
Resolution No. 9615.
It is also respondent's view that the nationwide aggregate total
airtime does not violate the equal protection clause, because it does
not make any substantial distinctions between national and regional
and/or local broadcast stations, and even without the aggregate
total airtime rule, candidates and parties are likely to be more
inclined to advertise in national broadcast stations. Respondent
likewise sees no merit in petitioners' claim that the Resolutions
amount to taking of private property without just compensation.
Respondent emphasizes that radio and television broadcasting
companies do not own the airwaves and frequencies through which
they transmit broadcast signals; they are merely given the
temporary privilege to use the same. Since they are merely enjoying
a privilege, the same may be reasonably burdened with some form
of public service, in this case, to provide candidates with the
opportunity to reply to charges aired against them.
Lastly, respondent contends that the public consultation
requirement does not apply to constitutional commissions such as
the COMELEC, pursuant to Section 1, Chapter I, Book VII of the
Administrative Code of 1987. Indeed, Section 9, Chapter II, Book
VII of said Code provides, thus:
Section 9. Public Participation. - (1) If not otherwise required by law,
an agency shall, as far as practicable, publish or circulate notices of
proposed rules and afford interested parties the opportunity to
submit their views prior to the adoption of any rule.
However, Section 1, Chapter 1, Book VII of said Code clearly
provides:
Section 1. Scope. -This Book shall be applicable to all agencies as
defined in the next succeeding section, except the Congress, the
Judiciary, the Constitutional Commissions, military establishments
in all matters relating exclusively to Armed Forces personnel, the
Board of Pardons and Parole, and state universities and colleges.
Nevertheless, even if public participation is not required, respondent
still conducted a meeting with representatives of the KBP and
various media outfits on December 26, 2012, almost a month before
the issuance of Resolution No. 9615.
On April 2, 2013, petitioner GMA filed its Reply,14 where it
advanced the following counter-arguments:
According to GMA, a petition for certiorari is the proper remedy to
question the herein assailed Resolutions, which should be
considered as a "decision, order or ruling of the Commission" as
CONSTI LAW II I ACJUCO 248
mentioned in Section 1, Rule 37 of the COMELEC Rules of
Procedure which provides:
Section 1. Petition for Certiorari,· and Time to File. - Unless
otherwise provided by law, or by any specific provisions in these
Rules, any decision, order or ruling of the Commission may be
brought to the Supreme Court on certiorari by the aggrieved party
within thirty (30) days from its promulgation.
GMA further stressed that this case involves national interest, and
the urgency of the matter justifies its resort to the remedy of a
petition for certiorari.
Therefore, GMA disagrees with the COMELEC's position that the
proper remedy is a petition for declaratory relief because such
action only asks the court to make a proper interpretation of the
rights of parties under a statute or regulation. Such a petition does
not nullify the assailed statute or regulation, or grant injunctive relief,
which petitioners are praying for in their petition. Thus, GMA
maintains that a petition for certiorari is the proper remedy.
GMA further denies that it is making a collateral attack on the Fair
Election Act, as it is not attacking said law. GMA points out that it
has stated in its petition that the law in fact allows the sale or
donation of airtime for political advertisements and does not impose
criminal liability against radio and television stations. What it is
assailing is the COMELEC's erroneous interpretation of the law's
provisions by declaring such sale and/or donation of airtime
unlawful, which is contrary to the purpose of the Fair Election Act.
GMA then claims that it has legal standing to bring the present suit
because:
x x x First, it has personally suffered a threatened injury in the form
of risk of criminal liability because of the alleged unconstitutional and
unlawful conduct of respondent COMELEC in expanding what was
provided for in R.A. No. 9006. Second, the injury is traceable to the
challenged action of respondent COMELEC, that is, the issuance of
the assailed Resolutions. Third, the injury is likely to be redressed
by the remedy sought in petitioner GMA's Petition, among others,
for the Honorable Court to nullify the challenged pertinent provisions
of the assailed Resolutions.15
On substantive issues, GMA first argues that the questioned
Resolutions are contrary to the objective and purpose of the Fair
Election Act. It points out that the Fair Election Act even repealed
the political ad ban found in the earlier law, R.A. No. 6646. The Fair
Election Act also speaks of "equal opportunity" and "equal access,''
but said law never mentioned equalizing the economic station of the
rich and the poor, as a declared policy. Furthermore, in its opinion,
the supposed correlation between candidates' expenditures for TV
ads and actually winning the elections, is a mere illusion, as there
are other various factors responsible for a candidate's winning the
election. GMA then cites portions of the deliberations of the
Bicameral Conference Committee on the bills that led to the
enactment of the Fair Election Act, and alleges that this shows the
legislative intent that airtime allocation should be on a "per station"
basis. Thus, GMA claims it was arbitrary and a grave abuse of
discretion for the COMELEC to issue the present Resolutions
imposing airtime limitations on an "aggregate total" basis.
It is likewise insisted by GMA that the assailed Resolutions impose
an unconstitutional burden on them, because their failure to strictly
monitor the duration of total airtime that each candidate has
purchased even from other stations would expose their officials to
criminal liability and risk losing the station's good reputation and
goodwill, as well as its franchise. It argues that the wordings of the
Resolutions belie the COMELEC's claim that petitioners would only
incur liability if they "knowingly" sell airtime beyond the limits
imposed by the Resolutions, because the element of knowledge is

clearly absent from the provisions thereof. This makes the
provisions have the nature of malum prohibitum.
Next, GMA also says that the application of the aggregate airtime
limit constitutes prior restraint and is unconstitutional, opining that
"[t]he reviewing power of respondent COMELEC and its sole
judgment of a news event as a political advertisement are so
pervasive under the assailed Resolutions, and provoke the distastes
or chilling effect of prior restraint"16 as even a legitimate exercise of
a constitutional right might expose it to legal sanction. Thus, the
governmental interest of leveling the playing field between rich and
poor candidates cannot justify the restriction on the freedoms of
expression, speech and of the press.
On the issue of lack of prior public participation, GMA cites Section
82 of the Omnibus Election Code, pertinent portions of which
provide, thus:
Section 82. Lawful election propaganda. - Lawful election
propaganda shall include:
xxxx
All other forms of election propaganda not prohibited by this Code
as the Commission may authorize after due notice to all interested
parties and hearing where all the interested parties were given an
equal opportunity to be heard: Provided, That the Commission's
authorization shall be published in two newspapers of general
circulation throughout the nation for at least twice within one week
after the authorization has been granted.
There having been no prior public consultation held, GMA contends
that the COMELEC is guilty of depriving petitioners of its right to due
process of law.
GMA then concludes that it is also entitled to a temporary restraining
order, because the implementation of the Resolutions in question
will cause grave and irreparable damage to it by disrupting and
emasculating its mandate to provide television and radio services to
the public, and by exposing it to the risk of incurring criminal and
administrative liability by requiring it to perform the impossible task
of surveillance and monitoring, or the broadcasts of other radio and
television stations.
Thereafter, on April 4, 2013, the COMELEC, through the Office of
the Solicitor General (OSG), filed a Supplemental Comment and
Opposition17 where it further expounded on the legislative intent
behind the Fair Election Act, also quoting portions of the
deliberations of the Bicameral Conference Committee, allegedly
adopting the Senate Bill version setting the computation of airtime
limits on a per candidate, not per station, basis. Thus, as enacted
into law, the wordings of Section 6 of the Fair Election Act shows
that the airtime limit is imposed on a per candidate basis, rather than
on a per station basis. Furthermore, the COMELEC states that
petitioner intervenor Senator Cayetano is wrong in arguing that
there should be empirical data to support the need to change the
computation of airtime limits from a per station basis to a per
candidate basis, because nothing in law obligates the COMELEC to
support its Resolutions with empirical data, as said airtime limit was
a policy decision dictated by the legislature itself, which had the
necessary empirical and other data upon which to base said policy
decision.
The COMELEC then points out that Section 2 (7),18 Article IX (C)
of the Constitution empowers it to recommend to Congress effective
measures to minimize election spending and in furtherance of such
constitutional power, the COMELEC issued the questioned
Resolutions, in faithful implementation of the legislative intent and
objectives of the Fair Election Act.
CONSTI LAW II I ACJUCO 249
The COMELEC also dismisses Senator Cayetano's fears that
unauthorized or inadvertent inclusion of his name, initial, image,
brand, logo, insignia and/or symbol in tandem advertisements will
be charged against his airtime limits by pointing out that what will be
counted against a candidate's airtime and expenditures are those
advertisements that have been paid for or donated to them to which
the candidate has given consent.
With regard to the attack that the total aggregate airtime limit
constitutes prior restraint or undue abridgement of the freedom of
speech and expression, the COMELEC counters that "the
Resolutions enjoy constitutional and congressional imprimatur. It is
the Constitution itself that imposes the restriction on the freedoms
of speech and expression, during election period, to promote an
important and significant governmental interest, which is to
equalize, as far as practicable, the situation of rich and poor
candidates by preventing the former from enjoying the undue
advantage offered by huge campaign 'war chests."'19
Lastly, the COMELEC also emphasizes that there is no impairment
of the people's right to information on matters of public concern,
because in this case, the COMELEC is not withholding access to
any public record.
On April 16, 2013, this Court issued a Temporary Restraining
Order20 (TRO) in view of the urgency involved and to prevent
irreparable injury that may be caused to the petitioners if respondent
COMELEC is not enjoined from implementing Resolution No. 9615.
On April 19, 2013 respondent filed an Urgent Motion to Lift
Temporary Restraining Order and Motion for Early Resolution of the
Consolidated Petitions.21
On May 8, 2013, petitioners ABS-CBN and the KBP filed its
Opposition/Comment22 to the said Motion. Not long after, ABC
followed suit and filed its own Opposition to the Motion23 filed by
the respondent.
In the interim, respondent filed a Second Supplemental Comment
and Opposition24 dated April 8, 2013.
In the Second Supplemental Comment and Opposition, respondent
delved on points which were not previously discussed in its earlier
Comment and Supplemental Comment, particularly those raised in
the petition filed by petitioner ABS-CBN and KBP.
Respondent maintains that certiorari in not the proper remedy to
question the Constitutionality of the assailed Resolutions and that
petitioners ABS-CBN and KBP have no locus standi to file the
present petition.
Respondent posits that contrary to the contention of petitioners, the
legislative history of R.A. No. 9006 conclusively shows that
congress intended the airtime limits to be computed on a "per
candidate" and not on a "per station" basis. In addition, the legal
duty of monitoring lies with the COMELEC. Broadcast stations are
merely required to submit certain documents to aid the COMELEC
in ensuring that candidates are not sold airtime in excess of the
allowed limits.
Also, as discussed in the earlier Comment, the prior notice
requirement is a mechanism designed to inform the COMELEC of
the appearances or guesting of candidates in bona fide news
broadcasts. It is for monitoring purposes only, not censorship. It
does not control the subject matter of news broadcasts in anyway.
Neither does it prevent media outlets from covering candidates in
news interviews, news events, and news documentaries, nor
prevent the candidates from appearing thereon.
As for the right to reply, respondent insists that the right to reply
provision cannot be considered a prior restraint on the freedoms of

expression, speech and the press, as it does not in any way restrict
the airing of bona fide new broadcasts. Media entities are free to
report any news event, even if it should turn out to be unfavourable
to a candidate or party. The assailed Resolutions merely give the
candidate or party the right to reply to such charges published or
aired against them in news broadcasts.
Moreover, respondent contends that the imposition of the penalty of
suspension and revocation of franchise or permit for the sale or
donation of airtime beyond the allowable limits is sanctioned by the
Omnibus Election Code.
Meanwhile, RMN filed its Petition on April 8, 2013. On June 4, 2013,
the Court issued a Resolution25 consolidating the case with the rest
of the petitions and requiring respondent to comment thereon.
On October 10, 2013, respondent filed its Third Supplemental
Comment and Opposition.26 Therein, respondent stated that the
petition filed by RMN repeats the issues that were raised in the
previous petitions. Respondent, likewise, reiterated its arguments
that certiorari in not the proper remedy to question the assailed
resolutions and that RMN has no locus standi to file the present
petition. Respondent maintains that the arguments raised by RMN,
like those raised by the other petitioners are without merit and that
RMN is not entitled to the injunctive relief sought.
The petition is partly meritorious.
At the outset, although the subject of the present petit10ns are
Resolutions promulgated by the COMELEC relative to the conduct
of the 2013 national and local elections, nevertheless the issues
raised by the petitioners have not been rendered moot and
academic by the conclusion of the 2013 elections. Considering that
the matters elevated to the Court for resolution are susceptible to
repetition in the conduct of future electoral exercises, these issues
will be resolved in the present action.
PROCEDURAL ASPECTS
Matters of procedure and technicalities normally take a backseat
when issues of substantial and transcendental importance are
presented before the Court. So the Court does again in this
particular case.
Proper Remedy
Respondent claims that certiorari and prohibition are not the proper
remedies that petitioners have taken to question the assailed
Resolutions of the COMELEC. Technically, respondent may have a
point. However, considering the very important and pivotal issues
raised, and the limited time, such technicality should not deter the
Court from having to make the final and definitive pronouncement
that everyone else depends for enlightenment and guidance. "[T]his
Court has in the past seen fit to step in and resolve petitions despite
their being the subject of an improper remedy, in view of the public
importance of the tile issues raised therein.27
It has been in the past, we do so again.
Locus Standi
Every time a constitutional issue is brought before the Court, the
issue of locus standi is raised to question the personality of the
parties invoking the Court's jurisdiction. The Court has routinely
made reference to a liberalized stance when it comes to petitions
raising issues of transcendental importance to the country.
Invariably, after some discussions, the Court would eventually grant
standing.28
In this particular case, respondent also questions the standing of the
petitioners. We rule for the petitioners. For petitioner-intervenor
CONSTI LAW II I ACJUCO 250
Senator Cayetano, he undoubtedly has standing since he is a
candidate whose ability to reach out to the electorate is impacted by
the assailed Resolutions.
For the broadcast companies, they similarly have the standing in
view of the direct injury they may suffer relative to their ability to
carry out their tasks of disseminating information because of the
burdens imposed on them. Nevertheless, even in regard to the
broadcast companies invoking the injury that may be caused to their
customers or the public - those who buy advertisements and the
people who rely on their broadcasts - what the Court said in White
Light Corporation v. City of Manila29 may dispose of the question.
In that case, there was an issue as to whether owners of
establishments offering "wash-up" rates may have the requisite
standing on behalf of their patrons' equal protection claims relative
to an ordinance of the City of Manila which prohibited "short-time"
or "wash-up" accommodation in motels and similar establishments.
The Court essentially condensed the issue in this manner: "[T]he
crux of the matter is whether or not these establishments have the
requisite standing to plead for protection of their patrons' equal
protection rights."30 The Court then went on to hold:
Standing or locus standi is the ability of a party to demonstrate to
the court sufficient connection to and harm from the law or action
challenged to support that party's participation in the case. More
importantly, the doctrine of standing is built on the principle of
separation of powers, sparing as it does unnecessary interference
or invalidation by the judicial branch of the actions rendered by its
co-equal branches of government.
The requirement of standing is a core component of the judicial
system derived directly from the Constitution. The constitutional
component of standing doctrine incorporates concepts which
concededly are not susceptible of precise definition. In this
jurisdiction, the extancy of "a direct and personal interest" presents
the most obvious cause, as well as the standard test for a
petitioner's standing. In a similar vein, the United States Supreme
Court reviewed and elaborated on the meaning of the three
constitutional standing requirements of injury, causation, and
redressability in Allen v. Wright.
Nonetheless, the general rules on standing admit of several
exceptions such as the overbreadth doctrine, taxpayer suits, third
party standing and, especially in the Philippines, the doctrine of
transcendental importance.
For this particular set of facts, the concept of third party standing as
an exception and the overbreadth doctrine are appropriate. x x x
xxxx
American jurisprudence is replete with examples where parties-
ininterest were allowed standing to advocate or invoke the
fundamental due process or equal protection claims of other
persons or classes of persons injured by state action. x x x
xxxx
Assuming arguendo that petitioners do not have a relationship with
their patrons for the former to assert the rights of the latter, the
overbreadth doctrine comes into play. In overbreadth analysis,
challengers to government action are in effect permitted to raise the
rights of third parties. Generally applied to statutes infringing on the
freedom of speech, the overbreadth doctrine applies when a statute
needlessly restrains even constitutionally guaranteed rights. In this
case, the petitioners claim that the Ordinance makes a sweeping
intrusion into the right to liberty of their clients. We can see that
based on the allegations in the petition, the Ordinance suffers from
overbreadth.

We thus recognize that the petitioners have a right to assert the
constitutional rights of their clients to patronize their establishments
for a "wash-rate" time frame.31
If in regard to commercial undertakings, the owners may have the
right to assert a constitutional right of their clients, with more reason
should establishments which publish and broadcast have the
standing to assert the constitutional freedom of speech of
candidates and of the right to information of the public, not to speak
of their own freedom of the press. So, we uphold the standing of
petitioners on that basis.
SUBSTANTIVE ASPECTS
Aggregate Time Limits
COMELEC Resolution No. 9615 introduced a radical departure from
the previous COMELEC resolutions relative to the airtime limitations
on political advertisements. This essentially consists in computing
the airtime on an aggregate basis involving all the media of
broadcast communications compared to the past where it was done
on a per station basis. Thus, it becomes immediately obvious that
there was effected a drastic reduction of the allowable minutes
within which candidates and political parties would be able to
campaign through the air. The question is accordingly whether this
is within the power of the COMELEC to do or not. The Court holds
that it is not within the power of the COMELEC to do so.
a. Past elections and airtime limits
The authority of the COMELEC to impose airtime limits directly flows
from the Fair Election Act (R.A. No. 9006 [2001])32 - one hundred
(120) minutes of television advertisement and one-hundred· eighty
(180) minutes for radio advertisement. For the 2004 elections, the
respondent COMELEC promulgated Resolution No. 652033
implementing the airtime limits by applying said limitation on a per
station basis.34 Such manner of determining airtime limits was
likewise adopted for the 2007 elections, through Resolution No.
7767.35 In the 2010 elections, under Resolution No. 8758,36 the
same was again adopted. But for the 2013 elections, the
COMELEC, through Resolution No. 9615, as amended by
Resolution No. 9631, chose to aggregate the total broadcast time
among the different broadcast media, thus: Section 9.
Requirements and/or Limitations on the Use of Election Propaganda
through Mass Media. - All parties and bona fide candidates shall
have equal access to media time and space for their election
propaganda during the campaign period subject to the following
requirements and/or limitations:
a. Broadcast Election Propaganda
The duration of an air time that a candidate, or party may use for
their broadcast advertisements or election propaganda shall be, as
follows:
For Candidates/Registered Political parties for a National Elective
Position
Not more than an aggregate total of one hundred (120) minutes of
television advertising, whether appearing on national, regional, or
local, free or cable television, and one hundred eighty (180) minutes
of radio advertising, whether airing on national, regional, or local
radio, whether by purchase or donation
For Candidates/Registered Political parties for a Local Elective
Position
Not more than an aggregate total of sixty (60) minutes of television
advertising, whether appearing on national, regional, or local, free
or cable television, and ninety (90) minutes of radio advertising,
whether airing on national, regional, or local radio, whether by
purchase or donation.
CONSTI LAW II I ACJUCO 251
In cases where two or more candidates or parties whose names,
initials, images, brands, logos, insignias, color motifs, symbols, or
forms of graphical representations are displayed, exhibited, used,
or mentioned together in the broadcast election propaganda or
advertisements, the length of time during which they appear or are
being mentioned or promoted will be counted against the airtime
limits allotted for the said candidates or parties and the cost of the
said advertisement will likewise be considered as their
expenditures, regardless of whoever paid for the advertisements or
to whom the said advertisements were donated.
x x x x37
Corollarily, petitioner-intervenor, Senator Cayetano, alleges:
6.15. The change in the implementation of Section 6 of R.A. 9006
was undertaken by respondent Comelec without consultation with
the candidates for the 2013 elections, affected parties such as
media organizations, as well as the general public. Worse, said
change was put into effect without explaining the basis therefor and
without showing any data in support of such change. Respondent
Comelec merely maintained that such action "is meant to level the
playing field between the moneyed candidates and those who don i
have enough resources," without particularizing the empirical data
upon which such a sweeping statement was based. This was
evident in the public hearing held on 31 January 2013 where
petitioner GMA, thru counsel, explained that no empirical data on he
excesses or abuses of broadcast media were brought to the
attention of the public by respondent Comelec, or even stated in the
Comelec
Resolution No. 9615. Thus –
xxxx
Chairman Brillantes
So if we can regulate and amplify, we may amplify meaning we can
expand if we want to. But the authority of the Commission is if we
do not want to amplify and we think that the 120 or 180 is okay we
cannot be compelled to amplify. We think that 120 or 180 is okay, is
enough.
Atty. Lucila
But with due respect Your Honor, I think the basis of the resolution
is found in the law and the law has been enterpreted (sic) before in
2010 to be 120 per station, so why the change, your Honor?
Chairman Brillantes
No, the change is not there, the right to amplify is with the
Commission on Elections. Nobody can encroach in our right to
amplify. Now, if in 2010 the Commission felt that per station or per
network is the rule then that is the prerogative of the Commission
then they could amplify it to expand it. If the current Commission
feels that 120 is enough for the particular medium like TV and 180
for radio, that is our prerogative. How can you encroach and what is
unconstitutional about it?
Atty. Lucila
We are not questioning the authority of the Honorable Commission
to regulate Your Honor, we are just raising our concern on the
manner of regulation because as it is right now, there is a changing
mode or sentiments of the Commission and the public has the right
to know, was there rampant overspending on political ads in 2010,
we were not informed Your Honor. Was there abuse of the media in
2010, we were not informed Your Honor. So we would like to know
what is the basis of the sudden change in this limitation, Your Honor

.. And law must have a consistent interpretation that [is]our position,
Your Honor.
Chairman Brillantes
But my initial interpretation, this is personal to this representation
counsel, is that if the Constitution allows us to regulate and then it
gives us the prerogative to amplify then the prerogative to amplify
you should leave this to the discretion of the Commission. Which
means if previous Commissions felt that expanding it should be part
of our authority that was a valid exercise if we reduce it to what is
provided for by law which is 120-180 per medium, TV, radio, that is
also within the law and that is still within our prerogative as provided
for by the Constitution. If you say we have to expose the candidates
to the public then I think the reaction should come, the negative
reaction should come from the candidates not from the media,
unless you have some interest to protect directly. Is there any
interest on the part of the media to expand it?
Atty. Lucila
Well, our interest Your Honor is to participate in this election Your
Honor and we have been constantly (sic) as the resolution says and
even in the part involved because you will be getting some
affirmative action time coming from the media itself and Comelec
time coming from the media itself. So we could like to be both
involved in the whole process of the exercise of the freedom of
suffrage Your Honor.
Chairman Brillantes
Yes, but the very essence of the Constitutional provision as well as
the provision of 9006 is actually to level the playing field. That should
be the paramount consideration. If we allow everybody to make use
of all their time and all radio time and TV time then there will be
practically unlimited use of the mass media ....
Atty. Lucila
Was there in 2010 Your Honor, was there any data to support that
there was an unlimited and abuse of a (sic) political ads in the mass
media that became the basis of this change in interpretation Your
Honor? We would like to know about it Your Honor.
Chairman Brillantes
What do you think there was no abuse in 201 O?
Atty. Lucila
As far as the network is concern, there was none Your Honor.
Chairman Brillantes
There was none ..... .
Atty. Lucila
I'm sorry, Your Honor ...
Chairman Brillantes
Yes, there was no abuse, okay, but there was some advantage
given to those who took ... who had the more moneyed candidates
took advantage of it.
Atty. Lucila
But that is the fact in life, Your Honor there are poor candidates,
there are rich candidates. No amount of law or regulation can even
CONSTI LAW II I ACJUCO 252
level the playing filed (sic) as far as the economic station in life of
the candidates are concern (sic) our Honor.38
Given the foregoing observations about what happened during the
hearing, Petitioner-Intervenor went on to allege that:
6.16. Without any empirical data upon which to base the regulatory
measures in Section 9 (a), respondent Comelec arbitrarily changed
the rule from per station basis to aggregate airtime basis. Indeed,
no credence should be given to the cliched explanation of
respondent Comelec (i.e. leveling the playing field) in its published
statements which in itself is a mere reiteration of the rationale for
the enactment of the political ad ban of Republic Act No. 6646, and
which has likewise been foisted when said political ad ban was lifted
by R.A. 9006.39
From the foregoing, it does appear that the COMELEC did not have
any other basis for coming up with a new manner of determining
allowable time limits except its own idea as to what should be the
maximum number of minutes based on its exercise of discretion as
to how to level the playing field. The same could be encapsulized in
the remark of the COMELEC Chairman that "if the Constitution
allows us to regulate and then it gives us the prerogative to amplify
then the prerogative to amplify you should leave this to the discretion
of the Commission."40
The Court could not agree with what appears as a nonchalant
exercise of discretion, as expounded anon.
b. COMELEC is duty bound to come up with reasonable basis for
changing the interpretation and implementation of the airtime limits
There is no question that the COMELEC is the office constitutionally
and statutorily authorized to enforce election laws but it cannot
exercise its powers without limitations - or reasonable basis. It could
not simply adopt measures or regulations just because it feels that
it is the right thing to do, in so far as it might be concerned. It does
have discretion, but such discretion is something that must be
exercised within the bounds and intent of the law. The COMELEC
is not free to simply change the rules especially if it has consistently
interpreted a legal provision in a particular manner in the past. If
ever it has to change the rules, the same must be properly explained
with sufficient basis.
Based on the transcripts of the hearing conducted by the COMELEC
after it had already promulgated the Resolution, the respondent did
not fully explain or justify the change in computing the airtime
allowed candidates and political parties, except to make reference
to the need to "level the playing field." If the "per station" basis was
deemed enough to comply with that objective in the past, why
should it now be suddenly inadequate? And, the short answer to
that from the respondent, in a manner which smacks of overbearing
exercise of discretion, is that it is within the discretion of the
COMELEC. As quoted in the transcript, "the right to amplify is with
the COMELEC. Nobody can encroach in our right to amplify. Now,
if in 2010 the Commission felt that per station or per network is the
rule then that is the prerogative of the Commission then they could
amplify it to expand it. If the current Commission feels that 120 is
enough for the particular medium like TV and 180 for radio, that is
our prerogative. How can you encroach and what is unconstitutional
about it?"41
There is something basically wrong with that manner of explaining
changes in administrative rules. For one, it does not really provide
a good basis for change. For another, those affected by such rules
must be given a better explanation why the previous rules are no
longer good enough. As the Court has said in one case:
While stability in the law, particularly in the business field, is
desirable, there is no demand that the NTC slavishly follow
precedent. However, we think it essential, for the sake of clarity and

intellectual honesty, that if an administrative agency decides
inconsistently with previous action, that it explain thoroughly why a
different result is warranted, or ?f need be, why the previous
standards should no longer apply or should be overturned. Such
explanation is warranted in order to sufficiently establish a decision
as having rational basis. Any inconsistent decision lacking thorough,
ratiocination in support may be struck down as being arbitrary. And
any decision with absolutely nothing to support it is a nullity.42
What the COMELEC came up with does not measure up to that level
of requirement and accountability which elevates administrative
rules to the level of respectability and acceptability. Those governed
by administrative regulations are entitled to a reasonable and
rational basis for any changes in those rules by which they are
supposed to live by, especially if there is a radical departure from
the previous ones.
c. The COMELEC went beyond the authority granted it by the law in
adopting "aggregate" basis in the determination of allowable airtime
The law, which is the basis of the regulation subject of these
petitions, pertinently provides:
6.2. (a) Each bona fide candidate or registered political party for a
nationally elective office shall be entitled to not more than one
hundred twenty (120) minutes of television advertisement and one
hundred eighty (180) minutes of radio advertisement whether by
purchase or donation.
(b) Each bona fide candidate or registered political party for a locally
elective office shall be entitled to not more than sixty (60) minutes
of television advertisement and ninety (90) minutes of radio
advertisement whether by purchase or donation; x x x
The law, on its face, does not justify a conclusion that the maximum
allowable airtime should be based on the totality of possible
broadcast in all television or radio stations. Senator Cayetano has
called our attention to the legislative intent relative to the airtime
allowed - that it should be on a "per station" basis.43
This is further buttressed by the fact that the Fair Election Act (R.A.
No. 9006) actually repealed the previous provision, Section ll(b) of
Republic Act No. 6646,44 which prohibited direct political
advertisements -the so-called "political ad ban." If under the
previous law, no candidate was allowed to directly buy or procure
on his own his broadcast or print campaign advertisements, and that
he must get it through the COMELEC Time or COMELEC Space,
R.A. No. 9006 relieved him or her from that restriction and allowed
him or her to broadcast time or print space subject to the limitations
set out in the law. Congress, in enacting R.A. No. 9006, felt that the
previous law was not an effective and efficient way of giving voice
to the people. Noting the debilitating effects of the previous law on
the right of suffrage and Philippine democracy, Congress decided
to repeal such rule by enacting the Fair Election Act.
In regard to the enactment of the new law, taken in the context of
the restrictive nature of the previous law, the sponsorship speech of
Senator Raul Roco is enlightening:
The bill seeks to repeal Section 85 of the Omnibus Election Code
and Sections 10 and 11 of RA 6646. In view of the importance of
their appeal in connection with the thrusts of the bill, I hereby quote
these sections in full:
"SEC. 85. Prohibited forms of election propaganda. - It shall be
unlawful:
"(a) To print, publish, post or distribute any poster, pamphlet,
circular, handbill, or printed matter urging voters to vote for or
against any candidate unless they hear the names and addresses
of the printed and payor as required in Section 84 hereof;
CONSTI LAW II I ACJUCO 253
"(b) To erect, put up, make use of, attach, float or display any
billboard, tinplate-poster, balloons and the like, of whatever size,
shape, form or kind, advertising for or against any candidate or
political party;
"(c) To purchase, manufacture, request, distribute or accept
electoral propaganda gadgets, such as pens, lighters, fans of
whatever nature, flashlights, athletic goods or materials, wallets,
shirts, hats, bandannas, matches, cigarettes and the like, except
that campaign supporters accompanying a candidate shall be
allowed to wear hats and/or shirts or T-shirts advertising a
candidate;
"(d) To show or display publicly any advertisement or propaganda
for or against any candidate by means of cinematography, audio-
visual units or other screen projections except telecasts which may
be allowed as hereinafter provided; and
"(e) For any radio broadcasting or television station to sell or give
free of charge airtime for campaign and other political purposes
except as authorized in this Code under the rules and regulations
promulgated by the Commission pursuant thereto;
"Any prohibited election propaganda gadget or advertisement shall
be stopped, confiscated or tom down by the representative of the
Commission upon specific authority of the Commission." "SEC. 10.
Common Poster Areas. - The Commission shall designate common
poster areas in strategic public places such as markets, barangay
centers and the like wherein candidates can post, display or exhibit
election propaganda to announce or further their candidacy.
"Whenever feasible, common billboards may be installed by the
Commission and/or non-partisan private or civic organizations
which the Commission may authorize whenever available, after due
notice and hearing, in strategic areas where it may readily be seen
or read, with the heaviest pedestrian and/or vehicular traffic in the
city or municipality.
The space in such common poster areas or billboards shall be
allocated free of charge, if feasible, equitably and impartially among
the candidates in the province, city or municipality. "SEC. 11.
Prohibite,d Forms of Election Propaganda. - In addition to the forms
of election propaganda prohibited under Section 85 of Batas
Pambansa Blg. 881, it shall be unlawful: (a) to draw, paint, inscribe,
write, post, display or puolicly exhibit any election propaganda in
any place, whether private or public, except in common poster areas
and/or billboards provided in the immediately preceding section, at
the candidate's own residence, or at the campaign headquarters of
the candidate or political party: Provided, That such posters or
election propaganda shall in no case exceed two (2) feet by three
(3) feet in area; Provided, further, That at the site of and on the
occasion of a public meeting or rally, streamers, not more than two
(2) feet and not exceeding three (3) feet by eight (8) each may be
displayed five (5) days before the date of the meeting or rally, and
shall be removed within twenty-four (24) hours after said meeting or
rally; and
"(b) For any newspapers, radio broadcasting or television station, or
other mass media, or any person making use of the mass media to
sell or give for free of charge print space or air time for campaign or
other political purposes except to the Commission as provided
under Section 90 and 92 of Batas Pambansa Big. 881. Any mass
media columnist, commentator, announcer or personality who is a
candidate for any elective public office shall take a leave of absence
from his work as such during the campaign."
The repeal of the provision on the Common Poster Area implements
the strong recommendations of the Commission on Elections during
the hearings. It also seeks to apply the doctrine enunciated by the
Supreme Court in the case of Blo Umpar Adiong vs. Commission on

Elections, 207 SCRA 712, 31 March 1992. Here a unanimous
Supreme Court ruled: The COMELEC's prohibition on the posting of
decals and stickers on "mobile" places whether public or private
except [in] designated areas provided for by the COMELEC itself is
null and void on constitutional grounds.
For the foregoing reasons, we commend to our colleagues the early
passage of Senate Bill No. 1742. In so doing, we move one step
towards further ensuring "free, orderly, honest, peaceful and
credible elections" as mandated by the Constitution.45
Given the foregoing background, it is therefore ineluctable to
conclude that Congress intended to provide a more expansive and
liberal means by which the candidates, political parties, citizens and
other stake holders in the periodic electoral exercise may be given
a chance to fully explain and expound on their candidacies and
platforms of governance, and for the electorate to be given a chance
to know better the personalities behind the candidates. In this
regard, the media is also given a very important part in that
undertaking of providing the means by which the political exercise
becomes an interactive process. All of these would be undermined
and frustrated with the kind of regulation that the respondent came
up with.
The respondent gave its own understanding of the import of the
legislative deliberations on the adoption of R.A. No. 9006 as follows:
The legislative history of R.A. 9006 clearly shows that Congress
intended to impose the per candidate or political party aggregate
total airtime limits on political advertisements and election
propaganda. This is evidenced by the dropping of the "per day per
station" language embodied in both versions of the House of
Representatives and Senate bills in favour of the "each candidate"
and "not more than" limitations now found in Section 6 of R.A. 9006.
The pertinent portions of House Bill No. 9000 and Senate Bill No.
1742 read as follows:
House Bill No. 9000:
SEC. 4. Section 86 of the same Batas is hereby amended to read
as follows:
Sec. 86. Regulation of Election Propaganda Through Mass Media.
xxx xxx xxx
A) The total airtime available to the candidate and political party,
whether by purchase or by donation, shall be limited to five (5)
minutes per day in each television, cable television and radio
stations during the applicable campaign period.
Senate Bill No. 1742:
SEC. 5. Equal Access to Media Space and Time. -All registered
parties and bona fide candidates shall have equal access to media
space and time. The following guidelines may be amplified by the
COMELEC.
xxx xxx xxx
2. The total airtime available for each registered party and bona fide
candidate whether by purchase or donation shall not exceed a total
of one (1) minute per day per television or radio station. (Emphasis
supplied.)
As Section 6 of R.A. 9006 is presently worded, it can be clearly seen
that the legislature intended the aggregate airtime limits to be
computed on per candidate or party basis. Otherwise, if the
legislature intended the computation to be on per station basis, it
could have left the original "per day per station" formulation.46
CONSTI LAW II I ACJUCO 254
The Court does not agree. It cannot bring itself to read the changes
in the bill as disclosing an intent that the COMELEC wants this Court
to put on the final language of the law. If anything, the change in
language meant that the computation must not be based on a "per
day" basis for each television or radio station. The same could not
therefore lend itself to an understanding that the total allowable time
is to be done on an aggregate basis for all television or radio
stations. Clearly, the respondent in this instance went beyond its
legal mandate when it provided for rules beyond what was
contemplated by the law it is supposed to implement. As we held in
Lakin, Jr. v. Commission on Elections:47
The COMELEC, despite its role as the implementing arm of the
Government in the enforcement and administration of all laws and
regulations relative to the conduct of an election, has neither the
authority nor the license to expand, extend, or add anything to the
law it seeks to implement thereby. The IRRs the COMELEC issued
for that purpose should always be in accord with the law to be
implemented, and should not override, supplant, or modify the law.
It is basic that the IRRs should remain consistent with the law they
intend to carry out.
Indeed, administrative IRRs adopted by a particular department of
the Government under legislative authority must be in harmony with
the provisions of the law, and should be for the sole purpose of
carrying the law's general provisions into effect. The law itself
cannot be expanded by such IRRs, because an administrative
agency cannot amend an act of Congress.48
In the case of Lakin, Jr., the COMELEC's explanation that the
Resolution then in question did not add anything but merely
reworded and rephrased the statutory provision did not persuade
the Court. With more reason here since the COMELEC not only
reworded or rephrased the statutory provision - it practically
replaced it with its own idea of what the law should be, a matter that
certainly is not within its authority. As the Court said in Villegas v.
Subido:49
One last word. Nothing is better settled in the law than that a public
official exercises power, not rights. The government itself is merely
an agency through which the will of the state is expressed and
enforced. Its officers therefore are likewise agents entrusted with the
responsibility of discharging its functions. As such there is no
presumption that they are empowered to act. There must be a
delegation of such authority, either express or implied. In the
absence of a valid grant, they are devoid of power. What they do
suffers from a fatal infirmity. That principle cannot be sufficiently
stressed. In the appropriate language of Chief Justice Hughes: "It
must be conceded that departmental zeal may not be permitted to
outrun the authority conferred by statute." Neither the high dignity of
the office nor the righteousness of the motive then is an acceptable
substitute. Otherwise the rule of law becomes a myth. Such an
eventuality, we must take all pains to avoid.50
So it was then. So does the rule still remains the same.
d. Section 9 (a) of COMELEC Resolution No. 9615 on airtime limits
also goes against the constitutional guaranty of freedom of
expression, of speech and of the press
The guaranty of freedom to speak is useless without the ability to
communicate and disseminate what is said. And where there is a
need to reach a large audience, the need to access the means and
media for such dissemination becomes critical. This is where the
press and broadcast media come along. At the same time, the right
to speak and to reach out would not be meaningful if it is just a token
ability to be heard by a few. It must be coupled with substantially
reasonable means by which the communicator and the audience
could effectively interact. Section 9 (a) of COMELEC Resolution No.
9615, with its adoption of the "aggregate-based" airtime limits

unreasonably restricts the guaranteed freedom of speech and of the
press.
Political speech is one of the most important expressions protected
by the Fundamental Law. "[F]reedom of speech, of expression, and
of the press are at the core of civil liberties and have to be protected
at all costs for the sake of democracy."51 Accordingly, the same
must remain unfettered unless otherwise justified by a compelling
state interest.
In regard to limitations on political speech relative to other state
interests, an American case observed:
A restriction on the amount of money a person or group can spend
on political communication during a campaign necessarily reduces
the quantity of expression by restricting the number of issues
discussed, the depth of their exploration, and the size of the
audience reached. This is because virtually every means of
communicating ideas in today's mass society requires the
expenditure of money. The distribution of the humblest handbill or
leaflet entails printing, paper, and circulation costs. Speeches and
rallies generally necessitate hiring a hall and publicizing the event.
The electorate's increasing dependence on television, radio, and
other mass media for news and information has made these
expensive modes of communication indispensable instruments of
effective political speech.
The expenditure limitations contained in the Act represent
substantial, rather than merely theoretical restraints on the quantity
and diversity of political speech. The $1,000 ceiling on spending
"relative to a clearly identified candidate," 18 U.S.C. § 608(e)(l)
(1970 ed., Supp. IV), would appear to exclude all citizens and
groups except candidates, political parties, and the institutional
press from any significant use of the most effective modes of
communication. Although the Act's limitations on expenditures by
campaign organizations and political parties provide substantially
greater room for discussion and debate, they would have required
restrictions in the scope of a number of past congressional and
Presidential campaigns and would operate to constrain
campaigning by candidates who raise sums in excess of the
spending ceiling.52
Section 9 (a) ofCOMELEC Resolution No. 9615 comes up with what
is challenged as being an unreasonable basis for determining the
allowable air time that candidates and political parties may avail of.
Petitioner GMA came up with its analysis of the practical effects of
such a regulation:
5.8. Given the reduction of a candidate's airtime minutes in the New
Rules, petitioner GMA estimates that a national candidate will only
have 120 minutes to utilize for his political advertisements in
television during the whole campaign period of 88 days, or will only
have 81.81 seconds per day TV exposure allotment. If he chooses
to place his political advertisements in the 3 major TV networks in
equal allocation, he will only have 27.27 seconds of airtime per
network per day. This barely translates to 1 advertisement spot on
a 30-second spot basis in television.
5.9. With a 20-hour programming per day and considering the limits
of a station's coverage, it will be difficult for 1 advertising spot to
make a sensible and feasible communication to the public, or in
political propaganda, to "make known [a candidate's] qualifications
and stand on public issues".
5.10 If a candidate loads all of his 81.81 seconds per day in one
network, this will translate to barely three 30-second advertising
spots in television on a daily basis using the same assumptions
above.
5.11 Based on the data from the 2012 Nielsen TV audience
measurement in Mega Manila, the commercial advertisements in
CONSTI LAW II I ACJUCO 255
television are viewed by only 39.2% of the average total day
household audience if such advertisements are placed with
petitioner GMA, the leading television network nationwide and in
Mega Manila. In effect, under the restrictive aggregate airtime limits
in the New Rules, the three 30-second political advertisements of a
candidate in petitioner GMA will only be communicated to barely
40% of the viewing audience, not even the voting population, but
only in Mega Manila, which is defined by AGB Nielsen Philippines
to cover Metro Manila and certain urban areas in the provinces of
Bulacan, Cavite, Laguna, Rizal, Batangas and Pampanga.
Consequently, given the voting population distribution and the
drastically reduced supply of airtime as a result of the New Rules'
aggregate airtime limits, a national candidate will be forced to use
all of his airtime for political advertisements in television only in
urban areas such as Mega Manila as a political campaign tool to
achieve maximum exposure.
5.12 To be sure, the people outside of Mega Manila or other urban
areas deserve to be informed of the candidates in the national
elections, and the said candidates also enjoy the right to be voted
upon by these informed populace.53
The Court agrees. The assailed rule on "aggregate-based" airtime
limits is unreasonable and arbitrary as it unduly restricts and
constrains the ability of candidates and political parties to reach out
and communicate with the people. Here, the adverted reason for
imposing the "aggregate-based" airtime limits - leveling the playing
field - does not constitute a compelling state interest which would
justify such a substantial restriction on the freedom of candidates
and political parties to communicate their ideas, philosophies,
platforms and programs of government. And, this is specially so in
the absence of a clear-cut basis for the imposition of such a
prohibitive measure. In this particular instance, what the COMELEC
has done is analogous to letting a bird fly after one has clipped its
wings.
It is also particularly unreasonable and whimsical to adopt the
aggregate-based time limits on broadcast time when we consider
that the Philippines is not only composed of so many islands. There
are also a lot of languages and dialects spoken among the citizens
across the country. Accordingly, for a national candidate to really
reach out to as many of the electorates as possible, then it might
also be necessary that he conveys his message through his
advertisements in languages and dialects that the people may more
readily understand and relate to. To add all of these airtimes in
different dialects would greatly hamper the ability of such candidate
to express himself - a form of suppression of his political speech.
Respondent itself states that "[t]elevision is arguably the most
costeffective medium of dissemination. Even a slight increase in
television exposure can significantly boost a candidate's popularity,
name recall and electability."54 If that be so, then drastically
curtailing the ability of a candidate to effectively reach out to the
electorate would unjustifiably curtail his freedom to speak as a
means of connecting with the people.
Finally on this matter, it is pertinent to quote what Justice Black
wrote in his concurring opinion in the landmark Pentagon Papers
case: "In the First Amendment, the Founding Fathers gave the free
press the protection it must have to fulfill its essential role in our
democracy. The press was to serve the governed, not the
governors. The Government's power to censor the press was
abolished so that the press would remain forever free to censure the
Government. The press was protected so that it could bare the
secrets of government and inform the people. Only a free and
unrestrained press can effectively expose deception in
government."55
In the ultimate analysis, when the press is silenced, or otherwise
muffled in its undertaking of acting as a sounding board, the people
ultimately would be the victims.

e. Section 9 (a) of Resolution 9615 is violative of the people's right
to suffrage
Fundamental to the idea of a democratic and republican state is the
right of the people to determine their own destiny through the choice
of leaders they may have in government. Thus, the primordial
importance of suffrage and the concomitant right of the people to be
adequately informed for the intelligent exercise of such birthright. It
was said that:
x x x As long as popular government is an end to be achieved and
safeguarded, suffrage, whatever may be the modality and form
devised, must continue to be the means by which the great reservoir
of power must be emptied into the receptacular agencies wrought
by the people through their Constitution in the interest of good
government and the common weal. Republicanism, in so far as it
implies the adoption of a representative type of government,
necessarily points to the enfranchised citizen as a particle of popular
sovereignty and as the ultimate source of the established authority.
He has a voice in his Government and whenever possible it is the
solemn duty of the judiciary, when called upon to act in justifiable
cases, to give it efficacy and not to stifle or frustrate it. This,
fundamentally, is the reason for the rule that ballots should be read
and appreciated, if not with utmost, with reasonable, liberality. x x
x56 It has also been said that "[ c ]ompetition in ideas and
governmental policies is at the core of our electoral process and of
the First Amendment freedoms."57 Candidates and political parties
need adequate breathing space - including the means to
disseminate their ideas. This could not be reasonably addressed by
the very restrictive manner by which the respondent implemented
the time limits in regard to political advertisements in the broadcast
media.
f. Resolution No. 9615 needs prior hearing before adoption
The COMELEC promulgated Resolution No. 9615 on January 15,
2013 then came up with a public hearing on January 31, 2013 to
explain what it had done, particularly on the aggregate-based air
time limits. This circumstance also renders the new regulation,
particularly on the adoption of the aggregate-based airtime limit,
questionable. It must not be overlooked that the new Resolution
introduced a radical change in the manner in which the rules on
airtime for political advertisements are to be reckoned. As such
there is a need for adequate and effective means by which they may
be adopted, disseminated and implemented. In this regard, it is not
enough that they be published - or explained - after they have been
adopted.
While it is true that the COMELEC is an independent office and not
a mere administrative agency under the Executive Department,
rules which apply to the latter must also be deemed to similarly apply
to the former, not as a matter of administrative convenience but as
a dictate of due process. And this assumes greater significance
considering the important and pivotal role that the COMELEC plays
in the life of the nation. Thus, whatever might have been said in
Commissioner of Internal Revenue v. Court of Appeals,58 should
also apply mutatis mutandis to the COMELEC when it comes to
promulgating rules and regulations which adversely affect, or
impose a heavy and substantial burden on, the citizenry in a matter
that implicates the very nature of government we have adopted:
It should be understandable that when an administrative rule is
merely interpretative in nature, its applicability needs nothing further
than its bare issuance for it gives no real consequence more than
what the law itself has already prescribed. When, upon the other
hand, the administrative rule goes beyond merely providing for the
means that can facilitate or render least cumbersome the
implementation of the law but substantially adds to or increases the
burden of those governed, it behooves the agency to accord at least
to those directly affected a chance to be heard, and thereafter to be
CONSTI LAW II I ACJUCO 256
duly informed, before that new issuance is given the force and effect
of law.
A reading of RMC 37-93, particularly considering the circumstances
under which it has been issued, convinces us that the circular
cannot be viewed simply as a corrective measure (revoking in the
process the previous holdings of past Commissioners) or merely as
construing Section 142(c)(l) of the NIRC, as amended, but has, in
fact and most importantly, been made in order to place "Hope
Luxury," "Premium More" and "Champion" within the classification
of locally manufactured cigarettes bearing foreign brands and to
thereby have them covered by RA 7654. Specifically, the new law
would have its amendatory provisions applied to locally
manufactured cigarettes which at the time of its effectivity were not
so classified as bearing foreign brands. x x x In so doing, the BIR
not simply interpreted the law; verily, it legislated under its quasi-
legislative authority. The due observance of the requirements of
notice, of hearing, and of publication should not have been then
ignored.59
For failing to conduct prior hearing before coming up with Resolution
No. 9615, said Resolution, specifically in regard to the new rule on
aggregate airtime is declared defective and ineffectual.
g. Resolution No. 9615 does not impose an unreasonable burden
on the broadcast industry
It is a basic postulate of due process, specifically in relation to its
substantive component, that any governmental rule or regulation
must be reasonable in its operations and its impositions. Any
restrictions, as well as sanctions, must be reasonably related to the
purpose or objective of the government in a manner that would not
work unnecessary and unjustifiable burdens on the citizenry.
Petitioner GMA assails certain requirements imposed on broadcast
stations as unreasonable. It explained:
5.40 Petitioner GMA currently operates and monitors 21 FM and AM
radio stations nationwide and 8 originating television stations
(including its main transmitter in Quezon City) which are authorized
to dechain national programs for airing and insertion of local content
and advertisements.
5.41 In light of the New Rules wherein a candidate's airtime minutes
are applied on an aggregate basis and considering that said Rules
declare it unlawful in Section 7( d) thereof for a radio, television
station or other mass media to sell or give for free airtime to a
candidate in excess of that allowed by law or by said New Rules:
"Section 7. Prohibited Forms of Election Propaganda -During the
campaign period, it is unlawful: x x x x x x xxx
(d) for any newspaper or publication, radio, television or cable
television station, or other mass media, or any person making use
of the mass media to sell or to give free of charge print space or air
time for campaign or election propaganda purposes to any
candidate or party in excess of the size, duration or frequency
authorized by law or these rules;
xxx xxx xxx
(Emphasis supplied)
petitioner GMA submits that compliance with the New Rules in order
to avoid administrative or criminal liability would be unfair, cruel and
oppressive.
x x x x.
5.43 In the present situation wherein airtime minutes shall be shared
by all television and radio stations, broadcast mass media
organizations would surely encounter insurmountable difficulties in

monitoring the airtime minutes spent by the numerous candidates
for various elective positions, in real time.
5.44 An inquiry with the National Telecommunications Commission
(NTC) bears out that there are 372 television stations and 398 AM
and 800 FM radio stations nationwide as of June 2012. In addition,
there are 1, 113 cable TV providers authorized by the NTC to
operate within the country as of the said date.
5.45 Given such numbers of broadcast entities and the necessity to
monitor political advertisements pursuant to the New Rules,
petitioner OMA estimates that monitoring television broadcasts of
all authorized television station would involve 7,440 manhours per
day. To aggravate matters, since a candidate may also spend
his/her broadcasting minutes on cable TV, additional 281,040
manhours per day would have to be spent in monitoring the various
channels carried by cable TV throughout the Philippines. As far as
radio broadcasts (both AM and FM stations) are concerned, around
23,960 manhours per day would have to be devoted by petitioner
OMA to obtain an accurate and timely determination of a political
candidate's remaining airtime minutes. During the campaign period,
petitioner OMA would have to spend an estimated 27,494,720
manhours in monitoring the election campaign commercials of the
different candidates in the country.1âwphi1
5.46 In order to carry-out the obligations imposed by the New Rules,
petitioner OMA further estimates that it would need to engage and
train 39,055 additional persons on an eight-hour shift, and assign
them all over the country to perform the required monitoring of radio,
television and cable TV broadcasts. In addition, it would likewise
need to allot radio, television, recording equipment and computers,
as well as telecommunications equipment, for this surveillance and
monitoring exercise, thus imputing additional costs to the company.
Attached herewith are the computations explaining how the afore-
said figures were derived and the conservative assumptions made
by petitioner OMA in reaching said figures, as Annex "H".
5.47 Needless to say, such time, manpower requirements, expense
and effort would have to be replicated by each and every radio
station to ensure that they have properly monitored around 33
national and more than 40,000 local candidates' airtime minutes and
thus, prevent any risk of administrative and criminal liability.60
The Court cannot agree with the contentions of GMA. The
apprehensions of the petitioner appear more to be the result of a
misappreciation of the real import of the regulation rather than a real
and present threat to its broadcast activities. The Court is more in
agreement with the respondent when it explained that:
The legal duty of monitoring lies with the Comelec. Broadcast
stations are merely required to submit certain documents to aid the
Comelec in ensuring that candidates are not sold airtime in excess
of the allowed limits. These documents include: (1) certified true
copies of broadcast logs, certificates of performance, and
certificates of acceptance, or other analogous record on specified
dates (Section 9[d][3], Resolution No. 9615, in relation to Section
6.2, R.A. 9006; and (2) copies of all contract for advertising,
promoting or opposing any political party or the candidacy of any
person for public office within five (5) days after its signing (Section
6.3, R.A. 9006).
*****
[T]here is absolutely no duty on the broadcast stations to do
monitoring, much less monitoring in real time. GMA grossly
exaggerates when it claims that the non-existent duty would require
them to hire and train an astounding additional 39,055 personnel
working on eight-hour shifts all over the country.61
CONSTI LAW II I ACJUCO 257
The Court holds, accordingly, that, contrary to petitioners'
contention, the Reporting Requirement for the COMELEC's
monitoring is reasonable.
Further, it is apropos to note that, pursuant to Resolution No.
9631,62 the respondent revised the third paragraph of Section 9 (a).
As revised, the provision now reads:
Appearance or guesting by a candidate on any bona fide newscast,
bona fide news interview, bona fide news documentary, if the
appearance of the candidate is incidental to the presentation of the
subject or subjects covered by the news documentary, or on-the-
spot coverage of bona fide news events, including but not limited to
events sanctioned by the Commission on Elections, political
conventions, and similar activities, shall not be deemed to be
broadcast election propaganda within the meaning of this provision.
For purposes of monitoring by the COMELEC and ensuring that
parties and candidates were afforded equal opportunities to
promote their candidacy, the media entity shall give prior notice to
the COMELEC, through the appropriate Regional Election Director
(RED), or in the case of the National Capital Region (NCR), the
Education and Information Department (EID). If such prior notice is
not feasible or practicable, the notice shall be sent within twenty-
four (24) hours from the first broadcast or publication.1awp++i1
Nothing in the foregoing sentence shall be construed as relieving
broadcasters, in connection with the presentation of newscasts,
news interviews, news documentaries, and on-the-spot coverage of
news events, from the obligation imposed upon them under
Sections 10 and 14 of these Rules."63
Further, the petitioner in G.R. No. 205374 assails the
constitutionality of such monitoring requirement, contending, among
others, that it constitutes prior restraint. The Court finds otherwise.
Such a requirement is a reasonable means adopted by the
COMELEC to ensure that parties and candidates are afforded equal
opportunities to promote their respective candidacies. Unlike the
restrictive aggregate-based airtime limits, the directive to give prior
notice is not unduly burdensome and unreasonable, much less
could it be characterized as prior restraint since there is no
restriction on dissemination of information before broadcast.
Additionally, it is relevant to point out that in the original Resolution
No. 9615, the paragraph in issue was worded in this wise:
Appearance or guesting by a candidate on any bona fide newscast,
bona fide news interview, bona fide news documentary, if the
appearance of the candidate is incidental to the presentation of the
subject or subjects covered by the news documentary, or on-the-
spot coverage of bona fide news events, including but not limited to
events sanctioned by the Commission on Elections, political
conventions, and similar activities, shall not be deemed to be
broadcast election propaganda within the meaning of this provision.
To determine whether the appearance or guesting in a program is
bona fide, the broadcast stations or entities must show that (1) prior
approval of the Commission was secured; and (2) candidates and
parties were afforded equal opportunities to promote their
candidacy. Nothing in the foregoing sentence shall be construed as
relieving broadcasters, in connection with the presentation of
newscasts, news interviews, news documentaries, and on-the-spot
coverage of news events, from the obligation imposed upon them
under Sections 10 and 14 of these Rules.64
Comparing the original with the revised paragraph, one could readily
appreciate what the COMELEC had done - to modify the
requirement from "prior approval" to "prior notice." While the former
may be suggestive of a censorial tone, thus inviting a charge of prior
restraint, the latter is more in the nature of a content-neutral
regulation designed to assist the poll body to undertake its job of
ensuring fair elections without having to undertake any chore of
approving or disapproving certain expressions.
Also, the right to reply provision is reasonable

In the same way that the Court finds the "prior notice" requirement
as not constitutionally infirm, it similarly concludes that the "right to
reply" provision is reasonable and consistent with the constitutional
mandate.
Section 14 of Resolution No. 9615, as revised by Resolution No.
9631, provides:
SECTION 14. Right to Reply. - All registered political parties, party-
list groups or coalitions and bona fide candidates shall have the right
to reply to charges published or aired against them. The reply shall
be given publicity by the newspaper, television, and/or radio station
which first printed or aired the charges with the same prominence
or in the same page or section or in the same time slot as the first
statement.
Registered political parties, party-list groups or coalitions and bona
fide candidates may invoke the right to reply by submitting within a
nonextendible period of forty-eight hours from first broadcast or
publication, a formal verified claim against the media outlet to the
COMELEC, through the appropriate RED. The claim shall include a
detailed enumeration of the circumstances and occurrences which
warrant the invocation of the right to reply and must be accompanied
by supporting evidence, such a copy of the publication or recording
of the television or radio broadcast, as the case may be. If the
supporting evidence is not yet available due to circumstances
beyond the power of the claimant, the latter shall supplement his
claim as soon as the supporting evidence becomes available,
without delay on the part of the claimant. The claimant must likewise
furnish a copy of the verified claim and its attachments to the media
outlet concerned prior to the filing of the claim with the COMELEC.
The COMELEC, through the RED, shall view the verified claim
within forty-eight ( 48) hours from receipt thereof, including
supporting evidence, and if circumstances warrant, give notice to
the media outlet involved for appropriate action, which shall, within
forty-eight ( 48) hours, submit its comment, answer or response to
the RED, explaining the action it has taken to address the claim. The
media outlet must likewise furnish a copy of the said comment,
answer or response to the claimant invoking the right to reply.
Should the claimant insist that his/her right to reply was not
addressed, he/she may file the appropriate petition and/or complaint
before the Commission on Elections or its field offices, which shall
be endorsed to the Clerk of Court.
The attack on the validity of the "right to reply" provision is primarily
anchored on the alleged ground of prior restraint, specifically in so
far as such a requirement may have a chilling effect on speech or of
the freedom of the press.
Petitioner ABC states, inter alia:
5 .14 5. A "conscious and detailed consideration" of the interplay of
the relevant interests - the constitutional mandate granting
candidates the right to reply and the inviolability of the constitutional
freedom of expression, speech, and the press - will show that the
Right to Reply, as provided for in the Assailed Resolution, is an
impermissible restraint on these fundamental freedoms.
5.146. An evaluation of the factors set forth in Soriano (for the
balancing of interests test) with respect to the present controversy
will show that the Constitution does not tilt the balance in favor of
the Right to Reply provision in the Assailed Resolution and the
supposed governmental interest it attempts to further.65
The Constitution itself provides as part of the means to ensure free,
orderly, honest, fair and credible elections, a task addressed to the
COMELEC to provide for a right to reply.66 Given that express
constitutional mandate, it could be seen that the Fundamental Law
CONSTI LAW II I ACJUCO 258
itself has weighed in on the balance to be struck between the
freedom of the press and the right to reply. Accordingly, one is not
merely to see the equation as purely between the press and the right
to reply. Instead, the constitutionallymandated desiderata of free,
orderly, honest, peaceful, and credible elections would necessarily
have to be factored in trying to see where the balance lies between
press and the demands of a right-to-reply.
Moreover, as already discussed by the Court in
Telecommunications and Broadcast Attorneys of the Philippines,
Inc. v. Commission on Elections.67
In truth, radio and television broadcasting companies, which are
given franchises, do not own the airwaves and frequencies through
which they transmit broadcast signals and images. They are merely
given the temporary privilege of using them. Since a franchise is a
mere privilege, the exercise of the privilege may reasonably be
burdened with the performance by the grantee of some form of
public service. x x x68
Relevant to this aspect are these passages from an American
Supreme Court decision with regard to broadcasting, right to reply
requirements, and the limitations on speech:
We have long recognized that each medium of expression presents
special First Amendment problems. Joseph Burstyn, Inc. v. Wilson,
343 US 495, 502-503, 96 L Ed 1098, 72 S Ct 777. And of all forms
of communication, it is broadcasting that has received the most
limited First Amendment protection. Thus, although other speakers
cannot be licensed except under laws that carefully define and
narrow official discretion, a broadcaster may be deprived of his
license and his forum if the Commission decides that such an action
would serve "the public interest, convenience, and necessity."
Similarly, although the First Amendment protects newspaper
publishers from being required to print the replies of those whom
they criticize, Miami Herald Publishing Co. v. Tornillo, 418 US 241,
41 L Ed 2d 730, 94 S Ct 2831, it affords no such protection to
broadcasters; on the contrary, they must give free time to the victims
of their criticism. Red Lion Broadcasting Co. v. FCC, 395 US. 367,
23 L Ed 2d 371, 89 S Ct 1794.
The reasons for these distinctions are complex, but two have
relevance to the present case. First, the broadcast media have
established a uniquely pervasive presence in the lives of all
Americans. Patently offensive, indecent material presented over the
airwaves confronts the citizen not only in public, but also in the
privacy of the home, where the individual's right to be left alone
plainly outweighs the First Amendment rights of an intruder. Rowan
v. Post Office Dept., 397 US 728, 25 L Ed 2d 736, 90 S Ct 1484.
Because the broadcast audience is constantly tuning in and out,
prior warnings cannot completely protect the listener or viewer from
unexpected program content. To say that one may avoid further
offense by turning off the radio when he hears indecent language is
like saying that the remedy for an assault is to run away after the
first blow. One may hang up on an indecent phone call, but that
option does not give the caller a constitutional immunity or avoid a
harm that has already taken place.
Second, broadcasting is uniquely accessible to children, even those
too young to read. Although Cohen's written message might have
been incomprehensible to a first grader, Pacifica's broadcast could
have enlarged a child's vocabulary in an instant. Other forms of
offensive expression may be withheld from the young without
restricting the expression at its source. Bookstores and motion
picture theaters, for example, may be prohibited from making
indecent material available to children. We held in Ginsberg v. New
York, 390 US 629, that the government's interest in the "well-being
of its youth" and in supporting "parents' claim to authority in their
own household" justified the regulation of otherwise protected
expression. The ease with which children may obtain access to
broadcast material, coupled with the concerns recognized in
 CONSTI LAW II I ACJUCO 259

Ginsberg, amply justify special treatment of indecent

broadcasting.69

Given the foregoing considerations, the traditional notions of

preferring speech and the press over so many other values of
society do not readily lend itself to this particular matter. Instead,
additional weight should be accorded on the constitutional directive
to afford a right to reply. If there was no such mandate, then the
submissions of petitioners may more easily commend themselves
for this Court's acceptance. But as noted above, this is not the case.
Their arguments simplistically provide minimal importance to that
constitutional command to the point of marginalizing its importance
in the equation.

In fine, when it comes to election and the exercise of freedom of

speech, of expression and of the press, the latter must be properly
viewed in context as being necessarily made to accommodate the
imperatives of fairness by giving teeth and substance to the right to
reply requirement.

WHEREFORE, premises considered, the petitions are PARTIALLY

GRANTED, Section 9 (a) of Resolution No. 9615, as amended by
Resolution No. 9631, is declared UNCONSTITUTIONAL and,
therefore, NULL and VOID. The constitutionality of the remaining
provisions of Resolution No. 9615, as amended by Resolution No.
9631, is upheld and remain in full force and effect.

In view of this Decision, the Temporary Restraining Order issued by

the Court on April 16, 2013 is hereby made PERMANENT.

SO ORDERED.

G.R. No. 205728 January 21, 2015
THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST
REV. BISHOP VICENTE M. NAVARRA and THE BISHOP
HIMSELF IN HIS PERSONAL CAPACITY, Petitioners,
vs.
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER
OF BACOLOD CITY, ATTY. MAVIL V. MAJARUCON,
Respondents.
DECISION
LEONEN, J.:
"The Philippines is a democratic and republican State. Sovereignty
resides in the people and all government authority emanates from
them." – Article II, Section 1, Constitution
All governmental authority emanates from our people. No
unreasonable restrictions of the fundamental and preferred right to
expression of the electorate during political contests no matter how
seemingly benign will be tolerated.
This case defines the extent that our people may shape the debates
during elections. It is significant and of first impression. We are
asked to decide whether the Commission on Elections (COMELEC)
has the competence to limit expressions made by the citizens —
who are not candidates — during elections.
Before us is a special civil action for certiorari and prohibition with
application for preliminary injunction and temporary restraining
order1 under Rule 65 of the Rules of Court seeking to nullify
COMELEC’s Notice to Remove Campaign Materials2 dated
February 22, 2013 and letter3 issued on February 27, 2013.
The facts are not disputed.
On February 21, 2013, petitioners posted two (2) tarpaulins within a
private compound housing the San Sebastian Cathedral of Bacolod.
Each tarpaulin was approximately six feet (6') by ten feet (10') in
size. They were posted on the front walls of the cathedral within
public view. The first tarpaulin contains the message "IBASURA RH
Law" referring to the Reproductive Health Law of 2012 or Republic
Act No. 10354. The second tarpaulin is the subject of the present
case.4 This tarpaulin contains the heading "Conscience Vote" and
lists candidates as either "(Anti-RH) Team Buhay" with a check
mark, or "(Pro-RH) Team Patay" with an "X" mark.5 The electoral
candidates were classified according to their vote on the adoption
of Republic Act No. 10354, otherwise known as the RH Law.6 Those
who voted for the passing of the law were classified by petitioners
as comprising "Team Patay," while those who voted against it form
"Team Buhay":7
TEAM BUHAY TEAM PATAY
Estrada, JV Angara, Juan Edgardo
Honasan, Gregorio Casiño, Teddy
Magsaysay, Mitos Cayetano, Alan Peter
Pimentel, Koko Enrile, Jackie
Trillanes, Antonio Escudero, Francis
Villar, Cynthia Hontiveros, Risa
Party List Buhay Legarda, Loren
Party List Ang Pamilya Party List Gabriela
Party List Akbayan
Party List Bayan Muna
Party List Anak Pawis
During oral arguments, respondents conceded that the tarpaulin
was neither sponsored nor paid for by any candidate. Petitioners
also conceded that the tarpaulin contains names ofcandidates for
the 2013 elections, but not of politicians who helped in the passage
of the RH Law but were not candidates for that election.
CONSTI LAW II I ACJUCO 260
On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her
capacity as Election Officer of Bacolod City, issued a Notice to
Remove Campaign Materials8 addressed to petitioner Most Rev.
Bishop Vicente M. Navarra. The election officer ordered the
tarpaulin’s removal within three (3) days from receipt for being
oversized. COMELEC Resolution No. 9615 provides for the size
requirement of two feet (2’) by three feet (3’).9
On February 25, 2013, petitioners replied10 requesting, among
others, that (1) petitioner Bishop be given a definite ruling by
COMELEC Law Department regarding the tarpaulin; and (2)
pending this opinion and the availment of legal remedies, the
tarpaulin be allowed to remain.11
On February 27, 2013, COMELEC Law Department issued a
letter12 ordering the immediate removal of the tarpaulin; otherwise,
it will be constrained to file an election offense against petitioners.
The letter of COMELEC Law Department was silenton the remedies
available to petitioners. The letter provides as follows:
Dear Bishop Navarra:
It has reached this Office that our Election Officer for this City, Atty.
Mavil Majarucon, had already given you notice on February 22,
2013 as regards the election propaganda material posted on the
church vicinity promoting for or against the candidates and party-list
groups with the following names and messages, particularly
described as follows:
Material size : six feet (6’) by ten feet (10’)
Description : FULL COLOR TARPAULIN
Image of : SEE ATTACHED PICTURES
Message : CONSCIENCE VOTE (ANTI RH) TEAM
BUHAY; (PRO RH) TEAM PATAY
Location : POSTED ON THE CHURCH VICINITY
OF THE DIOCESE OF BACOLOD CITY
The three (3) – day notice expired on February 25, 2013.
Considering that the above-mentioned material is found to be in
violation of Comelec Resolution No. 9615 promulgated on January
15, 2013 particularly on the size (even with the subsequent division
of the said tarpaulin into two), as the lawful size for election
propaganda material is only two feet (2’) by three feet (3’), please
order/cause the immediate removal of said election propaganda
material, otherwise, we shall be constrained to file an election
offense case against you.
We pray that the Catholic Church will be the first institution to help
the Commission on Elections inensuring the conduct of peaceful,
orderly, honest and credible elections.
Thank you and God Bless!
[signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV13
Concerned about the imminent threatof prosecution for their
exercise of free speech, petitioners initiated this case through this
petition for certiorari and prohibition with application for preliminary
injunction and temporary restraining order.14 They question
respondents’ notice dated February 22, 2013 and letter issued on
February 27, 2013. They pray that: (1) the petition be given due
course; (2) a temporary restraining order (TRO) and/or a writ of
preliminary injunction be issued restraining respondents from further

proceeding in enforcing their orders for the removal of the Team
Patay tarpaulin; and (3) after notice and hearing, a decision be
rendered declaring the questioned orders of respondents as
unconstitutional and void, and permanently restraining respondents
from enforcing them or any other similar order.15
After due deliberation, this court, on March 5, 2013, issued a
temporary restraining order enjoining respondents from enforcing
the assailed notice and letter, and set oral arguments on March 19,
2013.16
On March 13, 2013, respondents filed their comment17 arguing that
(1) a petition for certiorari and prohibition under Rule 65 of the Rules
of Court filed before this court is not the proper remedy to question
the notice and letter of respondents; and (2) the tarpaulin is an
election propaganda subject to regulation by COMELEC pursuant
to its mandate under Article IX-C, Section 4 of the Constitution.
Hence, respondents claim that the issuances ordering its removal
for being oversized are valid and constitutional.18
During the hearing held on March 19, 2013, the parties were
directed to file their respective memoranda within 10 days or by April
1, 2013, taking into consideration the intervening holidays.19
The issues, which also served as guide for the oral arguments,
are:20
I.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY
ELECTION OFFICER MAJARUCON AND THE 27 FEBRUARY
2013 ORDER BY THE COMELEC LAW DEPARTMENT ARE
CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS
OF THE COMELEC WHICH WOULD WARRANT A REVIEW OF
THIS COURT VIA RULE 65 PETITION[;]
A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF
COURTS DOCTRINE AND JURISPRUDENTIAL RULES
GOVERNING APPEALS FROM COMELEC DECISIONS;
B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED
ORDERS ARE NOT CONSIDERED JUDGMENTS/FINAL
ORDERS/RESOLUTIONS OF THE COMELEC, WHETHER
THERE ARE EXCEPTIONAL CIRCUMSTANCES WHICH WOULD
ALLOW THIS COURT TO TAKE COGNIZANCE OF THE CASE[;]
II.
WHETHER IT IS RELEVANT TODETERMINE WHETHER THE
TARPAULINS ARE "POLITICAL ADVERTISEMENT" OR
"ELECTION PROPAGANDA" CONSIDERING THAT PETITIONER
IS NOT A POLITICAL CANDIDATE[;]
III.
WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION
(PROTECTED SPEECH), OR ELECTION
PROPAGANDA/POLITICAL ADVERTISEMENT[;]
A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A
FORM OF EXPRESSION, WHETHER THE COMELEC
POSSESSES THE AUTHORITY TO REGULATE THE SAME[;]
B. WHETHER THIS FORM OF EXPRESSION MAY BE
REGULATED[;]
IV.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY
ELECTION OFFICER MAJARUCON AND THE 27 FEBRUARY
2013 ORDER BY THE COMELEC LAW DEPARTMENT VIOLATES
CONSTI LAW II I ACJUCO 261
THE PRINCIPLE OF SEPARATION OF CHURCH AND STATE[;]
[AND]
V.
WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS
TARPAULIN VIOLATES THE CONSTITUTIONAL PRINCIPLE OF
SEPARATION OF CHURCH AND STATE.
I
PROCEDURAL ISSUES
I.A
This court’s jurisdiction over COMELEC cases
Respondents ask that this petition be dismissed on the ground that
the notice and letter are not final orders, decisions, rulings, or
judgments of the COMELEC En Banc issued in the exercise of its
adjudicatory powers, reviewable via Rule 64 of the Rules of
Court.21
Rule 64 is not the exclusive remedy for all acts of the COMELEC.
Rule 65 is applicable especially to raise objections relating to a
grave abuse of discretion resulting in the ouster of jurisdiction.22 As
a special civil action, there must also be a showing that there be no
plain, speedy, and adequate remedy in the ordinary course of the
law.
Respondents contend that the assailed notice and letter are not
subject to review by this court, whose power to review is "limited
only to final decisions, rulings and orders of the COMELEC En Banc
rendered in the exercise of its adjudicatory or quasi-judicial
power."23 Instead, respondents claim that the assailed notice and
letter are reviewable only by COMELEC itself pursuant to Article IX-
C, Section 2(3) of the Constitution24 on COMELEC’s power to
decide all questions affecting elections.25 Respondents invoke the
cases of Ambil, Jr. v. COMELEC,26 Repol v. COMELEC,27
Soriano, Jr. v. COMELEC,28 Blanco v. COMELEC,29 and
Cayetano v. COMELEC,30 to illustrate how judicialintervention is
limited to final decisions, orders, rulings and judgments of the
COMELEC En Banc.31
These cases are not applicable.
In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race
of Eastern Samar filed the election protest.32 At issue was the
validity of the promulgation of a COMELEC Division resolution.33
No motion for reconsideration was filed to raise this issue before the
COMELEC En Banc. This court declared that it did not have
jurisdiction and clarified:
We have interpreted [Section 7, Article IX-A of the Constitution]34
to mean final orders, rulings and decisionsof the COMELEC
rendered in the exercise of its adjudicatory or quasi-judicial powers."
This decision must be a final decision or resolution of the Comelec
en banc, not of a division, certainly not an interlocutory order of a
division.The Supreme Court has no power to review viacertiorari, an
interlocutory order or even a final resolution of a Division of the
Commission on Elections.35 (Emphasis in the original, citations
omitted)
However, in the next case cited by respondents, Repol v.
COMELEC, this court provided exceptions to this general rule.
Repolwas another election protest case, involving the mayoralty
elections in Pagsanghan, Samar.36 This time, the case was brought
to this court because the COMELEC First Division issued a status
quo ante order against the Regional Trial Court executing its
decision pending appeal.37 This court’s ponencia discussed the
general rule enunciated in Ambil, Jr. that it cannot take jurisdiction
to review interlocutory orders of a COMELEC Division.38 However,

consistent with ABS-CBN Broadcasting Corporation v.
COMELEC,39 it clarified the exception:
This Court, however, has ruled in the past that this procedural
requirement [of filing a motion for reconsideration] may be glossed
over to prevent miscarriage of justice, when the issue involves the
principle of social justice or the protection of labor, when the
decision or resolution sought to be set aside is a nullity, or when the
need for relief is extremely urgent and certiorari is the only adequate
and speedy remedy available.40
Based on ABS-CBN, this court could review orders and decisions of
COMELEC — in electoral contests — despite not being reviewed
by the COMELEC En Banc, if:
1) It will prevent the miscarriage of justice;
2) The issue involves a principle of social justice;
3) The issue involves the protection of labor;
4) The decision or resolution sought tobe set aside is a nullity; or
5) The need for relief is extremely urgent and certiorari is the only
adequate and speedy remedy available.
Ultimately, this court took jurisdiction in Repoland decided that the
status quo anteorder issued by the COMELEC Division was
unconstitutional.
Respondents also cite Soriano, Jr. v. COMELEC.This case was also
an election protest case involving candidates for the city council of
Muntinlupa City.41 Petitioners in Soriano, Jr.filed before this court a
petition for certiorari against an interlocutory order of the COMELEC
First
Division.42 While the petition was pending in this court, the
COMELEC First Division dismissed the main election protest
case.43 Sorianoapplied the general rule that only final orders should
be questioned with this court. The ponencia for this court, however,
acknowledged the exceptions to the general rule in ABS-CBN.44
Blanco v. COMELEC, another case cited by respondents, was a
disqualification case of one of the mayoralty candidates of
Meycauayan, Bulacan.45 The COMELEC Second Division ruled
that petitioner could not qualify for the 2007 elections due to the
findings in an administrative case that he engaged in vote buying in
the 1995 elections.46 No motion for reconsideration was filed before
the COMELEC En Banc. This court, however, took cognizance of
this case applying one of the exceptions in ABS-CBN: The assailed
resolution was a nullity.47
Finally, respondents cited Cayetano v. COMELEC, a recent election
protest case involving the mayoralty candidates of Taguig City.48
Petitioner assailed a resolution of the COMELEC denying her
motion for reconsideration to dismiss the election protest petition for
lack of form and substance.49 This court clarified the general rule
and refused to take cognizance of the review of the COMELEC
order. While recognizing the exceptions in ABS-CBN, this court
ruled that these exceptions did not apply.50
Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by
respondents do not operate as precedents to oust this court from
taking jurisdiction over this case. All these cases cited involve
election protests or disqualification cases filed by the losing
candidate against the winning candidate.
In the present case, petitioners are not candidates seeking for public
office. Their petition is filed to assert their fundamental right to
expression.
CONSTI LAW II I ACJUCO 262
Furthermore, all these cases cited by respondents pertained to
COMELEC’s exercise of its adjudicatory or quasi-judicial power.
This case pertains to acts of COMELEC in the implementation of its
regulatory powers. When it issued the notice and letter, the
COMELEC was allegedly enforcingelection laws.
I.B
Rule 65, grave abuse of discretion,
and limitations on political speech
The main subject of thiscase is an alleged constitutional violation:
the infringement on speech and the "chilling effect" caused by
respondent COMELEC’s notice and letter.
Petitioners allege that respondents committed grave abuse of
discretion amounting to lack or excess of jurisdiction in issuing the
notice51 dated February 22,2013 and letter52 dated February 27,
2013 ordering the removal of the tarpaulin.53 It is their position that
these infringe on their fundamental right to freedom of expression
and violate the principle of separation of church and state and, thus,
are unconstitutional.54
The jurisdiction of this court over the subject matter is determined
from the allegations in the petition. Subject matter jurisdiction is
defined as the authority "to hear and determine cases of the general
class to which the proceedings in question belong and is conferred
by the sovereign authority which organizes the court and defines its
powers."55 Definitely, the subject matter in this case is different from
the cases cited by respondents.
Nothing less than the electorate’s political speech will be affected
by the restrictions imposed by COMELEC. Political speech is
motivated by the desire to be heard and understood, to move people
to action. It is concerned with the sovereign right to change the
contours of power whether through the election of representatives
in a republican government or the revision of the basic text of the
Constitution. The zeal with which we protect this kind of speech
does not depend on our evaluation of the cogency of the message.
Neither do we assess whether we should protect speech based on
the motives of COMELEC. We evaluate restrictions on freedom of
expression from their effects. We protect both speech and medium
because the quality of this freedom in practice will define the quality
of deliberation in our democratic society.
COMELEC’s notice and letter affect preferred speech.
Respondents’ acts are capable of repetition. Under the conditions in
which it was issued and in view of the novelty of this case,it could
result in a "chilling effect" that would affect other citizens who want
their voices heard on issues during the elections. Other citizens who
wish to express their views regarding the election and other related
issues may choose not to, for fear of reprisal or sanction by the
COMELEC. Direct resort to this court is allowed to avoid such
proscribed conditions. Rule 65 is also the procedural platform for
raising grave abuse of discretion.
Both parties point to constitutional provisions on jurisdiction. For
petitioners, it referred to this court’s expanded exercise of certiorari
as provided by the Constitution as follows:
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 ornot 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.56
(Emphasis supplied)
On the other hand, respondents relied on its constitutional mandate
to decide all questions affectingelections. Article IX-C, Section 2(3)
of the Constitution, provides:

Sec. 2. The Commission on Elections shall exercise the following
powers and functions:
....
(3) Decide, except those involving the right to vote, all questions
affecting elections, including determination of the number and
location of polling places, appointment of election officials and
inspectors, and registration of voters.
Respondents’ reliance on this provision is misplaced.
We are not confronted here with the question of whether the
COMELEC, in its exercise of jurisdiction, gravely abused it. We are
confronted with the question as to whether the COMELEC had any
jurisdiction at all with its acts threatening imminent criminal action
effectively abridging meaningful political speech.
It is clear that the subject matter of the controversy is the effect of
COMELEC’s notice and letter on free speech. This does not fall
under Article IX-C, Section 2(3) of the Constitution. The use of the
word "affecting" in this provision cannot be interpreted to mean that
COMELEC has the exclusive power to decide any and allquestions
that arise during elections. COMELEC’s constitutional
competencies during elections should not operate to divest this
court of its own jurisdiction.
The more relevant provision for jurisdiction in this case is Article VIII,
Section 5(1) of the Constitution.This provision provides for this
court’s original jurisdiction over petitions for certiorari and
prohibition. This should be read alongside the expanded jurisdiction
of the court in Article VIII, Section 1 of the Constitution.
Certainly, a breach of the fundamental right of expression by
COMELEC is grave abuse of discretion. Thus, the constitutionality
of the notice and letter coming from COMELEC is within this court’s
power to review.
During elections, we have the power and the duty to correct any
grave abuse of discretion or any act tainted with unconstitutionality
on the part of any government branch or instrumentality. This
includes actions by the COMELEC. Furthermore, it is this court’s
constitutional mandate to protect the people against government’s
infringement of their fundamental rights. This constitutional mandate
out weighs the jurisdiction vested with the COMELEC.
It will, thus, be manifest injustice if the court does not take
jurisdiction over this case.
I.C
Hierarchy of courts
This brings us to the issue of whether petitioners violated the
doctrine of hierarchy of courts in directly filing their petition before
this court.
Respondents contend that petitioners’ failure to file the proper suit
with a lower court of concurrent jurisdiction is sufficient ground for
the dismissal of their petition.57 They add that observation of the
hierarchy of courts is compulsory, citing Heirs of Bertuldo Hinog v.
Melicor.58 While respondents claim that while there are exceptions
to the general rule on hierarchy of courts, none of these are present
in this case.59
On the other hand, petitioners cite Fortich v. Corona60 on this
court’s discretionary power to take cognizance of a petition filed
directly to it if warranted by "compelling reasons, or [by] the nature
and importance of the issues raised. . . ."61 Petitioners submit that
CONSTI LAW II I ACJUCO 263
there are "exceptional and compelling reasons to justify a direct
resort [with] this Court."62
In Bañez, Jr. v. Concepcion,63 we explained the necessity of the
application of the hierarchy of courts:
The Court must enjoin the observance of the policy on the hierarchy
of courts, and now affirms that the policy is not to be ignored without
serious consequences. The strictness of the policy is designed to
shield the Court from having to deal with causes that are also well
within the competence of the lower courts, and thus leave time to
the Court to deal with the more fundamental and more essential
tasks that the Constitution has assigned to it. The Court may act on
petitions for the extraordinary writs of certiorari, prohibition and
mandamus only when absolutely necessary or when serious and
important reasons exist to justify an exception to the policy.64
In Bañez, we also elaborated on the reasons why lower courts are
allowed to issue writs of certiorari, prohibition, and mandamus, citing
Vergara v. Suelto:65
The Supreme Court is a court of lastresort, and must so remain if it
is to satisfactorily perform the functions assigned to it by the
fundamental charter and immemorial tradition. It cannot and should
not be burdened with the task of dealing with causes in the first
instance. Its original jurisdiction to issue the so-called extraordinary
writs should be exercised only where absolutely necessary or where
serious and important reasons exist therefore. Hence, that
jurisdiction should generally be exercised relative to actions or
proceedings before the Court of Appeals, or before constitutional or
other tribunals, bodies or agencies whose acts for some reason or
another are not controllable by the Court of Appeals. Where the
issuance of an extraordinary writ is also within the competence of
the Court of Appeals or a Regional Trial Court, it is in either of these
courts that the specific action for the writ’s procurement must be
presented. This is and should continue to be the policy in this regard,
a policy that courts and lawyers must strictly observe.66 (Emphasis
omitted)
The doctrine that requires respect for the hierarchy of courts was
created by this court to ensure that every level of the judiciary
performs its designated roles in an effective and efficient manner.
Trial courts do not only determine the facts from the evaluation of
the evidence presented before them. They are likewise competent
to determine issues of law which may include the validity of an
ordinance, statute, or even an executive issuance in relation to the
Constitution.67 To effectively perform these functions, they are
territorially organized into regions and then into branches. Their
writs generally reach within those territorial boundaries. Necessarily,
they mostly perform the all-important task of inferring the facts from
the evidence as these are physically presented before them. In
many instances, the facts occur within their territorial jurisdiction,
which properly present the ‘actual case’ that makes ripe a
determination of the constitutionality of such action. The
consequences, of course, would be national in scope. There are,
however, some cases where resort to courts at their level would not
be practical considering their decisions could still be appealed
before the higher courts, such as the Court of Appeals.
The Court of Appeals is primarily designed as an appellate court
that reviews the determination of facts and law made by the trial
courts. It is collegiate in nature. This nature ensures more
standpoints in the review of the actions of the trial court. But the
Court of Appeals also has original jurisdiction over most special civil
actions. Unlike the trial courts, its writs can have a nationwide scope.
It is competent to determine facts and, ideally, should act on
constitutional issues thatmay not necessarily be novel unless there
are factual questions to determine.
This court, on the other hand, leads the judiciary by breaking new
ground or further reiterating — in the light of new circumstances or

in the light of some confusions of bench or bar — existing
precedents. Rather than a court of first instance or as a repetition of
the actions of the Court of Appeals, this court promulgates these
doctrinal devices in order that it truly performs that role.
In other words, the Supreme Court’s role to interpret the Constitution
and act in order to protect constitutional rights when these become
exigent should not be emasculated by the doctrine in respect of the
hierarchy of courts. That has never been the purpose of such
doctrine.
Thus, the doctrine of hierarchy of courts is not an iron-clad rule.68
This court has "full discretionary power to take cognizance and
assume jurisdiction [over] special civil actions for certiorari . . .filed
directly with it for exceptionally compelling reasons69 or if warranted
by the nature of the issues clearly and specifically raised in the
petition."70 As correctly pointed out by petitioners,71 we have
provided exceptions to this doctrine:
First, a direct resort to this court is allowed when there are genuine
issues of constitutionality that must be addressed at the most
immediate time. A direct resort to this court includes availing of the
remedies of certiorari and prohibition toassail the constitutionality of
actions of both legislative and executive branches of the
government.72
In this case, the assailed issuances of respondents prejudice not
only petitioners’ right to freedom of expression in the present case,
but also of others in future similar cases. The case before this court
involves an active effort on the part of the electorate to reform the
political landscape. This has become a rare occasion when private
citizens actively engage the public in political discourse. To quote
an eminent political theorist:
[T]he theory of freedom of expression involves more than a
technique for arriving at better social judgments through democratic
procedures. It comprehends a vision of society, a faith and a whole
way of life. The theory grew out of an age that was awakened and
invigorated by the idea of new society in which man's mind was free,
his fate determined by his own powers of reason, and his prospects
of creating a rational and enlightened civilization virtually unlimited.
It is put forward as a prescription for attaining a creative,
progressive, exciting and intellectually robust community. It
contemplates a mode of life that, through encouraging toleration,
skepticism, reason and initiative, will allow man to realize his full
potentialities.It spurns the alternative of a society that is tyrannical,
conformist, irrational and stagnant.73
In a democracy, the citizen’s right tofreely participate in the
exchange of ideas in furtherance of political decision-making is
recognized. It deserves the highest protection the courts may
provide, as public participation in nation-building isa fundamental
principle in our Constitution. As such, their right to engage in free
expression of ideas must be given immediate protection by this
court.
A second exception is when the issuesinvolved are of
transcendental importance.74 In these cases, the imminence and
clarity of the threat to fundamental constitutional rights outweigh the
necessity for prudence. The doctrine relating to constitutional issues
of transcendental importance prevents courts from the paralysis of
procedural niceties when clearly faced with the need for substantial
protection.
In the case before this court, there is a clear threat to the paramount
right of freedom of speech and freedom of expression which
warrants invocation of relief from this court. The principles laid down
in this decision will likely influence the discourse of freedom of
speech in the future, especially in the context of elections. The right
to suffrage not only includes the right to vote for one’s chosen
candidate, but also the right to vocalize that choice to the public in
CONSTI LAW II I ACJUCO 264
general, in the hope of influencing their votes. It may be said that in
an election year, the right to vote necessarily includes the right to
free speech and expression. The protection of these fundamental
constitutional rights, therefore, allows for the immediate resort to this
court.
Third, cases of first impression75 warrant a direct resort to this court.
In cases of first impression, no jurisprudence yet exists that will
guide the lower courts on this matter. In Government of the United
States v. Purganan,76 this court took cognizance of the case as a
matter of first impression that may guide the lower courts:
In the interest of justice and to settle once and for all the important
issue of bail in extradition proceedings, we deem it best to take
cognizance of the present case. Such proceedings constitute a
matter of first impression over which there is, as yet, no local
jurisprudence to guide lower courts.77
This court finds that this is indeed a case of first impression involving
as it does the issue of whether the right of suffrage includes the right
of freedom of expression. This is a question which this court has yet
to provide substantial answers to, through jurisprudence. Thus,
direct resort to this court is allowed.
Fourth, the constitutional issues raisedare better decided by this
court. In Drilon v. Lim,78 this court held that:
. . . it will be prudent for such courts, if only out of a becoming
modesty, to defer to the higher judgmentof this Court in the
consideration of its validity, which is better determined after a
thorough deliberation by a collegiate body and with the concurrence
of the majority of those who participated in its discussion.79
(Citation omitted)
In this case, it is this court, with its constitutionally enshrined judicial
power, that can rule with finality on whether COMELEC committed
grave abuse of discretion or performed acts contrary to the
Constitution through the assailed issuances.
Fifth, the time element presented in this case cannot be ignored.
This case was filed during the 2013 election period. Although the
elections have already been concluded, future cases may be filed
that necessitate urgency in its resolution. Exigency in certain
situations would qualify as an exception for direct resort to this court.
Sixth, the filed petition reviews the act of a constitutional organ.
COMELEC is a constitutional body. In Albano v. Arranz,80 cited by
petitioners, this court held that "[i]t is easy to realize the chaos that
would ensue if the Court of First Instance ofeach and every province
were [to] arrogate itself the power to disregard, suspend, or
contradict any order of the Commission on Elections: that
constitutional body would be speedily reduced to impotence."81
In this case, if petitioners sought to annul the actions of COMELEC
through pursuing remedies with the lower courts, any ruling on their
part would not have been binding for other citizens whom
respondents may place in the same situation. Besides, thiscourt
affords great respect to the Constitution and the powers and duties
imposed upon COMELEC. Hence, a ruling by this court would be in
the best interest of respondents, in order that their actions may be
guided accordingly in the future.
Seventh, petitioners rightly claim that they had no other plain,
speedy, and adequate remedy in the ordinary course of law that
could free them from the injurious effects of respondents’ acts in
violation of their right to freedom of expression.
In this case, the repercussions of the assailed issuances on this
basic right constitute an exceptionally compelling reason to justify
the direct resort to this court. The lack of other sufficient remedies

in the course of law alone is sufficient ground to allow direct resort
to this court.
Eighth, the petition includes questionsthat are "dictated by public
welfare and the advancement of public policy, or demanded by the
broader interest of justice, or the orders complained of were found
to be patent nullities, or the appeal was consideredas clearly an
inappropriate remedy."82 In the past, questions similar to these
which this court ruled on immediately despite the doctrine of
hierarchy of courts included citizens’ right to bear arms,83
government contracts involving modernization of voters’ registration
lists,84 and the status and existence of a public office.85
This case also poses a question of similar, if not greater import.
Hence, a direct action to this court is permitted.
It is not, however, necessary that all of these exceptions must occur
at the same time to justify a direct resort to this court. While
generally, the hierarchy of courts is respected, the present case falls
under the recognized exceptions and, as such, may be resolved by
this court directly.
I.D
The concept of a political question
Respondents argue further that the size limitation and its
reasonableness is a political question, hence not within the ambit of
this court’s power of review. They cite Justice Vitug’s separate
opinion in Osmeña v. COMELEC86 to support their position:
It might be worth mentioning that Section 26, Article II, of the
Constitution also states that the "State shall guarantee equal access
to opportunities for public service, and prohibit political dynasties as
may be defined by law." I see neither Article IX (C)(4) nor Section
26, Article II, of the Constitution to be all that adversarial or
irreconcilably inconsistent with the right of free expression. In any
event, the latter, being one of general application, must yield to the
specific demands of the Constitution. The freedom of expression
concededly holds, it is true, a vantage point in hierarchy of
constitutionally-enshrined rights but, like all fundamental rights, it is
not without limitations.
The case is not about a fight between the "rich" and the "poor" or
between the "powerful" and the "weak" in our society but it is to me
a genuine attempt on the part of Congress and the Commission on
Elections to ensure that all candidates are given an equal chance to
media coverage and thereby be equally perceived as giving real life
to the candidates’ right of free expression rather than being viewed
as an undue restriction of that freedom. The wisdom in the
enactment of the law, i.e., that which the legislature deems to be
best in giving life to the Constitutional mandate, is not for the Court
to question; it is a matter that lies beyond the normal prerogatives
of the Court to pass upon.87
This separate opinion is cogent for the purpose it was said. But it is
not in point in this case.
The present petition does not involve a dispute between the rich and
poor, or the powerful and weak, on their equal opportunities for
media coverage of candidates and their right to freedom of
expression. This case concerns the right of petitioners, who are non-
candidates, to post the tarpaulin in their private property, asan
exercise of their right of free expression. Despite the invocation of
the political question doctrine by respondents, this court is not
proscribed from deciding on the merits of this case.
In Tañada v. Cuenco,88 this court previously elaborated on the
concept of what constitutes a political question:
CONSTI LAW II I ACJUCO 265
What is generally meant, when it is said that a question is political,
and not judicial, is that it is a matter which is to be exercised by the
people in their primary political capacity, or that it has been
specifically delegated to some other department or particular officer
of the government, withdiscretionary power to act.89 (Emphasis
omitted)
It is not for this court to rehearse and re-enact political debates on
what the text of the law should be. In political forums, particularly
the legislature, the creation of the textof the law is based on a
general discussion of factual circumstances, broadly construed in
order to allow for general application by the executive branch. Thus,
the creation of the law is not limited by particular and specific facts
that affect the rights of certain individuals, per se.
Courts, on the other hand, rule on adversarial positions based on
existing facts established on a specific case-to-case basis, where
parties affected by the legal provision seek the courts’
understanding of the law.
The complementary nature of the political and judicial branches of
government is essential in order to ensure that the rights of the
general public are upheld at all times. In order to preserve this
balance, branches of government must afford due respectand
deference for the duties and functions constitutionally delegated to
the other. Courts cannot rush to invalidate a law or rule. Prudence
dictates that we are careful not to veto political acts unless we can
craft doctrine narrowly tailored to the circumstances of the case.
The case before this court does not call for the exercise of prudence
or modesty. There is no political question. It can be acted upon by
this court through the expanded jurisdiction granted to this court
through Article VIII, Section 1 of the Constitution.
A political question arises in constitutional issues relating to the
powers or competence of different agencies and departments of the
executive or those of the legislature. The political question doctrine
is used as a defense when the petition asks this court to nullify
certain acts that are exclusively within the domain of their respective
competencies, as provided by the Constitution or the law. In such
situation, presumptively, this court should act with deference. It will
decline to void an act unless the exercise of that power was so
capricious and arbitrary so as to amount to grave abuse of
discretion.
The concept of a political question, however, never precludes
judicial review when the act of a constitutional organ infringes upon
a fundamental individual or collective right. Even assuming
arguendo that the COMELEC did have the discretion to choose the
manner of regulation of the tarpaulin in question, it cannot do so by
abridging the fundamental right to expression.
Marcos v. Manglapus90 limited the use of the political question
doctrine:
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.91
How this court has chosen to address the political question doctrine
has undergone an evolution since the timethat it had been first
invoked in Marcos v. Manglapus. Increasingly, this court has taken
the historical and social context of the case and the relevance of
pronouncements of carefully and narrowly tailored constitutional
doctrines. This trend was followed in cases such as Daza v.
Singson92 and Coseteng v. Mitra Jr.93

Daza and Coseteng involved a question as to the application of
Article VI, Section 18 of the 1987 Constitution involving the removal
of petitioners from the Commission on Appointments. In times past,
this would have involved a quint essentially political question as it
related to the dominance of political parties in Congress. However,
in these cases, this court exercised its power of judicial review
noting that the requirement of interpreting the constitutional
provision involved the legality and not the wisdom of a manner by
which a constitutional duty or power was exercised. This approach
was again reiterated in Defensor Santiago v. Guingona, Jr.94
In Integrated Bar of the Philippines v. Zamora,95 this court declared
again that the possible existence ofa political question did not bar
an examination of whether the exercise of discretion was done with
grave abuse of discretion. In that case, this court ruled on the
question of whether there was grave abuse of discretion in the
President’s use of his power to call out the armed forces to prevent
and suppress lawless violence.
In Estrada v. Desierto,96 this court ruled that the legal question as
to whether a former President resigned was not a political question
even if the consequences would be to ascertain the political
legitimacy of a successor President.
Many constitutional cases arise from political crises. The actors in
such crises may use the resolution of constitutional issues as
leverage. But the expanded jurisdiction of this court now mandates
a duty for it to exercise its power of judicial review expanding on
principles that may avert catastrophe or resolve social conflict.
This court’s understanding of the political question has not been
static or unbending. In Llamas v. Executive Secretary Oscar
Orbos,97 this court held:
While it is true that courts cannot inquire into the manner in which
the President's discretionary powers are exercised or into the
wisdom for its exercise, it is also a settled rule that when the issue
involved concerns the validity of such discretionary powers or
whether said powers are within the limits prescribed by the
Constitution, We will not decline to exercise our power of judicial
review. And such review does not constitute a modification or
correction of the act of the President, nor does it constitute
interference with the functions of the President.98
The concept of judicial power in relation to the concept of the
political question was discussed most extensively in Francisco v.
HRET.99 In this case, the House of Representatives arguedthat the
question of the validity of the second impeachment complaint that
was filed against former Chief Justice Hilario Davide was a political
question beyond the ambit of this court. Former Chief Justice
Reynato Puno elaborated on this concept in his concurring and
dissenting opinion:
To be sure, the force to impugn the jurisdiction of this Court
becomes more feeble in light of the new Constitution which
expanded the definition of judicial power as including "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." As well observed by retired
Justice Isagani Cruz, this expanded definition of judicial power
considerably constricted the scope of political question. He opined
that the language luminously suggests that this duty (and power) is
available even against the executive and legislative departments
including the President and the Congress, in the exercise of their
discretionary powers.100 (Emphasis in the original, citations
omitted)
Francisco also provides the cases which show the evolution of the
political question, as applied in the following cases:
CONSTI LAW II I ACJUCO 266
In Marcos v. Manglapus, this Court, speaking through Madame
Justice Irene Cortes, held: 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. x x x
In Bengzon v. Senate Blue Ribbon Committee, through Justice
Teodoro Padilla, this Court declared:
The "allocation of constitutional boundaries" is a task that this Court
must perform under the Constitution. Moreover, as held in a recent
case, "(t)he political question doctrine neither interposes an
obstacle to judicial determination of the rival claims. The jurisdiction
to delimit constitutional boundaries has been given to this Court. It
cannot abdicate that obligation mandated by the 1987 Constitution,
although said provision by no means does away with the
applicability of the principle in appropriate cases." (Emphasis and
italics supplied)
And in Daza v. Singson, speaking through Justice Isagani Cruz, this
Court ruled:
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 resolving it under the expanded
jurisdiction conferred upon us that now covers, in proper cases,
even the political question.x x x (Emphasis and italics supplied.)
....
In our jurisdiction, the determination of whether an issue involves a
truly political and non-justiciable question lies in the answer to the
question of whether there are constitutionally imposed limits on
powers or functions conferred upon political bodies. If there are,
then our courts are duty-bound to examine whether the branch or
instrumentality of the government properly acted within such
limits.101 (Citations omitted)
As stated in Francisco, a political question will not be considered
justiciable if there are no constitutionally imposed limits on powers
or functions conferred upon political bodies. Hence, the existence of
constitutionally imposed limits justifies subjecting the official actions
of the body to the scrutiny and review of this court.
In this case, the Bill of Rights gives the utmost deference to the right
to free speech. Any instance that this right may be abridged
demands judicial scrutiny. It does not fall squarely into any doubt
that a political question brings.
I.E
Exhaustion of administrative remedies
Respondents allege that petitioners violated the principle of
exhaustion of administrative remedies. Respondents insist that
petitioners should have first brought the matter to the COMELEC En
Banc or any of its divisions.102
Respondents point out that petitioners failed to comply with the
requirement in Rule 65 that "there is no appeal, or any plain, speedy,
and adequate remedy in the ordinary course of law."103 They add
that the proper venue to assail the validity of the assailed issuances
was in the course of an administrative hearing to be conducted by
COMELEC.104 In the event that an election offense is filed against
petitioners for posting the tarpaulin, they claim that petitioners
should resort to the remedies prescribed in Rule 34 of the
COMELEC Rules of Procedure.105

The argument on exhaustion of administrative remedies is not
proper in this case.
Despite the alleged non-exhaustion of administrative remedies, it is
clear that the controversy is already ripe for adjudication. Ripeness
is the "prerequisite that something had by then been accomplished
or performed by either branch [or in this case, organ of government]
before a court may come into the picture."106
Petitioners’ exercise of their rightto speech, given the message and
their medium, had understandable relevance especially during the
elections. COMELEC’s letter threatening the filing of the election
offense against petitioners is already an actionable infringement of
this right. The impending threat of criminal litigation is enough to
curtail petitioners’ speech.
In the context of this case, exhaustion of their administrative
remedies as COMELEC suggested in their pleadings prolongs the
violation of their freedom of speech.
Political speech enjoys preferred protection within our constitutional
order. In Chavez v. Gonzales,107 Justice Carpio in a separate
opinion emphasized: "[i]f everthere is a hierarchy of protected
expressions, political expression would occupy the highest rank,
and among different kinds of political expression, the subject of fair
and honest elections would be at the top."108 Sovereignty resides
in the people.109 Political speech is a direct exercise of the
sovereignty. The principle of exhaustion of administrative remedies
yields in order to protect this fundamental right.
Even assuming that the principle of exhaustion of administrative
remedies is applicable, the current controversy is within the
exceptions to the principle. In Chua v. Ang,110 this court held:
On the other hand, prior exhaustion of administrative remedies may
be dispensed with and judicial action may be validly resorted to
immediately: (a) when there is a violation of due process; (b) when
the issue involved is purely a legal question; (c) when the
administrative action is patently illegal amounting to lack or excess
of jurisdiction; (d) when there is estoppel on the part ofthe
administrative agency concerned; (e) when there is irreparable
injury; (f) when the respondent is a department secretary whose
acts as analter ego of the President bear the implied and assumed
approval of the latter; (g) when to require exhaustion of
administrative remedies would be unreasonable; (h) when it would
amount to a nullification of a claim; (i) when the subject matter is a
private land in land case proceedings; (j) whenthe rule does not
provide a plain, speedy and adequate remedy; or (k) when there are
circumstances indicating the urgency of judicial intervention."111
(Emphasis supplied, citation omitted)
The circumstances emphasized are squarely applicable with the
present case. First, petitioners allegethat the assailed issuances
violated their right to freedom of expression and the principle of
separation of church and state. This is a purely legal question.
Second, the circumstances of the present case indicate the urgency
of judicial intervention considering the issue then on the RH Law as
well as the upcoming elections. Thus, to require the exhaustion of
administrative remedies in this case would be unreasonable.
Time and again, we have held that this court "has the power to relax
or suspend the rules or to except a case from their operation when
compelling reasons so warrant, or whenthe purpose of justice
requires it, [and when] [w]hat constitutes [as] good and sufficient
cause that will merit suspension of the rules is discretionary upon
the court".112 Certainly, this case of first impression where
COMELEC has threatenedto prosecute private parties who seek to
participate in the elections by calling attention to issues they want
debated by the publicin the manner they feel would be effective is
one of those cases.
CONSTI LAW II I ACJUCO 267
II
SUBSTANTIVE ISSUES
II.A
COMELEC had no legal basis to regulate expressions made by
private citizens
Respondents cite the Constitution, laws, and jurisprudence to
support their position that they had the power to regulate the
tarpaulin.113 However, all of these provisions pertain to candidates
and political parties. Petitioners are not candidates. Neither do
theybelong to any political party. COMELEC does not have the
authority to regulate the enjoyment of the preferred right to freedom
of expression exercised by a non-candidate in this case.
II.A.1
First, respondents cite Article IX-C, Section 4 of the Constitution,
which provides:
Section 4. The Commission may,during the election period,
supervise or regulate the enjoyment or utilization of all franchises or
permits for the operation of transportation and other public utilities,
media of communication or information, all grants, special
privileges, or concessions granted by the Government or any
subdivision, agency, or instrumentality thereof, including any
government-owned or controlled corporation or its subsidiary. Such
supervision or regulation shall aim to ensure equal opportunity, time,
and space, and the right to reply, including reasonable, equal rates
therefor, for public information campaigns and forums among
candidates in connection with the objective of holding free, orderly,
honest, peaceful, and credible elections.114 (Emphasis supplied)
Sanidad v. COMELEC115 involved the rules promulgated by
COMELEC during the plebiscite for the creation of the Cordillera
Autonomous Region.116 Columnist Pablito V. Sanidad questioned
the provision prohibiting journalists from covering plebiscite issues
on the day before and on plebiscite day.117 Sanidad argued that
the prohibition was a violation of the "constitutional guarantees of
the freedom of expression and of the press. . . ."118 We held that
the "evil sought to be prevented by this provision is the possibility
that a franchise holder may favor or give any undue advantage to a
candidate in terms of advertising space or radio or television
time."119 This court found that "[m]edia practitioners exercising
their freedom of expression during plebiscite periods are neither the
franchise holders nor the candidates[,]"120 thus, their right to
expression during this period may not be regulated by
COMELEC.121
Similar to the media, petitioners in the case at bar are neither
franchise holders nor candidates. II.A.2
Respondents likewise cite Article IX-C, Section 2(7) of the
Constitution as follows:122
Sec. 2. The Commission on Elections shall exercise the following
powers and functions:
....
(7) Recommend to the Congress effective measures to minimize
election spending, including limitation of places where propaganda
materials shall be posted, and to prevent and penalize all forms of
election frauds, offenses, malpractices, and nuisance candidates.
(Emphasis supplied) Based on the enumeration made on actsthat
may be penalized, it will be inferred that this provision only affects
candidates.
Petitioners assail the "Notice to Remove Campaign Materials"
issued by COMELEC. This was followed bythe assailed letter

regarding the "election propaganda material posted on the church
vicinity promoting for or against the candidates and party-list groups.
. . ."123
Section 9 of the Fair Election Act124 on the posting of campaign
materials only mentions "parties" and "candidates":
Sec. 9. Posting of Campaign Materials. - The COMELEC may
authorize political parties and party-list groups to erect common
poster areas for their candidates in not more than ten (10) public
places such as plazas, markets, barangay centers and the like,
wherein candidates can post, display or exhibit election
propaganda: Provided, That the size ofthe poster areas shall not
exceed twelve (12) by sixteen (16) feet or its equivalent.
Independent candidates with no political parties may likewise be
authorized to erect common poster areas in not more than ten (10)
public places, the size of which shall not exceed four (4) by six (6)
feet or its equivalent. Candidates may post any lawful propaganda
material in private places with the consent of the owner thereof, and
in public places or property which shall be allocated equitably and
impartially among the candidates. (Emphasis supplied)
Similarly, Section 17 of COMELEC Resolution No. 9615, the rules
and regulations implementing the Fair Election Act, provides as
follows:
SECTION 17. Posting of Campaign Materials. - Parties and
candidates may post any lawful campaign material in:
a. Authorized common poster areasin public places subject to the
requirements and/or limitations set forth in the next following
section; and
b. Private places provided it has the consent of the owner thereof.
The posting of campaign materials in public places outside of the
designated common poster areas and those enumerated under
Section 7 (g) of these Rules and the like is prohibited. Persons
posting the same shall be liable together with the candidates and
other persons who caused the posting. It will be presumed that the
candidates and parties caused the posting of campaign materials
outside the common poster areas if they do not remove the same
within three (3) days from notice which shall be issued by the
Election Officer of the city or municipality where the unlawful
election propaganda are posted or displayed.
Members of the PNP and other law enforcement agencies called
upon by the Election Officeror other officials of the COMELEC shall
apprehend the violators caught in the act, and file the appropriate
charges against them. (Emphasis supplied)
Respondents considered the tarpaulin as a campaign material in
their issuances. The above provisions regulating the posting of
campaign materials only apply to candidates and political parties,
and petitioners are neither of the two.
Section 3 of Republic Act No. 9006on "Lawful Election Propaganda"
also states that these are "allowed for all registered political parties,
national, regional, sectoral parties or organizations participating
under the party-list elections and for all bona fide candidates
seeking national and local elective positions subject to the limitation
on authorized expenses of candidates and political parties. . . ."
Section 6 of COMELEC Resolution No. 9615 provides for a similar
wording. These provisions show that election propaganda refers to
matter done by or on behalf of and in coordination with candidates
and political parties. Some level of coordination with the candidates
and political parties for whom the election propaganda are released
would ensure that these candidates and political parties maintain
within the authorized expenses limitation.
CONSTI LAW II I ACJUCO 268
The tarpaulin was not paid for byany candidate or political party.125
There was no allegation that petitioners coordinated with any of the
persons named in the tarpaulin regarding its posting. On the other
hand, petitioners posted the tarpaulin as part of their advocacy
against the RH Law. Respondents also cite National Press Club v.
COMELEC126 in arguing that its regulatory power under the
Constitution, to some extent, set a limit on the right to free speech
during election period.127
National Press Club involved the prohibition on the sale and
donation of space and time for political advertisements, limiting
political advertisements to COMELEC-designated space and time.
This case was brought by representatives of mass media and two
candidates for office in the 1992 elections. They argued that the
prohibition on the sale and donation of space and time for political
advertisements is tantamount to censorship, which necessarily
infringes on the freedom of speech of the candidates.128
This court upheld the constitutionality of the COMELEC prohibition
in National Press Club. However, this case does not apply as most
of the petitioners were electoral candidates, unlike petitioners in the
instant case. Moreover, the subject matter of National Press Club,
Section 11(b) of Republic Act No. 6646,129 only refers to a
particular kind of media such as newspapers, radio broadcasting, or
television.130 Justice Feliciano emphasized that the provision did
not infringe upon the right of reporters or broadcasters to air their
commentaries and opinions regarding the candidates, their
qualifications, and program for government. Compared to
Sanidadwherein the columnists lost their ability to give their
commentary on the issues involving the plebiscite, National Press
Clubdoes not involve the same infringement.
In the case at bar, petitioners lost their ability to give a commentary
on the candidates for the 2013 national elections because of the
COMELEC notice and letter. It was not merelya regulation on the
campaigns of candidates vying for public office. Thus, National
Press Clubdoes not apply to this case.
Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known
as the Omnibus Election Code, defines an"election campaign" as
follows:
....
(b) The term "election campaign" or "partisan political activity" refers
to an act designed to promote the election or defeat of a particular
candidate or candidates to a public office which shall include:
(1) Forming organizations, associations, clubs, committees or other
groups of persons for the purpose of soliciting votes and/or
undertaking any campaign for or against a candidate;
(2) Holding political caucuses, conferences, meetings, rallies,
parades, or other similar assemblies, for the purpose of soliciting
votes and/or undertaking any campaign or propaganda for or
against a candidate;
(3) Making speeches, announcements or commentaries, or holding
interviews for or against the election of any candidate for public
office;
(4) Publishing or distributing campaign literature or materials
designed to support or oppose the election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for or
against a candidate.
The foregoing enumerated acts ifperformed for the purpose of
enhancing the chances of aspirants for nomination for candidacy to
a public office by a political party, aggroupment, or coalition of
parties shall not be considered as election campaign or partisan

election activity. Public expressions or opinions or discussions of
probable issues in a forthcoming electionor on attributes of or
criticisms against probable candidates proposed to be nominated in
a forthcoming political party convention shall not be construed as
part of any election campaign or partisan political activity
contemplated under this Article. (Emphasis supplied)
True, there is no mention whether election campaign is limited only
to the candidates and political parties themselves. The focus of the
definition is that the act must be "designed to promote the election
or defeat of a particular candidate or candidates to a public office."
In this case, the tarpaulin contains speech on a matter of public
concern, that is, a statement of either appreciation or criticism on
votes made in the passing of the RH law. Thus, petitioners invoke
their right to freedom of expression.
II.B
The violation of the constitutional right
to freedom of speech and expression
Petitioners contend that the assailed notice and letter for the
removal of the tarpaulin violate their fundamental right to freedom of
expression.
On the other hand, respondents contend that the tarpaulin is an
election propaganda subject to their regulation pursuant to their
mandate under Article IX-C, Section 4 of the Constitution. Thus, the
assailed notice and letter ordering itsremoval for being oversized
are valid and constitutional.131
II.B.1
Fundamental to the consideration of this issue is Article III, Section
4 of the Constitution:
Section 4. No law shall be passed abridging the freedom of speech,
of expression, or of the press, or the right of the people peaceably
to assemble and petition the government for redress of
grievances.132
No law. . .
While it is true that the present petition assails not a law but an
opinion by the COMELEC Law Department, this court has applied
Article III, Section 4 of the Constitution even to governmental acts.
In Primicias v. Fugoso,133 respondent Mayor applied by analogy
Section 1119 of the Revised Ordinances of 1927 of Manila for the
public meeting and assembly organized by petitioner Primicias.134
Section 1119 requires a Mayor’s permit for the use of streets and
public places for purposes such as athletic games, sports, or
celebration of national holidays.135 What was questioned was not
a law but the Mayor’s refusal to issue a permit for the holding of
petitioner’s public meeting.136 Nevertheless, this court recognized
the constitutional right to freedom of speech, to peaceful assembly
and to petition for redress of grievances, albeit not absolute,137 and
the petition for mandamus to compel respondent Mayor to issue the
permit was granted.138
In ABS-CBN v. COMELEC, what was assailed was not a law but
COMELEC En Banc Resolution No. 98-1419 where the COMELEC
resolved to approve the issuance of a restraining order to stop ABS-
CBN from conducting exit surveys.139 The right to freedom of
expression was similarly upheld in this case and, consequently, the
assailed resolution was nullified and set aside.140
. . . shall be passed abridging. . .
CONSTI LAW II I ACJUCO 269
All regulations will have an impact directly or indirectly on
expression. The prohibition against the abridgment of speech
should not mean an absolute prohibition against regulation. The
primary and incidental burden on speech must be weighed against
a compelling state interest clearly allowed in the Constitution. The
test depends on the relevant theory of speech implicit in the kind of
society framed by our Constitution.
. . . of expression. . .
Our Constitution has also explicitly included the freedom of
expression, separate and in addition to the freedom of speech and
of the press provided in the US Constitution. The word "expression"
was added in the 1987 Constitution by Commissioner Brocka for
having a wider scope:
MR. BROCKA: This is a very minor amendment, Mr. Presiding
Officer. On Section 9, page 2, line 29, it says: "No law shall be
passed abridging the freedom of speech." I would like to
recommend to the Committee the change of the word "speech" to
EXPRESSION; or if not, add the words AND EXPRESSION after
the word "speech," because it is more expansive, it has a wider
scope, and it would refer to means of expression other than speech.
THE PRESIDING OFFICER (Mr.Bengzon): What does the
Committee say?
FR. BERNAS: "Expression" is more broad than speech. We accept
it.
MR. BROCKA: Thank you.
THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?
FR. BERNAS: Yes.
THE PRESIDING OFFICER (Mr.Bengzon): Is there any objection?
(Silence) The Chair hears none; the amendment is approved.
FR. BERNAS: So, that provision will now read: "No law shall be
passed abridging the freedom of speech, expression or of the press
. . . ."141 Speech may be said to be inextricably linked to freedom
itself as "[t]he right to think is the beginning of freedom, and speech
must be protected from the government because speech is the
beginning of thought."142
II.B.2
Communication is an essential outcome of protected speech.143
Communication exists when "(1) a speaker, seeking to signal
others, uses conventional actions because he orshe reasonably
believes that such actions will be taken by the audience in the
manner intended; and (2) the audience so takes the actions."144
"[I]n communicative action[,] the hearer may respond to the claims
by . . . either accepting the speech act’s claims or opposing them
with criticism or requests for justification."145
Speech is not limited to vocal communication. "[C]onduct is treated
as a form of speech sometimes referred to as ‘symbolic
speech[,]’"146 such that "‘when ‘speech’ and ‘nonspeech’ elements
are combined in the same course of conduct,’ the ‘communicative
element’ of the conduct may be ‘sufficient to bring into play the [right
to freedom of expression].’"147
The right to freedom of expression, thus, applies to the entire
continuum of speech from utterances made to conduct enacted, and
even to inaction itself as a symbolic manner of communication.
In Ebralinag v. The Division Superintendent of Schools of Cebu,148
students who were members of the religious sect Jehovah’s
Witnesses were to be expelled from school for refusing to salute the

flag, sing the national anthem, and recite the patriotic pledge.149 In
his concurring opinion, Justice Cruz discussed how the salute is a
symbolic manner of communication and a valid form of
expression.150 He adds that freedom of speech includes even the
right to be silent:
Freedom of speech includes the right to be silent. Aptly has it been
said that the Bill of Rights that guarantees to the individual the liberty
to utter what is in his mind also guarantees to him the liberty not to
utter what is not in his mind. The salute is a symbolic manner of
communication that conveys its messageas clearly as the written or
spoken word. As a valid form of expression, it cannot be compelled
any more than it can be prohibited in the face of valid religious
objections like those raised in this petition. To impose it on the
petitioners is to deny them the right not to speak when their religion
bids them to be silent. This coercion of conscience has no place in
the free society.
The democratic system provides for the accommodation of diverse
ideas, including the unconventional and even the bizarre or
eccentric. The will of the majority prevails, but it cannot regiment
thought by prescribing the recitation by rote of its opinions or
proscribing the assertion of unorthodox or unpopular views as inthis
case. The conscientious objections of the petitioners, no less than
the impatience of those who disagree with them, are protected by
the Constitution. The State cannot make the individual speak when
the soul within rebels.151
Even before freedom "of expression" was included in Article III,
Section 4 of the present Constitution,this court has applied its
precedent version to expressions other than verbal utterances.
In the 1985 case of Gonzalez v. Chairman Katigbak,152 petitioners
objected to the classification of the motion picture "Kapit sa Patalim"
as "For Adults Only." They contend that the classification "is without
legal and factual basis and is exercised as impermissible restraint
of artistic expression."153 This court recognized that "[m]otion
pictures are important both as a medium for the communication of
ideas and the expression of the artistic impulse."154 It adds that
"every writer,actor, or producer, no matter what medium of
expression he may use, should be freed from the censor."155 This
court found that "[the Board’s] perception of what constitutes
obscenity appears to be unduly restrictive."156 However, the
petition was dismissed solely on the ground that there were not
enough votes for a ruling of grave abuse of discretion in the
classification made by the Board.157
II.B.3
Size does matter
The form of expression is just as important as the information
conveyed that it forms part of the expression. The present case is in
point.
It is easy to discern why size matters.
First, it enhances efficiency in communication. A larger tarpaulin
allows larger fonts which make it easier to view its messages from
greater distances. Furthermore, a larger tarpaulin makes it easier
for passengers inside moving vehicles to read its content.
Compared with the pedestrians, the passengers inside moving
vehicles have lesser time to view the content of a tarpaulin. The
larger the fonts and images, the greater the probability that it will
catch their attention and, thus, the greater the possibility that they
will understand its message.
Second, the size of the tarpaulin may underscore the importance of
the message to the reader. From an ordinary person’s perspective,
those who post their messages in larger fonts care more about their
message than those who carry their messages in smaller media.
CONSTI LAW II I ACJUCO 270
The perceived importance given by the speakers, in this case
petitioners, to their cause is also part of the message. The effectivity
of communication sometimes relies on the emphasis put by the
speakers and onthe credibility of the speakers themselves.
Certainly, larger segments of the public may tend to be more
convinced of the point made by authoritative figures when they
make the effort to emphasize their messages.
Third, larger spaces allow for more messages. Larger spaces,
therefore, may translate to more opportunities to amplify, explain,
and argue points which the speakers might want to communicate.
Rather than simply placing the names and images of political
candidates and an expression of support, larger spaces can allow
for brief but memorable presentations of the candidates’ platforms
for governance. Larger spaces allow for more precise inceptions of
ideas, catalyze reactions to advocacies, and contribute more to a
more educated and reasoned electorate. A more educated
electorate will increase the possibilities of both good governance
and accountability in our government.
These points become more salient when it is the electorate, not the
candidates or the political parties, that speaks. Too often, the terms
of public discussion during elections are framed and kept hostage
by brief and catchy but meaningless sound bites extolling the
character of the candidate. Worse, elections sideline political
arguments and privilege the endorsement by celebrities. Rather
than provide obstacles to their speech, government should in fact
encourage it. Between the candidates and the electorate, the latter
have the better incentive to demand discussion of the more
important issues. Between the candidates and the electorate, the
former have better incentives to avoid difficult political standpoints
and instead focus on appearances and empty promises.
Large tarpaulins, therefore, are not analogous to time and place.158
They are fundamentally part of expression protected under Article
III, Section 4 of the Constitution.
II.B.4
There are several theories and schools of thought that strengthen
the need to protect the basic right to freedom of expression.
First, this relates to the right ofthe people to participate in public
affairs, including the right to criticize government actions.
Proponents of the political theory on "deliberative democracy"
submit that "substantial, open, [and] ethical dialogue isa critical, and
indeed defining, feature of a good polity."159 This theory may be
considered broad, but it definitely "includes [a] collective decision
making with the participation of all who will beaffected by the
decision."160 It anchors on the principle that the cornerstone of
every democracy is that sovereignty resides in the people.161 To
ensure order in running the state’s affairs, sovereign powers were
delegated and individuals would be elected or nominated in key
government positions to represent the people. On this note, the
theory on deliberative democracy may evolve to the right of the
people to make government accountable. Necessarily, this includes
the right of the people to criticize acts made pursuant to
governmental functions.
Speech that promotes dialogue on publicaffairs, or airs out
grievances and political discontent, should thus be protected and
encouraged.
Borrowing the words of Justice Brandeis, "it is hazardous to
discourage thought, hope and imagination; that fear breeds
repression; that repression breeds hate; that hate menaces stable
government; that the path of safety lies in the opportunity to discuss
freely supposed grievances and proposed remedies."162

In this jurisdiction, this court held that "[t]he interest of society and
the maintenance of good government demand a full discussion of
public affairs."163 This court has, thus, adopted the principle that
"debate on public issues should be uninhibited, robust,and wide
open . . . [including even] unpleasantly sharp attacks on government
and public officials."164
Second, free speech should be encouraged under the concept of a
market place of ideas. This theory was articulated by Justice
Holmes in that "the ultimate good desired is better reached by [the]
free trade in ideas:"165
When men have realized that time has upset many fighting faiths,
they may come to believe even more than they believe the very
foundations of their own conduct that the ultimate good desired is
better reached by free trade in ideas - that the best test of truth is
the power of the thought to get itself accepted in the competition of
the market, and that truth is the only ground upon which their wishes
safely can be carried out.166
The way it works, the exposure to the ideas of others allows one to
"consider, test, and develop their own conclusions."167 A free,
open, and dynamic market place of ideas is constantly shaping new
ones. This promotes both stability and change where recurring
points may crystallize and weak ones may develop. Of course, free
speech is more than the right to approve existing political beliefs and
economic arrangements as it includes, "[t]o paraphrase Justice
Holmes, [the] freedom for the thought that we hate, no less than for
the thought that agrees with us."168 In fact, free speech may "best
serve its high purpose when it induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even stirs people to
anger."169 It is in this context that we should guard against any
curtailment of the people’s right to participate in the free trade of
ideas.
Third, free speech involves self-expression that enhances human
dignity. This right is "a means of assuring individual self-
fulfillment,"170 among others. In Philippine Blooming Mills
Employees Organization v. Philippine Blooming Mills Co., Inc,171
this court discussed as follows:
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.172 (Emphasis supplied)
Fourth, expression is a marker for group identity. For one,
"[v]oluntary associations perform [an] important democratic role [in
providing] forums for the development of civil skills, for deliberation,
and for the formation of identity and community spirit[,] [and] are
largely immune from [any] governmental interference."173 They
also "provide a buffer between individuals and the state - a free
space for the development of individual personality, distinct group
identity, and dissident ideas - and a potential source of opposition
to the state."174 Free speech must be protected as the vehicle to
find those who have similar and shared values and ideals, to join
together and forward common goals.
Fifth, the Bill of Rights, free speech included, is supposed to "protect
individuals and minorities against majoritarian abuses perpetrated
through [the] framework [of democratic governance]."175 Federalist
framers led by James Madison were concerned about two
potentially vulnerable groups: "the citizenry at large - majorities -
who might be tyrannized or plundered by despotic federal
CONSTI LAW II I ACJUCO 271
officials"176 and the minorities who may be oppressed by "dominant
factions of the electorate [that] capture [the] government for their
own selfish ends[.]"177 According to Madison, "[i]t is of great
importance in a republic not only to guard the society against the
oppression of its rulers, but to guard one part of the society against
the injustice of the other part."178 We should strive to ensure that
free speech is protected especially in light of any potential
oppression against those who find themselves in the fringes on
public issues.
Lastly, free speech must be protected under the safety valve
theory.179 This provides that "nonviolent manifestations of dissent
reduce the likelihood of violence[.]"180 "[A] dam about to burst . . .
resulting in the ‘banking up of a menacing flood of sullen anger
behind the walls of restriction’"181 has been used to describe the
effect of repressing nonviolent outlets.182 In order to avoid this
situation and prevent people from resorting to violence, there is a
need for peaceful methods in making passionate dissent. This
includes "free expression and political participation"183 in that they
can "vote for candidates who share their views, petition their
legislatures to [make or] change laws, . . . distribute literature
alerting other citizens of their concerns[,]"184 and conduct peaceful
rallies and other similar acts.185 Free speech must, thus, be
protected as a peaceful means of achieving one’s goal, considering
the possibility that repression of nonviolent dissent may spill over to
violent means just to drive a point.
II.B.5
Every citizen’s expression with political consequences enjoys a high
degree of protection. Respondents argue that the tarpaulinis
election propaganda, being petitioners’ way of endorsing candidates
who voted against the RH Law and rejecting those who voted for
it.186 As such, it is subject to regulation by COMELEC under its
constitutional mandate.187 Election propaganda is defined under
Section 1(4) of COMELEC Resolution No. 9615 as follows:
SECTION 1. Definitions . . .
....
4. The term "political advertisement" or "election propaganda" refers
to any matter broadcasted, published, printed, displayed or
exhibited, in any medium, which contain the name, image, logo,
brand, insignia, color motif, initials, and other symbol or graphic
representation that is capable of being associated with a candidate
or party, and is intended to draw the attention of the public or a
segment thereof to promote or oppose, directly or indirectly, the
election of the said candidate or candidates to a public office. In
broadcast media, political advertisements may take the form of
spots, appearances on TV shows and radio programs, live or taped
announcements, teasers, and other forms of advertising messages
or announcements used by commercial advertisers. Political
advertising includes matters, not falling within the scope of personal
opinion, that appear on any Internet website, including, but not
limited to, social networks, blogging sites, and micro-blogging sites,
in return for consideration, or otherwise capable of pecuniary
estimation.
On the other hand, petitioners invoke their "constitutional right to
communicate their opinions, views and beliefs about issues and
candidates."188 They argue that the tarpaulin was their statement
of approval and appreciation of the named public officials’ act of
voting against the RH Law, and their criticism toward those who
voted in its favor.189 It was "part of their advocacy campaign
against the RH Law,"190 which was not paid for by any candidate
or political party.191 Thus, "the questioned orders which . . .
effectively restrain[ed] and curtail[ed] [their] freedom of expression
should be declared unconstitutional and void."192
This court has held free speech and other intellectual freedoms as
"highly ranked in our scheme of constitutional values."193 These

rights enjoy precedence and primacy.194 In Philippine Blooming
Mills, this court discussed the preferred position occupied by
freedom of expression:
Property and property rights can belost thru prescription; but human
rights are imprescriptible. If human rights are extinguished by the
passage of time, then the Bill 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, ofthe 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; and
such priority "gives these liberties the sanctity and the sanction not
permitting dubious intrusions."195 (Citations omitted)
This primordial right calls for utmost respect, more so "when what
may be curtailed is the dissemination of information to make more
meaningful the equally vital right of suffrage."196 A similar idea
appeared in our jurisprudence as early as 1969, which was Justice
Barredo’s concurring and dissenting opinion in Gonzales v.
COMELEC:197
I like to reiterate over and over, for it seems this is the fundamental
point others miss, that genuine democracy thrives only where the
power and right of the people toelect the men to whom they would
entrust the privilege to run the affairs of the state exist. In the
language of the declaration of principles of our Constitution, "The
Philippines is a republican state. Sovereignty resides in the people
and all government authority emanates from them" (Section 1,
Article II). Translating this declaration into actuality, the Philippines
is a republic because and solely because the people in it can be
governed only by officials whom they themselves have placed in
office by their votes. And in it is on this cornerstone that I hold it tobe
self-evident that when the freedoms of speech, press and peaceful
assembly and redress of grievances are being exercised in relation
to suffrage or asa means to enjoy the inalienable right of the
qualified citizen to vote, they are absolute and timeless. If our
democracy and republicanism are to be worthwhile, the conduct of
public affairs by our officials must be allowed to suffer incessant and
unabating scrutiny, favorable or unfavorable, everyday and at all
times. Every holder of power in our government must be ready to
undergo exposure any moment of the day or night, from January to
December every year, as it is only in this way that he can rightfully
gain the confidence of the people. I have no patience for those who
would regard public dissection of the establishment as an attribute
to be indulged by the people only at certain periods of time. I
consider the freedoms of speech, press and peaceful assembly and
redress of grievances, when exercised in the name of suffrage, as
the very means by which the right itself to vote can only be properly
enjoyed.It stands to reason therefore, that suffrage itself would be
next to useless if these liberties cannot be untrammelled [sic]
whether as to degree or time.198 (Emphasis supplied)
Not all speech are treated the same. In Chavez v. Gonzales, this
court discussed that some types of speech may be subject to
regulation:
Some types of speech may be subjected to some regulation by the
State under its pervasive police power, in order that it may not be
injurious to the equal right of others or those of the community or
society. The difference in treatment is expected because the
relevant interests of one type of speech, e.g., political speech, may
vary from those of another, e.g., obscene speech. Distinctionshave
therefore been made in the treatment, analysis, and evaluation ofthe
permissible scope of restrictions on various categories of speech.
We have ruled, for example, that in our jurisdiction slander or libel,
lewd and obscene speech, as well as "fighting words" are not
entitled to constitutional protection and may be penalized.199
(Citations omitted)
CONSTI LAW II I ACJUCO 272
We distinguish between politicaland commercial speech. Political
speech refers to speech "both intended and received as a
contribution to public deliberation about some issue,"200 "foster[ing]
informed and civicminded deliberation."201 On the other hand,
commercial speech has been defined as speech that does "no more
than propose a commercial transaction."202 The expression
resulting from the content of the tarpaulin is, however, definitely
political speech. In Justice Brion’s dissenting opinion, he discussed
that "[t]he content of the tarpaulin, as well as the timing of its posting,
makes it subject of the regulations in RA 9006 and Comelec
Resolution No. 9615."203 He adds that "[w]hile indeed the RH issue,
by itself,is not an electoralmatter, the slant that the petitioners gave
the issue converted the non-election issue into a live election one
hence, Team Buhay and Team Patay and the plea to support one
and oppose the other."204
While the tarpaulin may influence the success or failure of the
named candidates and political parties, this does not necessarily
mean it is election propaganda. The tarpaulin was not paid for or
posted "in return for consideration" by any candidate, political party,
or party-list group.
The second paragraph of Section 1(4) of COMELEC Resolution No.
9615, or the rules and regulations implementing Republic Act No.
9006 as an aid to interpret the law insofar as the facts of this case
requires, states:
4. The term "political advertisement" or "election propaganda" refers
to any matter broadcasted, published, printed, displayed or
exhibited, in any medium, which contain the name, image, logo,
brand, insignia, color motif, initials, and other symbol or graphic
representation that is capable of being associated with a candidate
or party, and is intended to draw the attention of the public or a
segment thereof to promote or oppose, directly or indirectly, the
election of the said candidate or candidates to a public office. In
broadcast media, political advertisements may take the form of
spots, appearances on TV shows and radio programs, live or taped
announcements, teasers, and other forms of advertising messages
or announcements used by commercial advertisers. Political
advertising includes matters, not falling within the scope of personal
opinion, that appear on any Internet website, including, but not
limited to, social networks, blogging sites, and micro-blogging sites,
in return for consideration, or otherwise capable of pecuniary
estimation. (Emphasis supplied)
It is clear that this paragraph suggests that personal opinions are
not included, while sponsored messages are covered.
Thus, the last paragraph of Section 1(1) of COMELEC Resolution
No. 9615 states:
SECTION 1. Definitions - As used in this Resolution:
1. The term "election campaign" or "partisan political activity" refers
to an act designed to promote the election or defeat of a particular
candidate or candidates to a public office, and shall include any of
the following:
....
Personal opinions, views, and preferences for candidates,
contained in blogs shall not be considered acts of election
campaigning or partisan politicalactivity unless expressed by
government officials in the Executive Department, the Legislative
Department, the Judiciary, the Constitutional Commissions, and
members of the Civil Service.
In any event, this case does not refer to speech in cyberspace, and
its effects and parameters should be deemed narrowly tailored only
in relation to the facts and issues in this case. It also appears that

such wording in COMELEC Resolution No. 9615 does not similarly
appear in Republic Act No. 9006, the law it implements.
We should interpret in this manner because of the value of political
speech.
As early as 1918, in United States v. Bustos,205 this court
recognized the need for full discussion of public affairs. We
acknowledged that free speech includes the right to criticize the
conduct of public men:
The interest of society and the maintenance of good government
demand a full discussion of public affairs. Complete liberty to
comment on the conduct of public men is a scalpel in the case of
free speech. The sharp incision of its probe relieves the abscesses
of official dom. Men in public life may suffer under a hostile and an
unjust accusation; the wound can be assuaged with the balm of a
clear conscience. A public officer must not be too thin-skinned with
reference to comment upon his official acts. Only thus can the
intelligence and dignity of the individual be exalted.206
Subsequent jurisprudence developed the right to petition the
government for redress of grievances, allowing for criticism, save
for some exceptions.207 In the 1951 case of Espuelas v.
People,208 this court noted every citizen’s privilege to criticize his
or her government, provided it is "specific and therefore
constructive, reasoned or tempered, and not a contemptuous
condemnation of the entire government set-up."209
The 1927 case of People v. Titular210 involved an alleged violation
of the Election Law provision "penaliz[ing] the anonymous criticism
of a candidate by means of posters or circulars."211 This court
explained that it is the poster’s anonymous character that is being
penalized.212 The ponente adds that he would "dislike very muchto
see this decision made the vehicle for the suppression of public
opinion."213
In 1983, Reyes v. Bagatsing214 discussed the importance of
allowing individuals to vent their views. According to this court, "[i]ts
value may lie in the fact that there may be something worth hearing
from the dissenter [and] [t]hat is to ensurea true ferment of
ideas."215
Allowing citizens to air grievances and speak constructive criticisms
against their government contributes to every society’s goal for
development. It puts forward matters that may be changed for the
better and ideas that may be deliberated on to attain that purpose.
Necessarily, it also makes the government accountable for acts that
violate constitutionally protected rights.
In 1998, Osmeña v. COMELEC found Section 11(b) of Republic Act
No. 6646, which prohibits mass media from selling print space and
air time for campaign except to the COMELEC, to be a democracy-
enhancing measure.216 This court mentioned how "discussion of
public issues and debate on the qualifications of candidates in an
election are essential to the proper functioning of the government
established by our Constitution."217
As pointed out by petitioners, "speech serves one of its greatest
public purposes in the context of elections when the free exercise
thereof informs the people what the issues are, and who are
supporting what issues."218 At the heart of democracy is every
advocate’s right to make known what the people need to know,219
while the meaningful exercise of one’s right of suffrage includes the
right of every voter to know what they need to know in order to make
their choice.
Thus, in Adiong v. COMELEC,220 this court discussed the
importance of debate on public issues, and the freedom of
expression especially in relation to information that ensures the
meaningful exercise of the right of suffrage:
CONSTI LAW II I ACJUCO 273
We have adopted the principle that debate on public issues should
be uninhibited, robust, and wide open and that it may well include
vehement, caustic and sometimes unpleasantly sharp attacks on
government and public officials. Too many restrictions will deny to
people the robust, uninhibited, and wide open debate, the
generating of interest essential if our elections will truly be free,
clean and honest.
We have also ruled that the preferred freedom of expression calls
all the more for the utmost respect when what may be curtailed is
the dissemination of information to make more meaningful the
equally vital right of suffrage.221 (Emphasis supplied, citations
omitted)
Speech with political consequences isat the core of the freedom of
expression and must be protected by this court.
Justice Brion pointed out that freedomof expression "is not the god
of rights to which all other rights and even government protection of
state interest must bow."222
The right to freedom of expression isindeed not absolute. Even
some forms of protected speech are still subjectto some restrictions.
The degree of restriction may depend on whether the regulation is
content-based or content-neutral.223 Content-based regulations
can either be based on the viewpoint of the speaker or the subject
of the expression.
II.B.6
Content-based regulation
COMELEC contends that the order for removal of the tarpaulin is a
content-neutral regulation. The order was made simply because
petitioners failed to comply with the maximum size limitation for
lawful election propaganda.224
On the other hand, petitioners argue that the present size regulation
is content-based as it applies only to political speech and not to
other forms of speech such as commercial speech.225 "[A]ssuming
arguendo that the size restriction sought to be applied . . . is a mere
time, place, and manner regulation, it’s still unconstitutional for lack
of a clear and reasonable nexus with a constitutionally sanctioned
objective."226
The regulation may reasonably be considered as either content-
neutral or content-based.227 Regardless, the disposition of this
case will be the same. Generally, compared with other forms of
speech, the proposed speech is content-based.
As pointed out by petitioners, the interpretation of COMELEC
contained in the questioned order applies only to posters and
tarpaulins that may affect the elections because they deliver
opinions that shape both their choices. It does not cover, for
instance, commercial speech.
Worse, COMELEC does not point to a definite view of what kind of
expression of non-candidates will be adjudged as "election
paraphernalia." There are no existing bright lines to categorize
speech as election-related and those that are not. This is especially
true when citizens will want to use their resources to be able to raise
public issues that should be tackled by the candidates as what has
happened in this case. COMELEC’s discretion to limit speech in this
case is fundamentally unbridled.
Size limitations during elections hit ata core part of expression. The
content of the tarpaulin is not easily divorced from the size of its
medium.

Content-based regulation bears a heavy presumption of invalidity,
and this court has used the clear and present danger rule as
measure.228 Thus, in Chavez v. Gonzales:
A content-based regulation, however, bears a heavy presumption of
invalidity and is measured against the clear and present danger rule.
The latter will pass constitutional muster only if justified by a
compelling reason, and the restrictions imposedare neither
overbroad nor vague.229 (Citations omitted)
Under this rule, "the evil consequences sought to be prevented must
be substantive, ‘extremely serious and the degree of imminence
extremely high.’"230 "Only when the challenged act has overcome
the clear and present danger rule will it pass constitutional muster,
with the government having the burden of overcoming the presumed
unconstitutionality."231
Even with the clear and present danger test, respondents failed to
justify the regulation. There is no compelling and substantial state
interest endangered by the posting of the tarpaulinas to justify
curtailment of the right of freedom of expression. There is no reason
for the state to minimize the right of non-candidate petitioners to post
the tarpaulin in their private property. The size of the tarpaulin does
not affect anyone else’s constitutional rights.
Content-based restraint or censorship refers to restrictions "based
on the subject matter of the utterance or speech."232 In contrast,
content-neutral regulation includes controls merely on the incidents
of the speech such as time, place, or manner of the speech.233
This court has attempted to define "content-neutral" restraints
starting with the 1948 case of Primicias v. Fugoso.234 The
ordinance in this case was construed to grant the Mayor discretion
only to determine the public places that may be used for the
procession ormeeting, but not the power to refuse the issuance of a
permit for such procession or meeting.235 This court explained that
free speech and peaceful assembly are "not absolute for it may be
so regulated that it shall not beinjurious to the equal enjoyment of
others having equal rights, nor injurious to the rights of the
community or society."236
The earlier case of Calalang v. Williams237 involved the National
Traffic Commission resolution that prohibited the passing of animal-
drawn vehicles along certain roads at specific hours.238 This court
similarly discussed police power in that the assailed rules carry
outthe legislative policy that "aims to promote safe transit upon and
avoid obstructions on national roads, in the interest and
convenience of the public."239
As early as 1907, United States v. Apurado240 recognized 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. . . ."241 It is with this backdrop that the state is justified
in imposing restrictions on incidental matters as time, place, and
manner of the speech.
In the landmark case of Reyes v. Bagatsing, this court summarized
the steps that permit applicants must follow which include informing
the licensing authority ahead of time as regards the date, public
place, and time of the assembly.242 This would afford the public
official time to inform applicants if there would be valid objections,
provided that the clear and present danger test is the standard used
for his decision and the applicants are given the opportunity to be
heard.243 This ruling was practically codified in Batas Pambansa
No. 880, otherwise known as the Public Assembly Act of 1985.
Subsequent jurisprudence have upheld Batas Pambansa No. 880
as a valid content-neutral regulation. In the 2006 case of Bayan v.
Ermita,244 this court discussed how Batas Pambansa No. 880 does
not prohibit assemblies but simply regulates their time, place, and
CONSTI LAW II I ACJUCO 274
manner.245 In 2010, this court found in Integrated Bar of the
Philippines v. Atienza246 that respondent Mayor Atienza committed
grave abuse of discretion when he modified the rally permit by
changing the venue from Mendiola Bridge to Plaza Miranda without
first affording petitioners the opportunity to be heard.247
We reiterate that the regulation involved at bar is content-based.
The tarpaulin content is not easily divorced from the size of its
medium.
II.B.7
Justice Carpio and Justice Perlas-Bernabe suggest that the
provisions imposing a size limit for tarpaulins are content-neutral
regulations as these "restrict the mannerby which speech is relayed
but not the content of what is conveyed."248
If we apply the test for content-neutral regulation, the questioned
acts of COMELEC will not pass the three requirements for
evaluating such restraints on freedom of speech.249 "When the
speech restraints take the form of a content-neutral regulation, only
a substantial governmental interest is required for its validity,"250
and it is subject only to the intermediate approach.251
This intermediate approach is based on the test that we have
prescribed in several cases.252 A content-neutral government
regulation is sufficiently justified:
[1] if it is within the constitutional power of the Government; [2] if it
furthers an important or substantial governmental interest; [3] if the
governmental interest is unrelated to the suppression of free
expression; and [4] if the incident restriction on alleged [freedom of
speech & expression] is no greater than is essential to the
furtherance of that interest.253
On the first requisite, it is not within the constitutional powers of the
COMELEC to regulate the tarpaulin. As discussed earlier, this is
protected speech by petitioners who are non-candidates. On the
second requirement, not only must the governmental interest be
important or substantial, it must also be compelling as to justify the
restrictions made.
Compelling governmental interest would include constitutionally
declared principles. We have held, for example, that "the welfare of
children and the State’s mandate to protect and care for them, as
parens patriae,254 constitute a substantial and compelling
government interest in regulating . . . utterances in TV
broadcast."255
Respondent invokes its constitutional mandate to ensure equal
opportunity for public information campaigns among candidates in
connection with the holding of a free, orderly, honest, peaceful, and
credible election.256
Justice Brion in his dissenting opinion discussed that "[s]ize limits to
posters are necessary to ensure equality of public information
campaigns among candidates, as allowing posters with different
sizes gives candidates and their supporters the incentive to post
larger posters[,] [and] [t]his places candidates with more money
and/or with deep-pocket supporters at an undue advantage against
candidates with more humble financial capabilities."257
First, Adiong v. COMELEC has held that this interest is "not as
important as the right of [a private citizen] to freely express his
choice and exercise his right of free speech."258 In any case, faced
with both rights to freedom of speech and equality, a prudent course
would be to "try to resolve the tension in a way that protects the right
of participation."259
Second, the pertinent election lawsrelated to private property only
require that the private property owner’s consent be obtained when

posting election propaganda in the property.260 This is consistent
with the fundamental right against deprivation of property without
due process of law.261 The present facts do not involve such
posting of election propaganda absent consent from the property
owner. Thus, this regulation does not apply in this case.
Respondents likewise cite the Constitution262 on their authority to
recommend effective measures to minimize election spending.
Specifically, Article IX-C, Section 2(7) provides:
Sec. 2. The Commission on Elections shall exercise the following
powers and functions:
....
(7) Recommend to the Congress effective measures to minimize
election spending, including limitation of places where propaganda
materials shall be posted, and to prevent and penalize all forms of
election frauds, offenses, malpractices, and nuisance candidates.
(Emphasis supplied) This does not qualify as a compelling and
substantial government interest to justify regulation of the preferred
right to freedom of expression.
The assailed issuances for the removal of the tarpaulin are based
on the two feet (2’) by three feet (3’) size limitation under Section
6(c) of COMELEC Resolution No. 9615. This resolution implements
the Fair Election Act that provides for the same size limitation.263
This court held in Adiong v. COMELEC that "[c]ompared to the
paramount interest of the State in guaranteeing freedom of
expression, any financial considerations behind the regulation are
of marginal significance."264 In fact, speech with political
consequences, as in this case, should be encouraged and not
curtailed. As petitioners pointed out, the size limitation will not serve
the objective of minimizing election spending considering there is no
limit on the number of tarpaulins that may be posted.265
The third requisite is likewise lacking. We look not only at the
legislative intent or motive in imposing the restriction, but more so
at the effects of such restriction, if implemented. The restriction must
not be narrowly tailored to achieve the purpose. It must be
demonstrable. It must allow alternative avenues for the actor to
make speech.
In this case, the size regulation is not unrelated to the suppression
of speech. Limiting the maximum sizeof the tarpaulin would render
ineffective petitioners’ message and violate their right to exercise
freedom of expression.
The COMELEC’s act of requiring the removal of the tarpaulin has
the effect of dissuading expressions with political consequences.
These should be encouraged, more so when exercised to make
more meaningful the equally important right to suffrage.
The restriction in the present case does not pass even the lower test
of intermediate scrutiny for content-neutral regulations.
The action of the COMELEC in thiscase is a strong deterrent to
further speech by the electorate. Given the stature of petitioners and
their message, there are indicators that this will cause a "chilling
effect" on robust discussion during elections.
The form of expression is just as important as the message itself. In
the words of Marshall McLuhan, "the medium is the message."266
McLuhan’s colleague and mentor Harold Innis has earlier asserted
that "the materials on which words were written down have often
counted for more than the words themselves."267
III
Freedom of expression and equality
CONSTI LAW II I ACJUCO 275
III.A
The possibility of abuse
Of course, candidates and political parties do solicit the help of
private individuals for the endorsement of their electoral campaigns.
On the one extreme, this can take illicit forms such as when
endorsement materials in the form of tarpaulins, posters, or media
advertisements are made ostensibly by "friends" but in reality are
really paid for by the candidate or political party. This skirts the
constitutional value that provides for equal opportunities for all
candidates.
However, as agreed by the parties during the oral arguments in this
case, this is not the situation that confronts us. In such cases, it will
simply be a matter for investigation and proof of fraud on the part of
the COMELEC.
The guarantee of freedom of expression to individuals without any
relationship to any political candidate should not be held hostage by
the possibility of abuse by those seeking to be elected. It is true that
there can be underhanded, covert, or illicit dealings so as to hide
the candidate’s real levels of expenditures. However, labelling all
expressions of private parties that tend to have an effect on the
debate in the elections as election paraphernalia would be too broad
a remedy that can stifle genuine speech like in this case. Instead, to
address this evil, better and more effective enforcement will be the
least restrictive means to the fundamental freedom.
On the other extreme, moved by the credentials and the message
of a candidate, others will spend their own resources in order to lend
support for the campaigns. This may be without agreement between
the speaker and the candidate or his or her political party. In lieu of
donating funds to the campaign, they will instead use their
resources directly in a way that the candidate or political party would
have doneso. This may effectively skirt the constitutional and
statutory limits of campaign spending.
Again, this is not the situation in this case.
The message of petitioners in thiscase will certainly not be what
candidates and political parties will carry in their election posters or
media ads. The message of petitioner, taken as a whole, is an
advocacy of a social issue that it deeply believes. Through rhetorical
devices, it communicates the desire of Diocese that the positions of
those who run for a political position on this social issue be
determinative of how the public will vote. It primarily advocates a
stand on a social issue; only secondarily — even almost incidentally
— will cause the election or non-election of a candidate.
The twin tarpaulins consist of satire of political parties. Satire is a
"literary form that employs such devices as sarcasm, irony and
ridicule to deride prevailing vices or follies,"268 and this may target
any individual or group in society, private and government alike. It
seeks to effectively communicate a greater purpose, often used for
"political and social criticism"269 "because it tears down facades,
deflates stuffed shirts, and unmasks hypocrisy. . . . Nothing is more
thoroughly democratic than to have the high-and-mighty lampooned
and spoofed."270 Northrop Frye, wellknown in this literary field,
claimed that satire had two defining features: "one is wit or humor
founded on fantasy or a sense of the grotesque and absurd, the
other is an object of attack."271 Thus, satire frequently uses
exaggeration, analogy, and other rhetorical devices.
The tarpaulins exaggerate. Surely, "Team Patay" does not refer to
a list of dead individuals nor could the Archbishop of the Diocese of
Bacolod have intended it to mean that the entire plan of the
candidates in his list was to cause death intentionally. The tarpaulin
caricatures political parties and parodies the intention of those in the
list. Furthermore, the list of "Team Patay" is juxtaposed with the list

of "Team Buhay" that further emphasizes the theme of its author:
Reproductive health is an important marker for the church of
petitioners to endorse.
The messages in the tarpaulins are different from the usual
messages of candidates. Election paraphernalia from candidates
and political parties are more declarative and descriptive and
contain no sophisticated literary allusion to any social objective.
Thus, they usually simply exhort the public to vote for a person with
a brief description of the attributes of the candidate. For example
"Vote for [x], Sipag at Tiyaga," "Vote for [y], Mr. Palengke," or "Vote
for [z], Iba kami sa Makati."
This court’s construction of the guarantee of freedom of expression
has always been wary of censorship or subsequent punishment that
entails evaluation of the speaker’s viewpoint or the content of one’s
speech. This is especially true when the expression involved has
political consequences. In this case, it hopes to affect the type of
deliberation that happens during elections. A becoming humility on
the part of any human institution no matter how endowed with the
secular ability to decide legal controversies with finality entails that
we are not the keepers of all wisdom.
Humanity’s lack of omniscience, even acting collectively, provides
space for the weakest dissent. Tolerance has always been a
libertarian virtue whose version is embedded in our Billof Rights.
There are occasional heretics of yesterday that have become our
visionaries. Heterodoxies have always given us pause. The
unforgiving but insistent nuance that the majority surely and
comfortably disregards provides us with the checks upon reality that
may soon evolve into creative solutions to grave social problems.
This is the utilitarian version. It could also be that it is just part of
human necessity to evolve through being able to express or
communicate.
However, the Constitution we interpret is not a theoretical
document. It contains other provisions which, taken together with
the guarantee of free expression, enhances each other’s value.
Among these are the provisions that acknowledge the idea of
equality. In shaping doctrine construing these constitutional values,
this court needs to exercise extraordinary prudence and produce
narrowly tailored guidance fit to the facts as given so as not to
unwittingly cause the undesired effect of diluting freedoms as
exercised in reality and, thus, render them meaningless.
III.B.
Speech and equality:
Some considerations We first establish that there are two paradigms
of free speech that separate at the point of giving priority to equality
vis-à-vis liberty.272
In an equality-based approach, "politically disadvantaged speech
prevails over regulation[,] but regulation promoting political equality
prevails over speech."273 This view allows the government leeway
to redistribute or equalize ‘speaking power,’ such as protecting,
even implicitly subsidizing, unpopular or dissenting voices often
systematically subdued within society’s ideological ladder.274 This
view acknowledges that there are dominant political actors who,
through authority, power, resources, identity, or status, have
capabilities that may drown out the messages of others. This is
especially true in a developing or emerging economy that is part of
the majoritarian world like ours.
The question of libertarian tolerance
This balance between equality and the ability to express so as to
find one’s authentic self or to participate in the self determination of
one’s communities is not new only to law. It has always been a
philosophical problematique.
CONSTI LAW II I ACJUCO 276
In his seminal work, Repressive Tolerance, philosopher and social
theorist Herbert Marcuse recognized how institutionalized inequality
exists as a background limitation, rendering freedoms exercised
within such limitation as merely "protect[ing] the already established
machinery of discrimination."275 In his view, any improvement "in
the normal course of events" within an unequal society, without
subversion, only strengthens existing interests of those in power
and control.276
In other words, abstract guarantees of fundamental rights like
freedom of expression may become meaningless if not taken in a
real context. This tendency to tackle rights in the abstract
compromises liberties. In his words:
Liberty is self-determination, autonomy—this is almost a tautology,
but a tautology which results from a whole series of synthetic
judgments. It stipulates the ability to determine one’s own life: to be
able to determine what to do and what not to do, what to suffer and
what not. But the subject of this autonomy is never the contingent,
private individual as that which he actually is or happens to be; it is
rather the individual as a human being who is capable of being free
with the others. And the problem of making possible such a harmony
between every individual liberty and the other is not that of finding a
compromise between competitors, or between freedom and law,
between general and individual interest, common and private
welfare in an established society, but of creating the society in which
man is no longer enslaved by institutions which vitiate self-
determination from the beginning. In other words, freedom is still to
be created even for the freest of the existing societies.277
(Emphasis in the original)
Marcuse suggests that the democratic argument — with all opinions
presented to and deliberated by the people — "implies a necessary
condition, namely, that the people must be capable of deliberating
and choosing on the basis of knowledge, that they must have
access to authentic information, and that, on this basis, their
evaluation must be the result of autonomous thought."278 He
submits that "[d]ifferent opinions and ‘philosophies’ can no longer
compete peacefully for adherence and persuasion on rational
grounds: the ‘marketplace of ideas’ is organized and delimited by
those who determine the national and the individual interest."279 A
slant toward left manifests from his belief that "there is a ‘natural
right’ of resistance for oppressed and overpowered minorities to use
extralegal means if the legal ones have proved to be
inadequate."280 Marcuse, thus, stands for an equality that breaks
away and transcends from established hierarchies, power
structures, and indoctrinations. The tolerance of libertarian society
he refers to as "repressive tolerance."
Legal scholars
The 20th century also bears witness to strong support from legal
scholars for "stringent protections of expressive liberty,"281
especially by political egalitarians. Considerations such as
"expressive, deliberative, and informational interests,"282 costs or
the price of expression, and background facts, when taken together,
produce bases for a system of stringent protections for expressive
liberties.283
Many legal scholars discuss the interest and value of expressive
liberties. Justice Brandeis proposed that "public discussion is a
political duty."284 Cass Sustein placed political speech on the upper
tier of his twotier model for freedom of expression, thus, warranting
stringent protection.285 He defined political speech as "both
intended and received as a contribution to public deliberation about
some issue."286
But this is usually related also tofair access to opportunities for such
liberties.287 Fair access to opportunity is suggested to mean
substantive equality and not mere formal equalitysince "favorable

conditions for realizing the expressive interest will include some
assurance of the resources required for expression and some
guarantee that efforts to express views on matters of common
concern will not be drowned out by the speech of betterendowed
citizens."288 Justice Brandeis’ solution is to "remedy the harms of
speech with more speech."289 This view moves away from playing
down the danger as merely exaggerated, toward "tak[ing] the costs
seriously and embrac[ing] expression as the preferred strategy for
addressing them."290 However, in some cases, the idea of more
speech may not be enough. Professor Laurence Tribe observed the
need for context and "the specification of substantive values before
[equality] has full meaning."291 Professor Catherine A. MacKinnon
adds that "equality continues to be viewed in a formal rather than a
substantive sense."292 Thus, more speech can only mean more
speech from the few who are dominant rather than those who are
not.
Our jurisprudence
This court has tackled these issues.
Osmeña v. COMELEC affirmed National Press Club v. COMELEC
on the validity of Section 11(b) ofthe Electoral Reforms Law of
1987.293 This section "prohibits mass media from selling or giving
free of charge print space or air time for campaign or other political
purposes, except to the Commission on Elections."294 This court
explained that this provision only regulates the time and manner of
advertising in order to ensure media equality among candidates.295
This court grounded this measure on constitutional provisions
mandating political equality:296 Article IX-C, Section 4
Section 4. The Commission may, during the election period,
supervise or regulate the enjoyment or utilization of all franchises or
permits for the operation of transportation and other public utilities,
media of communication or information, all grants, special
privileges, or concessions granted by the Government or any
subdivision, agency, or instrumentality thereof, including any
government-owned or controlled corporation or its subsidiary. Such
supervision or regulation shall aim to ensure equal opportunity, time,
and space, and the right to reply, including reasonable, equal rates
therefor, for public information campaigns and forums among
candidates in connection with the objective of holding free, orderly,
honest, peaceful, and credible elections. (Emphasis supplied)
Article XIII, Section 1
Section 1. The Congress shall give highest priorityto the enactment
of measures that protect and enhance the right of all the people to
human dignity, reducesocial, economic, and political inequalities,
and remove cultural inequities by equitably diffusing wealth and
political power for the common good.
To this end, the State shall regulate the acquisition, ownership, use,
and disposition of property and its increments. (Emphasis supplied)
Article II, Section 26
Section 26. The State shall guarantee equal access to opportunities
for public service, and prohibit political dynasties as may be defined
by law. (Emphasis supplied)
Thus, in these cases, we have acknowledged the Constitution’s
guarantee for more substantive expressive freedoms that take
equality of opportunities into consideration during elections.
The other view
However, there is also the other view. This is that considerations of
equality of opportunity or equality inthe ability of citizens as
speakers should not have a bearing in free speech doctrine. Under
this view, "members of the public are trusted to make their own
CONSTI LAW II I ACJUCO 277
individual evaluations of speech, and government is forbidden to
intervene for paternalistic or redistributive reasons . . . [thus,] ideas
are best left to a freely competitive ideological market."297 This is
consistent with the libertarian suspicion on the use of viewpoint as
well as content to evaluate the constitutional validity or invalidity of
speech.
The textual basis of this view is that the constitutional provision uses
negative rather than affirmative language. It uses ‘speech’ as its
subject and not ‘speakers’.298 Consequently, the Constitution
protects free speech per se, indifferent to the types, status, or
associations of its speakers.299 Pursuant to this, "government must
leave speakers and listeners in the private order to their own devices
in sorting out the relative influence of speech."300
Justice Romero’s dissenting opinion in Osmeña v. COMELEC
formulates this view that freedom of speech includes "not only the
right to express one’s views, but also other cognate rights relevant
to the free communication [of] ideas, not excluding the right to be
informed on matters of public concern."301 She adds:
And since so many imponderables may affect the outcome of
elections — qualifications of voters and candidates, education,
means of transportation, health, public discussion, private
animosities, the weather, the threshold of a voter’s resistance to
pressure — the utmost ventilation of opinion of men and issues,
through assembly, association and organizations, both by the
candidate and the voter, becomes a sine qua non for elections to
truly reflect the will of the electorate.302 (Emphasis supplied)
Justice Romero’s dissenting opinion cited an American case, if only
to emphasize free speech primacy such that"courts, as a rule are
wary to impose greater restrictions as to any attempt to curtail
speeches with political content,"303 thus:
the concept that the government may restrict the speech of some
elements in our society in order to enhance the relative voice of the
others is wholly foreign to the First Amendment which was designed
to "secure the widest possible dissemination of information from
diverse and antagonistic sources" and "to assure unfettered
interchange of ideas for the bringing about of political and social
changes desired by the people."304
This echoes Justice Oliver Wendell Holmes’ submission "that the
market place of ideas is still the best alternative to censorship."305
Parenthetically and just to provide the whole detail of the argument,
the majority of the US Supreme Court in the campaign expenditures
case of Buckley v. Valeo "condemned restrictions (even if content-
neutral) on expressive liberty imposed in the name of ‘enhanc[ing]
the relative voice of others’ and thereby ‘equaliz[ing] access to the
political arena."306 The majority did not use the equality-based
paradigm.
One flaw of campaign expenditurelimits is that "any limit placed on
the amount which a person can speak, which takes out of his
exclusive judgment the decision of when enough is enough,
deprives him of his free speech."307
Another flaw is how "[a]ny quantitative limitation on political
campaigning inherently constricts the sum of public information and
runs counter to our ‘profound national commitment that debate on
public issues should be uninhibited, robust, and wide-open.’"308
In fact, "[c]onstraining those who have funds or have been able to
raise funds does not ease the plight of those without funds in the
first place . . . [and] even if one’s main concern isslowing the
increase in political costs, it may be more effective torely on market
forces toachieve that result than on active legal intervention."309
According to Herbert Alexander, "[t]o oppose limitations is not
necessarily to argue that the sky’s the limit [because in] any

campaign there are saturation levels and a point where spending no
longer pays off in votes per dollar."310
III. C.
When private speech amounts
to election paraphernalia
The scope of the guarantee of free expression takes into
consideration the constitutional respect for human potentiality and
the effect of speech. It valorizes the ability of human beings to
express and their necessity to relate. On the other hand, a complete
guarantee must also take into consideration the effects it will have
in a deliberative democracy. Skewed distribution of resources as
well as the cultural hegemony of the majority may have the effect of
drowning out the speech and the messages of those in the minority.
In a sense, social inequality does have its effect on the exercise and
effect of the guarantee of free speech. Those who have more will
have better access to media that reaches a wider audience than
those who have less. Those who espouse the more popular ideas
will have better reception than the subversive and the dissenters of
society.To be really heard and understood, the marginalized view
normally undergoes its own degree of struggle.
The traditional view has been to tolerate the viewpoint of the
speaker and the content of his or her expression. This view, thus,
restricts laws or regulation that allows public officials to make
judgments of the value of such viewpoint or message content. This
should still be the principal approach.
However, the requirements of the Constitution regarding equality in
opportunity must provide limits to some expression during electoral
campaigns.
Thus clearly, regulation of speech in the context of electoral
campaigns made by candidates or the members of their political
parties or their political parties may be regulated as to time, place,
and manner. This is the effect of our rulings in Osmeña v.
COMELEC and National Press Club v. COMELEC.
Regulation of speech in the context of electoral campaigns made by
persons who are not candidates or who do not speak as members
of a political party which are, taken as a whole, principally
advocacies of a social issue that the public must consider during
elections is unconstitutional. Such regulation is inconsistent with the
guarantee of according the fullest possible range of opinions coming
from the electorate including those that can catalyze candid,
uninhibited, and robust debate in the criteria for the choice of a
candidate.
This does not mean that there cannot be a specie of speech by a
private citizen which will not amount toan election paraphernalia to
be validly regulated by law.
Regulation of election paraphernalia will still be constitutionally valid
if it reaches into speech of persons who are not candidates or who
do not speak as members of a political party if they are not
candidates, only if what is regulated is declarative speech that,
taken as a whole, has for its principal object the endorsement of a
candidate only. The regulation (a) should be provided by law, (b)
reasonable, (c) narrowly tailored to meet the objective of enhancing
the opportunity of all candidates to be heard and considering the
primacy of the guarantee of free expression, and (d) demonstrably
the least restrictive means to achieve that object. The regulation
must only be with respect to the time, place, and manner of the
rendition of the message. In no situation may the speech be
prohibited or censored onthe basis of its content. For this purpose,
it will notmatter whether the speech is made with or on private
property.
CONSTI LAW II I ACJUCO 278
This is not the situation, however, in this case for two reasons. First,
as discussed, the principal message in the twin tarpaulins of
petitioners consists of a social advocacy.
Second, as pointed out in the concurring opinion of Justice Antonio
Carpio, the present law — Section 3.3 of Republic Act No. 9006 and
Section 6(c) of COMELEC Resolution No. 9615 — if applied to this
case, will not pass the test of reasonability. A fixed size for election
posters or tarpaulins without any relation to the distance from the
intended average audience will be arbitrary. At certain distances,
posters measuring 2 by 3 feet could no longer be read by the
general public and, hence, would render speech meaningless. It will
amount to the abridgement of speech with political consequences.
IV
Right to property
Other than the right to freedom of expression311 and the
meaningful exercise of the right to suffrage,312 the present case
also involves one’s right to property.313
Respondents argue that it is the right of the state to prevent the
circumvention of regulations relating to election propaganda by
applying such regulations to private individuals.314 Certainly, any
provision or regulation can be circumvented. But we are not
confronted with this possibility. Respondents agree that the
tarpaulin in question belongs to petitioners. Respondents have also
agreed, during the oral arguments, that petitioners were neither
commissioned nor paid by any candidate or political party to post
the material on their walls.
Even though the tarpaulin is readily seen by the public, the tarpaulin
remains the private property of petitioners. Their right to use their
property is likewise protected by the Constitution.
In Philippine Communications Satellite Corporation v. Alcuaz:315
Any regulation, therefore, which operates as an effective
confiscation of private property or constitutes an arbitrary or
unreasonable infringement of property rights is void, because it is
repugnant to the constitutional guaranties of due process and equal
protection of the laws.316 (Citation omitted)
This court in Adiong held that a restriction that regulates where
decals and stickers should be posted is "so broad that it
encompasses even the citizen’s private property."317
Consequently, it violates Article III, Section 1 of the Constitution
which provides thatno person shall be deprived of his property
without due process of law. This court explained:
Property is more than the mere thing which a person owns, it
includes the right to acquire, use, and dispose of it; and the
Constitution, in the 14th Amendment, protects these essential
attributes.
Property is more than the mere thing which a person owns. It is
elementary that it includes the right to acquire, use, and dispose of
it. The Constitution protects these essential attributes of property.
Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18 Sup. Ct.
Rep. 383. Property consists of the free use, enjoyment, and disposal
of a person’s acquisitions without control or diminution save by the
law of the land. 1 Cooley’s Bl. Com. 127. (Buchanan v. Warley 245
US 60 [1917])318
This court ruled that the regulation in Adiong violates private
property rights:
The right to property may be subject to a greater degree of
regulation but when this right is joined by a "liberty" interest, the
burden of justification on the part of the Government must be

exceptionally convincing and irrefutable. The burden is not met in
this case.
Section 11 of Rep. Act 6646 is so encompassing and invasive that
it prohibits the posting or display of election propaganda in any
place, whether public or private, except inthe common poster areas
sanctioned by COMELEC. This means that a private person cannot
post his own crudely prepared personal poster on his own front
dooror on a post in his yard. While the COMELEC will certainly
never require the absurd, there are no limits to what overzealous
and partisan police officers, armed with a copy of the statute or
regulation, may do.319 Respondents ordered petitioners, who are
private citizens, to remove the tarpaulin from their own property. The
absurdity of the situation is in itself an indication of the
unconstitutionality of COMELEC’s interpretation of its powers.
Freedom of expression can be intimately related with the right to
property. There may be no expression when there is no place where
the expression may be made. COMELEC’s infringement upon
petitioners’ property rights as in the present case also reaches out
to infringement on their fundamental right to speech.
Respondents have not demonstrated thatthe present state interest
they seek to promote justifies the intrusion into petitioners’ property
rights. Election laws and regulations must be reasonable. It must
also acknowledge a private individual’s right to exercise property
rights. Otherwise, the due process clause will be violated.
COMELEC Resolution No. 9615 and the Fair Election Act intend to
prevent the posting of election propaganda in private property
without the consent of the owners of such private property.
COMELEC has incorrectly implemented these regulations.
Consistent with our ruling in Adiong, we find that the act of
respondents in seeking to restrain petitioners from posting the
tarpaulin in their own private property is an impermissible
encroachments on the right to property.
V the "government [may] take religion into account . . . to exempt,
Tarpaulin and its message are not religious speech
We proceed to the last issues pertaining to whether the COMELEC
in issuing the questioned notice and letter violated the right of
petitioners to the free exercise of their religion.
At the outset, the Constitution mandates the separation of church
and state.320 This takes many forms. Article III, Section 5 of the
Constitution, for instance provides:
Section 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. Noreligious
test shall be required for the exercise of civil or political rights.
There are two aspects of this provision.321 The first is the none
stablishment clause.322 Second is the free exercise and enjoyment
of religious profession and worship.323
The second aspect is atissue in this case.
Clearly, not all acts done by those who are priests, bishops, ustadz,
imams, or any other religious make such act immune from any
secular regulation.324 The religious also have a secular existence.
They exist within a society that is regulated by law.
The Bishop of Bacolod caused the posting of the tarpaulin. But not
all acts of a bishop amounts to religious expression. This
notwithstanding petitioners’ claim that "the views and position of the
petitioners, the Bishop and the Diocese of Bacolod, on the RH Bill
is inextricably connected to its Catholic dogma, faith, and moral
teachings. . . ."325
CONSTI LAW II I ACJUCO 279
The difficulty that often presents itself in these cases stems from the
reality that every act can be motivated by moral, ethical, and
religious considerations. In terms of their effect on the corporeal
world, these acts range from belief, to expressions of these faiths,
to religious ceremonies, and then to acts of a secular character that
may, from the point of view of others who do not share the same
faith or may not subscribe to any religion, may not have any religious
bearing.
Definitely, the characterizations ofthe religious of their acts are not
conclusive on this court. Certainly, our powers of adjudication
cannot be blinded by bare claims that acts are religious in nature.
Petitioners erroneously relied on the case of Ebralinag v. The
Division Superintendent of Schools of Cebu326 in claiming that the
court "emphatically" held that the adherents ofa particular religion
shall be the ones to determine whether a particular matter shall be
considered ecclesiastical in nature.327 This court in
Ebralinagexempted Jehovah’s Witnesses from participating in the
flag ceremony "out of respect for their religious beliefs, [no matter
how] "bizarre" those beliefsmay seem to others."328 This court
found a balance between the assertion of a religious practice and
the compelling necessities of a secular command. It was an early
attempt at accommodation of religious beliefs.
In Estrada v. Escritor,329 this court adopted a policy of benevolent
neutrality:
With religion looked upon with benevolence and not hostility,
benevolent neutrality allows accommodation of religion under
certain circumstances. Accommodations are government policies
that take religion specifically intoaccount not to promote the
government’s favored form of religion, but to allow individuals and
groups to exercise their religion without hindrance. Their purpose or
effect therefore is to remove a burden on, or facilitate the exercise
of, a person’s or institution’s religion. As Justice Brennan explained,
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."330
This court also discussed the Lemon test in that case, such that a
regulation is constitutional when: (1) it has a secular legislative
purpose; (2) it neither advances nor inhibits religion; and (3) it does
not foster an excessive entanglement with religion.331
As aptly argued by COMELEC, however, the tarpaulin, on its face,
"does not convey any religious doctrine of the Catholic church."332
That the position of the Catholic church appears to coincide with the
message of the tarpaulin regarding the RH Law does not, by itself,
bring the expression within the ambit of religious speech. On the
contrary, the tarpaulin clearly refers to candidates classified under
"Team Patay" and "Team Buhay" according to their respective votes
on the RH Law.
The same may be said of petitioners’ reliance on papal encyclicals
to support their claim that the expression onthe tarpaulin is an
ecclesiastical matter. With all due respect to the Catholic faithful, the
church doctrines relied upon by petitioners are not binding upon this
court. The position of the Catholic religion in the Philippines as
regards the RH Law does not suffice to qualify the posting by one of
its members of a tarpaulin as religious speech solely on such basis.
The enumeration of candidates on the face of the tarpaulin
precludes any doubtas to its nature as speech with political
consequences and not religious speech.
Furthermore, the definition of an "ecclesiastical affair" in Austria v.
National Labor Relations Commission333 cited by petitioners finds
no application in the present case. The posting of the tarpaulin does
 CONSTI LAW II I ACJUCO 280

not fall within the category of matters that are beyond the jurisdiction
of civil courts as enumerated in the Austriacase such as
"proceedings for excommunication, ordinations of religious
ministers, administration of sacraments and other activities
withattached religious significance."334
A FINAL NOTE
We maintain sympathies for the COMELEC in attempting to do what
it thought was its duty in this case. However, it was misdirected.
right by our Constitution. The expression in the medium chosen by
petitioners deserves our protection.
WHEREFORE, the instant petition is GRANTED. The temporary
restraining order previously issued is hereby made permanent. The
act of the COMELEC in issuing the assailed notice dated February
22, 2013 and letter dated February 27, 2013 is declared
unconstitutional.
SO ORDERED.

COMELEC’s general role includes a mandate to ensure equal

opportunities and reduce spending among candidates and their
registered political parties. It is not to regulate or limit the speech of
the electorate as it strives to participate inthe electoral exercise.

The tarpaulin in question may be viewed as producing a caricature

of those who are running for public office.Their message may be
construed generalizations of very complex individuals and party-list
organizations.

They are classified into black and white: as belonging to "Team

Patay" or "Team Buhay."

But this caricature, though not agreeable to some, is still protected

speech.

That petitioners chose to categorize them as purveyors of death or

of life on the basis of a single issue — and a complex piece of
legislation at that — can easily be interpreted as anattempt to stereo
type the candidates and party-list organizations. Not all may agree
to the way their thoughts were expressed, as in fact there are other
Catholic dioceses that chose not to follow the example of
petitioners.

Some may have thought that there should be more room to consider
being more broad-minded and non-judgmental. Some may have
expected that the authors would give more space to practice
forgiveness and humility.

But, the Bill of Rights enumerated in our Constitution is an

enumeration of our fundamental liberties. It is not a detailed code
that prescribes good conduct. It provides space for all to be guided
by their conscience, not only in the act that they do to others but
also in judgment of the acts of others.

Freedom for the thought we can disagree with can be wielded not
only by those in the minority. This can often be expressed by
dominant institutions, even religious ones. That they made their
point dramatically and in a large way does not necessarily mean that
their statements are true, or that they have basis, or that they have
been expressed in good taste.

Embedded in the tarpaulin, however, are opinions expressed by

petitioners. It is a specie of expression protected by our fundamental
law. It is an expression designed to invite attention, cause debate,
and hopefully, persuade. It may be motivated by the interpretation
of petitioners of their ecclesiastical duty, but their parishioner’s
actions will have very real secular consequences. Certainly,
provocative messages do matter for the elections.

What is involved in this case is the most sacred of speech forms:

expression by the electorate that tends to rouse the public to debate
contemporary issues. This is not speechby candidates or political
parties to entice votes. It is a portion of the electorate telling
candidates the conditions for their election. It is the substantive
content of the right to suffrage.

This. is a form of speech hopeful of a quality of democracy that we

should all deserve. It is protected as a fundamental and primordial

G.R. No. 203335 February 11, 2014
JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P.
MEDINA, JANETTE TORAL and ERNESTO SONIDO, JR.,
Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE
DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT,
THE EXECUTIVE DIRECTOR OF THE INFORMATION AND
COMMUNICATIONS TECHNOLOGY OFFICE, THE CHIEF OF
THE PHILIPPINE NATIONAL POLICE and THE DIRECTOR OF
THE NATIONAL BUREAU OF INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203299
LOUIS "BAROK" C. BIRAOGO, Petitioner,
vs.
NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE
NATIONAL POLICE, Respondents.
x-----------------------x
G.R. No. 203306
ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG
MAMAMAYAN MOVEMENT, INC., JERRY S. YAP, BERTENI
"TOTO" CAUSING, HERNANI Q. CUARE, PERCY LAPID,
TRACY CABRERA, RONALDO E. RENTA, CIRILO P. SABARRE,
JR., DERVIN CASTRO, ET AL., Petitioners,
vs.
OFFICE OF THE PRESIDENT, represented by President
Benigno Simeon Aquino III, SENATE OF THE PHILIPPINES, and
HOUSE OF REPRESENTATIVES, Respondents.
x-----------------------x
G.R. No. 203359
SENATOR TEOFISTO DL GUINGONA III, Petitioner,
vs.
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE
SECRETARY OF THE DEPARTMENT OF INTERIOR AND
LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE, and DIRECTOR OF THE NATIONAL
BUREAU OF INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203378
ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA
ORDENES-CASCOLAN, H. HARRY L. ROQUE, JR., ROMEL R.
BAGARES, and GILBERT T. ANDRES, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF
BUDGET AND MANAGEMENT, THE DEPARTMENT OF
JUSTICE, THE DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, THE NATIONAL BUREAU OF INVESTIGATION,
THE PHILIPPINE NATIONAL POLICE, AND THE INFORMATION
AND COMMUNICATIONS TECHNOLOGY OFFICE-
DEPARTMENT OF SCIENCE AND TECHNOLOGY,
Respondents.
x-----------------------x
G.R. No. 203391
HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO,
VENCER MARI CRISOSTOMO OF ANAKBAYAN, MA.
CONSTI LAW II I ACJUCO 281
KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN,
ISABELLE THERESE BAGUISI OF THE NATIONAL UNION OF
STUDENTS OF THE PHILIPPINES, ET AL., Petitioners,
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive
Secretary and alter-ego of President Benigno Simeon Aquino
III, LEILA DE LIMA in her capacity as Secretary of Justice,
Respondents.
x-----------------------x
G.R. No. 203407
BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL
RENATO M. REYES, JR., National Artist BIENVENIDO L.
LUMBERA, Chairperson of Concerned Artists of the
Philippines, ELMER C. LABOG, Chairperson of Kilusang Mayo
Uno, CRISTINA E. PALABAY, Secretary General of Karapatan,
FERDINAND R. GAITE, Chairperson of COURAGE, JOEL B.
MAGLUNSOD, Vice President of Anakpawis Party-List, LANA
R. LINABAN, Secretary General Gabriela Women's Party,
ADOLFO ARES P. GUTIERREZ, and JULIUS GARCIA
MATIBAG, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic of
the Philippines, PAQUITO N. OCHOA, JR., Executive Secretary,
SENATE OF THE PHILIPPINES, represented by SENATE
PRESIDENT JUAN PONCE ENRILE, HOUSE OF
REPRESENTATIVES, represented by SPEAKER FELICIANO
BELMONTE, JR., LEILA DE LIMA, Secretary of the Department
of Justice, LOUIS NAPOLEON C. CASAMBRE, Executive
Director of the Information and Communications Technology
Office, NONNATUS CAESAR R. ROJAS, Director of the National
Bureau of Investigation, D/GEN. NICANOR A. BARTOLOME,
Chief of the Philippine National Police, MANUEL A. ROXAS II,
Secretary of the Department of the Interior and Local
Government, Respondents.
x-----------------------x
G.R. No. 203440
MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA,
AMPARITA STA. MARIA, RAY PAOLO J. SANTIAGO, GILBERT
V. SEMBRANO, and RYAN JEREMIAH D. QUAN (all of the
Ateneo Human Rights Center), Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity as Executive
Secretary, HONORABLE LEILA DE LIMA in her capacity as
Secretary of Justice, HONORABLE MANUEL ROXAS in his
capacity as Secretary of the Department of Interior and Local
Government, The CHIEF of the Philippine National Police, The
DIRECTOR of the National Bureau of Investigation (all of the
Executive Department of Government), Respondents.
x-----------------------x
G.R. No. 203453
NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES
(NUJP), PHILIPPINE PRESS INSTITUTE (PPI), CENTER FOR
MEDIA FREEDOM AND RESPONSIBILITY, ROWENA
CARRANZA PARAAN, MELINDA QUINTOS-DE JESUS,
JOSEPH ALWYN ALBURO, ARIEL SEBELLINO AND THE
PETITIONERS IN THE e-PETITION http://www.nujp.org/no-to-
ra10175/, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE,
THE SECRETARY OF THE INTERIOR AND LOCAL
GOVERNMENT, THE SECRETARY OF BUDGET AND
MANAGEMENT, THE DIRECTOR GENERAL OF THE

PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, THE CYBERCRIME
INVESTIGATION AND COORDINATING CENTER, AND ALL
AGENCIES AND INSTRUMENTALITIES OF GOVERNMENT AND
ALL PERSONS ACTING UNDER THEIR INSTRUCTIONS,
ORDERS, DIRECTION IN RELATION TO THE
IMPLEMENTATION OF REPUBLIC ACT NO. 10175,
Respondents.
x-----------------------x
G.R. No. 203454
PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES,
Petitioners,
vs.
THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY
OF INTERIOR AND LOCAL GOVERNMENT, Respondents.
x-----------------------x
G.R. No. 203469
ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN
NOEL A. ESPINA; MARCK RONALD C. RIMORIN; JULIUS D.
ROCAS; OLIVER RICHARD V. ROBILLO; AARON ERICK A.
LOZADA; GERARD ADRIAN P. MAGNAYE; JOSE REGINALD A.
RAMOS; MA. ROSARIO T. JUAN; BRENDALYN P. RAMIREZ;
MAUREEN A. HERMITANIO; KRISTINE JOY S. REMENTILLA;
MARICEL O. GRAY; JULIUS IVAN F. CABIGON; BENRALPH S.
YU; CEBU BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B.
LICERA, JR; and PINOY EXPAT/OFW BLOG AWARDS, INC.
COORDINATOR PEDRO E. RAHON; Petitioners,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as
President of the Republic of the Philippines; SENATE OF THE
PHILIPPINES, represented by HON. JUAN PONCE ENRILE, in
his capacity as Senate President; HOUSE OF
REPRESENTATIVES, represented by FELICIANO R.
BELMONTE, JR., in his capacity as Speaker of the House of
Representatives; HON. PAQUITO N. OCHOA, JR., in his
capacity as Executive Secretary; HON. LEILA M. DE LIMA, in
her capacity as Secretary of Justice; HON. LOUIS NAPOLEON
C. CASAMBRE, in his capacity as Executive Director,
Information and Communications Technology Office; HON.
NONNATUS CAESAR R. ROJAS, in his capacity as Director,
National Bureau of Investigation; and P/DGEN. NICANOR A.
BARTOLOME, in his capacity as Chief, Philippine National
Police, Respondents.
x-----------------------x
G.R. No. 203501
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his official
capacity as President of the Republic of the Philippines; HON.
PAQUITO N. OCHOA, JR., in his official capacity as Executive
Secretary; HON. LEILA M. DE LIMA, in her official capacity as
Secretary of Justice; LOUIS NAPOLEON C. CASAMBRE, in his
official capacity as Executive Director, Information and
Communications Technology Office; NONNATUS CAESAR R.
ROJAS, in his official capacity as Director of the National
Bureau of Investigation; and DIRECTOR GENERAL NICANOR
A. BARTOLOME, in his official capacity as Chief of the
Philippine National Police, Respondents.
x-----------------------x
G.R. No. 203509
CONSTI LAW II I ACJUCO 282
BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES,
Petitioner,
vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR.,
Respondent.
x-----------------------x
G.R. No. 203515
NATIONAL PRESS CLUB OF THE PHILIPPINES, INC.
represented by BENNY D. ANTIPORDA in his capacity as
President and in his personal capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON
AQUINO III, DEPARTMENT OF JUSTICE, DEPARTMENT OF
INTERIOR AND LOCAL GOVERNMENT, PHILIPPINE NATIONAL
POLICE, NATIONAL BUREAU OF INVESTIGATION,
DEPARTMENT OF BUDGET AND MANAGEMENT AND ALL
OTHER GOVERNMENT INSTRUMENTALITIES WHO HAVE
HANDS IN THE PASSAGE AND/OR IMPLEMENTATION OF
REPUBLIC ACT 10175, Respondents.
x-----------------------x
G.R. No. 203518
PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of
DAKILA-PHILIPPINE COLLECTIVE FOR MODERN HEROISM,
represented by Leni Velasco, PARTIDO LAKAS NG MASA,
represented by Cesar S. Melencio, FRANCIS EUSTON R.
ACERO, MARLON ANTHONY ROMASANTA TONSON,
TEODORO A. CASIÑO, NOEMI LARDIZABAL-DADO, IMELDA
ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M.
RAGRAGIO, MARIA FATIMA A. VILLENA, MEDARDO M.
MANRIQUE, JR., LAUREN DADO, MARCO VITTORIA TOBIAS
SUMAYAO, IRENE CHIA, ERASTUS NOEL T. DELIZO,
CRISTINA SARAH E. OSORIO, ROMEO FACTOLERIN, NAOMI
L. TUPAS, KENNETH KENG, ANA ALEXANDRA C. CASTRO,
Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE,
THE SECRETARY OF INTERIOR AND LOCAL GOVERNMENT,
THE SECRETARY OF SCIENCE AND TECHNOLOGY, THE
EXECUTIVE DIRECTOR OF THE INFORMATION TECHNOLOGY
OFFICE, THE DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, THE CHIEF, PHILIPPINE NATIONAL POLICE,
THE HEAD OF THE DOJ OFFICE OF CYBERCRIME, and THE
OTHER MEMBERS OF THE CYBERCRIME INVESTIGATION
AND COORDINATING CENTER, Respondents.
DECISION
ABAD, J.:
These consolidated petitions seek to declare several provisions of
Republic Act (R.A.) 10175, the Cybercrime Prevention Act of 2012,
unconstitutional and void.
The Facts and the Case
The cybercrime law aims to regulate access to and use of the
cyberspace. Using his laptop or computer, a person can connect to
the internet, a system that links him to other computers and enable
him, among other things, to:
1. Access virtual libraries and encyclopedias for all kinds of
information that he needs for research, study, amusement,
upliftment, or pure curiosity;

2. Post billboard-like notices or messages, including pictures and
videos, for the general public or for special audiences like
associates, classmates, or friends and read postings from them;
3. Advertise and promote goods or services and make purchases
and payments;
4. Inquire and do business with institutional entities like government
agencies, banks, stock exchanges, trade houses, credit card
companies, public utilities, hospitals, and schools; and
5. Communicate in writing or by voice with any person through his
e-mail address or telephone.
This is cyberspace, a system that accommodates millions and
billions of simultaneous and ongoing individual accesses to and
uses of the internet. The cyberspace is a boon to the need of the
current generation for greater information and facility of
communication. But all is not well with the system since it could not
filter out a number of persons of ill will who would want to use
cyberspace technology for mischiefs and crimes. One of them can,
for instance, avail himself of the system to unjustly ruin the
reputation of another or bully the latter by posting defamatory
statements against him that people can read.
And because linking with the internet opens up a user to
communications from others, the ill-motivated can use the
cyberspace for committing theft by hacking into or surreptitiously
accessing his bank account or credit card or defrauding him through
false representations. The wicked can use the cyberspace, too, for
illicit trafficking in sex or for exposing to pornography guileless
children who have access to the internet. For this reason, the
government has a legitimate right to regulate the use of cyberspace
and contain and punish wrongdoings.
Notably, there are also those who would want, like vandals, to wreak
or cause havoc to the computer systems and networks of
indispensable or highly useful institutions as well as to the laptop or
computer programs and memories of innocent individuals. They
accomplish this by sending electronic viruses or virtual dynamites
that destroy those computer systems, networks, programs, and
memories. The government certainly has the duty and the right to
prevent these tomfooleries from happening and punish their
perpetrators, hence the Cybercrime Prevention Act.
But petitioners claim that the means adopted by the cybercrime law
for regulating undesirable cyberspace activities violate certain of
their constitutional rights. The government of course asserts that the
law merely seeks to reasonably put order into cyberspace activities,
punish wrongdoings, and prevent hurtful attacks on the system.
Pending hearing and adjudication of the issues presented in these
cases, on February 5, 2013 the Court extended the original 120-day
temporary restraining order (TRO) that it earlier issued on October
9, 2012, enjoining respondent government agencies from
implementing the cybercrime law until further orders.
The Issues Presented
Petitioners challenge the constitutionality of the following provisions
of the cybercrime law that regard certain acts as crimes and impose
penalties for their commission as well as provisions that would
enable the government to track down and penalize violators. These
provisions are:
a. Section 4(a)(1) on Illegal Access;
b. Section 4(a)(3) on Data Interference;
c. Section 4(a)(6) on Cyber-squatting;
CONSTI LAW II I ACJUCO 283
d. Section 4(b)(3) on Identity Theft;
e. Section 4(c)(1) on Cybersex;
f. Section 4(c)(2) on Child Pornography;
g. Section 4(c)(3) on Unsolicited Commercial Communications;
h. Section 4(c)(4) on Libel;
i. Section 5 on Aiding or Abetting and Attempt in the Commission of
Cybercrimes;
j. Section 6 on the Penalty of One Degree Higher;
k. Section 7 on the Prosecution under both the Revised Penal Code
(RPC) and R.A. 10175;
l. Section 8 on Penalties;
m. Section 12 on Real-Time Collection of Traffic Data;
n. Section 13 on Preservation of Computer Data;
o. Section 14 on Disclosure of Computer Data;
p. Section 15 on Search, Seizure and Examination of Computer
Data;
q. Section 17 on Destruction of Computer Data;
r. Section 19 on Restricting or Blocking Access to Computer Data;
s. Section 20 on Obstruction of Justice;
t. Section 24 on Cybercrime Investigation and Coordinating Center
(CICC); and
u. Section 26(a) on CICC’s Powers and Functions.
Some petitioners also raise the constitutionality of related Articles
353, 354, 361, and 362 of the RPC on the crime of libel.
The Rulings of the Court
Section 4(a)(1)
Section 4(a)(1) provides:
Section 4. Cybercrime Offenses. – The following acts constitute the
offense of cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of
computer data and systems:
(1) Illegal Access. – The access to the whole or any part of a
computer system without right.
Petitioners contend that Section 4(a)(1) fails to meet the strict
scrutiny standard required of laws that interfere with the
fundamental rights of the people and should thus be struck down.
The Court has in a way found the strict scrutiny standard, an
American constitutional construct,1 useful in determining the
constitutionality of laws that tend to target a class of things or
persons. According to this standard, a legislative classification that
impermissibly interferes with the exercise of fundamental right or
operates to the peculiar class disadvantage of a suspect class is
presumed unconstitutional. The burden is on the government to
prove that the classification is necessary to achieve a compelling
state interest and that it is the least restrictive means to protect such

interest.2 Later, the strict scrutiny standard was used to assess the
validity of laws dealing with the regulation of speech, gender, or race
as well as other fundamental rights, as expansion from its earlier
applications to equal protection.3
In the cases before it, the Court finds nothing in Section 4(a)(1) that
calls for the application of the strict scrutiny standard since no
fundamental freedom, like speech, is involved in punishing what is
essentially a condemnable act – accessing the computer system of
another without right. It is a universally condemned conduct.4
Petitioners of course fear that this section will jeopardize the work
of ethical hackers, professionals who employ tools and techniques
used by criminal hackers but would neither damage the target
systems nor steal information. Ethical hackers evaluate the target
system’s security and report back to the owners the vulnerabilities
they found in it and give instructions for how these can be remedied.
Ethical hackers are the equivalent of independent auditors who
come into an organization to verify its bookkeeping records.5
Besides, a client’s engagement of an ethical hacker requires an
agreement between them as to the extent of the search, the
methods to be used, and the systems to be tested. This is referred
to as the "get out of jail free card."6 Since the ethical hacker does
his job with prior permission from the client, such permission would
insulate him from the coverage of Section 4(a)(1).
Section 4(a)(3) of the Cybercrime Law
Section 4(a)(3) provides:
Section 4. Cybercrime Offenses. – The following acts constitute the
offense of cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of
computer data and systems:
xxxx
(3) Data Interference. – The intentional or reckless alteration,
damaging, deletion or deterioration of computer data, electronic
document, or electronic data message, without right, including the
introduction or transmission of viruses.
Petitioners claim that Section 4(a)(3) suffers from overbreadth in
that, while it seeks to discourage data interference, it intrudes into
the area of protected speech and expression, creating a chilling and
deterrent effect on these guaranteed freedoms.
Under the overbreadth doctrine, a proper governmental purpose,
constitutionally subject to state regulation, may not be achieved by
means that unnecessarily sweep its subject broadly, thereby
invading the area of protected freedoms.7 But Section 4(a)(3) does
not encroach on these freedoms at all. It simply punishes what
essentially is a form of vandalism,8 the act of willfully destroying
without right the things that belong to others, in this case their
computer data, electronic document, or electronic data message.
Such act has no connection to guaranteed freedoms. There is no
freedom to destroy other people’s computer systems and private
documents.
All penal laws, like the cybercrime law, have of course an inherent
chilling effect, an in terrorem effect9 or the fear of possible
prosecution that hangs on the heads of citizens who are minded to
step beyond the boundaries of what is proper. But to prevent the
State from legislating criminal laws because they instill such kind of
fear is to render the state powerless in addressing and penalizing
socially harmful conduct.10 Here, the chilling effect that results in
paralysis is an illusion since Section 4(a)(3) clearly describes the
evil that it seeks to punish and creates no tendency to intimidate the
free exercise of one’s constitutional rights.
CONSTI LAW II I ACJUCO 284
Besides, the overbreadth challenge places on petitioners the heavy
burden of proving that under no set of circumstances will Section
4(a)(3) be valid.11 Petitioner has failed to discharge this burden.
Section 4(a)(6) of the Cybercrime Law
Section 4(a)(6) provides:
Section 4. Cybercrime Offenses. – The following acts constitute the
offense of cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of
computer data and systems:
xxxx
(6) Cyber-squatting. – The acquisition of domain name over the
internet in bad faith to profit, mislead, destroy the reputation, and
deprive others from registering the same, if such a domain name is:
(i) Similar, identical, or confusingly similar to an existing trademark
registered with the appropriate government agency at the time of
the domain name registration;
(ii) Identical or in any way similar with the name of a person other
than the registrant, in case of a personal name; and
(iii) Acquired without right or with intellectual property interests in it.
Petitioners claim that Section 4(a)(6) or cyber-squatting violates the
equal protection clause12 in that, not being narrowly tailored, it will
cause a user using his real name to suffer the same fate as those
who use aliases or take the name of another in satire, parody, or
any other literary device. For example, supposing there exists a well
known billionaire-philanthropist named "Julio Gandolfo," the law
would punish for cyber-squatting both the person who registers such
name because he claims it to be his pseudo-name and another who
registers the name because it happens to be his real name.
Petitioners claim that, considering the substantial distinction
between the two, the law should recognize the difference.
But there is no real difference whether he uses "Julio Gandolfo"
which happens to be his real name or use it as a pseudo-name for
it is the evil purpose for which he uses the name that the law
condemns. The law is reasonable in penalizing him for acquiring the
domain name in bad faith to profit, mislead, destroy reputation, or
deprive others who are not ill-motivated of the rightful opportunity of
registering the same. The challenge to the constitutionality of
Section 4(a)(6) on ground of denial of equal protection is baseless.
Section 4(b)(3) of the Cybercrime Law
Section 4(b)(3) provides:
Section 4. Cybercrime Offenses. – The following acts constitute the
offense of cybercrime punishable under this Act:
xxxx
b) Computer-related Offenses:
xxxx
(3) Computer-related Identity Theft. – The intentional acquisition,
use, misuse, transfer, possession, alteration, or deletion of
identifying information belonging to another, whether natural or
juridical, without right: Provided: that if no damage has yet been
caused, the penalty imposable shall be one (1) degree lower.

Petitioners claim that Section 4(b)(3) violates the constitutional
rights to due process and to privacy and correspondence, and
transgresses the freedom of the press.
The right to privacy, or the right to be let alone, was institutionalized
in the 1987 Constitution as a facet of the right protected by the
guarantee against unreasonable searches and seizures.13 But the
Court acknowledged its existence as early as 1968 in Morfe v.
Mutuc,14 it ruled that the right to privacy exists independently of its
identification with liberty; it is in itself fully deserving of constitutional
protection.
Relevant to any discussion of the right to privacy is the concept
known as the "Zones of Privacy." The Court explained in "In the
Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio
v. Senator Gordon"15 the relevance of these zones to the right to
privacy:
Zones of privacy are recognized and protected in our laws. Within
these zones, any form of intrusion is impermissible unless excused
by law and in accordance with customary legal process. The
meticulous regard we accord to these zones arises not only from
our conviction that the right to privacy is a "constitutional right" and
"the right most valued by civilized men," but also from our adherence
to the Universal Declaration of Human Rights which mandates that,
"no one shall be subjected to arbitrary interference with his privacy"
and "everyone has the right to the protection of the law against such
interference or attacks."
Two constitutional guarantees create these zones of privacy: (a) the
right against unreasonable searches16 and seizures, which is the
basis of the right to be let alone, and (b) the right to privacy of
communication and correspondence.17 In assessing the challenge
that the State has impermissibly intruded into these zones of
privacy, a court must determine whether a person has exhibited a
reasonable expectation of privacy and, if so, whether that
expectation has been violated by unreasonable government
intrusion.18
The usual identifying information regarding a person includes his
name, his citizenship, his residence address, his contact number,
his place and date of birth, the name of his spouse if any, his
occupation, and similar data.19 The law punishes those who
acquire or use such identifying information without right, implicitly to
cause damage. Petitioners simply fail to show how government
effort to curb computer-related identity theft violates the right to
privacy and correspondence as well as the right to due process of
law.
Also, the charge of invalidity of this section based on the
overbreadth doctrine will not hold water since the specific conducts
proscribed do not intrude into guaranteed freedoms like speech.
Clearly, what this section regulates are specific actions: the
acquisition, use, misuse or deletion of personal identifying data of
another. There is no fundamental right to acquire another’s personal
data.
Further, petitioners fear that Section 4(b)(3) violates the freedom of
the press in that journalists would be hindered from accessing the
unrestricted user account of a person in the news to secure
information about him that could be published. But this is not the
essence of identity theft that the law seeks to prohibit and punish.
Evidently, the theft of identity information must be intended for an
illegitimate purpose. Moreover, acquiring and disseminating
information made public by the user himself cannot be regarded as
a form of theft.
The Court has defined intent to gain as an internal act which can be
established through the overt acts of the offender, and it may be
presumed from the furtive taking of useful property pertaining to
another, unless special circumstances reveal a different intent on
CONSTI LAW II I ACJUCO 285
the part of the perpetrator.20 As such, the press, whether in quest
of news reporting or social investigation, has nothing to fear since a
special circumstance is present to negate intent to gain which is
required by this Section.
Section 4(c)(1) of the Cybercrime Law
Section 4(c)(1) provides:
Sec. 4. Cybercrime Offenses.– The following acts constitute the
offense of cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
(1) Cybersex.– The willful engagement, maintenance, control, or
operation, directly or indirectly, of any lascivious exhibition of sexual
organs or sexual activity, with the aid of a computer system, for favor
or consideration.
Petitioners claim that the above violates the freedom of expression
clause of the Constitution.21 They express fear that private
communications of sexual character between husband and wife or
consenting adults, which are not regarded as crimes under the
penal code, would now be regarded as crimes when done "for favor"
in cyberspace. In common usage, the term "favor" includes
"gracious kindness," "a special privilege or right granted or
conceded," or "a token of love (as a ribbon) usually worn
conspicuously."22 This meaning given to the term "favor" embraces
socially tolerated trysts. The law as written would invite law
enforcement agencies into the bedrooms of married couples or
consenting individuals.
But the deliberations of the Bicameral Committee of Congress on
this section of the Cybercrime Prevention Act give a proper
perspective on the issue. These deliberations show a lack of intent
to penalize a "private showing x x x between and among two private
persons x x x although that may be a form of obscenity to some."23
The understanding of those who drew up the cybercrime law is that
the element of "engaging in a business" is necessary to constitute
the illegal cybersex.24 The Act actually seeks to punish cyber
prostitution, white slave trade, and pornography for favor and
consideration. This includes interactive prostitution and
pornography, i.e., by webcam.25
The subject of Section 4(c)(1)—lascivious exhibition of sexual
organs or sexual activity—is not novel. Article 201 of the RPC
punishes "obscene publications and exhibitions and indecent
shows." The Anti-Trafficking in Persons Act of 2003 penalizes those
who "maintain or hire a person to engage in prostitution or
pornography."26 The law defines prostitution as any act,
transaction, scheme, or design involving the use of a person by
another, for sexual intercourse or lascivious conduct in exchange
for money, profit, or any other consideration.27
The case of Nogales v. People28 shows the extent to which the
State can regulate materials that serve no other purpose than satisfy
the market for violence, lust, or pornography.29 The Court weighed
the property rights of individuals against the public welfare. Private
property, if containing pornographic materials, may be forfeited and
destroyed. Likewise, engaging in sexual acts privately through
internet connection, perceived by some as a right, has to be
balanced with the mandate of the State to eradicate white slavery
and the exploitation of women.
In any event, consenting adults are protected by the wealth of
jurisprudence delineating the bounds of obscenity.30 The Court will
not declare Section 4(c)(1) unconstitutional where it stands a
construction that makes it apply only to persons engaged in the
business of maintaining, controlling, or operating, directly or

indirectly, the lascivious exhibition of sexual organs or sexual
activity with the aid of a computer system as Congress has intended.
Section 4(c)(2) of the Cybercrime Law
Section 4(c)(2) provides:
Sec. 4. Cybercrime Offenses. – The following acts constitute the
offense of cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(2) Child Pornography. — The unlawful or prohibited acts defined
and punishable by Republic Act No. 9775 or the Anti-Child
Pornography Act of 2009, committed through a computer system:
Provided, That the penalty to be imposed shall be (1) one degree
higher than that provided for in Republic Act No. 9775.
It seems that the above merely expands the scope of the Anti-Child
Pornography Act of 200931 (ACPA) to cover identical activities in
cyberspace. In theory, nothing prevents the government from
invoking the ACPA when prosecuting persons who commit child
pornography using a computer system. Actually, ACPA’s definition
of child pornography already embraces the use of "electronic,
mechanical, digital, optical, magnetic or any other means." Notably,
no one has questioned this ACPA provision.
Of course, the law makes the penalty higher by one degree when
the crime is committed in cyberspace. But no one can complain
since the intensity or duration of penalty is a legislative prerogative
and there is rational basis for such higher penalty.32 The potential
for uncontrolled proliferation of a particular piece of child
pornography when uploaded in the cyberspace is incalculable.
Petitioners point out that the provision of ACPA that makes it
unlawful for any person to "produce, direct, manufacture or create
any form of child pornography"33 clearly relates to the prosecution
of persons who aid and abet the core offenses that ACPA seeks to
punish.34 Petitioners are wary that a person who merely doodles on
paper and imagines a sexual abuse of a 16-year-old is not criminally
liable for producing child pornography but one who formulates the
idea on his laptop would be. Further, if the author bounces off his
ideas on Twitter, anyone who replies to the tweet could be
considered aiding and abetting a cybercrime.
The question of aiding and abetting the offense by simply
commenting on it will be discussed elsewhere below. For now the
Court must hold that the constitutionality of Section 4(c)(2) is not
successfully challenged.
Section 4(c)(3) of the Cybercrime Law
Section 4(c)(3) provides:
Sec. 4. Cybercrime Offenses. – The following acts constitute the
offense of cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(3) Unsolicited Commercial Communications. – The transmission of
commercial electronic communication with the use of computer
system which seeks to advertise, sell, or offer for sale products and
services are prohibited unless:
CONSTI LAW II I ACJUCO 286
(i) There is prior affirmative consent from the recipient; or
(ii) The primary intent of the communication is for service and/or
administrative announcements from the sender to its existing users,
subscribers or customers; or
(iii) The following conditions are present:
(aa) The commercial electronic communication contains a simple,
valid, and reliable way for the recipient to reject receipt of further
commercial electronic messages (opt-out) from the same source;
(bb) The commercial electronic communication does not purposely
disguise the source of the electronic message; and
(cc) The commercial electronic communication does not purposely
include misleading information in any part of the message in order
to induce the recipients to read the message.
The above penalizes the transmission of unsolicited commercial
communications, also known as "spam." The term "spam" surfaced
in early internet chat rooms and interactive fantasy games. One who
repeats the same sentence or comment was said to be making a
"spam." The term referred to a Monty Python’s Flying Circus scene
in which actors would keep saying "Spam, Spam, Spam, and Spam"
when reading options from a menu.35
The Government, represented by the Solicitor General, points out
that unsolicited commercial communications or spams are a
nuisance that wastes the storage and network capacities of internet
service providers, reduces the efficiency of commerce and
technology, and interferes with the owner’s peaceful enjoyment of
his property. Transmitting spams amounts to trespass to one’s
privacy since the person sending out spams enters the recipient’s
domain without prior permission. The OSG contends that
commercial speech enjoys less protection in law.
But, firstly, the government presents no basis for holding that
unsolicited electronic ads reduce the "efficiency of computers."
Secondly, people, before the arrival of the age of computers, have
already been receiving such unsolicited ads by mail. These have
never been outlawed as nuisance since people might have interest
in such ads. What matters is that the recipient has the option of not
opening or reading these mail ads. That is true with spams. Their
recipients always have the option to delete or not to read them.
To prohibit the transmission of unsolicited ads would deny a person
the right to read his emails, even unsolicited commercial ads
addressed to him. Commercial speech is a separate category of
speech which is not accorded the same level of protection as that
given to other constitutionally guaranteed forms of expression but is
nonetheless entitled to protection.36 The State cannot rob him of
this right without violating the constitutionally guaranteed freedom
of expression. Unsolicited advertisements are legitimate forms of
expression.
Articles 353, 354, and 355 of the Penal Code
Section 4(c)(4) of the Cyber Crime Law
Petitioners dispute the constitutionality of both the penal code
provisions on libel as well as Section 4(c)(4) of the Cybercrime
Prevention Act on cyberlibel.
The RPC provisions on libel read:
Art. 353. Definition of libel. — A libel is public and malicious
imputation of a crime, or of a vice or defect, real or imaginary, or any
act, omission, condition, status, or circumstance tending to cause

the dishonor, discredit, or contempt of a natural or juridical person,
or to blacken the memory of one who is dead.
Art. 354. Requirement for publicity. — Every defamatory imputation
is presumed to be malicious, even if it be true, if no good intention
and justifiable motive for making it is shown, except in the following
cases:
1. A private communication made by any person to another in the
performance of any legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments
or remarks, of any judicial, legislative or other official proceedings
which are not of confidential nature, or of any statement, report or
speech delivered in said proceedings, or of any other act performed
by public officers in the exercise of their functions.
Art. 355. Libel means by writings or similar means. — A libel
committed by means of writing, printing, lithography, engraving,
radio, phonograph, painting, theatrical exhibition, cinematographic
exhibition, or any similar means, shall be punished by prision
correccional in its minimum and medium periods or a fine ranging
from 200 to 6,000 pesos, or both, in addition to the civil action which
may be brought by the offended party.
The libel provision of the cybercrime law, on the other hand, merely
incorporates to form part of it the provisions of the RPC on libel.
Thus Section 4(c)(4) reads:
Sec. 4. Cybercrime Offenses. — The following acts constitute the
offense of cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(4) Libel. — The unlawful or prohibited acts of libel as defined in
Article 355 of the Revised Penal Code, as amended, committed
through a computer system or any other similar means which may
be devised in the future.
Petitioners lament that libel provisions of the penal code37 and, in
effect, the libel provisions of the cybercrime law carry with them the
requirement of "presumed malice" even when the latest
jurisprudence already replaces it with the higher standard of "actual
malice" as a basis for conviction.38 Petitioners argue that inferring
"presumed malice" from the accused’s defamatory statement by
virtue of Article 354 of the penal code infringes on his constitutionally
guaranteed freedom of expression.
Petitioners would go further. They contend that the laws on libel
should be stricken down as unconstitutional for otherwise good
jurisprudence requiring "actual malice" could easily be overturned
as the Court has done in Fermin v. People39 even where the
offended parties happened to be public figures.
The elements of libel are: (a) the allegation of a discreditable act or
condition concerning another; (b) publication of the charge; (c)
identity of the person defamed; and (d) existence of malice.40
There is "actual malice" or malice in fact41 when the offender makes
the defamatory statement with the knowledge that it is false or with
reckless disregard of whether it was false or not.42 The reckless
disregard standard used here requires a high degree of awareness
of probable falsity. There must be sufficient evidence to permit the
conclusion that the accused in fact entertained serious doubts as to
the truth of the statement he published. Gross or even extreme
negligence is not sufficient to establish actual malice.43
CONSTI LAW II I ACJUCO 287
The prosecution bears the burden of proving the presence of actual
malice in instances where such element is required to establish
guilt. The defense of absence of actual malice, even when the
statement turns out to be false, is available where the offended party
is a public official or a public figure, as in the cases of Vasquez (a
barangay official) and Borjal (the Executive Director, First National
Conference on Land Transportation). Since the penal code and
implicitly, the cybercrime law, mainly target libel against private
persons, the Court recognizes that these laws imply a stricter
standard of "malice" to convict the author of a defamatory statement
where the offended party is a public figure. Society’s interest and
the maintenance of good government demand a full discussion of
public affairs.44
Parenthetically, the Court cannot accept the proposition that its
ruling in Fermin disregarded the higher standard of actual malice or
malice in fact when it found Cristinelli Fermin guilty of committing
libel against complainants who were public figures. Actually, the
Court found the presence of malice in fact in that case. Thus:
It can be gleaned from her testimony that petitioner had the motive
to make defamatory imputations against complainants. Thus,
petitioner cannot, by simply making a general denial, convince us
that there was no malice on her part. Verily, not only was there
malice in law, the article being malicious in itself, but there was also
malice in fact, as there was motive to talk ill against complainants
during the electoral campaign. (Emphasis ours)
Indeed, the Court took into account the relatively wide leeway given
to utterances against public figures in the above case, cinema and
television personalities, when it modified the penalty of
imprisonment to just a fine of ₱6,000.00.
But, where the offended party is a private individual, the prosecution
need not prove the presence of malice. The law explicitly presumes
its existence (malice in law) from the defamatory character of the
assailed statement.45 For his defense, the accused must show that
he has a justifiable reason for the defamatory statement even if it
was in fact true.46
Petitioners peddle the view that both the penal code and the
Cybercrime Prevention Act violate the country’s obligations under
the International Covenant of Civil and Political Rights (ICCPR).
They point out that in Adonis v. Republic of the Philippines,47 the
United Nations Human Rights Committee (UNHRC) cited its
General Comment 34 to the effect that penal defamation laws
should include the defense of truth.
But General Comment 34 does not say that the truth of the
defamatory statement should constitute an all-encompassing
defense. As it happens, Article 361 recognizes truth as a defense
but under the condition that the accused has been prompted in
making the statement by good motives and for justifiable ends.
Thus:
Art. 361. Proof of the truth. — In every criminal prosecution for libel,
the truth may be given in evidence to the court and if it appears that
the matter charged as libelous is true, and, moreover, that it was
published with good motives and for justifiable ends, the defendants
shall be acquitted.
Proof of the truth of an imputation of an act or omission not
constituting a crime shall not be admitted, unless the imputation
shall have been made against Government employees with respect
to facts related to the discharge of their official duties.
In such cases if the defendant proves the truth of the imputation
made by him, he shall be acquitted.
Besides, the UNHRC did not actually enjoin the Philippines, as
petitioners urge, to decriminalize libel. It simply suggested that

defamation laws be crafted with care to ensure that they do not stifle
freedom of expression.48 Indeed, the ICCPR states that although
everyone should enjoy freedom of expression, its exercise carries
with it special duties and responsibilities. Free speech is not
absolute. It is subject to certain restrictions, as may be necessary
and as may be provided by law.49
The Court agrees with the Solicitor General that libel is not a
constitutionally protected speech and that the government has an
obligation to protect private individuals from defamation. Indeed,
cyberlibel is actually not a new crime since Article 353, in relation to
Article 355 of the penal code, already punishes it. In effect, Section
4(c)(4) above merely affirms that online defamation constitutes
"similar means" for committing libel.
But the Court’s acquiescence goes only insofar as the cybercrime
law penalizes the author of the libelous statement or article.
Cyberlibel brings with it certain intricacies, unheard of when the
penal code provisions on libel were enacted. The culture associated
with internet media is distinct from that of print.
The internet is characterized as encouraging a freewheeling,
anything-goes writing style.50 In a sense, they are a world apart in
terms of quickness of the reader’s reaction to defamatory
statements posted in cyberspace, facilitated by one-click reply
options offered by the networking site as well as by the speed with
which such reactions are disseminated down the line to other
internet users. Whether these reactions to defamatory statement
posted on the internet constitute aiding and abetting libel, acts that
Section 5 of the cybercrime law punishes, is another matter that the
Court will deal with next in relation to Section 5 of the law.
Section 5 of the Cybercrime Law
Section 5 provides:
Sec. 5. Other Offenses. — The following acts shall also constitute
an offense:
(a) Aiding or Abetting in the Commission of Cybercrime. – Any
person who willfully abets or aids in the commission of any of the
offenses enumerated in this Act shall be held liable.
(b) Attempt in the Commission of Cybercrime. — Any person who
willfully attempts to commit any of the offenses enumerated in this
Act shall be held liable.
Petitioners assail the constitutionality of Section 5 that renders
criminally liable any person who willfully abets or aids in the
commission or attempts to commit any of the offenses enumerated
as cybercrimes. It suffers from overbreadth, creating a chilling and
deterrent effect on protected expression.
The Solicitor General contends, however, that the current body of
jurisprudence and laws on aiding and abetting sufficiently protects
the freedom of expression of "netizens," the multitude that avail
themselves of the services of the internet. He points out that existing
laws and jurisprudence sufficiently delineate the meaning of "aiding
or abetting" a crime as to protect the innocent. The Solicitor General
argues that plain, ordinary, and common usage is at times sufficient
to guide law enforcement agencies in enforcing the law.51 The
legislature is not required to define every single word contained in
the laws they craft.
Aiding or abetting has of course well-defined meaning and
application in existing laws. When a person aids or abets another in
destroying a forest,52 smuggling merchandise into the country,53
or interfering in the peaceful picketing of laborers,54 his action is
essentially physical and so is susceptible to easy assessment as
criminal in character. These forms of aiding or abetting lend
themselves to the tests of common sense and human experience.
CONSTI LAW II I ACJUCO 288
But, when it comes to certain cybercrimes, the waters are muddier
and the line of sight is somewhat blurred. The idea of "aiding or
abetting" wrongdoings online threatens the heretofore popular and
unchallenged dogmas of cyberspace use.
According to the 2011 Southeast Asia Digital Consumer Report,
33% of Filipinos have accessed the internet within a year,
translating to about 31 million users.55 Based on a recent survey,
the Philippines ranks 6th in the top 10 most engaged countries for
social networking.56 Social networking sites build social relations
among people who, for example, share interests, activities,
backgrounds, or real-life connections.57
Two of the most popular of these sites are Facebook and Twitter.
As of late 2012, 1.2 billion people with shared interests use
Facebook to get in touch.58 Users register at this site, create a
personal profile or an open book of who they are, add other users
as friends, and exchange messages, including automatic
notifications when they update their profile.59 A user can post a
statement, a photo, or a video on Facebook, which can be made
visible to anyone, depending on the user’s privacy settings.
If the post is made available to the public, meaning to everyone and
not only to his friends, anyone on Facebook can react to the posting,
clicking any of several buttons of preferences on the program’s
screen such as "Like," "Comment," or "Share." "Like" signifies that
the reader likes the posting while "Comment" enables him to post
online his feelings or views about the same, such as "This is great!"
When a Facebook user "Shares" a posting, the original "posting" will
appear on his own Facebook profile, consequently making it visible
to his down-line Facebook Friends.
Twitter, on the other hand, is an internet social networking and
microblogging service that enables its users to send and read short
text-based messages of up to 140 characters. These are known as
"Tweets." Microblogging is the practice of posting small pieces of
digital content—which could be in the form of text, pictures, links,
short videos, or other media—on the internet. Instead of friends, a
Twitter user has "Followers," those who subscribe to this particular
user’s posts, enabling them to read the same, and "Following,"
those whom this particular user is subscribed to, enabling him to
read their posts. Like Facebook, a Twitter user can make his tweets
available only to his Followers, or to the general public. If a post is
available to the public, any Twitter user can "Retweet" a given
posting. Retweeting is just reposting or republishing another
person’s tweet without the need of copying and pasting it.
In the cyberworld, there are many actors: a) the blogger who
originates the assailed statement; b) the blog service provider like
Yahoo; c) the internet service provider like PLDT, Smart, Globe, or
Sun; d) the internet café that may have provided the computer used
for posting the blog; e) the person who makes a favorable comment
on the blog; and f) the person who posts a link to the blog site.60
Now, suppose Maria (a blogger) maintains a blog on
WordPress.com (blog service provider). She needs the internet to
access her blog so she subscribes to Sun Broadband (Internet
Service Provider).
One day, Maria posts on her internet account the statement that a
certain married public official has an illicit affair with a movie star.
Linda, one of Maria’s friends who sees this post, comments online,
"Yes, this is so true! They are so immoral." Maria’s original post is
then multiplied by her friends and the latter’s friends, and down the
line to friends of friends almost ad infinitum. Nena, who is a stranger
to both Maria and Linda, comes across this blog, finds it interesting
and so shares the link to this apparently defamatory blog on her
Twitter account. Nena’s "Followers" then "Retweet" the link to that
blog site.

Pamela, a Twitter user, stumbles upon a random person’s
"Retweet" of Nena’s original tweet and posts this on her Facebook
account. Immediately, Pamela’s Facebook Friends start Liking and
making Comments on the assailed posting. A lot of them even press
the Share button, resulting in the further spread of the original
posting into tens, hundreds, thousands, and greater postings.
The question is: are online postings such as "Liking" an openly
defamatory statement, "Commenting" on it, or "Sharing" it with
others, to be regarded as "aiding or abetting?" In libel in the physical
world, if Nestor places on the office bulletin board a small poster that
says, "Armand is a thief!," he could certainly be charged with libel.
If Roger, seeing the poster, writes on it, "I like this!," that could not
be libel since he did not author the poster. If Arthur, passing by and
noticing the poster, writes on it, "Correct!," would that be libel? No,
for he merely expresses agreement with the statement on the
poster. He still is not its author. Besides, it is not clear if aiding or
abetting libel in the physical world is a crime.
But suppose Nestor posts the blog, "Armand is a thief!" on a social
networking site. Would a reader and his Friends or Followers,
availing themselves of any of the "Like," "Comment," and "Share"
reactions, be guilty of aiding or abetting libel? And, in the complex
world of cyberspace expressions of thoughts, when will one be liable
for aiding or abetting cybercrimes? Where is the venue of the crime?
Except for the original author of the assailed statement, the rest
(those who pressed Like, Comment and Share) are essentially
knee-jerk sentiments of readers who may think little or haphazardly
of their response to the original posting. Will they be liable for aiding
or abetting? And, considering the inherent impossibility of joining
hundreds or thousands of responding "Friends" or "Followers" in the
criminal charge to be filed in court, who will make a choice as to who
should go to jail for the outbreak of the challenged posting?
The old parameters for enforcing the traditional form of libel would
be a square peg in a round hole when applied to cyberspace libel.
Unless the legislature crafts a cyber libel law that takes into account
its unique circumstances and culture, such law will tend to create a
chilling effect on the millions that use this new medium of
communication in violation of their constitutionally-guaranteed right
to freedom of expression.
The United States Supreme Court faced the same issue in Reno v.
American Civil Liberties Union,61 a case involving the
constitutionality of the Communications Decency Act of 1996. The
law prohibited (1) the knowing transmission, by means of a
telecommunications device, of
"obscene or indecent" communications to any recipient under 18
years of age; and (2) the knowing use of an interactive computer
service to send to a specific person or persons under 18 years of
age or to display in a manner available to a person under 18 years
of age communications that, in context, depict or describe, in terms
"patently offensive" as measured by contemporary community
standards, sexual or excretory activities or organs.
Those who challenged the Act claim that the law violated the First
Amendment’s guarantee of freedom of speech for being overbroad.
The U.S. Supreme Court agreed and ruled:
The vagueness of the Communications Decency Act of 1996 (CDA),
47 U.S.C.S. §223, is a matter of special concern for two reasons.
First, the CDA is a content-based regulation of speech. The
vagueness of such a regulation raises special U.S. Const. amend. I
concerns because of its obvious chilling effect on free speech.
Second, the CDA is a criminal statute. In addition to the opprobrium
and stigma of a criminal conviction, the CDA threatens violators with
penalties including up to two years in prison for each act of violation.
The severity of criminal sanctions may well cause speakers to
remain silent rather than communicate even arguably unlawful
CONSTI LAW II I ACJUCO 289
words, ideas, and images. As a practical matter, this increased
deterrent effect, coupled with the risk of discriminatory enforcement
of vague regulations, poses greater U.S. Const. amend. I concerns
than those implicated by certain civil regulations.
xxxx
The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. §
223, presents a great threat of censoring speech that, in fact, falls
outside the statute's scope. Given the vague contours of the
coverage of the statute, it unquestionably silences some speakers
whose messages would be entitled to constitutional protection. That
danger provides further reason for insisting that the statute not be
overly broad. The CDA’s burden on protected speech cannot be
justified if it could be avoided by a more carefully drafted statute.
(Emphasis ours)
Libel in the cyberspace can of course stain a person’s image with
just one click of the mouse. Scurrilous statements can spread and
travel fast across the globe like bad news. Moreover, cyberlibel
often goes hand in hand with cyberbullying that oppresses the
victim, his relatives, and friends, evoking from mild to disastrous
reactions. Still, a governmental purpose, which seeks to regulate the
use of this cyberspace communication technology to protect a
person’s reputation and peace of mind, cannot adopt means that will
unnecessarily and broadly sweep, invading the area of protected
freedoms.62
If such means are adopted, self-inhibition borne of fear of what
sinister predicaments await internet users will suppress otherwise
robust discussion of public issues. Democracy will be threatened
and with it, all liberties. Penal laws should provide reasonably clear
guidelines for law enforcement officials and triers of facts to prevent
arbitrary and discriminatory enforcement.63 The terms "aiding or
abetting" constitute broad sweep that generates chilling effect on
those who express themselves through cyberspace posts,
comments, and other messages.64 Hence, Section 5 of the
cybercrime law that punishes "aiding or abetting" libel on the
cyberspace is a nullity.
When a penal statute encroaches upon the freedom of speech, a
facial challenge grounded on the void-for-vagueness doctrine is
acceptable. The inapplicability of the doctrine must be carefully
delineated. As Justice Antonio T. Carpio explained in his dissent in
Romualdez v. Commission on Elections,65 "we must view these
statements of the Court on the inapplicability of the overbreadth and
vagueness doctrines to penal statutes as appropriate only insofar
as these doctrines are used to mount ‘facial’ challenges to penal
statutes not involving free speech."
In an "as applied" challenge, the petitioner who claims a violation of
his constitutional right can raise any constitutional ground – absence
of due process, lack of fair notice, lack of ascertainable standards,
overbreadth, or vagueness. Here, one can challenge the
constitutionality of a statute only if he asserts a violation of his own
rights. It prohibits one from assailing the constitutionality of the
statute based solely on the violation of the rights of third persons not
before the court. This rule is also known as the prohibition against
third-party standing.66
But this rule admits of exceptions. A petitioner may for instance
mount a "facial" challenge to the constitutionality of a statute even if
he claims no violation of his own rights under the assailed statute
where it involves free speech on grounds of overbreadth or
vagueness of the statute.
The rationale for this exception is to counter the "chilling effect" on
protected speech that comes from statutes violating free speech. A
person who does not know whether his speech constitutes a crime
under an overbroad or vague law may simply restrain himself from

speaking in order to avoid being charged of a crime. The overbroad
or vague law thus chills him into silence.67
As already stated, the cyberspace is an incomparable, pervasive
medium of communication. It is inevitable that any government
threat of punishment regarding certain uses of the medium creates
a chilling effect on the constitutionally-protected freedom of
expression of the great masses that use it. In this case, the
particularly complex web of interaction on social media websites
would give law enforcers such latitude that they could arbitrarily or
selectively enforce the law.
Who is to decide when to prosecute persons who boost the visibility
of a posting on the internet by liking it? Netizens are not given "fair
notice" or warning as to what is criminal conduct and what is lawful
conduct. When a case is filed, how will the court ascertain whether
or not one netizen’s comment aided and abetted a cybercrime while
another comment did not?
Of course, if the "Comment" does not merely react to the original
posting but creates an altogether new defamatory story against
Armand like "He beats his wife and children," then that should be
considered an original posting published on the internet. Both the
penal code and the cybercrime law clearly punish authors of
defamatory publications. Make no mistake, libel destroys
reputations that society values. Allowed to cascade in the internet,
it will destroy relationships and, under certain circumstances, will
generate enmity and tension between social or economic groups,
races, or religions, exacerbating existing tension in their
relationships.
In regard to the crime that targets child pornography, when "Google
procures, stores, and indexes child pornography and facilitates the
completion of transactions involving the dissemination of child
pornography," does this make Google and its users aiders and
abettors in the commission of child pornography crimes?68 Byars
highlights a feature in the American law on child pornography that
the Cybercrimes law lacks—the exemption of a provider or notably
a plain user of interactive computer service from civil liability for child
pornography as follows:
No provider or user of an interactive computer service shall be
treated as the publisher or speaker of any information provided by
another information content provider and cannot be held civilly liable
for any action voluntarily taken in good faith to restrict access to or
availability of material that the provider or user considers to be
obscene...whether or not such material is constitutionally
protected.69
When a person replies to a Tweet containing child pornography, he
effectively republishes it whether wittingly or unwittingly. Does this
make him a willing accomplice to the distribution of child
pornography? When a user downloads the Facebook mobile
application, the user may give consent to Facebook to access his
contact details. In this way, certain information is forwarded to third
parties and unsolicited commercial communication could be
disseminated on the basis of this information.70 As the source of
this information, is the user aiding the distribution of this
communication? The legislature needs to address this clearly to
relieve users of annoying fear of possible criminal prosecution.
Section 5 with respect to Section 4(c)(4) is unconstitutional. Its
vagueness raises apprehension on the part of internet users
because of its obvious chilling effect on the freedom of expression,
especially since the crime of aiding or abetting ensnares all the
actors in the cyberspace front in a fuzzy way. What is more, as the
petitioners point out, formal crimes such as libel are not punishable
unless consummated.71 In the absence of legislation tracing the
interaction of netizens and their level of responsibility such as in
other countries, Section 5, in relation to Section 4(c)(4) on Libel,
CONSTI LAW II I ACJUCO 290
Section 4(c)(3) on Unsolicited Commercial Communications, and
Section 4(c)(2) on Child Pornography, cannot stand scrutiny.
But the crime of aiding or abetting the commission of cybercrimes
under Section 5 should be permitted to apply to Section 4(a)(1) on
Illegal Access, Section 4(a)(2) on Illegal Interception, Section
4(a)(3) on Data Interference, Section 4(a)(4) on System
Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6)
on Cyber-squatting, Section 4(b)(1) on Computer-related Forgery,
Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on
Computer-related Identity Theft, and Section 4(c)(1) on Cybersex.
None of these offenses borders on the exercise of the freedom of
expression.
The crime of willfully attempting to commit any of these offenses is
for the same reason not objectionable. A hacker may for instance
have done all that is necessary to illegally access another party’s
computer system but the security employed by the system’s lawful
owner could frustrate his effort. Another hacker may have gained
access to usernames and passwords of others but fail to use these
because the system supervisor is alerted.72 If Section 5 that
punishes any person who willfully attempts to commit this specific
offense is not upheld, the owner of the username and password
could not file a complaint against him for attempted hacking. But this
is not right. The hacker should not be freed from liability simply
because of the vigilance of a lawful owner or his supervisor.
Petitioners of course claim that Section 5 lacks positive limits and
could cover the innocent.73 While this may be true with respect to
cybercrimes that tend to sneak past the area of free expression, any
attempt to commit the other acts specified in Section 4(a)(1),
Section 4(a)(2), Section 4(a)(3), Section 4(a)(4), Section 4(a)(5),
Section 4(a)(6), Section 4(b)(1), Section 4(b)(2), Section 4(b)(3),
and Section 4(c)(1) as well as the actors aiding and abetting the
commission of such acts can be identified with some reasonable
certainty through adroit tracking of their works. Absent concrete
proof of the same, the innocent will of course be spared.
Section 6 of the Cybercrime Law
Section 6 provides:
Sec. 6. All crimes defined and penalized by the Revised Penal
Code, as amended, and special laws, if committed by, through and
with the use of information and communications technologies shall
be covered by the relevant provisions of this Act: Provided, That the
penalty to be imposed shall be one (1) degree higher than that
provided for by the Revised Penal Code, as amended, and special
laws, as the case may be.
Section 6 merely makes commission of existing crimes through the
internet a qualifying circumstance. As the Solicitor General points
out, there exists a substantial distinction between crimes committed
through the use of information and communications technology and
similar crimes committed using other means. In using the
technology in question, the offender often evades identification and
is able to reach far more victims or cause greater harm. The
distinction, therefore, creates a basis for higher penalties for
cybercrimes.
Section 7 of the Cybercrime Law
Section 7 provides:
Sec. 7. Liability under Other Laws. — A prosecution under this Act
shall be without prejudice to any liability for violation of any provision
of the Revised Penal Code, as amended, or special laws.
The Solicitor General points out that Section 7 merely expresses the
settled doctrine that a single set of acts may be prosecuted and
penalized simultaneously under two laws, a special law and the

Revised Penal Code. When two different laws define two crimes,
prior jeopardy as to one does not bar prosecution of the other
although both offenses arise from the same fact, if each crime
involves some important act which is not an essential element of the
other.74 With the exception of the crimes of online libel and online
child pornography, the Court would rather leave the determination
of the correct application of Section 7 to actual cases.
Online libel is different. There should be no question that if the
published material on print, said to be libelous, is again posted
online or vice versa, that identical material cannot be the subject of
two separate libels. The two offenses, one a violation of Article 353
of the Revised Penal Code and the other a violation of Section
4(c)(4) of R.A. 10175 involve essentially the same elements and are
in fact one and the same offense. Indeed, the OSG itself claims that
online libel under Section 4(c)(4) is not a new crime but is one
already punished under Article 353. Section 4(c)(4) merely
establishes the computer system as another means of
publication.75 Charging the offender under both laws would be a
blatant violation of the proscription against double jeopardy.76
The same is true with child pornography committed online. Section
4(c)(2) merely expands the ACPA’s scope so as to include identical
activities in cyberspace. As previously discussed, ACPA’s definition
of child pornography in fact already covers the use of "electronic,
mechanical, digital, optical, magnetic or any other means." Thus,
charging the offender under both Section 4(c)(2) and ACPA would
likewise be tantamount to a violation of the constitutional prohibition
against double jeopardy.
Section 8 of the Cybercrime Law
Section 8 provides:
Sec. 8. Penalties. — Any person found guilty of any of the
punishable acts enumerated in Sections 4(a) and 4(b) of this Act
shall be punished with imprisonment of prision mayor or a fine of at
least Two hundred thousand pesos (Ph₱200,000.00) up to a
maximum amount commensurate to the damage incurred or both.
Any person found guilty of the punishable act under Section 4(a)(5)
shall be punished with imprisonment of prision mayor or a fine of not
more than Five hundred thousand pesos (Ph₱500,000.00) or both.
If punishable acts in Section 4(a) are committed against critical
infrastructure, the penalty of reclusion temporal or a fine of at least
Five hundred thousand pesos (Ph₱500,000.00) up to maximum
amount commensurate to the damage incurred or both, shall be
imposed.
Any person found guilty of any of the punishable acts enumerated
in Section 4(c)(1) of this Act shall be punished with imprisonment of
prision mayor or a fine of at least Two hundred thousand pesos
(Ph₱200,000.00) but not exceeding One million pesos
(Ph₱1,000,000.00) or both.
Any person found guilty of any of the punishable acts enumerated
in Section 4(c)(2) of this Act shall be punished with the penalties as
enumerated in Republic Act No. 9775 or the "Anti-Child
Pornography Act of 2009:" Provided, That the penalty to be imposed
shall be one (1) degree higher than that provided for in Republic Act
No. 9775, if committed through a computer system.
Any person found guilty of any of the punishable acts enumerated
in Section 4(c)(3) shall be punished with imprisonment of arresto
mayor or a fine of at least Fifty thousand pesos (Ph₱50,000.00) but
not exceeding Two hundred fifty thousand pesos (Ph₱250,000.00)
or both.
Any person found guilty of any of the punishable acts enumerated
in Section 5 shall be punished with imprisonment one (1) degree
CONSTI LAW II I ACJUCO 291
lower than that of the prescribed penalty for the offense or a fine of
at least One hundred thousand pesos (Ph₱100,000.00) but not
exceeding Five hundred thousand pesos (Ph₱500,000.00) or both.
Section 8 provides for the penalties for the following crimes:
Sections 4(a) on Offenses Against the Confidentiality, Integrity and
Availability of Computer Data and Systems; 4(b) on Computer-
related Offenses; 4(a)(5) on Misuse of Devices; when the crime
punishable under 4(a) is committed against critical infrastructure;
4(c)(1) on Cybersex; 4(c)(2) on Child Pornography; 4(c)(3) on
Unsolicited Commercial Communications; and Section 5 on Aiding
or Abetting, and Attempt in the Commission of Cybercrime.
The matter of fixing penalties for the commission of crimes is as a
rule a legislative prerogative. Here the legislature prescribed a
measure of severe penalties for what it regards as deleterious
cybercrimes. They appear proportionate to the evil sought to be
punished. The power to determine penalties for offenses is not
diluted or improperly wielded simply because at some prior time the
act or omission was but an element of another offense or might just
have been connected with another crime.77 Judges and
magistrates can only interpret and apply them and have no authority
to modify or revise their range as determined by the legislative
department.
The courts should not encroach on this prerogative of the lawmaking
body.78
Section 12 of the Cybercrime Law
Section 12 provides:
Sec. 12. Real-Time Collection of Traffic Data. — Law enforcement
authorities, with due cause, shall be authorized to collect or record
by technical or electronic means traffic data in real-time associated
with specified communications transmitted by means of a computer
system.
Traffic data refer only to the communication’s origin, destination,
route, time, date, size, duration, or type of underlying service, but
not content, nor identities.
All other data to be collected or seized or disclosed will require a
court warrant.
Service providers are required to cooperate and assist law
enforcement authorities in the collection or recording of the above-
stated information.
The court warrant required under this section shall only be issued
or granted upon written application and the examination under oath
or affirmation of the applicant and the witnesses he may produce
and the showing: (1) that there are reasonable grounds to believe
that any of the crimes enumerated hereinabove has been
committed, or is being committed, or is about to be committed; (2)
that there are reasonable grounds to believe that evidence that will
be obtained is essential to the conviction of any person for, or to the
solution of, or to the prevention of, any such crimes; and (3) that
there are no other means readily available for obtaining such
evidence.
Petitioners assail the grant to law enforcement agencies of the
power to collect or record traffic data in real time as tending to curtail
civil liberties or provide opportunities for official abuse. They claim
that data showing where digital messages come from, what kind
they are, and where they are destined need not be incriminating to
their senders or recipients before they are to be protected.
Petitioners invoke the right of every individual to privacy and to be
protected from government snooping into the messages or
information that they send to one another.

The first question is whether or not Section 12 has a proper
governmental purpose since a law may require the disclosure of
matters normally considered private but then only upon showing that
such requirement has a rational relation to the purpose of the law,79
that there is a compelling State interest behind the law, and that the
provision itself is narrowly drawn.80 In assessing regulations
affecting privacy rights, courts should balance the legitimate
concerns of the State against constitutional guarantees.81
Undoubtedly, the State has a compelling interest in enacting the
cybercrime law for there is a need to put order to the tremendous
activities in cyberspace for public good.82 To do this, it is within the
realm of reason that the government should be able to monitor traffic
data to enhance its ability to combat all sorts of cybercrimes.
Chapter IV of the cybercrime law, of which the collection or
recording of traffic data is a part, aims to provide law enforcement
authorities with the power they need for spotting, preventing, and
investigating crimes committed in cyberspace. Crime-fighting is a
state business. Indeed, as Chief Justice Sereno points out, the
Budapest Convention on Cybercrimes requires signatory countries
to adopt legislative measures to empower state authorities to collect
or record "traffic data, in real time, associated with specified
communications."83 And this is precisely what Section 12 does. It
empowers law enforcement agencies in this country to collect or
record such data.
But is not evidence of yesterday’s traffic data, like the scene of the
crime after it has been committed, adequate for fighting cybercrimes
and, therefore, real-time data is superfluous for that purpose?
Evidently, it is not. Those who commit the crimes of accessing a
computer system without right,84 transmitting viruses,85
lasciviously exhibiting sexual organs or sexual activity for favor or
consideration;86 and producing child pornography87 could easily
evade detection and prosecution by simply moving the physical
location of their computers or laptops from day to day. In this digital
age, the wicked can commit cybercrimes from virtually anywhere:
from internet cafés, from kindred places that provide free internet
services, and from unregistered mobile internet connectors.
Criminals using cellphones under pre-paid arrangements and with
unregistered SIM cards do not have listed addresses and can
neither be located nor identified. There are many ways the cyber
criminals can quickly erase their tracks. Those who peddle child
pornography could use relays of computers to mislead law
enforcement authorities regarding their places of operations.
Evidently, it is only real-time traffic data collection or recording and
a subsequent recourse to court-issued search and seizure warrant
that can succeed in ferreting them out.
Petitioners of course point out that the provisions of Section 12 are
too broad and do not provide ample safeguards against crossing
legal boundaries and invading the people’s right to privacy. The
concern is understandable. Indeed, the Court recognizes in Morfe
v. Mutuc88 that certain constitutional guarantees work together to
create zones of privacy wherein governmental powers may not
intrude, and that there exists an independent constitutional right of
privacy. Such right to be left alone has been regarded as the
beginning of all freedoms.89
But that right is not unqualified. In Whalen v. Roe,90 the United
States Supreme Court classified privacy into two categories:
decisional privacy and informational privacy. Decisional privacy
involves the right to independence in making certain important
decisions, while informational privacy refers to the interest in
avoiding disclosure of personal matters. It is the latter right—the
right to informational privacy—that those who oppose government
collection or recording of traffic data in real-time seek to protect.
Informational privacy has two aspects: the right not to have private
information disclosed, and the right to live freely without surveillance
and intrusion.91 In determining whether or not a matter is entitled to
CONSTI LAW II I ACJUCO 292
the right to privacy, this Court has laid down a two-fold test. The first
is a subjective test, where one claiming the right must have an actual
or legitimate expectation of privacy over a certain matter. The
second is an objective test, where his or her expectation of privacy
must be one society is prepared to accept as objectively
reasonable.92
Since the validity of the cybercrime law is being challenged, not in
relation to its application to a particular person or group, petitioners’
challenge to Section 12 applies to all information and
communications technology (ICT) users, meaning the large
segment of the population who use all sorts of electronic devices to
communicate with one another. Consequently, the expectation of
privacy is to be measured from the general public’s point of view.
Without reasonable expectation of privacy, the right to it would have
no basis in fact.
As the Solicitor General points out, an ordinary ICT user who
courses his communication through a service provider, must of
necessity disclose to the latter, a third person, the traffic data
needed for connecting him to the recipient ICT user. For example,
an ICT user who writes a text message intended for another ICT
user must furnish his service provider with his cellphone number
and the cellphone number of his recipient, accompanying the
message sent. It is this information that creates the traffic data.
Transmitting communications is akin to putting a letter in an
envelope properly addressed, sealing it closed, and sending it
through the postal service. Those who post letters have no
expectations that no one will read the information appearing outside
the envelope.
Computer data—messages of all kinds—travel across the internet
in packets and in a way that may be likened to parcels of letters or
things that are sent through the posts. When data is sent from any
one source, the content is broken up into packets and around each
of these packets is a wrapper or header. This header contains the
traffic data: information that tells computers where the packet
originated, what kind of data is in the packet (SMS, voice call, video,
internet chat messages, email, online browsing data, etc.), where
the packet is going, and how the packet fits together with other
packets.93 The difference is that traffic data sent through the
internet at times across the ocean do not disclose the actual names
and addresses (residential or office) of the sender and the recipient,
only their coded internet protocol (IP) addresses. The packets travel
from one computer system to another where their contents are
pieced back together.
Section 12 does not permit law enforcement authorities to look into
the contents of the messages and uncover the identities of the
sender and the recipient.
For example, when one calls to speak to another through his
cellphone, the service provider’s communication’s system will put
his voice message into packets and send them to the other person’s
cellphone where they are refitted together and heard. The latter’s
spoken reply is sent to the caller in the same way. To be connected
by the service provider, the sender reveals his cellphone number to
the service provider when he puts his call through. He also reveals
the cellphone number to the person he calls. The other ways of
communicating electronically follow the same basic pattern.
In Smith v. Maryland,94 cited by the Solicitor General, the United
States Supreme Court reasoned that telephone users in the ‘70s
must realize that they necessarily convey phone numbers to the
telephone company in order to complete a call. That Court ruled that
even if there is an expectation that phone numbers one dials should
remain private, such expectation is not one that society is prepared
to recognize as reasonable.
In much the same way, ICT users must know that they cannot
communicate or exchange data with one another over cyberspace

except through some service providers to whom they must submit
certain traffic data that are needed for a successful cyberspace
communication. The conveyance of this data takes them out of the
private sphere, making the expectation to privacy in regard to them
an expectation that society is not prepared to recognize as
reasonable.
The Court, however, agrees with Justices Carpio and Brion that
when seemingly random bits of traffic data are gathered in bulk,
pooled together, and analyzed, they reveal patterns of activities
which can then be used to create profiles of the persons under
surveillance. With enough traffic data, analysts may be able to
determine a person’s close associations, religious views, political
affiliations, even sexual preferences. Such information is likely
beyond what the public may expect to be disclosed, and clearly falls
within matters protected by the right to privacy. But has the
procedure that Section 12 of the law provides been drawn narrowly
enough to protect individual rights?
Section 12 empowers law enforcement authorities, "with due
cause," to collect or record by technical or electronic means traffic
data in real-time. Petitioners point out that the phrase "due cause"
has no precedent in law or jurisprudence and that whether there is
due cause or not is left to the discretion of the police. Replying to
this, the Solicitor General asserts that Congress is not required to
define the meaning of every word it uses in drafting the law.
Indeed, courts are able to save vague provisions of law through
statutory construction. But the cybercrime law, dealing with a novel
situation, fails to hint at the meaning it intends for the phrase "due
cause." The Solicitor General suggests that "due cause" should
mean "just reason or motive" and "adherence to a lawful procedure."
But the Court cannot draw this meaning since Section 12 does not
even bother to relate the collection of data to the probable
commission of a particular crime. It just says, "with due cause," thus
justifying a general gathering of data. It is akin to the use of a general
search warrant that the Constitution prohibits.
Due cause is also not descriptive of the purpose for which data
collection will be used. Will the law enforcement agencies use the
traffic data to identify the perpetrator of a cyber attack? Or will it be
used to build up a case against an identified suspect? Can the data
be used to prevent cybercrimes from happening?
The authority that Section 12 gives law enforcement agencies is too
sweeping and lacks restraint. While it says that traffic data collection
should not disclose identities or content data, such restraint is but
an illusion. Admittedly, nothing can prevent law enforcement
agencies holding these data in their hands from looking into the
identity of their sender or receiver and what the data contains. This
will unnecessarily expose the citizenry to leaked information or,
worse, to extortion from certain bad elements in these agencies.
Section 12, of course, limits the collection of traffic data to those
"associated with specified communications." But this supposed
limitation is no limitation at all since, evidently, it is the law
enforcement agencies that would specify the target
communications. The power is virtually limitless, enabling law
enforcement authorities to engage in "fishing expedition," choosing
whatever specified communication they want. This evidently
threatens the right of individuals to privacy.
The Solicitor General points out that Section 12 needs to authorize
collection of traffic data "in real time" because it is not possible to
get a court warrant that would authorize the search of what is akin
to a "moving vehicle." But warrantless search is associated with a
police officer’s determination of probable cause that a crime has
been committed, that there is no opportunity for getting a warrant,
and that unless the search is immediately carried out, the thing to
be searched stands to be removed. These preconditions are not
provided in Section 12.
CONSTI LAW II I ACJUCO 293
The Solicitor General is honest enough to admit that Section 12
provides minimal protection to internet users and that the procedure
envisioned by the law could be better served by providing for more
robust safeguards. His bare assurance that law enforcement
authorities will not abuse the provisions of Section 12 is of course
not enough. The grant of the power to track cyberspace
communications in real time and determine their sources and
destinations must be narrowly drawn to preclude abuses.95
Petitioners also ask that the Court strike down Section 12 for being
violative of the void-for-vagueness doctrine and the overbreadth
doctrine. These doctrines however, have been consistently held by
this Court to apply only to free speech cases. But Section 12 on its
own neither regulates nor punishes any type of speech. Therefore,
such analysis is unnecessary.
This Court is mindful that advances in technology allow the
government and kindred institutions to monitor individuals and place
them under surveillance in ways that have previously been
impractical or even impossible. "All the forces of a technological age
x x x operate to narrow the area of privacy and facilitate intrusions
into it. In modern terms, the capacity to maintain and support this
enclave of private life marks the difference between a democratic
and a totalitarian society."96 The Court must ensure that laws
seeking to take advantage of these technologies be written with
specificity and definiteness as to ensure respect for the rights that
the Constitution guarantees.
Section 13 of the Cybercrime Law
Section 13 provides:
Sec. 13. Preservation of Computer Data. — The integrity of traffic
data and subscriber information relating to communication services
provided by a service provider shall be preserved for a minimum
period of six (6) months from the date of the transaction. Content
data shall be similarly preserved for six (6) months from the date of
receipt of the order from law enforcement authorities requiring its
preservation.
Law enforcement authorities may order a one-time extension for
another six (6) months: Provided, That once computer data
preserved, transmitted or stored by a service provider is used as
evidence in a case, the mere furnishing to such service provider of
the transmittal document to the Office of the Prosecutor shall be
deemed a notification to preserve the computer data until the
termination of the case.
The service provider ordered to preserve computer data shall keep
confidential the order and its compliance.
Petitioners in G.R. 20339197 claim that Section 13 constitutes an
undue deprivation of the right to property. They liken the data
preservation order that law enforcement authorities are to issue as
a form of garnishment of personal property in civil forfeiture
proceedings. Such order prevents internet users from accessing
and disposing of traffic data that essentially belong to them.
No doubt, the contents of materials sent or received through the
internet belong to their authors or recipients and are to be
considered private communications. But it is not clear that a service
provider has an obligation to indefinitely keep a copy of the same as
they pass its system for the benefit of users. By virtue of Section 13,
however, the law now requires service providers to keep traffic data
and subscriber information relating to communication services for at
least six months from the date of the transaction and those relating
to content data for at least six months from receipt of the order for
their preservation.

Actually, the user ought to have kept a copy of that data when it
crossed his computer if he was so minded. The service provider has
never assumed responsibility for their loss or deletion while in its
keep.
At any rate, as the Solicitor General correctly points out, the data
that service providers preserve on orders of law enforcement
authorities are not made inaccessible to users by reason of the
issuance of such orders. The process of preserving data will not
unduly hamper the normal transmission or use of the same.
Section 14 of the Cybercrime Law
Section 14 provides:
Sec. 14. Disclosure of Computer Data. — Law enforcement
authorities, upon securing a court warrant, shall issue an order
requiring any person or service provider to disclose or submit
subscriber’s information, traffic data or relevant data in his/its
possession or control within seventy-two (72) hours from receipt of
the order in relation to a valid complaint officially docketed and
assigned for investigation and the disclosure is necessary and
relevant for the purpose of investigation.
The process envisioned in Section 14 is being likened to the
issuance of a subpoena. Petitioners’ objection is that the issuance
of subpoenas is a judicial function. But it is well-settled that the
power to issue subpoenas is not exclusively a judicial function.
Executive agencies have the power to issue subpoena as an
adjunct of their investigatory powers.98
Besides, what Section 14 envisions is merely the enforcement of a
duly issued court warrant, a function usually lodged in the hands of
law enforcers to enable them to carry out their executive functions.
The prescribed procedure for disclosure would not constitute an
unlawful search or seizure nor would it violate the privacy of
communications and correspondence. Disclosure can be made only
after judicial intervention.
Section 15 of the Cybercrime Law
Section 15 provides:
Sec. 15. Search, Seizure and Examination of Computer Data. —
Where a search and seizure warrant is properly issued, the law
enforcement authorities shall likewise have the following powers
and duties.
Within the time period specified in the warrant, to conduct
interception, as defined in this Act, and:
(a) To secure a computer system or a computer data storage
medium;
(b) To make and retain a copy of those computer data secured;
(c) To maintain the integrity of the relevant stored computer data;
(d) To conduct forensic analysis or examination of the computer
data storage medium; and
(e) To render inaccessible or remove those computer data in the
accessed computer or computer and communications network.
Pursuant thereof, the law enforcement authorities may order any
person who has knowledge about the functioning of the computer
system and the measures to protect and preserve the computer
data therein to provide, as is reasonable, the necessary information,
to enable the undertaking of the search, seizure and examination.
CONSTI LAW II I ACJUCO 294
Law enforcement authorities may request for an extension of time
to complete the examination of the computer data storage medium
and to make a return thereon but in no case for a period longer than
thirty (30) days from date of approval by the court.
Petitioners challenge Section 15 on the assumption that it will
supplant established search and seizure procedures. On its face,
however, Section 15 merely enumerates the duties of law
enforcement authorities that would ensure the proper collection,
preservation, and use of computer system or data that have been
seized by virtue of a court warrant. The exercise of these duties do
not pose any threat on the rights of the person from whom they were
taken. Section 15 does not appear to supersede existing search and
seizure rules but merely supplements them.
Section 17 of the Cybercrime Law
Section 17 provides:
Sec. 17. Destruction of Computer Data. — Upon expiration of the
periods as provided in Sections 13 and 15, service providers and
law enforcement authorities, as the case may be, shall immediately
and completely destroy the computer data subject of a preservation
and examination.
Section 17 would have the computer data, previous subject of
preservation or examination, destroyed or deleted upon the lapse of
the prescribed period. The Solicitor General justifies this as
necessary to clear up the service provider’s storage systems and
prevent overload. It would also ensure that investigations are quickly
concluded.
Petitioners claim that such destruction of computer data subject of
previous preservation or examination violates the user’s right
against deprivation of property without due process of law. But, as
already stated, it is unclear that the user has a demandable right to
require the service provider to have that copy of the data saved
indefinitely for him in its storage system. If he wanted them
preserved, he should have saved them in his computer when he
generated the data or received it. He could also request the service
provider for a copy before it is deleted.
Section 19 of the Cybercrime Law
Section 19 empowers the Department of Justice to restrict or block
access to computer data:
Sec. 19. Restricting or Blocking Access to Computer Data.— When
a computer data is prima facie found to be in violation of the
provisions of this Act, the DOJ shall issue an order to restrict or block
access to such computer data.
Petitioners contest Section 19 in that it stifles freedom of expression
and violates the right against unreasonable searches and seizures.
The Solicitor General concedes that this provision may be
unconstitutional. But since laws enjoy a presumption of
constitutionality, the Court must satisfy itself that Section 19 indeed
violates the freedom and right mentioned.
Computer data99 may refer to entire programs or lines of code,
including malware, as well as files that contain texts, images, audio,
or video recordings. Without having to go into a lengthy discussion
of property rights in the digital space, it is indisputable that computer
data, produced or created by their writers or authors may constitute
personal property. Consequently, they are protected from
unreasonable searches and seizures, whether while stored in their
personal computers or in the service provider’s systems.
Section 2, Article III of the 1987 Constitution provides that the right
to be secure in one’s papers and effects against unreasonable
searches and seizures of whatever nature and for any purpose shall

be inviolable. Further, it states that no search warrant shall issue
except upon probable cause to be determined personally by the
judge. Here, the Government, in effect, seizes and places the
computer data under its control and disposition without a warrant.
The Department of Justice order cannot substitute for judicial search
warrant.
The content of the computer data can also constitute speech. In
such a case, Section 19 operates as a restriction on the freedom of
expression over cyberspace. Certainly not all forms of speech are
protected. Legislature may, within constitutional bounds, declare
certain kinds of expression as illegal. But for an executive officer to
seize content alleged to be unprotected without any judicial warrant,
it is not enough for him to be of the opinion that such content violates
some law, for to do so would make him judge, jury, and executioner
all rolled into one.100
Not only does Section 19 preclude any judicial intervention, but it
also disregards jurisprudential guidelines established to determine
the validity of restrictions on speech. Restraints on free speech are
generally evaluated on one of or a combination of three tests: the
dangerous tendency doctrine, the balancing of interest test, and the
clear and present danger rule.101 Section 19, however, merely
requires that the data to be blocked be found prima facie in violation
of any provision of the cybercrime law. Taking Section 6 into
consideration, this can actually be made to apply in relation to any
penal provision. It does not take into consideration any of the three
tests mentioned above.
The Court is therefore compelled to strike down Section 19 for being
violative of the constitutional guarantees to freedom of expression
and against unreasonable searches and seizures.
Section 20 of the Cybercrime Law
Section 20 provides:
Sec. 20. Noncompliance. — Failure to comply with the provisions of
Chapter IV hereof specifically the orders from law enforcement
authorities shall be punished as a violation of Presidential Decree
No. 1829 with imprisonment of prision correctional in its maximum
period or a fine of One hundred thousand pesos (Php100,000.00)
or both, for each and every noncompliance with an order issued by
law enforcement authorities.
Petitioners challenge Section 20, alleging that it is a bill of attainder.
The argument is that the mere failure to comply constitutes a
legislative finding of guilt, without regard to situations where non-
compliance would be reasonable or valid.
But since the non-compliance would be punished as a violation of
Presidential Decree (P.D.) 1829,102 Section 20 necessarily
incorporates elements of the offense which are defined therein. If
Congress had intended for Section 20 to constitute an offense in
and of itself, it would not have had to make reference to any other
statue or provision.
P.D. 1829 states:
Section 1. The penalty of prision correccional in its maximum period,
or a fine ranging from 1,000 to 6,000 pesos, or both, shall be
imposed upon any person who knowingly or willfully obstructs,
impedes, frustrates or delays the apprehension of suspects and the
investigation and prosecution of criminal cases by committing any
of the following acts:
x x x.
Thus, the act of non-compliance, for it to be punishable, must still
be done "knowingly or willfully." There must still be a judicial
determination of guilt, during which, as the Solicitor General
CONSTI LAW II I ACJUCO 295
assumes, defense and justifications for non-compliance may be
raised. Thus, Section 20 is valid insofar as it applies to the
provisions of Chapter IV which are not struck down by the Court.
Sections 24 and 26(a) of the Cybercrime Law
Sections 24 and 26(a) provide:
Sec. 24. Cybercrime Investigation and Coordinating Center.– There
is hereby created, within thirty (30) days from the effectivity of this
Act, an inter-agency body to be known as the Cybercrime
Investigation and Coordinating Center (CICC), under the
administrative supervision of the Office of the President, for policy
coordination among concerned agencies and for the formulation
and enforcement of the national cybersecurity plan.
Sec. 26. Powers and Functions.– The CICC shall have the following
powers and functions:
(a) To formulate a national cybersecurity plan and extend immediate
assistance of real time commission of cybercrime offenses through
a computer emergency response team (CERT); x x x.
Petitioners mainly contend that Congress invalidly delegated its
power when it gave the Cybercrime Investigation and Coordinating
Center (CICC) the power to formulate a national cybersecurity plan
without any sufficient standards or parameters for it to follow.
In order to determine whether there is undue delegation of
legislative power, the Court has adopted two tests: the
completeness test and the sufficient standard test. Under the first
test, the law must be complete in all its terms and conditions when
it leaves the legislature such that when it reaches the delegate, the
only thing he will have to do is to enforce it.1avvphi1 The second
test mandates adequate guidelines or limitations in the law to
determine the boundaries of the delegate’s authority and prevent
the delegation from running riot.103
Here, the cybercrime law is complete in itself when it directed the
CICC to formulate and implement a national cybersecurity plan.
Also, contrary to the position of the petitioners, the law gave
sufficient standards for the CICC to follow when it provided a
definition of cybersecurity.
Cybersecurity refers to the collection of tools, policies, risk
management approaches, actions, training, best practices,
assurance and technologies that can be used to protect cyber
environment and organization and user’s assets.104 This definition
serves as the parameters within which CICC should work in
formulating the cybersecurity plan.
Further, the formulation of the cybersecurity plan is consistent with
the policy of the law to "prevent and combat such [cyber] offenses
by facilitating their detection, investigation, and prosecution at both
the domestic and international levels, and by providing
arrangements for fast and reliable international cooperation."105
This policy is clearly adopted in the interest of law and order, which
has been considered as sufficient standard.106 Hence, Sections 24
and 26(a) are likewise valid.
WHEREFORE, the Court DECLARES:
1. VOID for being UNCONSTITUTIONAL:
a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of
unsolicited commercial communications;
b. Section 12 that authorizes the collection or recording of traffic
data in real-time; and
 CONSTI LAW II I ACJUCO 296

c. Section 19 of the same Act that authorizes the Department of 4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited Commercial
Justice to restrict or block access to suspected Computer Data. Communications, and 4(c)(4) on online Libel.1âwphi1

2. VALID and CONSTITUTIONAL: Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of
the correct application of Section 7 that authorizes prosecution of
a. Section 4(a)(1) that penalizes accessing a computer system the offender under both the Revised Penal Code and Republic Act
without right; 10175 to actual cases, WITH THE EXCEPTION of the crimes of:

b. Section 4(a)(3) that penalizes data interference, including
transmission of viruses;
c. Section 4(a)(6) that penalizes cyber-squatting or acquiring
domain name over the internet in bad faith to the prejudice of others;
d. Section 4(b)(3) that penalizes identity theft or the use or misuse
of identifying information belonging to another;
e. Section 4(c)(1) that penalizes cybersex or the lascivious
exhibition of sexual organs or sexual activity for favor or
consideration;
1. Online libel as to which, charging the offender under both Section
4(c)(4) of Republic Act 10175 and Article 353 of the Revised Penal
Code constitutes a violation of the proscription against double
jeopardy; as well as
2. Child pornography committed online as to which, charging the
offender under both Section 4(c)(2) of Republic Act 10175 and
Republic Act 9775 or the Anti-Child Pornography Act of 2009 also
constitutes a violation of the same proscription, and, in respect to
these, is VOID and UNCONSTITUTIONAL.
SO ORDERED.

f. Section 4(c)(2) that penalizes the production of child pornography;

g. Section 6 that imposes penalties one degree higher when crimes

defined under the Revised Penal Code are committed with the use
of information and communications technologies;

h. Section 8 that prescribes the penalties for cybercrimes;

i. Section 13 that permits law enforcement authorities to require

service providers to preserve traffic data and subscriber information
as well as specified content data for six months;

j. Section 14 that authorizes the disclosure of computer data under

a court-issued warrant;

k. Section 15 that authorizes the search, seizure, and examination

of computer data under a court-issued warrant;

l. Section 17 that authorizes the destruction of previously preserved

computer data after the expiration of the prescribed holding periods;

m. Section 20 that penalizes obstruction of justice in relation to

cybercrime investigations;

n. Section 24 that establishes a Cybercrime Investigation and

Coordinating Center (CICC);

o. Section 26(a) that defines the CICC’s Powers and Functions; and

p. Articles 353, 354, 361, and 362 of the Revised Penal Code that
penalizes libel.

Further, the Court DECLARES:

1. Section 4(c)(4) that penalizes online libel as VALID and

CONSTITUTIONAL with respect to the original author of the post;
but VOID and UNCONSTITUTIONAL with respect to others who
simply receive the post and react to it; and

2. Section 5 that penalizes aiding or abetting and attempt in the

commission of cybercrimes as VA L I D and CONSTITUTIONAL
only in relation to Section 4(a)(1) on Illegal Access, Section 4(a)(2)
on Illegal Interception, Section 4(a)(3) on Data Interference, Section
4(a)(4) on System

Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6)

on Cyber-squatting, Section 4(b)(1) on Computer-related Forgery,
Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on
Computer-related Identity Theft, and Section 4(c)(1) on Cybersex;
but VOID and UNCONSTITUTIONAL with respect to Sections

CHAPLINSKY V. NEW HAMPSHIRE,
315 U.S. 568 (1942)
Argued February 5, 1942
Decided March 9, 1942
APPEAL FROM THE SUPREME COURT OF NEW HAMPSHIRE
Syllabus
1. That part of c. 378, § 2, of the Public Law of New Hampshire
which forbids under penalty that any person shall address "any
offensive, derisive or annoying word to any other person who is
lawfully in any street or other public place," or "call him by any
offensive or derisive name," was construed by the Supreme Court
of the State, in this case and before this case arose, as limited to
the use in a public place of words directly tending to cause a breach
of the peace by provoking the person addressed to acts of violence.
Held:
(1) That, so construed, it is sufficiently definite and specific to comply
with requirements of due process of law. P. 315 U. S. 573.
(2) That, as applied to a person who, on a public street, addressed
another as a "damned Fascist" and a "damned racketeer," it does
not substantially or unreasonably impinge upon freedom of speech.
P. 315 U. S. 574.
(3) The refusal of the state court to admit evidence offered by the
defendant tending to prove provocation and evidence bearing on the
truth or falsity of the utterances charged is open to no constitutional
objection. P. 315 U. S. 574.
2. The Court notices judicially that the appellations "damned
racketeer" and "damned Fascist" are epithets likely to provoke the
average person to retaliation, and thereby cause a breach of the
peace. P. 315 U. S. 574
91 N.H. 310, 18 A.2d 754, affirmed.
APPEAL from a judgment affirming a conviction under a state law
denouncing the use of offensive words when addressed by one
person to another in a public place.
Page 315 U. S. 569
MR. JUSTICE MURPHY delivered the opinion of the Court.
Appellant, a member of the sect known as Jehovah's Witnesses,
was convicted in the municipal court of Rochester, New Hampshire,
for violation of Chapter 378, § 2, of the Public Laws of New
Hampshire:
"No person shall address any offensive, derisive or annoying word
to any other person who is lawfully in any street or other public
place, nor call him by any offensive or derisive name, nor make any
noise or exclamation in his presence and hearing with intent to
deride, offend or annoy him, or to prevent him from pursuing his
lawful business or occupation."
The complaint charged that appellant,
"with force and arms, in a certain public place in said city of
Rochester, to-wit, on the public sidewalk on the easterly side of
Wakefield Street, near unto the entrance of the City Hall, did
unlawfully repeat the words following, addressed to the
complainant, that is to say, 'You are a God damned racketeer' and
'a damned Fascist and the whole government of Rochester are
CONSTI LAW II I ACJUCO 297
Fascists or agents of Fascists,' the same being offensive, derisive
and annoying words and names."
Upon appeal, there was a trial de novo of appellant before a jury in
the Superior Court. He was found guilty, and the judgment of
conviction was affirmed by the Supreme Court of the State. 91 N.H.
310, 18 A.2d 754.
By motions and exceptions, appellant raised the questions that the
statute was invalid under the Fourteenth Amendment of the
Constitution of the United States in that it placed an unreasonable
restraint on freedom of speech, freedom of the press, and freedom
of worship, and because it was vague and indefinite. These
contentions were overruled, and the case comes here on appeal.
There is no substantial dispute over the facts. Chaplinsky was
distributing the literature of his sect on the streets of Rochester on
a busy Saturday afternoon. Members of the local citizenry
complained to the City Marshal, Bowering, that Chaplinsky was
denouncing all religion as a "racket." Bowering told them that
Chaplinsky was lawfully engaged, and then warned Chaplinsky that
the crowd was getting restless. Some time later, a disturbance
occurred and the traffic officer on duty at the busy intersection
started with Chaplinsky for the police station, but did not inform him
that he was under arrest or that he was going to be arrested. On the
way, they encountered Marshal Bowering, who had been advised
that a riot was under way and was therefore hurrying to the scene.
Bowering repeated his earlier warning to Chaplinsky, who then
addressed to Bowering the words set forth in the complaint.
Chaplinsky's version of the affair was slightly different. He testified
that, when he met Bowering, he asked him to arrest the ones
responsible for the disturbance. In reply, Bowering cursed him and
told him to come along. Appellant admitted that he said the words
charged in the complaint, with the exception of the name of the
Deity.
Over appellant's objection, the trial court excluded, as immaterial,
testimony relating to appellant's mission "to preach the true facts of
the Bible," his treatment at the hands of the crowd, and the alleged
neglect of duty on the part of the police. This action was approved
by the court below, which held that neither provocation nor the truth
of the utterance would constitute a defense to the charge.
It is now clear that "Freedom of speech and freedom of the press,
which are protected by the First Amendment from infringement by
Congress, are among the fundamental personal rights and liberties
which are protected by the Fourteenth Amendment from invasion by
state action."
Lovell v. Griffin, 303 U. S. 444, 303 U. S. 450. [Footnote 1] Freedom
of worship is similarly sheltered. Cantwell v. Connecticut, 310 U. S.
296, 310 U. S. 303.
Appellant assails the statute as a violation of all three freedoms,
speech, press and worship, but only an attack on the basis of free
speech is warranted. The spoken, not the written, word is involved.
And we cannot conceive that cursing a public officer is the exercise
of religion in any sense of the term. But even if the activities of the
appellant which preceded the incident could be viewed as religious
in character, and therefore entitled to the protection of the
Fourteenth Amendment, they would not cloak him with immunity
from the legal consequences for concomitant acts committed in
violation of a valid criminal statute. We turn, therefore, to an
examination of the statute itself.
Allowing the broadest scope to the language and purpose of the
Fourteenth Amendment, it is well understood that the right of free
speech is not absolute at all times and under all circumstances.
[Footnote 2] There are certain well defined and narrowly limited
classes of speech, the prevention
 CONSTI LAW II I ACJUCO 298

upon the privilege of free speech. Argument is unnecessary to

and punishment of which have never been thought to raise an
Constitutional problem. [Footnote 3] These include the lewd and
obscene, the profane, the libelous, and the insulting or "fighting"
words -- those which, by their very utterance, inflict injury or tend to
incite an immediate breach of the peace. [Footnote 4] It has been
well observed that such utterances are no essential part of any
exposition of ideas, and are of such slight social value as a step to
truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality. [Footnote 5]
"Resort to epithets or personal abuse is not in any proper sense
communication of information or opinion safeguarded by the
Constitution, and its punishment as a criminal act would raise no
question under that instrument."
demonstrate that the appellations "damned racketeer" and "damned
Fascist" are epithets likely to provoke the average person to
retaliation, and thereby cause a breach of the peace.
The refusal of the state court to admit evidence of provocation and
evidence bearing on the truth or falsity of the utterances is open to
no Constitutional objection. Whether the facts sought to be proved
by such evidence constitute a defense to the charge, or may be
shown in mitigation, are questions for the state court to determine.
Our function is fulfilled by a determination that the challenged
statute, on its face and as applied, doe not contravene the
Fourteenth Amendment.
Affirmed.

Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 309-310.

The state statute here challenged comes to us authoritatively

construed by the highest court of New Hampshire. It has two
provisions -- the first relates to words or names addressed to
another in a public place; the second refers to noises and
exclamations. The court said:

"The two provisions are distinct. One may stand separately from the
other. Assuming, without holding, that the second were
unconstitutional, the first could stand if constitutional."

We accept that construction of severability and limit our

consideration to the first provision of the statute. [Footnote 6]

On the authority of its earlier decisions, the state court declared that
the statute's purpose was to preserve the public peace, no words
being "forbidden except such as have a direct tendency to cause
acts of violence by the persons to whom, individually, the remark is
addressed." [Footnote 7] It was further said:

"The word 'offensive' is not to be defined in terms of what a particular

addressee thinks. . . . The test is what men of common intelligence
would understand would be words likely to cause an average
addressee to fight. . . . The English language has a number of words
and expressions which, by general consent, are 'fighting words'
when said without a disarming smile. . . . [S]uch words, as ordinary
men know, are likely to cause a fight. So are threatening, profane or
obscene revilings. Derisive and annoying words can be taken as
coming within the purview of the statute as heretofore interpreted
only when they have this characteristic of plainly tending to excite
the addressee to a breach of the peace. . . . The statute, as
construed, does no more than prohibit the face-to-face words plainly
likely to cause a breach of the peace by the addressee, words
whose speaking constitutes a breach of the peace by the speaker -
- including 'classical fighting words,' words in current use less
'classical' but equally likely to cause violence, and other disorderly
words, including profanity, obscenity and threats."

We are unable to say that the limited scope of the statute as thus
construed contravenes the Constitutional right of free expression. It
is a statute narrowly drawn and limited to define and punish specific
conduct lying within the domain of state power, the use in a public
place of words likely to cause a breach of the peace. Cf. Cantwell v.
Connecticut, 310 U. S. 296, 310 U. S. 311; Thornhill v. Alabama,
310 U. S. 88, 310 U. S. 105. This conclusion necessarily disposes
of appellant's contention that the statute is so vague and indefinite
as to render a conviction thereunder a violation of due process. A
statute punishing verbal acts, carefully drawn so as not unduly to
impair liberty of expression, is not too vague for a criminal law. Cf.
Fox v. Washington 236 U.S. 273, 236 U. S. 277. [Footnote 8]

Nor can we say that the application of the statute to the facts
disclosed by the record substantially or unreasonably impinges

G.R. No. 135306 January 28, 2003
MVRS PUBLICATIONS, INC., MARS C. LACONSAY, MYLA C.
AGUJA and AGUSTINO G. BINEGAS, JR., petitioners,
vs.
ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC.,
ABDULRAHMAN R.T. LINZAG, IBRAHIM F.P. ARCILLA,
ABDUL RASHID DE GUZMAN, AL-FARED DA SILVA and
IBRAHIM B.A. JUNIO, respondents.
BELLOSILLO, J.:
I may utterly detest what you write, but I shall fight to the
death to make it possible for you to continue writing it. —
Voltaire
VOLTAIRE'S PONTIFICAL VERSE bestirs once again the basic
liberties to free speech and free press — liberties that belong as
well, if not more, to those who question, who do not conform, who
differ. For the ultimate good which we all strive to achieve for
ourselves and our posterity can better be reached by a free
exchange of ideas, where the best test of truth is the power of the
thought to get itself accepted in the competition of the free market
— not just the ideas we desire, but including those thoughts we
despise.1
ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC., a local
federation of more than seventy (70) Muslim religious organizations,
and individual Muslims ABDULRAHMAN R.T. LINZAG, IBRAHIM
F.P. ARCILLA, ABDUL RASHID DE GUZMAN, AL-FARED DA
SILVA and IBRAHIM B.A. JUNIO, filed in the Regional Trial Court
of Manila a complaint for damages in their own behalf and as a class
suit in behalf of the Muslim members nationwide against MVRS
PUBLICATIONS, INC., MARS C. LACONSAY, MYLA C. AGUJA
and AGUSTINO G. BINEGAS, JR., arising from an article published
in the 1 August 1992 issue of Bulgar, a daily tabloid. The article
reads:
"ALAM BA NINYO?
Na ang mga baboy at kahit anong uri ng hayop sa Mindanao ay
hindi kinakain ng mga Muslim?
Para sa kanila ang mga ito ay isang sagradong bagay. Hindi nila ito
kailangang kainin kahit na sila pa ay magutom at mawalan ng ulam
sa tuwing sila ay kakain. Ginagawa nila itong Diyos at sinasamba
pa nila ito sa tuwing araw ng kanilang pangingilin lalung-lalo na sa
araw na tinatawag nilang 'Ramadan'."
The complaint alleged that the libelous statement was insulting and
damaging to the Muslims; that these words alluding to the pig as the
God of the Muslims was not only published out of sheer ignorance
but with intent to hurt the feelings, cast insult and disparage the
Muslims and Islam, as a religion in this country, in violation of law,
public policy, good morals and human relations; that on account of
these libelous words Bulgar insulted not only the Muslims in the
Philippines but the entire Muslim world, especially every Muslim
individual in non-Muslim countries.
MVRS PUBLICATIONS, INC., and AGUSTINO G. BINEGAS, JR.,
in their defense, contended that the article did not mention
respondents as the object of the article and therefore were not
entitled to damages; and, that the article was merely an expression
of belief or opinion and was published without malice nor intention
to cause damage, prejudice or injury to Muslims.2
On 30 June 1995 the trial court dismissed the complaint holding that
the plaintiffs failed to establish their cause of action since the
persons allegedly defamed by the article were not specifically
identified —
CONSTI LAW II I ACJUCO 299
It must be noted that the persons allegedly defamed, the herein
plaintiffs, were not identified with specificity. The subject article was
directed at the Muslims without mentioning or identifying the herein
plaintiffs x x x. It is thus apparent that the alleged libelous article
refers to the larger collectivity of Muslims for which the readers of
the libel could not readily identify the personalities of the persons
defamed. Hence, it is difficult for an individual Muslim member to
prove that the defamatory remarks apply to him. The evidence
presented in this case failed to convince this court that, indeed, the
defamatory remarks really applied to the herein plaintiffs.3
On 27 August 1998 the Court of Appeals reversed the decision of
the trial court. It opined that it was "clear from the disputed article
that the defamation was directed to all adherents of the Islamic faith.
It stated that pigs were sacred and idolized as god by members of
the Muslim religion. This libelous imputation undeniably applied to
the plaintiff-appellants who are Muslims sharing the same religious
beliefs." It added that the suit for damages was a "class suit" and
that ISLAMIC DA'WAH COUNCIL OF THE PHILIPPINES, INC.'s
religious status as a Muslim umbrella organization gave it the
requisite personality to sue and protect the interests of all Muslims.4
Hence, the instant petition for review assailing the findings of the
appellate court (a) on the existence of the elements of libel, (b) the
right of respondents to institute the class suit, and, (c) the liability of
petitioners for moral damages, exemplary damages, attorney's fees
and costs of suit.
Defamation, which includes libel and slander, means the offense of
injuring a person's character, fame or reputation through false and
malicious statements.5 It is that which tends to injure reputation or
to diminish the esteem, respect, good will or confidence in the
plaintiff or to excite derogatory feelings or opinions about the
plaintiff.6 It is the publication of anything which is injurious to the
good name or reputation of another or tends to bring him into
disrepute.7 Defamation is an invasion of a relational interest since it
involves the opinion which others in the community may have, or
tend to have, of the plaintiff.8
It must be stressed that words which are merely insulting are not
actionable as libel or slander per se, and mere words of general
abuse however opprobrious, ill-natured, or vexatious, whether
written or spoken, do not constitute a basis for an action for
defamation in the absence of an allegation for special damages.9
The fact that the language is offensive to the plaintiff does not make
it actionable by itself.10
Declarations made about a large class of people cannot be
interpreted to advert to an identified or identifiable individual. Absent
circumstances specifically pointing or alluding to a particular
member of a class, no member of such class has a right of action11
without at all impairing the equally demanding right of free speech
and expression, as well as of the press, under the Bill of Rights.12
Thus, in Newsweek, Inc. v. Intermediate Appellate Court,13 we
dismissed a complaint for libel against Newsweek, Inc., on the
ground that private respondents failed to state a cause of action
since they made no allegation in the complaint that anything
contained in the article complained of specifically referred to any of
them. Private respondents, incorporated associations of sugarcane
planters in Negros Occidental claiming to have 8,500 members and
several individual members, filed a class action suit for damages in
behalf of all sugarcane planters in Negros Occidental. The
complaint filed in the Court of First Instance of Bacolod City alleged
that Newsweek, Inc., committed libel against them by the publication
of the article "Island of Fear" in its weekly newsmagazine allegedly
depicting Negros Province as a place dominated by wealthy
landowners and sugar planters who not only exploited the
impoverished and underpaid sugarcane workers but also brutalized
and killed them with impunity. Private respondents alleged that the
article showed a deliberate and malicious use of falsehood, slanted

presentation and/or misrepresentation of facts intended to put the
sugarcane planters in a bad light, expose them to public ridicule,
discredit and humiliation in the Philippines and abroad, and make
them the objects of hatred, contempt and hostility of their agricultural
workers and of the public in general. We ratiocinated —
x x x where the defamation is alleged to have been directed at a
group or class, it is essential that the statement must be so
sweeping or all-embracing as to apply to every individual in that
group or class, or sufficiently specific so that each individual in the
class or group can prove that the defamatory statement specifically
pointed to him, so that he can bring the action separately, if need be
x x x x The case at bar is not a class suit. It is not a case where one
or more may sue for the benefit of all, or where the representation
of class interest affected by the judgment or decree is indispensable
to make each member of the class an actual party. We have here a
case where each of the plaintiffs has a separate and distinct
reputation in the community. They do not have a common or general
interest in the subject matter of the controversy.
In the present case, there was no fairly identifiable person who was
allegedly injured by the Bulgar article. Since the persons allegedly
defamed could not be identifiable, private respondents have no
individual causes of action; hence, they cannot sue for a class
allegedly disparaged. Private respondents must have a cause of
action in common with the class to which they belong to in order for
the case to prosper.
An individual Muslim has a reputation that is personal, separate and
distinct in the community. Each Muslim, as part of the larger Muslim
community in the Philippines of over five (5) million people, belongs
to a different trade and profession; each has a varying interest and
a divergent political and religious view — some may be
conservative, others liberal. A Muslim may find the article
dishonorable, even blasphemous; others may find it as an
opportunity to strengthen their faith and educate the non-believers
and the "infidels." There is no injury to the reputation of the individual
Muslims who constitute this community that can give rise to an
action for group libel. Each reputation is personal in character to
every person. Together, the Muslims do not have a single common
reputation that will give them a common or general interest in the
subject matter of the controversy.
In Arcand v. The Evening Call Publishing Company,14 the United
States Court of Appeals held that one guiding principle of group libel
is that defamation of a large group does not give rise to a cause of
action on the part of an individual unless it can be shown that he is
the target of the defamatory matter.
The rule on libel has been restrictive. In an American case,15 a
person had allegedly committed libel against all persons of the
Jewish religion. The Court held that there could be no libel against
an extensive community in common law. In an English case, where
libel consisted of allegations of immorality in a Catholic nunnery, the
Court considered that if the libel were on the whole Roman Catholic
Church generally, then the defendant must be absolved.16 With
regard to the largest sectors in society, including religious groups, it
may be generally concluded that no criminal action at the behest of
the state, or civil action on behalf of the individual, will lie.
In another case, the plaintiffs claimed that all Muslims, numbering
more than 600 million, were defamed by the airing of a national
television broadcast of a film depicting the public execution of a
Saudi Arabian princess accused of adultery, and alleging that such
film was "insulting and defamatory" to the Islamic religion.17 The
United States District Court of the Northern District of California
concluded that the plaintiffs' prayer for $20 Billion in damages
arising from "an international conspiracy to insult, ridicule, discredit
and abuse followers of Islam throughout the world, Arabs and the
Kingdom of Saudi Arabia" bordered on the "frivolous," ruling that the
plaintiffs had failed to demonstrate an actionable claim for
CONSTI LAW II I ACJUCO 300
defamation. The California Court stressed that the aim of the law on
defamation was to protect individuals; a group may be sufficiently
large that a statement concerning it could not defame individual
group members.18
Philip Wittenberg, in his book "Dangerous Words: A Guide to the
Law of Libel,"19 discusses the inappropriateness of any action for
tortious libel involving large groups, and provides a succinct
illustration:
There are groupings which may be finite enough so that a
description of the body is a description of the members. Here the
problem is merely one of evaluation. Is the description of the
member implicit in the description of the body, or is there a
possibility that a description of the body may consist of a variety of
persons, those included within the charge, and those excluded from
it?
A general charge that the lawyers in the city are shysters would
obviously not be a charge that all of the lawyers were shysters. A
charge that the lawyers in a local point in a great city, such as Times
Square in New York City, were shysters would obviously not include
all of the lawyers who practiced in that district; but a statement that
all of the lawyers who practiced in a particular building in that district
were shysters would be a specific charge, so that any lawyer having
an office within that building could sue.
If the group is a very large one, then the alleged libelous statement
is considered to have no application to anyone in particular, since
one might as well defame all mankind. Not only does the group as
such have no action; the plaintiff does not establish any personal
reference to himself.20 At present, modern societal groups are both
numerous and complex. The same principle follows with these
groups: as the size of these groups increases, the chances for
members of such groups to recover damages on tortious libel
become elusive. This principle is said to embrace two (2) important
public policies: first, where the group referred to is large, the courts
presume that no reasonable reader would take the statements as
so literally applying to each individual member; and second, the
limitation on liability would satisfactorily safeguard freedom of
speech and expression, as well as of the press, effecting a sound
compromise between the conflicting fundamental interests involved
in libel cases.21
In the instant case, the Muslim community is too vast as to readily
ascertain who among the Muslims were particularly defamed. The
size of the group renders the reference as indeterminate and
generic as a similar attack on Catholics, Protestants, Buddhists or
Mormons would do. The word "Muslim" is descriptive of those who
are believers of Islam, a religion divided into varying sects, such as
the Sunnites, the Shiites, the Kharijites, the Sufis and others based
upon political and theological distinctions. "Muslim" is a name which
describes only a general segment of the Philippine population,
comprising a heterogeneous body whose construction is not so well
defined as to render it impossible for any representative
identification.
The Christian religion in the Philippines is likewise divided into
different sects: Catholic, Baptist, Episcopalian, Presbyterian,
Lutheran, and other groups the essence of which may lie in an
inspired charlatan, whose temple may be a corner house in the
fringes of the countryside. As with the Christian religion, so it is with
other religions that represent the nation's culturally diverse people
and minister to each one's spiritual needs. The Muslim population
may be divided into smaller groups with varying agenda, from the
prayerful conservative to the passionately radical. These divisions
in the Muslim population may still be too large and ambiguous to
provide a reasonable inference to any personality who can bring a
case in an action for libel.

The foregoing are in essence the same view scholarly expressed by
Mr. Justice Reynato S. Puno in the course of the deliberations in this
case. We extensively reproduce hereunder his comprehensive and
penetrating discussion on group libel —
Defamation is made up of the twin torts of libel and slander — the
one being, in general, written, while the other in general is oral. In
either form, defamation is an invasion of the interest in reputation
and good name. This is a "relational interest" since it involves the
opinion others in the community may have, or tend to have of the
plaintiff.
The law of defamation protects the interest in reputation — the
interest in acquiring, retaining and enjoying one's reputation as good
as one's character and conduct warrant. The mere fact that the
plaintiff's feelings and sensibilities have been offended is not
enough to create a cause of action for defamation. Defamation
requires that something be communicated to a third person that may
affect the opinion others may have of the plaintiff. The unprivileged
communication must be shown of a statement that would tend to
hurt plaintiff's reputation, to impair plaintiff's standing in the
community.
Although the gist of an action for defamation is an injury to
reputation, the focus of a defamation action is upon the allegedly
defamatory statement itself and its predictable effect upon third
persons. A statement is ordinarily considered defamatory if it
"tend[s] to expose one to public hatred, shame, obloquy, contumely,
odium, contempt, ridicule, aversion, ostracism, degradation or
disgracex x x." The Restatement of Torts defines a defamatory
statement as one that "tends to so harm the reputation of another
as to lower him in the estimation of the community or to deter third
persons from associating or dealing with him."
Consequently as a prerequisite to recovery, it is necessary for the
plaintiff to prove as part of his prima facie case that the defendant
(1) published a statement that was (2) defamatory (3) of and
concerning the plaintiff.
The rule in libel is that the action must be brought by the person
against whom the defamatory charge has been made. In the
American jurisdiction, no action lies by a third person for damages
suffered by reason of defamation of another person, even though
the plaintiff suffers some injury therefrom. For recovery in
defamation cases, it is necessary that the publication be "of and
concerning the plaintiff." Even when a publication may be clearly
defamatory as to somebody, if the words have no personal
application to the plaintiff, they are not actionable by him. If no one
is identified, there can be no libel because no one's reputation has
been injured x x x x
In fine, in order for one to maintain an action for an alleged
defamatory statement, it must appear that the plaintiff is the person
with reference to whom the statement was made. This principle is
of vital importance in cases where a group or class is defamed
since, usually, the larger the collective, the more difficult it is for an
individual member to show that he was the person at whom the
defamation was directed.
If the defamatory statements were directed at a small, restricted
group of persons, they applied to any member of the group, and an
individual member could maintain an action for defamation. When
the defamatory language was used toward a small group or class,
including every member, it has been held that the defamatory
language referred to each member so that each could maintain an
action. This small group or class may be a jury, persons engaged in
certain businesses, professions or employments, a restricted
subdivision of a particular class, a society, a football team, a family,
small groups of union officials, a board of public officers, or
engineers of a particular company.
CONSTI LAW II I ACJUCO 301
In contrast, if defamatory words are used broadly in respect to a
large class or group of persons, and there is nothing that points, or
by proper colloquium or innuendo can be made to apply, to a
particular member of the class or group, no member has a right of
action for libel or slander. Where the defamatory matter had no
special, personal application and was so general that no individual
damages could be presumed, and where the class referred to was
so numerous that great vexation and oppression might grow out of
the multiplicity of suits, no private action could be maintained. This
rule has been applied to defamatory publications concerning groups
or classes of persons engaged in a particular business, profession
or employment, directed at associations or groups of association
officials, and to those directed at miscellaneous groups or classes
of persons.
Distinguishing a small group — which if defamed entitles all its
members to sue from a large group — which if defamed entitles no
one to sue — is not always so simple. Some authorities have noted
that in cases permitting recovery, the group generally has twenty
five (25) or fewer members. However, there is usually no articulated
limit on size. Suits have been permitted by members of fairly large
groups when some distinguishing characteristic of the individual or
group increases the likelihood that the statement could be
interpreted to apply individually. For example, a single player on the
60 to 70 man Oklahoma University football team was permitted to
sue when a writer accused the entire team of taking amphetamines
to "hop up" its performance; the individual was a fullback, i.e., a
significant position on the team and had played in all but two of the
team's games.
A prime consideration, therefore, is the public perception of the size
of the group and whether a statement will be interpreted to refer to
every member. The more organized and cohesive a group, the
easier it is to tar all its members with the same brush and the more
likely a court will permit a suit from an individual even if the group
includes more than twenty five (25) members. At some point,
however, increasing size may be seen to dilute the harm to
individuals and any resulting injury will fall beneath the threshold for
a viable lawsuit.
x x x x There are many other groupings of men than those that are
contained within the foregoing group classifications. There are all
the religions of the world, there are all the political and ideological
beliefs; there are the many colors of the human race. Group
defamation has been a fertile and dangerous weapon of attack on
various racial, religious and political minorities. Some states,
therefore, have passed statutes to prevent concerted efforts to
harass minority groups in the United States by making it a crime to
circulate insidious rumors against racial and religious groups. Thus
far, any civil remedy for such broadside defamation has been
lacking.
There have been numerous attempts by individual members to seek
redress in the courts for libel on these groups, but very few have
succeeded because it felt that the groups are too large and poorly
defined to support a finding that the plaintiff was singled out for
personal attack x x x x (citations omitted).
Our conclusion therefore is that the statements published by
petitioners in the instant case did not specifically identify nor refer to
any particular individuals who were purportedly the subject of the
alleged libelous publication. Respondents can scarcely claim to
having been singled out for social censure pointedly resulting in
damages.
A contrary view is expressed that what is involved in the present
case is an intentional tortious act causing mental distress and not
an action for libel. That opinion invokes Chaplinsky v. New
Hampshire22 where the U.S. Supreme Court held that words
heaping extreme profanity, intended merely to incite hostility, hatred
or violence, have no social value and do not enjoy constitutional

protection; and Beauharnais v. Illinois23 where it was also ruled that
hate speech which denigrates a group of persons identified by their
religion, race or ethnic origin defames that group and the law may
validly prohibit such speech on the same ground as defamation of
an individual.
We do not agree to the contrary view articulated in the immediately
preceding paragraph. Primarily, an "emotional distress" tort action
is personal in nature, i.e., it is a civil action filed by an individual24
to assuage the injuries to his emotional tranquility due to personal
attacks on his character. It has no application in the instant case
since no particular individual was identified in the disputed article of
Bulgar. Also, the purported damage caused by the article, assuming
there was any, falls under the principle of relational harm — which
includes harm to social relationships in the community in the form of
defamation; as distinguished from the principle of reactive harm —
which includes injuries to individual emotional tranquility in the form
of an infliction of emotional distress. In their complaint, respondents
clearly asserted an alleged harm to the standing of Muslims in the
community, especially to their activities in propagating their faith in
Metro Manila and in other non-Muslim communities in the
country.25 It is thus beyond cavil that the present case falls within
the application of the relational harm principle of tort actions for
defamation, rather than the reactive harm principle on which the
concept of emotional distress properly belongs.
Moreover, under the Second Restatement of the Law, to recover for
the intentional infliction of emotional distress the plaintiff must show
that: (a) The conduct of the defendant was intentional or in reckless
disregard of the plaintiff; (b) The conduct was extreme and
outrageous; (c) There was a causal connection between the
defendant's conduct and the plaintiff's mental distress; and, (d) The
plaintiff's mental distress was extreme and severe.26
"Extreme and outrageous conduct" means conduct that is so
outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious,
and utterly intolerable in civilized society. The defendant's actions
must have been so terrifying as naturally to humiliate, embarrass or
frighten the plaintiff.27 Generally, conduct will be found to be
actionable where the recitation of the facts to an average member
of the community would arouse his resentment against the actor,
and lead him or her to exclaim, "Outrageous!" as his or her
reaction.28
"Emotional distress" means any highly unpleasant mental reaction
such as extreme grief, shame, humiliation, embarrassment, anger,
disappointment, worry, nausea, mental suffering and anguish,
shock, fright, horror, and chagrin.29 "Severe emotional distress," in
some jurisdictions, refers to any type of severe and disabling
emotional or mental condition which may be generally recognized
and diagnosed by professionals trained to do so, including
posttraumatic stress disorder, neurosis, psychosis, chronic
depression, or phobia.30 The plaintiff is required to show, among
other things, that he or she has suffered emotional distress so
severe that no reasonable person could be expected to endure it;
severity of the distress is an element of the cause of action, not
simply a matter of damages.31
Any party seeking recovery for mental anguish must prove more
than mere worry, anxiety, vexation, embarrassment, or anger.
Liability does not arise from mere insults, indignities, threats,
annoyances, petty expressions, or other trivialities. In determining
whether the tort of outrage had been committed, a plaintiff is
necessarily expected and required to be hardened to a certain
amount of criticism, rough language, and to occasional acts and
words that are definitely inconsiderate and unkind; the mere fact that
the actor knows that the other will regard the conduct as insulting,
or will have his feelings hurt, is not enough.32
CONSTI LAW II I ACJUCO 302
Hustler Magazine v. Falwell33 illustrates the test case of a civil
action for damages on intentional infliction of emotional distress. A
parody appeared in Hustler magazine featuring the American
fundamentalist preacher and evangelist Reverend Jerry Falwell
depicting him in an inebriated state having an incestuous, sexual
liaison with his mother in an outhouse. Falwell sued Hustler and its
publisher Larry Flynt for damages. The United States District Court
for the Western District of Virginia ruled that the parody was not
libelous, because no reasonable reader would have understood it
as a factual assertion that Falwell engaged in the act described. The
jury, however, awarded $200,000 in damages on a separate count
of "intentional infliction of emotional distress," a cause of action that
did not require a false statement of fact to be made. The United
States Supreme Court in a unanimous decision overturned the jury
verdict of the Virginia Court and held that Reverend Falwell may not
recover for intentional infliction of emotional distress. It was argued
that the material might be deemed outrageous and may have been
intended to cause severe emotional distress, but these
circumstances were not sufficient to overcome the free speech
rights guaranteed under the First Amendment of the United States
Constitution. Simply stated, an intentional tort causing emotional
distress must necessarily give way to the fundamental right to free
speech.
It must be observed that although Falwell was regarded by the U.S.
High Court as a "public figure," he was an individual particularly
singled out or identified in the parody appearing on Hustler
magazine. Also, the emotional distress allegedly suffered by
Reverend Falwell involved a reactive interest — an emotional
response to the parody which supposedly injured his psychological
well-being.
Verily, our position is clear that the conduct of petitioners was not
extreme or outrageous. Neither was the emotional distress allegedly
suffered by respondents so severe that no reasonable person could
be expected to endure it. There is no evidence on record that points
to that result.
Professor William Prosser, views tort actions on intentional infliction
of emotional distress in this manner34 —
There is virtually unanimous agreement that such ordinary
defendants are not liable for mere insult, indignity, annoyance, or
even threats, where the case is lacking in other circumstances of
aggravation. The reasons are not far to seek. Our manners, and with
them our law, have not yet progressed to the point where we are
able to afford a remedy in the form of tort damages for all intended
mental disturbance. Liability of course cannot be extended to every
trivial indignity x x x x The plaintiff must necessarily be expected and
required to be hardened to a certain amount of rough language, and
to acts that are definitely inconsiderate and unkind x x x The plaintiff
cannot recover merely because of hurt feelings.
Professor Calvert Magruder reinforces Prosser with this succinct
observation, viz:35
There is no occasion for the law to intervene in every case where
someone's feelings are hurt. There must still be freedom to express
an unflattering opinion, and some safety valve must be left through
which irascible tempers may blow off relatively harmless steam.
Thus, it is evident that even American courts are reluctant to adopt
a rule of recovery for emotional harm that would "open up a wide
vista of litigation in the field of bad manners," an area in which a
"toughening of the mental hide" was thought to be a more
appropriate remedy.36 Perhaps of greater concern were the
questions of causation, proof, and the ability to accurately assess
damages for emotional harm, each of which continues to concern
courts today.37

In this connection, the doctrines in Chaplinsky and Beauharnais had
largely been superseded by subsequent First Amendment
doctrines. Back in simpler times in the history of free expression the
Supreme Court appeared to espouse a theory, known as the Two-
Class Theory, that treated certain types of expression as taboo
forms of speech, beneath the dignity of the First Amendment. The
most celebrated statement of this view was expressed in
Chaplinsky:
There are certain well-defined and narrowly limited classes of
speech, the prevention and punishment of which have never been
thought to raise any Constitutional problem. These include the lewd
and obscene, the profane, the libelous, and the insulting or "fighting"
words — those which by their very utterance inflict injury or tend to
incite an immediate breach of the peace. It has been well observed
that such utterances are no essential part of any exposition of ideas,
and are of such slight social value as a step to truth that any benefit
that may be derived from them is clearly outweighed by the social
interest in order and morality.
Today, however, the theory is no longer viable; modern First
Amendment principles have passed it by. American courts no longer
accept the view that speech may be proscribed merely because it is
"lewd," "profane," "insulting" or otherwise vulgar or offensive.38
Cohen v. California39 is illustrative: Paul Robert Cohen wore a
jacket bearing the words "Fuck the Draft" in a Los Angeles
courthouse in April 1968, which caused his eventual arrest. Cohen
was convicted for violating a California statute prohibiting any
person from "disturb[ing] the peace x x x by offensive conduct." The
U.S. Supreme Court conceded that Cohen's expletive contained in
his jacket was "vulgar," but it concluded that his speech was
nonetheless protected by the right to free speech. It was neither
considered an "incitement" to illegal action nor "obscenity." It did not
constitute insulting or "fighting" words for it had not been directed at
a person who was likely to retaliate or at someone who could not
avoid the message. In other words, no one was present in the Los
Angeles courthouse who would have regarded Cohen's speech as
a direct personal insult, nor was there any danger of reactive
violence against him.
No specific individual was targeted in the allegedly defamatory
words printed on Cohen's jacket. The conviction could only be
justified by California's desire to exercise the broad power in
preserving the cleanliness of discourse in the public sphere, which
the U.S. Supreme Court refused to grant to the State, holding that
no objective distinctions can be made between vulgar and
nonvulgar speech, and that the emotive elements of speech are just
as essential in the exercise of this right as the purely cognitive. As
Mr. Justice Harlan so eloquently wrote: "[O]ne man's vulgarity is
another man's lyric x x x words are often chosen as much for their
emotive as their cognitive force."40 With Cohen, the U.S. Supreme
Court finally laid the Constitutional foundation for judicial protection
of provocative and potentially offensive speech.
Similarly, libelous speech is no longer outside the First Amendment
protection. Only one small piece of the Two-Class Theory in
Chaplinsky survives — U.S. courts continue to treat "obscene"
speech as not within the protection of the First Amendment at all.
With respect to the "fighting words" doctrine, while it remains alive it
was modified by the current rigorous clear and present danger
test.41 Thus, in Cohen the U.S. Supreme Court in applying the test
held that there was no showing that Cohen's jacket bearing the
words "Fuck the Draft" had threatened to provoke imminent
violence; and that protecting the sensibilities of onlookers was not
sufficiently compelling interest to restrain Cohen's speech.
Beauharnais, which closely followed the Chaplinsky doctrine,
suffered the same fate as Chaplinsky. Indeed, when Beauharnais
was decided in 1952, the Two-Class Theory was still flourishing.
While concededly the U.S. High Tribunal did not formally abandon
Beauharnais, the seminal shifts in U.S. constitutional jurisprudence
CONSTI LAW II I ACJUCO 303
substantially undercut Beauharnais and seriously undermined what
is left of its vitality as a precedent. Among the cases that dealt a
crushing impact on Beauharnais and rendered it almost certainly a
dead letter case law are Brandenburg v. Ohio,42 and, again, Cohen
v. California.43 These decisions recognize a much narrower set of
permissible grounds for restricting speech than did Beauharnais.44
In Brandenburg, appellant who was a leader of the Ku Klux Klan
was convicted under the Ohio Criminal Syndicalism Statute for
advocating the necessity, duty and propriety of crime, sabotage,
violence, or unlawful methods of terrorism as a means of
accomplishing industrial or political reforms; and for voluntarily
assembling with a group formed to teach or advocate the doctrines
of criminal syndicalism. Appellant challenged the statute and was
sustained by the U.S. Supreme Court, holding that the advocacy of
illegal action becomes punishable only if such advocacy is directed
to inciting or producing imminent lawless action and is likely to incite
or produce such action.45 Except in unusual instances,
Brandenburg protects the advocacy of lawlessness as long as such
speech is not translated into action.
The importance of the Brandenburg ruling cannot be
overemphasized. Prof. Smolla affirmed that "Brandenburg must be
understood as overruling Beauharnais and eliminating the
possibility of treating group libel under the same First Amendment
standards as individual libel."46 It may well be considered as one of
the lynchpins of the modern doctrine of free speech, which seeks to
give special protection to politically relevant speech.
In any case, respondents' lack of cause of action cannot be cured
by the filing of a class suit. As correctly pointed out by Mr. Justice
Jose C. Vitug during the deliberations, "an element of a class suit is
the adequacy of representation. In determining the question of fair
and adequate representation of members of a class, the court must
consider (a) whether the interest of the named party is coextensive
with the interest of the other members of the class; (b) the proportion
of those made parties as it so bears to the total membership of the
class; and, (c) any other factor bearing on the ability of the named
party to speak for the rest of the class.47
The rules require that courts must make sure that the persons
intervening should be sufficiently numerous to fully protect the
interests of all concerned. In the present controversy, Islamic
Da'wah Council of the Philippines, Inc., seeks in effect to assert the
interests not only of the Muslims in the Philippines but of the whole
Muslim world as well. Private respondents obviously lack the
sufficiency of numbers to represent such a global group; neither
have they been able to demonstrate the identity of their interests
with those they seek to represent. Unless it can be shown that there
can be a safe guaranty that those absent will be adequately
represented by those present, a class suit, given its magnitude in
this instance, would be unavailing."48
Likewise on the matter of damages, we agree that "moral damages
may be recovered only if the plaintiff is able to satisfactorily prove
the existence of the factual basis for the damages and its causal
connection with the acts complained of,49 and so it must be, as
moral damages although incapable of pecuniary estimation are
designed not to impose a penalty but to compensate for injury
sustained and actual damages suffered.50 Exemplary damages, on
the other hand, may only be awarded if claimant is able to establish
his right to moral, temperate, liquidated or compensatory
damages.51 Unfortunately, neither of the requirements to sustain
an award for either of these damages would appear to have been
adequately established by respondents."
In a pluralistic society like the Philippines where misinformation
about another individual's religion is as commonplace as self-
appointed critics of government, it would be more appropriate to
respect the fair criticism of religious principles, including those which
may be outrageously appalling, immensely erroneous, or those
 CONSTI LAW II I ACJUCO 304

couched as fairly informative comments. The greater danger in our

society is the possibility that it may encourage the frequency of suits
among religious fundamentalists, whether Christian, Muslim, Hindu,
Buddhist, Jewish, or others. This would unnecessarily make the civil
courts a battleground to assert their spiritual ideas, and advance
their respective religious agenda.

It need not be stressed that this Court has no power to determine

which is proper religious conduct or belief; neither does it have the
authority to rule on the merits of one religion over another, nor
declare which belief to uphold or cast asunder, for the validity of
religious beliefs or values are outside the sphere of the judiciary.
Such matters are better left for the religious authorities to address
what is rightfully within their doctrine and realm of influence. Courts
must be viewpoint-neutral when it comes to religious matters if only
to affirm the neutrality principle of free speech rights under modern
jurisprudence where "[a]ll ideas are treated equal in the eyes of the
First Amendment — even those ideas that are universally
condemned and run counter to constitutional principles."52 Under
the right to free speech, "there is no such thing as a false idea.
However pernicious an opinion may seem, we depend for its
correction not on the conscience of judges and juries but on the
competition of other ideas."53 Denying certiorari and affirming the
appellate court decision would surely create a chilling effect on the
constitutional guarantees of freedom of speech, of expression, and
of the press.

WHEREFORE, the petition is GRANTED. The assailed Decision of

the Court of Appeals dated 27 August 1998 is REVERSED and SET
ASIDE, and the Decision of the RTC-Br. 4, Manila, dismissing the
complaint for lack of merit, is REINSTATED and AFFIRMED. No
pronouncement as to costs.

SO ORDERED.

MILLER V. CALIFORNIA, 413 U.S. 15 (1973)
Miller v. California
Argued January 18-19, 1972
Reargued November 7, 1972
Decided June 21, 1973
413 U.S. 15
APPEAL FROM THE APPELLATE DEPARTMENT, SUPERIOR
COURT
OF CALIFORNIA, COUNTY OF ORANGE
Syllabus
Appellant was convicted of mailing unsolicited sexually explicit
material in violation of a California statute that approximately
incorporated the obscenity test formulated in Memoirs v.
Massachusetts, 383 U. S. 413, 383 U. S. 418 (plurality opinion). The
trial court instructed the jury to evaluate the materials by the
contemporary community standards of California. Appellant's
conviction was affirmed on appeal. In lieu of the obscenity criteria
enunciated by the Memoirs plurality, it is held:
1. Obscene material is not protected by the First Amendment. Roth
v. United States, 354 U. S. 476, reaffirmed. A work may be subject
to state regulation where that work, taken as a whole, appeals to the
prurient interest in sex; portrays, in a patently offensive way, sexual
conduct specifically defined by the applicable state law; and, taken
as a whole, does not have serious literary, artistic, political, or
scientific value. Pp. 413 U. S. 23-24.
2. The basic guidelines for the trier of fact must be: (a) whether "the
average person, applying contemporary community standards"
would find that the work, taken as a whole, appeals to the prurient
interest, Roth, supra, at 354 U. S. 489, (b) whether the work depicts
or describes, in a patently offensive way, sexual conduct specifically
defined by the applicable state law, and (c) whether the work, taken
as a whole, lacks serious literary, artistic, political, or scientific value.
If a state obscenity law is thus limited, First Amendment values are
adequately protected by ultimate independent appellate review of
constitutional claims when necessary. Pp. 413 U. S. 24-25.
3. The test of "utterly without redeeming social value" articulated in
Memoirs, supra, is rejected as a constitutional standard. Pp. 413 U.
S. 24-25.
4. The jury may measure the essentially factual issues of prurient
appeal and patent offensiveness by the standard that prevails in the
forum community, and need not employ a "national standard." Pp.
413 U. S. 30-34.
Vacated and remanded.
Page 413 U. S. 16
BURGER, C.J., delivered the opinion of the Court, in which WHITE,
BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS,
J., filed a dissenting opinion, post, p. 413 U. S. 37. BRENNAN, J.,
filed a dissenting opinion, in which STEWART and MARSHALL, JJ.,
joined, post, p. 413 U. S. 47.
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
This is one of a group of "obscenity-pornography" cases being
reviewed by the Court in a reexamination of standards enunciated
in earlier cases involving what Mr. Justice Harlan called "the
CONSTI LAW II I ACJUCO 305
intractable obscenity problem." Interstate Circuit, Inc. v. Dallas, 390
U. S. 676, 390 U. S. 704 (1968) (concurring and dissenting).
Appellant conducted a mass mailing campaign to advertise the sale
of illustrated books, euphemistically called "adult" material. After a
jury trial, he was convicted of violating California Penal Code §
311.2(a), a misdemeanor, by knowingly distributing obscene matter,
[Footnote 1] and the Appellate Department, Superior Court of
California, County of Orange, summarily affirmed the judgment
without opinion. Appellant's conviction was specifically based on his
conduct in causing five unsolicited advertising brochures to be sent
through the mail in an envelope addressed to a restaurant in
Newport Beach, California. The envelope was opened by the
manager of the restaurant and his mother. They had not requested
the brochures; they complained to the police.
The brochures advertise four books entitled "Intercourse," "Man-
Woman," "Sex Orgies Illustrated," and "An Illustrated History of
Pornography," and a film entitled "Marital Intercourse." While the
brochures contain some descriptive printed material, primarily they
consist of pictures and drawings very explicitly depicting men and
women in groups of two or more engaging in a variety of sexual
activities, with genitals often prominently displayed.
I
This case involves the application of a State's criminal obscenity
statute to a situation in which sexually explicit materials have been
thrust by aggressive sales action upon unwilling recipients who had
in no way indicated any desire to receive such materials. This Court
has recognized that the States have a legitimate interest in
prohibiting dissemination or exhibition of obscene material when the
mode of dissemination carries with it a significant danger of
offending the sensibilities of unwilling recipients or of exposure to
juveniles. Stanley v. Georgia, 394 U. S. 557, 394 U. S. 567 (1969);
Ginsberg v. New York, 390 U. S. 629, 390 U. S. 637-643 (1968);
Interstate Circuit, Inc. v. Dallas, supra, at 390 U. S. 690; Redrup v.
New York, 386 U. S. 767, 386 U. S. 769 (1967); Jacobellis v. Ohio,
378 U. S. 184, 378 U. S. 195 (1964). See Rabe v. Washington, 405
U. S. 313, 405 U. S. 317 (1972) (BURGER, C.J., concurring); United
States v. Reidel, 402 U. S. 351, 402 U. S. 360-362 (1971) (opinion
of MARSHALL, J.); Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495,
343 U. S. 502 (1952); Breard v. Alexandria, 341 U. S. 622, 341 U.
S. 644 645 (1951); Kovacs v. Cooper, 336 U. S. 77, 336 U. S. 88-
89 (1949); Prince v. Massachusetts, 321 U. S. 158, 321 U. S. 169-
170 (1944). Cf. Butler v. Michigan, 352 U. S. 380, 352 U. S. 382-
383 (1957); Public Utilities Comm'n v. Pollak, 343 U. S. 451, 343 U.
S. 464-465 (1952) It is in this context that we are called on to define
the standards which must be used to identify obscene material that
a State may regulate without infringing on the First Amendment as
applicable to the States through the Fourteenth Amendment.
The dissent of MR. JUSTICE BRENNAN reviews the background of
the obscenity problem, but since the Court now undertakes to
formulate standards more concrete than those in the past, it is useful
for us to focus on two of the landmark cases in the somewhat
tortured history of the Court's obscenity decisions. In Roth v. United
States, 354 U. S. 476 (1957), the Court sustained a conviction under
a federal statute punishing the mailing of "obscene, lewd, lascivious
or filthy . . ." materials. The key to that holding was the Court's
rejection of the claim that obscene materials were protected by the
First Amendment. Five Justices joined in the opinion stating:
"All ideas having even the slightest redeeming social importance --
unorthodox ideas, controversial ideas, even ideas hateful to the
prevailing climate of opinion -- have the full protection of the [First
Amendment] guaranties, unless excludable because they encroach
upon the limited area of more important interests. But implicit in the
history of the First Amendment is the rejection of obscenity as utterly
without redeeming social importance. . . . This is the same judgment
expressed by this Court in Chaplinsky v. New Hampshire, 315 U. S.
568, 315 U. S. 571-572: "

". . . There are certain well defined and narrowly limited classes of
speech, the prevention and punishment of which have never been
thought to raise any Constitutional problem. These include the lewd
and obscene. . . . It has been well observed that such utterances
are no essential part of any exposition of ideas, and are of such
slight social value as a step to truth that any benefit that may be
derived from them is clearly outweighed by the social interest in
order and morality. . . ."
[Emphasis by Court in Roth opinion.]
"We hold that obscenity is not within the area of constitutionally
protected speech or press."
354 U.S. at 354 U. S. 48 85 (footnotes omitted).
Nine years later, in Memoirs v. Massachusetts, 383 U. S. 413
(1966), the Court veered sharply away from the Roth concept and,
with only three Justices in the plurality opinion, articulated a new test
of obscenity. The plurality held that, under the Roth definition,
"as elaborated in subsequent cases, three elements must coalesce:
it must be established that (a) the dominant theme of the material,
taken as a whole, appeals to a prurient interest in sex; (b) the
material is patently offensive because it affronts contemporary
community standards relating to the description or representation of
sexual matters; and (c) the material is utterly without redeeming
social value."
Id. at 383 U. S. 418. The sharpness of the break with Roth,
represented by the third element of the Memoirs test and
emphasized by MR. JUSTICE WHITE's dissent, id. at 383 U. S. 460-
462, was further underscored when the Memoirs plurality went on
to state:
"The Supreme Judicial Court erred in holding that a book need not
be 'unqualifiedly worthless before it can be deemed obscene.' A
book cannot be proscribed unless it is found to be utterly without
redeeming social value."
Id. at 383 U. S. 419 (emphasis in original).
While Roth presumed "obscenity" to be "utterly without redeeming
social importance," Memoirs required that to prove obscenity it must
be affirmatively established that the material is "utterly without
redeeming social value." Thus, even as they repeated the words of
Roth, the Memoirs plurality produced a drastically altered test that
called on the prosecution to prove a negative, i.e., that the material
was "utterly without redeeming social value" -- a burden virtually
impossible to discharge under our criminal standards of proof. Such
considerations caused Mr. Justice Harlan to wonder if the "utterly
without redeeming social value" test had any meaning at all. See
Memoirs v. Massachusetts, id. at 383 U. S. 459 (Harlan, J.,
dissenting). See also id. at 383 U. S. 461 (WHITE, J., dissenting);
United States v. Groner, 479 F.2d 577, 579581 (CA5 1973).
Apart from the initial formulation in the Roth case, no majority of the
Court has at any given time been able to agree on a standard to
determine what constitutes obscene, pornographic material subject
to regulation under the States' police power. See, e.g., Redrup v.
New York, 386 U.S. at 386 U. S. 770-771. We have seen "a variety
of views among the members of the Court unmatched in any other
course of constitutional adjudication." Interstate Circuit, Inc. v.
Dallas, 390 U.S. at 390 U. S. 704-705 (Harlan, J., concurring and
dissenting) (footnote omitted). [Footnote 3] This is not remarkable,
for in the area of freedom of speech and press the courts must
always remain sensitive to any infringement on genuinely serious
literary, artistic, political, or scientific expression. This is an area in
which there are few eternal verities.
CONSTI LAW II I ACJUCO 306
The case we now review was tried on the theory that the California
Penal Code § 311 approximately incorporates the three-stage
Memoirs test, supra. But now the Memoirs test has been abandoned
as unworkable by its author, [Footnote 4] and no Member of the
Court today supports the Memoirs formulation.
II
This much has been categorically settled by the Court, that obscene
material is unprotected by the First Amendment. Kois v. Wisconsin,
408 U. S. 229 (1972); United States v. Reidel, 402 U.S. at 402 U. S.
354; Roth v. United States, supra, at 354 U. S. 485. [Footnote 5]
"The First and Fourteenth Amendments have never been treated as
absolutes [footnote omitted]." Breard v. Alexandria, 341 U.S. at 341
U. S. 642, and cases cited. See Times Film Corp. v. Chicago, 365
U. S. 43, 365 U. S. 47-50 (1961); Joseph Burstyn, Inc. v. Wilson,
343 U.S. at 343 U. S. 502. We acknowledge, however, the inherent
dangers of undertaking to regulate any form of expression. State
statutes designed to regulate obscene materials must be carefully
limited. See Interstate Circuit, Inc. v. Dallas, supra, at 390 U. S. 682-
685. As a result, we now confine the permissible scope of such
regulation to works which depict or describe sexual conduct. That
conduct must be specifically defined by the applicable state law, as
written or authoritatively construed. [Footnote 6] A state offense
must also be limited to works which, taken as a whole, appeal to the
prurient interest in sex, which portray sexual conduct in a patently
offensive way, and which, taken as a whole, do not have serious
literary, artistic, political, or scientific value.
The basic guidelines for the trier of fact must be: (a) whether "the
average person, applying contemporary community standards"
would find that the work, taken as a whole, appeals to the prurient
interest, Kois v. Wisconsin, supra, at 408 U. S. 230, quoting Roth v.
United States, supra, at 354 U. S. 489; (b) whether the work depicts
or describes, in a patently offensive way, sexual conduct specifically
defined by the applicable state law; and (c) whether the work, taken
as a whole, lacks serious literary, artistic, political, or scientific value.
We do not adopt as a constitutional standard the "utterly without
redeeming social value" test of Memoirs v. Massachusetts; that
concept has never commanded the adherence of more than three
Justices at one time. [Footnote 7] See supra at 413 U. S. 21. If a
state law that regulates obscene material is thus limited, as written
or construed, the First Amendment values applicable to the States
through the Fourteenth Amendment are adequately protected by the
ultimate power of appellate courts to conduct an independent review
of constitutional claims when necessary. See Kois v. Wisconsin,
supra, at 408 U. S. 232; Memoirs v. Massachusetts, supra, at 383
U. S. 459-460 (Harlan, J., dissenting); Jacobellis v. Ohio, 378 U.S.
at 204 (Harlan, J., dissenting); New York Times Co. v. Sullivan, 376
U. S. 254, 376 U. S. 284-285 (1964); Roth v. United States, supra,
at 354 U. S. 497-498 (Harlan, J., concurring and dissenting).
We emphasize that it is not our function to propose regulatory
schemes for the States. That must await their concrete legislative
efforts. It is possible, however, to give a few plain examples of what
a state statute could define for regulation under part (b) of the
standard announced in this opinion, supra:
(a) Patently offensive representations or descriptions of ultimate
sexual acts, normal or perverted, actual or simulated.
(b) Patently offensive representations or descriptions of
masturbation, excretory functions, and lewd exhibition of the
genitals.
Sex and nudity may not be exploited without limit by films or pictures
exhibited or sold in places of public accommodation any more than
live sex and nudity can be exhibited or sold without limit in such
public places. [Footnote 8] At a minimum, prurient, patently
offensive depiction or description of sexual conduct must have
serious literary, artistic, political, or scientific value to merit First
Amendment protection. See Kois v. Wisconsin, supra, at 408 U. S.

230-232; Roth v. United States, supra, at 354 U. S. 487; Thornhill v.
Alabama, 310 U. S. 88, 310 U. S. 101-102 (1940). For example,
medical books for the education of physicians and related personnel
necessarily use graphic illustrations and descriptions of human
anatomy. In resolving the inevitably sensitive questions of fact and
law, we must continue to rely on the jury system, accompanied by
the safeguards that judges, rules of evidence, presumption of
innocence, and other protective features provide, as we do with
rape, murder, and a host of other offenses against society and its
individual members. [Footnote 9]
MR. JUSTICE BRENNAN, author of the opinions of the Court, or the
plurality opinions, in Roth v. United States, supra; Jacobellis v. Ohio,
supra; Ginzburg v. United States, 383 U. S. 463 (1966), Mishkin v.
New York, 383 U. S. 502 (1966); and Memoirs v. Massachusetts,
supra, has abandoned his former position and now maintains that
no formulation of this Court, the Congress, or the States can
adequately distinguish obscene material unprotected by the First
Amendment from protected expression, Paris Adult Theatre I v.
Slaton, post, p. 413 U. S. 73 (BRENNAN, J., dissenting).
Paradoxically, MR. JUSTICE BRENNAN indicates that suppression
of unprotected obscene material is permissible to avoid exposure to
unconsenting adults, as in this case, and to juveniles, although he
gives no indication of how the division between protected and
nonprotected materials may be drawn with greater precision for
these purposes than for regulation of commercial exposure to
consenting adults only. Nor does he indicate where in the
Constitution he finds the authority to distinguish between a willing
"adult" one month past the state law age of majority and a willing
"juvenile" one month younger.
Under the holdings announced today, no one will be subject to
prosecution for the sale or exposure of obscene materials unless
these materials depict or describe patently offensive "hard core"
sexual conduct specifically defined by the regulating state law, as
written or construed. We are satisfied that these specific
prerequisites will provide fair notice to a dealer in such materials that
his public and commercial activities may bring prosecution. See
Roth v. United States, supra, at 354 U. S. 491-492. Cf. Ginsberg v.
New York, 390 U.S. at 390 U. S. 643. [Footnote 10] If the inability to
define regulated materials with ultimate, god-like precision
altogether removes the power of the States or the Congress to
regulate, then "hard core" pornography may be exposed without
limit to the juvenile, the passerby, and the consenting adult alike, as,
indeed, MR. JUSTICE DOUGLAS contends. As to MR. JUSTICE
DOUGLAS' position, see United States v. Thirty-seven
Photographs, 402 U. S. 363, 402 U. S. 379-380 (1971) (Black, J.,
joined by DOUGLAS, J., dissenting); Ginzburg v. United States,
supra, at 383 U. S. 476, 383 U. S. 491-492 (Black, J., and
DOUGLAS, J., dissenting); Jacobellis v. Ohio, supra, at 378 U. S.
196 (Black, J., joined by DOUGLAS, J., concurring); Roth, supra, at
354 U. S. 508-514 (DOUGLAS, J., dissenting). In this belief,
however, MR. JUSTICE DOUGLAS now stands alone.
MR. JUSTICE BRENNAN also emphasizes "institutional stress" in
justification of his change of view. Noting that "[t]he number of
obscenity cases on our docket gives ample testimony to the burden
that has been placed upon this Court," he quite rightly remarks that
the examination of contested materials "is hardly a source of
edification to the members of this Court." Paris Adult Theatre I v.
Slaton, post, at 413 U. S. 92, 413 U. S. 93. He also notes, and we
agree, that "uncertainty of the standards creates a continuing source
of tension between state and federal courts. . . ."
"The problem is . . . that one cannot say with certainty that material
is obscene until at least five members of this Court, applying
inevitably obscure standards, have pronounced it so."
Id. at 413 U. S. 93, 413 U. S. 92.
CONSTI LAW II I ACJUCO 307
It is certainly true that the absence, since Roth, of a single majority
view of this Court as to proper standards for testing obscenity has
placed a strain on both state and federal courts. But today, for the
first time since Roth was decided in 1957, a majority of this Court
has agreed on concrete guidelines to isolate "hard core"
pornography from expression protected by the First Amendment.
Now we may abandon the casual practice of Redrup v. New York,
386 U. S. 767 (1967), and attempt to provide positive guidance to
federal and state courts alike.
This may not be an easy road, free from difficulty. But no amount of
"fatigue" should lead us to adopt a convenient "institutional"
rationale -- an absolutist, "anything goes" view of the First
Amendment -- because it will lighten our burdens. [Footnote 11]
"Such an abnegation of judicial supervision in this field would be
inconsistent with our duty to uphold the constitutional guarantees."
Jacobellis v. Ohio, supra, at 378 U. S. 187-188 (opinion of
BRENNAN, J.). Nor should we remedy "tension between state and
federal courts" by arbitrarily depriving the States of a power
reserved to them under the Constitution, a power which they have
enjoyed and exercised continuously from before the adoption of the
First Amendment to this day. See Roth v. United States, supra, at
354 U. S. 482-485.
"Our duty admits of no 'substitute for facing up to the tough individual
problems of constitutional judgment involved in every obscenity
case.' [Roth v. United States, supra, at 354 U. S. 498]; see Manual
Enterprises, Inc. v. Day, 370 U. S. 478, 370 U. S. 488 (opinion of
Harlan, J.) [footnote omitted]."
Jacobellis v. Ohio, supra, at 378 U. S. 188 (opinion of BRENNAN,
J.).
III
Under a National Constitution, fundamental First Amendment
limitations on the powers of the States do not vary from community
to community, but this does not mean that there are, or should or
can be, fixed, uniform national standards of precisely what appeals
to the "prurient interest" or is "patently offensive." These are
essentially questions of fact, and our Nation is simply too big and
too diverse for this Court to reasonably expect that such standards
could be articulated for all 50 States in a single formulation, even
assuming the prerequisite consensus exists. When triers of fact are
asked to decide whether "the average person, applying
contemporary community standards" would consider certain
materials "prurient," it would be unrealistic to require that the answer
be based on some abstract formulation. The adversary system, with
lay jurors as the usual ultimate factfinders in criminal prosecutions,
has historically permitted triers of fact to draw on the standards of
their community, guided always by limiting instructions on the law.
To require a State to structure obscenity proceedings around
evidence of a national "community standard" would be an exercise
in futility.
As noted before, this case was tried on the theory that the California
obscenity statute sought to incorporate the tripartite test of Memoirs.
This, a "national" standard of First Amendment protection
enumerated by a plurality of this Court, was correctly regarded at
the time of trial as limiting state prosecution under the controlling
case law. The jury, however, was explicitly instructed that, in
determining whether the "dominant theme of the material as a whole
. . . appeals to the prurient interest," and, in determining whether the
material "goes substantially beyond customary limits of candor and
affronts contemporary community standards of decency," it was to
apply "contemporary community standards of the State of
California."
During the trial, both the prosecution and the defense assumed that
the relevant "community standards" in making the factual
determination of obscenity were those of the State of California, not
some hypothetical standard of the entire United States of America.

Defense counsel at trial never objected to the testimony of the
State's expert on community standards [Footnote 12] or to the
instructions of the trial judge on "state-wide" standards. On appeal
to the Appellate Department, Superior Court of California, County of
Orange, appellant for the first time contended that application of
state, rather than national, standards violated the First and
Fourteenth Amendments.
We conclude that neither the State's alleged failure to offer evidence
of "national standards," nor the trial court's charge that the jury
consider state community standards, were constitutional errors.
Nothing in the First Amendment requires that a jury must consider
hypothetical and unascertainable "national standards" when
attempting to determine whether certain materials are obscene as a
matter of fact. Mr. Chief Justice Warren pointedly commented in his
dissent in Jacobellis v. Ohio, supra, at 378 U. S. 200:
"It is my belief that, when the Court said in Roth that obscenity is to
be defined by reference to 'community standards,' it meant
community standards -- not a national standard, as is sometimes
argued. I believe that there is no provable 'national standard.' . . . At
all events, this Court has not been able to enunciate one, and it
would be unreasonable to expect local courts to divine one."
It is neither realistic nor constitutionally sound to read the First
Amendment as requiring that the people of Maine or Mississippi
accept public depiction of conduct found tolerable in Las Vegas, or
New York City. [Footnote 13] See Hoyt v. Minnesota, 399 U.S. at
524-525 (1970) (BLACKMUN, J., dissenting); Walker v. Ohio, 398
U.S. at 434 (1970) (BURGER, C.J., dissenting); id. at 434-435
(Harlan, J., dissenting); Cain v. Kentucky, 397 U. S. 319 (1970)
(BURGER, C.J., dissenting); id. at 397 U. S. 319-320 (Harlan, J.,
dissenting); United States v. Groner, 479 F.2d at 581-583; O'Meara
& Shaffer, Obscenity in The Supreme Court: A Note on Jacobellis v.
Ohio, 40 Notre Dame Law. 1, 6-7 (1964). See also Memoirs v.
Massachusetts, 383 U.S. at 383 U. S. 458 (Harlan, J., dissenting);
Jacobellis v. Ohio, supra, at 378 U. S. 203-204 (Harlan, J.,
dissenting); Roth v. United States, supra, at 354 U. S. 505-506
(Harlan, J., concurring and dissenting). People in different States
vary in their tastes and attitudes, and this diversity is not to be
strangled by the absolutism of imposed uniformity. As the Court
made clear in Mishkin v. New York, 383 U.S. at 383 U. S. 508-509,
the primary concern with requiring a jury to apply the standard of
"the average person, applying contemporary community standards"
is to be certain that, so far as material is not aimed at a deviant
group, it will be judged by its impact on an average person, rather
than a particularly susceptible or sensitive person -- or indeed a
totally insensitive one. See Roth v. United States, supra, at 354 U.
S. 489. Cf. the now discredited test in Regina v. Hicklin, [1868] L.R.
3 Q.B. 360. We hold that the requirement that the jury evaluate the
materials with reference to "contemporary standards of the State of
California" serves this protective purpose and is constitutionally
adequate. [Footnote 14]
IV
The dissenting Justices sound the alarm of repression. But, in our
view, to equate the free and robust exchange of ideas and political
debate with commercial exploitation of obscene material demeans
the grand conception of the First Amendment and its high purposes
in the historic struggle for freedom. It is a "misuse of the great
guarantees of free speech and free press. . . ." Breard v. Alexandria,
341 U.S. at 341 U. S. 645. The First Amendment protects works
which, taken as a whole, have serious literary, artistic, political, or
scientific value, regardless of whether the government or a majority
of the people approve of the ideas these works represent.
"The protection given speech and press was fashioned to assure
unfettered interchange of ideas for the bringing about of political and
social changes desired by the people,"
CONSTI LAW II I ACJUCO 308
Roth v. United States, supra, at 354 U. S. 484 (emphasis added).
See Kois v. Wisconsin, 408 U.S. at 408 U. S. 230-232; Thornhill v.
Alabama, 310 U.S. at 310 U. S. 101-102. But the public portrayal of
hard-core sexual conduct for its own sake, and for the ensuing
commercial gain, is a different matter. [Footnote 15]
There is no evidence, empirical or historical, that the stern 19th
century American censorship of public distribution and display of
material relating to sex, see Roth v. United States, supra, at 354 U.
S. 482-485, in any way limited or affected expression of serious
literary, artistic, political, or scientific ideas. On the contrary, it is
beyond any question that the era following Thomas Jefferson to
Theodore Roosevelt was an "extraordinarily vigorous period" not
just in economics and politics, but in belles lettres and in "the
outlying fields of social and political philosophies." [Footnote 16] We
do not see the harsh hand of censorship of ideas -- good or bad,
sound or unsound -- and "repression" of political liberty lurking in
every state regulation of commercial exploitation of human interest
in sex.
MR. JUSTICE BRENNAN finds "it is hard to see how state-ordered
regimentation of our minds can ever be forestalled." Paris Adult
Theatre I v. Slaton, post, at 413 U. S. 110 (BRENNAN, J.,
dissenting). These doleful anticipations assume that courts cannot
distinguish commerce in ideas, protected by the First Amendment,
from commercial exploitation of obscene material. Moreover, state
regulation of hard-core pornography so as to make it unavailable to
nonadults, a regulation which MR. JUSTICE BRENNAN finds
constitutionally permissible, has all the elements of "censorship" for
adults; indeed even more rigid enforcement techniques may be
called for with such dichotomy of regulation. See Interstate Circuit,
Inc. v. Dallas, 390 U.S. at 390 U. S. 690. [Footnote 17] One can
concede that the "sexual revolution" of recent years may have had
useful byproducts in striking layers of prudery from a subject long
irrationally kept from needed ventilation. But it does not follow that
no regulation of patently offensive "hard core" materials is needed
or permissible; civilized people do not allow unregulated access to
heroin because it is a derivative of medicinal morphlne.
In sum, we (a) reaffirm the Roth holding that obscene material is not
protected by the First Amendment; (b) hold that such material can
be regulated by the States, subject to the specific safeguards
enunciated above, without a showing that the material is "utterly
without redeeming social value"; and (c) hold that obscenity is to be
determined by applying "contemporary community standards," see
Kois v. Wisconsin, supra, at 408 U. S. 230, and Roth v. United
States, supra, at 354 U. S. 489, not "national standards." The
judgment of the Appellate Department of the Superior Court,
Orange County, California, is vacated and the case remanded to
that court for further proceedings not inconsistent with the First
Amendment standards established by this opinion. See United
States v. 12 200-ft. Reels of Film, post at 413 U. S. 130 n. 7.
Vacated and remanded.

G.R. No. 80806 October 5, 1989
LEO PITA doing business under the name and style of PINOY
PLAYBOY, petitioner,
vs.
THE COURT OF APPEALS, RAMON BAGATSING, and
NARCISO CABRERA, respondents.
William C. Arceno for petitioner.
Casibang, Perello and De Dios for private respondent.
SARMIENTO, J.:
The petitioner, publisher of Pinoy Playboy, a "men's magazine",
seeks the review of the decision of the Court of Appeals, 1 rejecting
his appeal from the decision of the Regional Trial Court, dismissing
his complaint for injunctive relief. He invokes, in particular, the
guaranty against unreasonable searches and seizures of the
Constitution, as well as its prohibition against deprivation of property
without due process of law. There is no controversy as to the facts.
We quote:
On December 1 and 3, 1983, pursuing an Anti-Smut Campaign
initiated by the Mayor of the City of Manila, Ramon D. Bagatsing,
elements of the Special Anti-Narcotics Group, Auxilliary Services
Bureau, Western Police District, INP of the Metropolitan Police
Force of Manila, seized and confiscated from dealers, distributors,
newsstand owners and peddlers along Manila sidewalks,
magazines, publications and other reading materials believed to be
obscene, pornographic and indecent and later burned the seized
materials in public at the University belt along C.M. Recto Avenue,
Manila, in the presence of Mayor Bagatsing and several officers and
members of various student organizations.
Among the publications seized, and later burned, was "Pinoy
Playboy" magazines published and co-edited by plaintiff Leo Pita.
On December 7, 1983, plaintiff filed a case for injunction with prayer
for issuance of the writ of preliminary injunction against Mayor
Bagatsing and Narcisco Cabrera, as superintendent of Western
Police District of the City of Manila, seeking to enjoin and/or restrain
said defendants and their agents from confiscating plaintiffs
magazines or from otherwise preventing the sale or circulation
thereof claiming that the magazine is a decent, artistic and
educational magazine which is not per se obscene, and that the
publication is protected by the Constitutional guarantees of freedom
of speech and of the press.
By order dated December 8, 1 983 the Court set the hearing on the
petition for preliminary injunction on December 14,1983 and ordered
the defendants to show cause not later than December 13, 1983
why the writ prayed for should not be granted.
On December 12, 1983, plaintiff filed an Urgent Motion for issuance
of a temporary restraining order. against indiscriminate seizure,
confiscation and burning of plaintiff's "Pinoy Playboy" Magazines,
pending hearing on the petition for preliminary injunction in view of
Mayor Bagatsing's pronouncement to continue the Anti-Smut
Campaign. The Court granted the temporary restraining order on
December 14, 1983.
In his Answer and Opposition filed on December 27,1983 defendant
Mayor Bagatsing admitted the confiscation and burning of obscence
reading materials on December 1 and 3, 1983, but claimed that the
said materials were voluntarily surrendered by the vendors to the
police authorities, and that the said confiscation and seizure was
(sic) undertaken pursuant to P.D. No. 960, as amended by P.D. No.
969, which amended Article 201 of the Revised Penal Code. In
opposing the plaintiffs application for a writ of preliminary injunction,
CONSTI LAW II I ACJUCO 309
defendant pointed out that in that anti- smut campaign conducted
on December 1 and 3, 1983, the materials confiscated belonged to
the magazine stand owners and peddlers who voluntarily
surrendered their reading materials, and that the plaintiffs
establishment was not raided.
The other defendant, WPD Superintendent, Narcisco Cabrera, filed
no answer.
On January 5,1984, plaintiff filed his Memorandum in support of the
issuance of the writ of preliminary injunction, raising the issue as to
"whether or not the defendants and/or their agents can without a
court order confiscate or seize plaintiffs magazine before any
judicial finding is made on whether said magazine is obscene or
not".
The restraining order issued on December 14,1983 having lapsed
on January 3,1984, the plaintiff filed an urgent motion for issuance
of another restraining order, which was opposed by defendant on
the ground that issuance of a second restraining order would violate
the Resolution of the Supreme Court dated January 11, 1983,
providing for the Interim Rules Relative to the Implementation of
Batas Pambansa Blg. 129, which provides that a temporary
restraining order shall be effective only for twenty days from date of
its issuance.
On January 9, 1984 defendant filed his Comment and/or Rejoinder
Memorandum in support of his opposition to the issuance of a writ
of preliminary injunction.
On January 11, 1984, the trial court issued an Order setting the case
for hearing on January 16, 1984 "for the parties to adduce evidence
on the question of whether the publication 'Pinoy Playboy Magazine
alleged (sic) seized, confiscated and/or burned by the defendants,
are obscence per se or not".
On January 16, 1984, the Court issued an order granting plaintiffs
motion to be given three days "to file a reply to defendants'
opposition dated January 9, 1984, serving a copy thereof to the
counsel for the defendants, who may file a rejoinder within the same
period from receipt, after which the issue of Preliminary Injunction
shall be resolved".
Plaintiff's supplemental Memorandum was filed on January 18,
1984. Defendant filed his Comment on plaintiff s supplemental
Memorandum on January 20, 1984, and plaintiff filed his "Reply-
Memorandum" to defendants' Comment on January 25, 1984.
On February 3, 1984, the trial court promulgated the Order appealed
from denying the motion for a writ of preliminary injunction, and
dismissing the case for lack of merit. 2
The Appellate Court dismissed the appeal upon the grounds, among
other things, as follows:
We cannot quarrel with the basic postulate suggested by appellant
that seizure of allegedly obscene publications or materials deserves
close scrutiny because of the constitutional guarantee protecting the
right to express oneself in print (Sec. 9, Art. IV), and the protection
afforded by the constitution against unreasonable searches and
seizure (Sec. 3, Art.IV). It must be equally conceded, however, that
freedom of the press is not without restraint as the state has the right
to protect society from pornographic literature that is offensive to
public morals, as indeed we have laws punishing the author,
publishers and sellers of obscene publications (Sec. I , Art. 201,
Revised Penal Code, as amended by P.D. No. 960 and P.D. No.
969). Also well settled is the rule that the right against unreasonable
searches and seizures recognizes certain exceptions, as when
there is consent to the search or seizure, (People vs. Malesugui 63
Phil. 22) or search is an incident to an arrest, (People vs. Veloso, 48

Phil. 169; Alvero vs. Dizon, 76 Phil. 637) or is conducted in a vehicle
or movable structure (See Papa vs. Magno, 22 SCRA 857).3
The petitioner now ascribes to the respondent court the following
errors:
1. The Court of Appeals erred in affirming the decision of the
trial court and, in effect, holding that the police officers could without
any court warrant or order seize and confiscate petitioner's
magazines on the basis simply of their determination that they are
obscene.
2. The Court of Appeals erred in affirming the decision of the
trial court and, in effect, holding that the trial court could dismiss the
case on its merits without any hearing thereon when what was
submitted to it for resolution was merely the application of petitioner
for the writ of preliminary injunction.4
The Court states at the outset that it is not the first time that it is
being asked to pronounce what "obscene" means or what makes
for an obscene or pornographic literature. Early on, in People vs.
Kottinger,5 the Court laid down the test, in determining the existence
of obscenity, as follows: "whether the tendency of the matter
charged as obscene, is to deprave or corrupt those whose minds
are open to such immoral influences and into whose hands a
publication or other article charged as being obscene may fall." 6
"Another test," so Kottinger further declares, "is that which shocks
the ordinary and common sense of men as an indecency. " 7
Kottinger hastened to say, however, that "[w]hether a picture is
obscene or indecent must depend upon the circumstances of the
case, 8 and that ultimately, the question is to be decided by the
"judgment of the aggregate sense of the community reached by it."
9 case of obscenity?
Yet Kottinger, in its effort to arrive at a "conclusive" definition,
succeeded merely in generalizing a problem that has grown
increasingly complex over the years. Precisely, the question is:
When does a publication have a corrupting tendency, or when can
it be said to be offensive to human sensibilities? And obviously, it is
to beg the question to say that a piece of literature has a corrupting
influence because it is obscene, and vice-versa.
Apparently, Kottinger was aware of its own uncertainty because in
the same breath, it would leave the final say to a hypothetical
"community standard" — whatever that is — and that the question
must supposedly be judged from case to case.
About three decades later, this Court promulgated People v. Go Pin,
10 a prosecution under Article 201 of the Revised Penal Code. Go
Pin, was also even hazier:
...We agree with counsel for appellant in part. If such pictures,
sculptures and paintings are shown in art exhibit and art galleries
for the cause of art, to be viewed and appreciated by people
interested in art, there would be no offense committed. However,
the pictures here in question were used not exactly for art's sake but
rather for commercial purposes. In other words, the supposed
artistic qualities of said pictures were being commercialized so that
the cause of art was of secondary or minor importance. Gain and
profit would appear to have been the main, if not the exclusive
consideration in their exhibition; and it would not be surprising if the
persons who went to see those pictures and paid entrance fees for
the privilege of doing so, were not exactly artists and persons
interested in art and who generally go to art exhibitions and galleries
to satisfy and improve their artistic tastes, but rather people desirous
of satisfying their morbid curiosity and taste, and lust, and for love
for excitement, including the youth who because of their immaturity
are not in a position to resist and shield themselves from the ill and
perverting effects of these pictures.11
xxx xxx xxx
CONSTI LAW II I ACJUCO 310
As the Court declared, the issue is a complicated one, in which the
fine lines have neither been drawn nor divided. It is easier said than
done to say, indeed, that if "the pictures here in question were used
not exactly for art's sake but rather for commercial purposes," 12 the
pictures are not entitled to any constitutional protection.
It was People v. Padan y Alova ,13 however, that introduced to
Philippine jurisprudence the "redeeming" element that should
accompany the work, to save it from a valid prosecution. We quote:
...We have had occasion to consider offenses like the exhibition of
still or moving pictures of women in the nude, which we have
condemned for obscenity and as offensive to morals. In those
cases, one might yet claim that there was involved the element of
art; that connoisseurs of the same, and painters and sculptors might
find inspiration in the showing of pictures in the nude, or the human
body exhibited in sheer nakedness, as models in tableaux vivants.
But an actual exhibition of the sexual act, preceded by acts of
lasciviousness, can have no redeeming feature. In it, there is no
room for art. One can see nothing in it but clear and unmitigated
obscenity, indecency, and an offense to public morals, inspiring and
causing as it does, nothing but lust and lewdness, and exerting a
corrupting influence specially on the youth of the land. ...14
Padan y Alova, like Go Pin, however, raised more questions than
answers. For one thing, if the exhibition was attended by "artists and
persons interested in art and who generally go to art exhibitions and
galleries to satisfy and improve their artistic tastes,"15 could the
same legitimately lay claim to "art"? For another, suppose that the
exhibition was so presented that "connoisseurs of [art], and painters
and sculptors might find inspiration,"16 in it, would it cease to be a
Padan y Alova, like Go Pin also leaves too much latitude for judicial
arbitrament, which has permitted an ad lib of Ideas and "two-cents
worths" among judges as to what is obscene and what is art.
In a much later decision, Gonzalez v. Kalaw Katigbak,17 the Court,
following trends in the United States, adopted the test: "Whether to
the average person, applying contemporary standards, the
dominant theme of the material taken as a whole appeals to prurient
interest."18 Kalaw-Katigbak represented a marked departure from
Kottinger in the sense that it measured obscenity in terms of the
"dominant theme" of the work, rather than isolated passages, which
were central to Kottinger (although both cases are agreed that
"contemporary community standards" are the final arbiters of what
is "obscene"). Kalaw-Katigbak undertook moreover to make the
determination of obscenity essentially a judicial question and as a
consequence, to temper the wide discretion Kottinger had given
unto law enforcers.
It is significant that in the United States, constitutional law on
obscenity continues to journey from development to development,
which, states one authoritative commentator (with ample sarcasm),
has been as "unstable as it is unintelligible."19
Memoirs v. Massachusettes,20 a 1966 decision, which
characterized obscenity as one "utterly without any redeeming
social value,"21 marked yet another development.
The latest word, however, is Miller v. California,22 which expressly
abandoned Massachusettes, and established "basic guidelines,"23
to wit: "(a) whether 'the average person, applying contemporary
standards' would find the work, taken as a whole, appeals to the
prurient interest . . .; (b) whether the work depicts or describes, in a
patently offensive way, sexual conduct specifically defined by the
applicable state law; and (c) whether the work, taken as a whole,
lacks serious literary, artistic, political, or scientific value."24

(A year later, the American Supreme Court decided Hamling v.
United States 25 which repeated Miller, and Jenkins v. Georgia, 26
yet another reiteration of Miller. Jenkins, curiously, acquitted the
producers of the motion picture, Carnal Knowledge, in the absence
of "genitals" portrayed on screen, although the film highlighted
contemporary American sexuality.)
The lack of uniformity in American jurisprudence as to what
constitutes "obscenity" has been attributed to the reluctance of the
courts to recognize the constitutional dimension of the problem .27
Apparently, the courts have assumed that "obscenity" is not
included in the guaranty of free speech, an assumption that, as we
averred, has allowed a climate of opinions among magistrates
predicated upon arbitrary, if vague theories of what is acceptable to
society. And "[t]here is little likelihood," says Tribe, "that this
development has reached a state of rest, or that it will ever do so
until the Court recognizes that obscene speech is speech
nonetheless, although it is subject — as in all speech — to
regulation in the interests of [society as a whole] — but not in the
interest of a uniform vision of how human sexuality should be
regarded and portrayed."28
In the case at bar, there is no challenge on the right of the State, in
the legitimate exercise of police power, to suppress smut provided
it is smut. For obvious reasons, smut is not smut simply because
one insists it is smut. So is it equally evident that individual tastes
develop, adapt to wide-ranging influences, and keep in step with the
rapid advance of civilization. What shocked our forebears, say, five
decades ago, is not necessarily repulsive to the present generation.
James Joyce and D.H. Lawrence were censored in the thirties yet
their works are considered important literature today.29 Goya's La
Maja desnuda was once banned from public exhibition but now
adorns the world's most prestigious museums.
But neither should we say that "obscenity" is a bare (no pun
intended) matter of opinion. As we said earlier, it is the divergent
perceptions of men and women that have probably compounded the
problem rather than resolved it.
What the Court is impressing, plainly and simply, is that the question
is not, and has not been, an easy one to answer, as it is far from
being a settled matter. We share Tribe's disappointment over the
discouraging trend in American decisional law on obscenity as well
as his pessimism on whether or not an "acceptable" solution is in
sight.
In the final analysis perhaps, the task that confronts us is less heroic
than rushing to a "perfect" definition of "obscenity", if that is possible,
as evolving standards for proper police conduct faced with the
problem, which, after all, is the plaint specifically raised in the
petition.
However, this much we have to say.
Undoubtedly, "immoral" lore or literature comes within the ambit of
free expression, although not its protection. In free expression
cases, this Court has consistently been on the side of the exercise
of the right, barring a "clear and present danger" that would warrant
State interference and action.30 But, so we asserted in Reyes v.
Bagatsing,31 "the burden to show the existence of grave and
imminent danger that would justify adverse action ... lies on the. . .
authorit[ies]."32
"There must be objective and convincing, not subjective or
conjectural, proof of the existence of such clear and present
danger."33 "It is essential for the validity of ... previous restraint or
censorship that the ... authority does not rely solely on his own
appraisal of what the public welfare, peace or safety may require."34
"To justify such a limitation, there must be proof of such weight and
sufficiency to satisfy the clear and present danger test."35
CONSTI LAW II I ACJUCO 311
The above disposition must not, however, be taken as a neat effort
to arrive at a solution-so only we may arrive at one-but rather as a
serious attempt to put the question in its proper perspective, that is,
as a genuine constitutional issue.
It is also significant that in his petition, the petitioner asserts
constitutional issues, mainly, due process and illegal search and
seizure.
As we so strongly stressed in Bagatsing, a case involving the
delivery of a political speech, the presumption is that the speech
may validly be said. The burden is on the State to demonstrate the
existence of a danger, a danger that must not only be: (1) clear but
also, (2) present, to justify State action to stop the speech.
Meanwhile, the Government must allow it (the speech). It has no
choice. However, if it acts notwithstanding that (absence of
evidence of a clear and present danger), it must come to terms with,
and be held accountable for, due process.
The Court is not convinced that the private respondents have shown
the required proof to justify a ban and to warrant confiscation of the
literature for which mandatory injunction had been sought below.
First of all, they were not possessed of a lawful court order: (1)
finding the said materials to be pornography, and (2) authorizing
them to carry out a search and seizure, by way of a search warrant.
The Court of Appeals has no "quarrel that ... freedom of the press is
not without restraint, as the state has the right to protect society from
pornographic literature that is offensive to public morals."36 Neither
do we. But it brings us back to square one: were the "literature" so
confiscated "pornographic"? That we have laws punishing the
author, publisher and sellers of obscence publications (Sec. 1, Art.
201, Revised Penal Code, as amended by P.D. No. 960 and P.D.
No. 969),"37 is also fine, but the question, again, is: Has the
petitioner been found guilty under the statute?
The fact that the former respondent Mayor's act was sanctioned by
"police power" is no license to seize property in disregard of due
process. In Philippine Service Exporters, Inc. v. Drilon,38 We
defined police power as "state authority to enact legislation that may
interfere with personal liberty or property in order to promote the
general welfare ."39 Presidential Decrees Nos. 960 and 969 are,
arguably, police power measures, but they are not, by themselves,
authorities for high-handed acts. They do not exempt our law
enforcers, in carrying out the decree of the twin presidential
issuances (Mr. Marcos'), from the commandments of the
Constitution, the right to due process of law and the right against
unreasonable searches and seizures, specifically. Significantly, the
Decrees themselves lay down procedures for implementation. We
quote:
Sec. 2. Disposition of the Prohibited Articles. — The disposition of
the literature, films, prints, engravings, sculptures, paintings, or
other materials involved in the violation referred to in Section 1
hereof (Art. 201), RPC as amended) shall be governed by the
following rules:
(a) Upon conviction of the offender, to be forfeited in favor of
the Government to be destroyed.
(b) Where the criminal case against any violator of this decree
results in an acquittal, the obscene/immoral literature, films, prints,
engravings, sculptures, paintings or other materials and articles
involved in the violation referred to in Section 1 (referring to Art. 201)
hereof shall nevertheless be forfeited in favor of the government to
be destroyed, after forfeiture proceedings conducted by the Chief of
Constabulary.
(c) The person aggrieved by the forfeiture action of the Chief
of Constabulary may, within fifteen (15) days after his receipt of a
 CONSTI LAW II I ACJUCO 312

copy of the decision, appeal the matter to the Secretary of National danger of an evil substantive enough to warrant State interference
Defense for review. The decision of the Secretary of National and action;
Defense shall be final and unappealable. (Sec. 2, PD No, 960 as
amended by PD No. 969.) 3. The judge must determine whether or not the same are
indeed "obscene:" the question is to be resolved on a case-to-case
Sec. 4. Additional Penalties. — Additional penalties shall be basis and on His Honor's sound discretion.
imposed as follows:
4. If, in the opinion of the court, probable cause exists, it may
1. In case the offender is a government official or employee issue the search warrant prayed for;
who allows the violations of Section I hereof, the penalty as provided
herein shall be imposed in the maximum period and, in addition, the 5. The proper suit is then brought in the court under Article
accessory penalties provided for in the Revised Penal Code, as 201 of the Revised Penal Code;
amended, shall likewise be imposed .40
6. Any conviction is subject to appeal. The appellate court
Under the Constitution, on the other hand: may assess whether or not the properties seized are indeed
"obscene".
SEC. 3. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and These do not foreclose, however, defenses under the Constitution
seizures of whatever nature and for any purpose shall not be or applicable statutes, or remedies against abuse of official power
violated, and no search warrant or warrant of arrest shall issue under the Civil Code" 47 or the Revised Penal code .48
except upon probable cause to be determined by the judge, or such
other responsible officer as may be authorized by law, after WHEREFORE, the petition is GRANTED. The decision of the
examination under oath or affirmation of the complainant and the respondent court is REVERSED and SET ASIDE. It appearing,
witnesses he may produce, and particularly describing the place to however, that the magazines subject of the search and seizure ave
be searched, and the persons or things to be seized. been destroyed, the Court declines to grant affirmative relief. To that
extent, the case is moot and academic.
It is basic that searches and seizures may be done only through a
judicial warrant, otherwise, they become unreasonable and subject SO ORDERED.
to challenge. In Burgos v. Chief of Staff, AFP, 43 We counter-
minded the orders of the Regional Trial Court authorizing the search
of the premises of We Forum and Metropolitan Mail, two Metro
Manila dailies, by reason of a defective warrant. We have greater
reason here to reprobate the questioned raid, in the complete
absence of a warrant, valid or invalid. The fact that the instant case
involves an obscenity rap makes it no different from Burgos, a
political case, because, and as we have indicated, speech is
speech, whether political or "obscene".

The Court is not ruling out warrantless searches, as the Rules of

Court (1964 rev.) (the Rules then prevailing), provide:

SEC. 12. Search without warrant of personarrested. — A person

charged with an offense may be searched for dangerous weapons
or anything which may be used as proof of the commission of the
offense.44

but as the provision itself suggests, the search must have been an
incident to a lawful arrest, and the arrest must be on account of a
crime committed. Here, no party has been charged, nor are such
charges being readied against any party, under Article 201, as
amended, of the Revised Penal Code.

We reject outright the argument that "[t]here is no constitutional nor

legal provision which would free the accused of all criminal
responsibility because there had been no warrant," 45 and that
"violation of penal law [must] be punished." 46 For starters, there is
no "accused" here to speak of, who ought to be "punished". Second,
to say that the respondent Mayor could have validly ordered the raid
(as a result of an anti-smut campaign) without a lawful search
warrant because, in his opinion, "violation of penal laws" has been
committed, is to make the respondent Mayor judge, jury, and
executioner rolled into one. And precisely, this is the very complaint
of the petitioner.

We make this resume.

1. The authorities must apply for the issuance of a search

warrant from a judge, if in their opinion, an obscenity rap is in order;

2. The authorities must convince the court that the materials

sought to be seized are "obscene", and pose a clear and present

NEW YORK V. FERBER, 458 U.S. 747 (1982)
Argued April 27, 1982
Decided July 2, 1982
458 U.S. 747
CERTIORARI TO THE COURT OF APPEALS OF NEW YORK
Syllabus
A New York statute prohibits persons from knowingly promoting a
sexual performance by a child under the age of 16 by distributing
material which depicts such a performance. The statute defines
"sexual performance" as any performance that includes sexual
conduct by such a child, and "sexual conduct" is in turn defined as
actual or simulated sexual intercourse, deviate sexual intercourse,
sexual bestiality, masturbation, sado-masochistic abuse, or lewd
exhibition of the genitals. Respondent bookstore proprietor was
convicted under the statute for selling films depicting young boys
masturbating, and the Appellate Division of the New York Supreme
Court affirmed. The New York Court of Appeals reversed, holding
that the statute violated the First Amendment as being both
underinclusive and overbroad. The court reasoned that, in light of
the explicit inclusion of an obscenity standard in a companion
statute banning the knowing dissemination of similarly defined
material, the statute in question could not be construed to include
an obscenity standard, and therefore would prohibit the promotion
of materials traditionally entitled to protection under the First
Amendment.
Held: As applied to respondent and others who distribute similar
material, the statute in question does not violate the First
Amendment as applied to the States through the Fourteenth
Amendment. Pp. 458 U. S. 753-774.
(a) The States are entitled to greater leeway in the regulation of
pornographic depictions of children for the following reasons: (1) the
legislative judgment that the use of children as subjects of
pornographic materials is harmful to the physiological, emotional,
and mental health of the child easily passes muster under the First
Amendment; (2) the standard of Miller v. California, 413 U. S. 15,
for determining what is legally obscene is not a satisfactory solution
to the child pornography problem; (3) the advertising and selling of
child pornography provide an economic motive for, and are thus an
integral part of, the production of such materials, an activity illegal
throughout the Nation; (4) the value of permitting live performances
and photographic reproductions of children engaged in lewd
exhibitions is exceedingly modest, if not de minimis; and (5)
recognizing and classifying child pornography as a category of
material outside the First Amendment's protection is not
incompatible with this Court's decisions dealing with what speech is
unprotected. When a definable class of material, such as that
covered by the New
Page 458 U. S. 748
York statute, bears so heavily and pervasively on the welfare of
children engaged in its production, the balance of competing
interests is clearly struck, and it is permissible to consider these
materials as without the First Amendment's protection. Pp. 458 U.
S. 756-764.
(b) The New York statute describes a category of material the
production and distribution of which is not entitled to First
Amendment protection. Accordingly, there is nothing
unconstitutionally "underinclusive" about the statute, and the State
is not barred by the First Amendment from prohibiting the
distribution of such unprotected materials produced outside the
State. Pp. 458 U. S. 764-766.
CONSTI LAW II I ACJUCO 313
(c) Nor is the New York statute unconstitutionally overbroad as
forbidding the distribution of material with serious literary, scientific,
or educational value. The substantial overbreadth rule of Broadrick
v. Oklahoma, 413 U. S. 601, applies. This is the paradigmatic case
of a state statute whose legitimate reach dwarfs its arguably
impermissible applications.
"[W]hatever overbreadth may exist should be cured through case-
by-case analysis of the fact situations to which [the statute's]
sanctions, assertedly, may not be applied."
Broadrick v. Oklahoma, supra, at 413 U. S. 615-616. Pp. 458 U. S.
766-774.
52 N.Y.2d 674, 422 N.E.2d 523, reversed and remanded.
WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and POWELL, REHNQUIST, and O'CONNOR, JJ., joined.
O'CONNOR, J., filed a concurring opinion, post, p. 458 U. S. 774.
BRENNAN, J., filed an opinion concurring in the judgment, in which
MARSHALL, J., joined, post, p. 458 U. S. 775. BLACKMUN, J.,
concurred in the result. STEVENS, J., filed an opinion concurring in
the judgment, post, p. 458 U. S. 777.
Page 458 U. S. 749
JUSTICE WHITE delivered the opinion of the Court.
At issue in this case is the constitutionality of a New York criminal
statute which prohibits persons from knowingly promoting sexual
performances by children under the age of 16 by distributing
material which depicts such performances.
I
In recent years, the exploitive use of children in the production of
pornography has become a serious national problem. [Footnote 1]
The Federal Government and 47 States have sought to combat the
problem with statutes specifically directed at the production of child
pornography. At least half of such statutes do not require that the
materials produced be legally obscene. Thirty-five States and the
United States Congress have also passed legislation prohibiting the
distribution of such materials; 20 States prohibit the distribution of
material depicting children engaged in sexual conduct without
requiring that the material be legally obscene. [Footnote 2]
Page 458 U. S. 750
New York is one of the 20. In 1977, the New York Legislature
enacted Article 263 of its Penal Law. N.Y.Penal Law, Art. 263
(McKinney 1980). Section 263.05 criminalizes as a class C felony
the use of a child in a sexual performance:
"A person is guilty of the use of a child in a sexual performance if
knowing the character and content thereof he employs, authorizes
or induces a child less than sixteen years of age to engage in a
sexual performance or being a parent, legal guardian or custodian
of such child,
Page 458 U. S. 751
he consents to the participation by such child in a sexual
performance."
A "[s]exual performance" is defined as "any performance or part
thereof which includes sexual conduct by a child less than sixteen
years of age." § 263.00(1). "Sexual conduct" is in turn defined in §
263.00(3):

"'Sexual conduct' means actual or simulated sexual intercourse,
deviate sexual intercourse, sexual bestiality, masturbation, sado-
masochistic abuse, or lewd exhibition of the genitals."
A performance is defined as "any play, motion picture, photograph
or dance" or "any other visual representation exhibited before an
audience." § 263.00(4).
At issue in this case is § 263.15, defining a class D felony: [Footnote
3]
"A person is guilty of promoting a sexual performance by a child
when, knowing the character and content thereof, he produces,
directs or promotes any performance which includes sexual conduct
by a child less than sixteen years of age."
To "promote" is also defined:
"'Promote' means to procure, manufacture, issue, sell, give, provide,
lend, mail, deliver, transfer, transmute, publish, distribute, circulate,
disseminate, present, exhibit or advertise, or to offer or agree to do
the same."
§ 263.00(5). A companion provision bans only the knowing
dissemination of obscene material. § 263.10.
This case arose when Paul Ferber, the proprietor of a Manhattan
Page 458 U. S. 752
bookstore specializing in sexually oriented products, sold two films
to an undercover police officer. The films are devoted almost
exclusively to depicting young boys masturbating. Ferber was
indicted on two counts of violating § 263.10 and two counts of
violating § 263.15, the two New York laws controlling dissemination
of child pornography. [Footnote 4] After a jury trial, Ferber was
acquitted of the two counts of promoting an obscene sexual
performance, but found guilty of the two counts under § 263.15,
which did not require proof that the films were obscene. Ferber's
convictions were affirmed without opinion by the Appellate Division
of the New York State Supreme Court. 74 App.Div.2d 558, 424
N.Y.S.2d 967 (1980).
The New York Court of Appeals reversed, holding that § 263.15
violated the First Amendment. 52 N.Y.2d 674, 422 N.E.2d 523
(1981). The court began by noting that, in light of § 263.10's explicit
inclusion of an obscenity standard, § 263.15 could not be construed
to include such a standard. Therefore,
"the statute would . . . prohibit the promotion of materials which are
traditionally entitled to constitutional protection from government
interference under the First Amendment."
52 N.Y.2d at 678, 422 N.E.2d at 525. Although the court recognized
the State's "legitimate interest in protecting the welfare of minors"
and noted that this "interest may transcend First Amendment
concerns," id. at 679, 422 N.E.2d at 525-526, it nevertheless found
two fatal defects in the New York statute. Section 263.15 was
underinclusive because it discriminated against visual portrayals of
children engaged in sexual activity by not also prohibiting the
distribution of films of other dangerous activity. It was also
overbroad because it prohibited the distribution of materials
produced outside the State, as well as materials, such as medical
books and educational sources, which
Page 458 U. S. 753
"deal with adolescent sex in a realistic but nonobscene manner." 52
N.Y.2d at 681, 422 N.E.2d at 526. Two judges dissented. We
granted the State's petition for certiorari, 454 U.S. 1052 (1981),
presenting the single question:
CONSTI LAW II I ACJUCO 314
"To prevent the abuse of children who are made to engage in sexual
conduct for commercial purposes, could the New York State
Legislature, consistent with the First Amendment, prohibit the
dissemination of material which shows children engaged in sexual
conduct, regardless of whether such material is obscene?"
II
The Court of Appeals proceeded on the assumption that the
standard of obscenity incorporated in § 263.10, which follows the
guidelines enunciated in Miller v. California, 413 U. S. 15 (1973),
[Footnote 5] constitutes the appropriate line dividing protected from
unprotected expression by which to measure a regulation directed
at child pornography. It was on the premise that "nonobscene
adolescent sex" could not be singled out for special treatment that
the court found § 263.15 "strikingly underinclusive." Moreover, the
assumption that the constitutionally permissible regulation of
pornography could not be more extensive with respect to the
distribution of material depicting children may also have led the
court to conclude that a narrowing construction of § 263.15 was
unavailable.
The Court of Appeals' assumption was not unreasonable in light of
our decisions. This case, however, constitutes our first examination
of a statute directed at and limited to depictions of sexual activity
involving children. We believe our inquiry should begin with the
question of whether a State has somewhat more freedom in
proscribing works which portray sexual acts or lewd exhibitions of
genitalia by children.
Page 458 U. S. 754
A
In Chaplinsky v. New Hampshire, 315 U. S. 568 (1942), the Court
laid the foundation for the excision of obscenity from the realm of
constitutionally protected expression:
"There are certain well-defined and narrowly limited classes of
speech, the prevention and punishment of which have never been
thought to raise any Constitutional problem. These include the lewd
and obscene. . . . It has been well observed that such utterances
are no essential part of any exposition of ideas, and are of such
slight social value as a step to truth that any benefit that may be
derived from them is clearly outweighed by the social interest in
order and morality."
Id. at 315 U. S. 571-572 (footnotes omitted).
Embracing this judgment, the Court squarely held in Roth v. United
States, 354 U. S. 476 (1957), that "obscenity is not within the area
of constitutionally protected speech or press." Id. at 354 U. S. 485.
The Court recognized that "rejection of obscenity as utterly without
redeeming social importance" was implicit in the history of the First
Amendment: the original States provided for the prosecution of libel,
blasphemy, and profanity, and the
"universal judgment that obscenity should be restrained [is]
reflected in the international agreement of over 50 nations, in the
obscenity laws of all of the 48 states, and in the 20 obscenity laws
enacted by Congress from 1842 to 1956."
Id. at 354 U. S. 484-485 (footnotes omitted).
Roth was followed by 15 years during which this Court struggled
with "the intractable obscenity problem." Interstate Circuit, Inc. v.
Dallas, 390 U. S. 676, 390 U. S. 704 (1968) (opinion of Harlan, J.).
See, e.g., Redrup v. New York, 386 U. S. 767 (1967). Despite
considerable vacillation over the proper definition of obscenity, a
majority of the Members of the Court remained firm in the position
that

"the States have a legitimate interest in prohibiting dissemination or
exhibition of obscene material when the mode of dissemination
carries with it a significant danger of offending the sensibilities of
Page 458 U. S. 755
unwilling recipients or of exposure to juveniles."
Miller v. California, supra, at 413 U. S. 119 (footnote omitted);
Stanley v. Georgia, 394 U. S. 557, 394 U. S. 567 (1969); Ginsberg
v. New York, 390 U. S. 629, 390 U. S. 637-643 (1968); Interstate
Circuit, Inc. v. Dallas, supra, at 390 U. S. 690; Redrup v. New York,
supra, at 386 U. S. 769; Jacobellis v. Ohio, 378 U. S. 184, 378 U. S.
195 (1964).
Throughout this period, we recognized "the inherent dangers of
undertaking to regulate any form of expression." Miller v. California,
supra, at 413 U. S. 23. Consequently, our difficulty was not only to
assure that statutes designed to regulate obscene materials
sufficiently defined what was prohibited, but also to devise
substantive limits on what fell within the permissible scope of
regulation. In Miller v. California, supra, a majority of the Court
agreed that a
"state offense must also be limited to works which, taken as a whole,
appeal to the prurient interest in sex, which portray sexual conduct
in a patently offensive way, and which, taken as a whole, do not
have serious literary, artistic, political, or scientific value."
Id. at 413 U. S. 24. Over the past decade, we have adhered to the
guidelines expressed in Miller, [Footnote 6] which subsequently has
been followed in the regulatory schemes of most States. [Footnote
7]
Page 458 U. S. 756
B production of material which requires the sexual exploitation of
The Miller standard, like its predecessors, was an accommodation
between the State's interests in protecting the "sensibilities of
unwilling recipients" from exposure to pornographic material and the
dangers of censorship inherent in unabashedly content-based laws.
Like obscenity statutes, laws directed at the dissemination of child
pornography run the risk of suppressing protected expression by
allowing the hand of the censor to become unduly heavy. For the
following reasons, however, we are persuaded that the States are
entitled to greater leeway in the regulation of pornographic
depictions of children.
First. It is evident beyond the need for elaboration that a State's
interest in "safeguarding the physical and psychological
Page 458 U. S. 757
wellbeing of a minor" is "compelling." Globe Newspaper Co. v.
Superior Court, 457 U. S. 596, 457 U. S. 607 (1982). "A democratic
society rests, for its continuance, upon the healthy, well-rounded
growth of young people into full maturity as citizens." Prince v.
Massachusetts, 321 U. S. 158, 321 U. S. 168 (1944). Accordingly,
we have sustained legislation aimed at protecting the physical and
emotional wellbeing of youth even when the laws have operated in
the sensitive area of constitutionally protected rights. In Prince v.
Massachusetts, supra, the Court held that a statute prohibiting use
of a child to distribute literature on the street was valid
notwithstanding the statute's effect on a First Amendment activity.
In Ginsberg v. New York, supra, we sustained a New York law
protecting children from exposure to nonobscene literature. Most
recently, we held that the Government's interest in the "wellbeing of
its youth" justified special treatment of indecent broadcasting
CONSTI LAW II I ACJUCO 315
received by adults as well as children. FCC v. Pacifica Foundation,
438 U. S. 726 (1978).
The prevention of sexual exploitation and abuse of children
constitutes a government objective of surpassing importance. The
legislative findings accompanying passage of the New York laws
reflect this concern:
"[T]here has been a proliferation of exploitation of children as
subjects in sexual performances. The care of children is a sacred
trust and should not be abused by those who seek to profit through
a commercial network based upon the exploitation of children. The
public policy of the state demands the protection of children from
exploitation through sexual performances."
1977 N.Y.Laws, ch. 910, § 1. [Footnote 8]
Page 458 U. S. 758
We shall not second-guess this legislative judgment. Respondent
has not intimated that we do so. Suffice it to say that virtually all of
the States and the United States have passed legislation proscribing
the production of or otherwise combating "child pornography." The
legislative judgment, as well as the judgment found in the relevant
literature, is that the use of children as subjects of pornographic
materials is harmful to the physiological, emotional, and mental
health of the child. [Footnote 9] That judgment, we think, easily
passes muster under the First Amendment.
Page 458 U. S. 759
Second. The distribution of photographs and films depicting sexual
activity by juveniles is intrinsically related to the sexual abuse of
children in at least two ways. First, the materials produced are a
permanent record of the children's participation and the harm to the
child is exacerbated by their circulation. [Footnote 10] Second, the
distribution network for child pornography must be closed if the
children is to be effectively controlled. Indeed, there is no serious
contention that the legislature was unjustified in believing that it is
difficult, if
Page 458 U. S. 760
not impossible, to halt the exploitation of children by pursuing only
those who produce the photographs and movies. While the
production of pornographic materials is a low profile, clandestine
industry, the need to market the resulting products requires a visible
apparatus of distribution. The most expeditious, if not the only
practical, method of law enforcement may be to dry up the market
for this material by imposing severe criminal penalties on persons
selling, advertising, or otherwise promoting the product. Thirty-five
States and Congress have concluded that restraints on the
distribution of pornographic materials are required in order to
effectively combat the problem, and there is a body of literature and
testimony to support these legislative conclusions. [Footnote 11] Cf.
United States v. Darby, 312 U. S. 100 (1941) (upholding federal
restrictions on sale of goods manufactured in violation of Fair Labor
Standards Act).
Respondent does not contend that the State is unjustified in
pursuing those who distribute child pornography. Rather, he argues
that it is enough for the State to prohibit the distribution of materials
that are legally obscene under the Miller test. While some States
may find that this approach properly accommodates its interests, it
does not follow
Page 458 U. S. 761
that the First Amendment prohibits a State from going further. The
Miller standard, like all general definitions of what may be banned

as obscene, does not reflect the State's particular and more
compelling interest in prosecuting those who promote the sexual
exploitation of children. Thus, the question under the Miller test of
whether a work, taken as a whole, appeals to the prurient interest of
the average person bears no connection to the issue of whether a
child has been physically or psychologically harmed in the
production of the work. Similarly, a sexually explicit depiction need
not be "patently offensive" in order to have required the sexual
exploitation of a child for its production. In addition, a work which,
taken on the whole, contains serious literary, artistic, political, or
scientific value may nevertheless embody the hardest core of child
pornography. "It is irrelevant to the child [who has been abused]
whether or not the material . . . has a literary, artistic, political or
social value." Memorandum of Assemblyman Lasher in Support of
§ 263.15. We therefore cannot conclude that the Miller standard is
a satisfactory solution to the child pornography problem. [Footnote
12]
Third. The advertising and selling of child pornography provide an
economic motive for, and are thus an integral part of, the production
of such materials, an activity illegal throughout the Nation. [Footnote
13]
"It rarely has been suggested that
Page 458 U. S. 762
the constitutional freedom for speech and press extends its
immunity to speech or writing used as an integral part of conduct in
violation of a valid criminal statute."
Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 336 U. S. 498
(1949). [Footnote 14] We note that, were the statutes outlawing the
employment of children in these films and photographs fully
effective, and the constitutionality of these laws has not been
questioned, the First Amendment implications would be no greater
than that presented by laws against distribution: enforceable
production laws would leave no child pornography to be marketed.
[Footnote 15]
Fourth. The value of permitting live performances and photographic
reproductions of children engaged in lewd sexual conduct is
exceedingly modest, if not de minimis. We consider it unlikely that
visual depictions of children performing sexual acts or lewdly
exhibiting their genitals would often constitute an important and
necessary part of a literary performance
Page 458 U. S. 763
or scientific or educational work. As a state judge in this case
observed, if it were necessary for literary or artistic value, a person
over the statutory age who perhaps looked younger could be
utilized. [Footnote 16] Simulation outside of the prohibition of the
statute could provide another alternative. Nor is there any question
here of censoring a particular literary theme or portrayal of sexual
activity. The First Amendment interest is limited to that of rendering
the portrayal somewhat more "realistic" by utilizing or photographing
children.
Fifth. Recognizing and classifying child pornography as a category
of material outside the protection of the First Amendment is not
incompatible with our earlier decisions. "The question whether
speech is, or is not, protected by the First Amendment often
depends on the content of the speech." Young v. American Mini
Theatres, Inc., 427 U. S. 50, 427 U. S. 66 (1976) (opinion of
STEVENS, J., joined by BURGER, C.J., and WHITE and
REHNQUIST JJ.). See also FCC v. Pacifica Foundation, 438 U. S.
726, 438 U. S. 742-748 (1978) (opinion of STEVENS, J., joined by
BURGER, C.J., and REHNQUIST, J.). "[I]t is the content of [an]
utterance that determines whether it is a protected epithet or an
unprotected fighting comment.'" Young v. American Mini Theatres,
CONSTI LAW II I ACJUCO 316
Inc., supra, at 427 U. S. 66. See Chaplinsky v. New Hampshire, 315
U. S. 568 (1942). Leaving aside the special considerations when
public officials are the target, New York Times Co. v. Sullivan, 376
U. S. 254 (1964), a libelous publication is not protected by the
Constitution. Beauharnais v. Illinois, 343 U. S. 250 (1952). Thus, it
is not rare that a content-based classification of speech has been
accepted because it may be appropriately generalized that within
the confines of the given classification, the evil to be restricted so
overwhelmingly outweighs
Page 458 U. S. 764
the expressive interests, if any, at stake, that no process of case-
by-case adjudication is required. When a definable class of material,
such as that covered by § 263.15, bears so heavily and pervasively
on the welfare of children engaged in its production, we think the
balance of competing interests is clearly struck, and that it is
permissible to consider these materials as without the protection of
the First Amendment.
C
There are, of course, limits on the category of child pornography
which, like obscenity, is unprotected by the First Amendment. As
with all legislation in this sensitive area, the conduct to be prohibited
must be adequately defined by the applicable state law, as written
or authoritatively construed. Here the nature of the harm to be
combated requires that the state offense be limited to works that
visually depict sexual conduct by children below a specified age.
[Footnote 17] The category of "sexual conduct" proscribed must
also be suitably limited and described.
The test for child pornography is separate from the obscenity
standard enunciated in Miller, but may be compared to it for the
purpose of clarity. The Miller formulation is adjusted in the following
respects: a trier of fact need not find that the material appeals to the
prurient interest of the average person; it is not required that sexual
conduct portrayed be done so in a patently offensive manner; and
the material at issue need not be considered as a whole. We note
that the distribution
Page 458 U. S. 765
of descriptions or other depictions of sexual conduct, not otherwise
obscene, which do not involve live performance or photographic or
other visual reproduction of live performances, retains First
Amendment protection. As with obscenity laws, criminal
responsibility may not be imposed without some element of scienter
on the part of the defendant. Smith v. California, 361 U. S. 147
(1959); Hamling v. United States, 418 U. S. 87 (1974).
D
Section 263.15's prohibition incorporates a definition of sexual
conduct that comports with the above-stated principles. The
forbidden acts to be depicted are listed with sufficient precision and
represent the kind of conduct that, if it were the theme of a work,
could render it legally obscene:
"actual or simulated sexual intercourse, deviate sexual intercourse,
sexual bestiality, masturbation, sado-masochistic abuse, or lewd
exhibition of the genitals."
§ 263.00(3). The term "lewd exhibition of the genitals" is not
unknown in this area and, indeed, was given in Miller as an example
of a permissible regulation. 413 U.S. at 413 U. S. 25. A performance
is defined only to include live or visual depictions: "any play, motion
picture, photograph or dance . . . [or] other visual representation
exhibited before an audience." § 263.00(4). Section 263.15
expressly includes a scienter requirement.

We hold that § 263.15 sufficiently describes a category of material
the production and distribution of which is not entitled to First
Amendment protection. It is therefore clear that there is nothing
unconstitutionally "underinclusive" about a statute that singles out
this category of material for proscription. [Footnote 18] It also follows
that the State is not barred by
Page 458 U. S. 766
the First Amendment from prohibiting the distribution of unprotected
materials produced outside the State. [Footnote 19]
III
It remains to address the claim that the New York statute is
unconstitutionally overbroad because it would forbid the distribution
of material with serious literary, scientific, or educational value or
material which does not threaten the harms sought to be combated
by the State. Respondent prevailed on that ground below, and it is
to that issue that we now turn.
The New York Court of Appeals recognized that overbreadth
scrutiny has been limited with respect to conduct-related regulation,
Broadrick v. Oklahoma, 413 U. S. 601 (1973), but it did not apply
the test enunciated in Broadrick because the challenged statute, in
its view, was directed at "pure speech." The court went on to find
that § 263.15 was fatally overbroad:
"[T]he statute would prohibit the showing of any play or movie in
which a child portrays a defined sexual act, real or simulated, in a
nonobscene manner. It would also prohibit the sale, showing, or
distributing of medical or educational materials containing
photographs of such acts.
Page 458 U. S. 767
Indeed, by its terms, the statute would prohibit those who oppose
such portrayals from providing illustrations of what they oppose."
52 N.Y.2d at 678, 422 N.E.2d at 525.
While the construction that a state court gives a state statute is not
a matter subject to our review, Wainwright v. Stone, 414 U. S. 21,
414 U. S. 22-23 (1973); Gooding v. Wilson, 405 U. S. 518, 405 U.
S. 520 (1972), this Court is the final arbiter of whether the Federal
Constitution necessitated the invalidation of a state law. It is only
through this process of review that we may correct erroneous
applications of the Constitution that err on the side of an overly
broad reading of our doctrines and precedents, as well as state court
decisions giving the Constitution too little shrift. A state court is not
free to avoid a proper facial attack on federal constitutional grounds.
Bigelow v. Virginia, 421 U. S. 809, 421 U. S. 817 (1975). By the
same token, it should not be compelled to entertain an overbreadth
attack when not required to do so by the Constitution.
A In Broadrick, we explained the basis for this requirement:
The traditional rule is that a person to whom a statute may
constitutionally be applied may not challenge that statute on the
ground that it may conceivably be applied unconstitutionally to
others in situations not before the Court. Broadrick v. Oklahoma,
supra, at 413 U. S. 610; United States v. Raines, 362 U. S. 17, 362
U. S. 21 (1960); Carmichael v. Southern Coal & Coke Co., 301 U.
S. 495, 301 U. S. 513 (1937); Yazoo & M. V. R. Co. v. Jackson
Vinegar Co., 226 U. S. 217, 226 U. S. 219-220 (1912). In Broadrick,
we recognized that this rule reflects two cardinal principles of our
constitutional order: the personal nature of constitutional rights,
McGowan v. Maryland, 366 U. S. 420, 366 U. S. 429 (1961), and
prudential limitations on constitutional adjudication. [Footnote 20] In
United States v. Raines, supra, at 362 U. S. 21, we
Page 458 U. S. 768
CONSTI LAW II I ACJUCO 317
noted the "incontrovertible proposition" that it
"'would indeed be undesirable for this Court to consider every
conceivable situation which might possibly arise in the application
of complex and comprehensive legislation,'"
(quoting Barrows v. Jackson, 346 U. S. 249, 346 U. S. 256 (1953)).
By focusing on the factual situation before us, and similar cases
necessary for development of a constitutional rule, [Footnote 21] we
face "flesh-and-blood" [Footnote 22] legal problems with data
"relevant and adequate to an informed judgment." [Footnote 23]
This practice also fulfills a valuable institutional purpose: it allows
state courts the opportunity to construe a law to avoid constitutional
infirmities.
What has come to be known as the First Amendment overbreadth
doctrine is one of the few exceptions to this principle, and must be
justified by "weighty countervailing policies." United States v.
Raines, supra, at 362 U. S. 223. The doctrine is predicated on the
sensitive nature of protected expression:
"persons whose expression is constitutionally protected may well
refrain from exercising their rights for fear of criminal sanctions by a
statute susceptible of application to protected expression."
Village of Schaumburg v.
Page 458 U. S. 769
Citizens for a Better Environment, 444 U. S. 620, 444 U. S. 634
(1980); Gooding v. Wilson, supra, at 405 U. S. 521. It is for this
reason that we have allowed persons to attack overly broad statutes
even though the conduct of the person making the attack is clearly
unprotected, and could be proscribed by a law drawn with the
requisite specificity. Dombrowski v. Pfister, 380 U. S. 479, 380 U. S.
486 (1965); Thornhill v. Alabama, 310 U. S. 88, 310 U. S. 97-98
(1940); United States v. Raines, supra, at 362 U. S. 21-22; Gooding
v. Wilson, supra, at 405 U. S. 521.
The scope of the First Amendment overbreadth doctrine, like most
exceptions to established principles, must be carefully tied to the
circumstances in which facial invalidation of a statute is truly
warranted. Because of the wide-reaching effects of striking down a
statute on its face at the request of one whose own conduct may be
punished despite the First Amendment, we have recognized that the
overbreadth doctrine is "strong medicine," and have employed it
with hesitation, and then "only as a last resort." Broadrick, 413 U.S.
at 413 U. S. 613. We have, in consequence, insisted that the
overbreadth involved be "substantial" before the statute involved will
be invalidated on its face. [Footnote 24]
Page 458 U. S. 770
"[T]he plain import of our cases is, at the very least, that facial
overbreadth adjudication is an exception to our traditional rules of
practice, and that its function, a limited one at the outset, attenuates
as the otherwise unprotected behavior that it forbids the State to
sanction moves from 'pure speech' toward conduct, and that
conduct -- even if expressive -- falls within the scope of otherwise
valid criminal laws that reflect legitimate state interests in
maintaining comprehensive controls over harmful, constitutionally
unprotected conduct. Although such laws, if too broadly worded,
may deter protected speech to some unknown extent, there comes
a point where that effect -- at best a prediction -- cannot, with
confidence, justify invalidating a statute on its face, and so
prohibiting a State from enforcing the statute against conduct that is
admittedly within its power to proscribe. Cf. Aldelman v. United
States, 394 U. S. 165, 394 U. S. 174-175 (1969)."

Id. at 413 U. S. 615. We accordingly held that,
"particularly where conduct, and not merely speech, is involved, we
believe that the overbreadth of a statute must not only be real, but
substantial as well, judged in relation to the statute's plainly
legitimate sweep."
Ibid. [Footnote 25]
Page 458 U. S. 771
Broadrick examined a regulation involving restrictions on political
campaign activity, an area not considered "pure speech," and thus
it was unnecessary to consider the proper overbreadth test when a
law arguably reaches traditional forms of expression such as books
and films. As we intimated in Broadrick, the requirement of
substantial overbreadth extended "at the very least" to cases
involving conduct plus speech. This case, which poses the question
squarely, convinces us that the rationale of Broadrick is sound, and
should be applied in the present context involving the harmful
employment of children to make sexually explicit materials for
distribution.
The premise that a law should not be invalidated for overbreadth
unless it reaches a substantial number of impermissible applications
is hardly novel. On most occasions involving facial invalidation, the
Court has stressed the embracing sweep of the statute over
protected expression. [Footnote 26]
Page 458 U. S. 772
Indeed, JUSTICE BRENNAN observed in his dissenting opinion in
Broadrick:
"We have never held that a statute should be held invalid on its face
merely because it is possible to conceive of a single impermissible
application, and in that sense, a requirement of substantial
overbreadth is already implicit in the doctrine."
Id. at 413 U. S. 630. The requirement of substantial overbreadth is
directly derived from the purpose and nature of the doctrine. While
a sweeping statute, or one incapable of limitation, has the potential
to repeatedly chill the exercise of expressive activity by many
individuals, the extent of deterrence of protected speech can be
expected to decrease with the declining reach of the regulation.
[Footnote 27] This observation appears equally applicable to the
publication of books and films as it is to activities, such as picketing
or participation in election campaigns, which have previously been
categorized as involving conduct plus speech. We see no
appreciable difference between the position of a publisher or
bookseller in doubt as to the reach of New York's child pornography
law and the situation faced by the Oklahoma state employees with
respect to that State's restriction on partisan political activity.
Indeed, it could reasonably be argued that the bookseller, with an
economic incentive to sell materials that may fall within the statute's
scope, may be less likely to be deterred than the employee who
wishes to engage in political campaign activity. Cf. Bates v. State
Bar of Arizona, 433 U. S. 350, 433 U. S. 380-381 (1977)
(overbreadth analysis inapplicable to commercial speech).
This requirement of substantial overbreadth may justifiably be
applied to statutory challenges which arise in defense
Page 458 U. S. 773
of a criminal prosecution as well as civil enforcement or actions
seeking a declaratory judgment. Cf. Parker v. Levy, 417 U. S. 733,
417 U. S. 760 (1974). Indeed, the Court's practice when confronted
with ordinary criminal laws that are sought to be applied against
protected conduct is not to invalidate the law in toto, but rather to
CONSTI LAW II I ACJUCO 318
reverse the particular conviction. Cantwell v. Connecticut, 310 U. S.
296 (1940); Edwards v. South Carolina, 372 U. S. 229 (1973). We
recognize, however, that the penalty to be imposed is relevant in
determining whether demonstrable overbreadth is substantial. We
simply hold that the fact that a criminal prohibition is involved does
not obviate the need for the inquiry or a priori warrant a finding of
substantial overbreadth.
Applying these principles, we hold that § 263.15 is not substantially
overbroad. We consider this the paradigmatic case of a state statute
whose legitimate reach dwarfs its arguably impermissible
applications. New York, as we have held, may constitutionally
prohibit dissemination of material specified in § 263.15. While the
reach of the statute is directed at the hard core of child pornography,
the Court of Appeals was understandably concerned that some
protected expression, ranging from medical textbooks to pictorials
in the National Geographic would fall prey to the statute. How often,
if ever, it may be necessary to employ children to engage in conduct
clearly within the reach of § 263.15 in order to produce educational,
medical, or artistic works cannot be known with certainty. Yet we
seriously doubt, and it has not been suggested, that these arguably
impermissible applications of the statute amount to more than a tiny
fraction of the materials within the statute's reach. Nor will we
assume that the New York courts will widen the possibly invalid
reach of the statute by giving an expansive construction to the
proscription on "lewd exhibition[s] of the genitals." Under these
circumstances, § 263.15 is
"not substantially overbroad, and . . . whatever overbreadth may
exist
Page 458 U. S. 774
should be cured through case-by-case analysis of the fact situations
to which its sanctions, assertedly, may not be applied."
Broadrick v. Oklahoma, 413 U.S. at 413 U. S. 615-616.
IV
Because § 263.15 is not substantially overbroad, it is unnecessary
to consider its application to material that does not depict sexual
conduct of a type that New York may restrict consistent with the First
Amendment. As applied to Paul Ferber and to others who distribute
similar material, the statute does not violate the First Amendment
as applied to the States through the Fourteenth. [Footnote 28] The
judgment of the New York Court of Appeals is reversed, and the
case is remanded to that court for further proceedings not
inconsistent with this opinion.
So ordered.
JUSTICE BLACKMUN concurs in the result.

RENO V. AMERICAN CIVIL LIBERTIES UNION (96-511)
Argued: March 19, 1997
Decided: June 26, 1997
Syllabus
Two provisions of the Communications Decency Act of 1996 (CDA
or Act) seek to protect minors from harmful material on the Internet,
an international network of interconnected computers that enables
millions of people to communicate with one another in "cyberspace"
and to access vast amounts of information from around the world.
Title 47 U. S. C. A. § 223(a)(1)(B)(ii) (Supp. 1997) criminalizes the
"knowing" transmission of "obscene or indecent" messages to any
recipient under 18 years of age. Section 223(d) prohibits the
"knowin[g]" sending or displaying to a person under 18 of any
message "that, in context, depicts or describes, in terms patently
offensive as measured by contemporary community standards,
sexual or excretory activities or organs." Affirmative defenses are
provided for those who take "good faith, . . . effective . . . actions" to
restrict access by minors to the prohibited communications, §
223(e)(5)(A), and those who restrict such access by requiring
certain designated forms of age proof, such as a verified credit card
or an adult identification number, § 223(e)(5)(B). A number of
plaintiffs filed suit challenging the constitutionality of §§ 223(a)(1)
and 223(d). After making extensive findings of fact, a three judge
District Court convened pursuant to the Act entered a preliminary
injunction against enforcement of both challenged provisions. The
court's judgment enjoins the Government from enforcing §
223(a)(1)(B)'s prohibitions insofar as they relate to "indecent"
communications, but expressly preserves the Government's right to
investigate and prosecute the obscenity or child pornography
activities prohibited therein. The injunction against enforcement of §
223(d) is unqualified because that section contains no separate
reference to obscenity or child pornography. The Government
appealed to this Court under the Act's special review provisions,
arguing that the District Court erred in holding that the CDA violated
both the First Amendment because it is overbroad and the Fifth
Amendment because it is vague.
Held: The CDA's "indecent transmission" and "patently offensive
display" provisions abridge "the freedom of speech" protected by
the First Amendment. Pp. 17-40.
(a) Although the CDA's vagueness is relevant to the First
Amendment overbreadth inquiry, the judgment should be affirmed
without reaching the Fifth Amendment issue. P. 17.
(b) A close look at the precedents relied on by the Government--
Ginsberg v. New York, 390 U.S. 629; FCC v. Pacifica Foundation,
438 U.S. 726; and Renton v. Playtime Theatres, Inc., 475 U.S. 41--
raises, rather than relieves, doubts about the CDA's
constitutionality. The CDA differs from the various laws and orders
upheld in those cases in many ways, including that it does not allow
parents to consent to their children's use of restricted materials; is
not limited to commercial transactions; fails to provide any definition
of "indecent" and omits any requirement that "patently offensive"
material lack socially redeeming value; neither limits its broad
categorical prohibitions to particular times nor bases them on an
evaluation by an agency familiar with the medium's unique
characteristics; is punitive; applies to a medium that, unlike radio,
receives full First Amendment protection; and cannot be properly
analyzed as a form of time, place, and manner regulation because
it is a content based blanket restriction on speech. These
precedents, then, do not require the Court to uphold the CDA and
are fully consistent with the application of the most stringent review
of its provisions. Pp. 17-21.
(c) The special factors recognized in some of the Court's cases as
justifying regulation of the broadcast media--the history of extensive
CONSTI LAW II I ACJUCO 319
government regulation of broadcasting, see, e.g., Red Lion
Broadcasting Co. v. FCC, 395 U.S. 367, 399-400; the scarcity of
available frequencies at its inception, see, e.g., Turner Broadcasting
System, Inc. v. FCC, 512 U.S. 622, 637-638; and its "invasive"
nature, see Sable Communications of Cal., Inc. v. FCC, 492 U.S.
115, 128--are not present in cyberspace. Thus, these cases provide
no basis for qualifying the level of First Amendment scrutiny that
should be applied to the Internet. Pp. 22-24.
(d) Regardless of whether the CDA is so vague that it violates the
Fifth Amendment, the many ambiguities concerning the scope of its
coverage render it problematic for First Amendment purposes. For
instance, its use of the undefined terms "indecent" and "patently
offensive" will provoke uncertainty among speakers about how the
two standards relate to each other and just what they mean. The
vagueness of such a content based regulation, see, e.g., Gentile v.
State Bar of Nev., 501 U.S. 1030, coupled with its increased
deterrent effect as a criminal statute, see, e.g., Dombrowski v.
Pfister, 380 U.S. 479, raise special First Amendment concerns
because of its obvious chilling effect on free speech. Contrary to the
Government's argument, the CDA is not saved from vagueness by
the fact that its "patently offensive" standard repeats the second part
of the three prong obscenity test set forth in Miller v. California, 413
U.S. 15, 24. The second Miller prong reduces the inherent
vagueness of its own "patently offensive" term by requiring that the
proscribed material be "specifically defined by the applicable state
law." In addition, the CDA applies only to "sexual conduct," whereas,
the CDA prohibition extends also to "excretory activities" and
"organs" of both a sexual and excretory nature. Each of Miller's
other two prongs also critically limits the uncertain sweep of the
obscenity definition. Just because a definition including three
limitations is not vague, it does not follow that one of those
limitations, standing alone, is not vague. The CDA's vagueness
undermines the likelihood that it has been carefully tailored to the
congressional goal of protecting minors from potentially harmful
materials. Pp. 24-28.
(e) The CDA lacks the precision that the First Amendment requires
when a statute regulates the content of speech. Although the
Government has an interest in protecting children from potentially
harmful materials, see, e.g., Ginsberg, 390 U. S., at 639, the CDA
pursues that interest by suppressing a large amount of speech that
adults have a constitutional right to send and receive, see, e.g.,
Sable, supra, at 126. Its breadth is wholly unprecedented. The
CDA's burden on adult speech is unacceptable if less restrictive
alternatives would be at least as effective in achieving the Act's
legitimate purposes. See, e.g., Sable, 492 U. S., at 126. The
Government has not proved otherwise. On the other hand, the
District Court found that currently available user based software
suggests that a reasonably effective method by which parents can
prevent their children from accessing material which the parents
believe is inappropriate will soon be widely available. Moreover, the
arguments in this Court referred to possible alternatives such as
requiring that indecent material be "tagged" to facilitate parental
control, making exceptions for messages with artistic or educational
value, providing some tolerance for parental choice, and regulating
some portions of the Internet differently than others. Particularly in
the light of the absence of any detailed congressional findings, or
even hearings addressing the CDA's special problems, the Court is
persuaded that the CDA is not narrowly tailored. Pp. 28-33.
(f) The Government's three additional arguments for sustaining the
CDA's affirmative prohibitions are rejected. First, the contention that
the Act is constitutional because it leaves open ample "alternative
channels" of communication is unpersuasive because the CDA
regulates speech on the basis of its content, so that a "time, place,
and manner" analysis is inapplicable. See, e.g., Consolidated
Edison Co. of N. Y. v. Public Serv. Comm'n of N. Y., 447 U.S. 530,
536. Second, the assertion that the CDA's "knowledge" and
"specific person" requirements significantly restrict its permissible
application to communications to persons the sender knows to be
 CONSTI LAW II I ACJUCO 320

under 18 is untenable, given that most Internet forums are open to

all comers and that even the strongest reading of the "specific
person" requirement would confer broad powers of censorship, in
the form of a "heckler's veto," upon any opponent of indecent
speech. Finally, there is no textual support for the submission that
material having scientific, educational, or other redeeming social
value will necessarily fall outside the CDA's prohibitions. Pp. 33-35.

(g) The § 223(e)(5) defenses do not constitute the sort of "narrow

tailoring" that would save the CDA. The Government's argument
that transmitters may take protective "good faith actio[n]" by
"tagging" their indecent communications in a way that would
indicate their contents, thus permitting recipients to block their
reception with appropriate software, is illusory, given the
requirement that such action be "effective": The proposed screening
software does not currently exist, but, even if it did, there would be
no way of knowing whether a potential recipient would actually block
the encoded material. The Government also failed to prove that §
223(b)(5)'s verification defense would significantly reduce the CDA's
heavy burden on adult speech. Although such verification is actually
being used by some commercial providers of sexually explicit
material, the District Court's findings indicate that it is not
economically feasible for most noncommercial speakers. Pp. 35-37.

(h) The Government's argument that this Court should preserve the
CDA's constitutionality by honoring its severability clause, § 608,
and by construing nonseverable terms narrowly, is acceptable in
only one respect. Because obscene speech may be banned totally,
see Miller, supra, at 18, and § 223(a)'s restriction of "obscene"
material enjoys a textual manifestation separate from that for
"indecent" material, the Court can sever the term "or indecent" from
the statute, leaving the rest of § 223(a) standing. Pp. 37-39.

(i) The Government's argument that its "significant" interest in

fostering the Internet's growth provides an independent basis for
upholding the CDA's constitutionality is singularly unpersuasive.
The dramatic expansion of this new forum contradicts the factual
basis underlying this contention: that the unregulated availability of
"indecent" and "patently offensive" material is driving people away
from the Internet. P. 40.

929 F. Supp. 824, affirmed.

Stevens, J., delivered the opinion of the Court, in which Scalia,

Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined.
O'Connor, J., filed an opinion concurring in the judgment in part and
dissenting in part, in which Rehnquist, C. J., joined
 CONSTI LAW II I ACJUCO 321

UNITED STATES v. WILLIAMS, (2008)
No. 06-694
Argued: October 30, 2007 Decided: May 19, 2008
After this Court found facially overbroad a federal statutory provision
criminalizing the possession and distribution of material pandered
as child pornography, regardless of whether it actually was that,
Ashcroft v. Free Speech Coalition, 535 U. S. 234, Congress passed
the pandering and solicitation provision at issue, 18 U. S. C.
§2252A(a)(3)(B). Respondent Williams pleaded guilty to this offense
and others, but reserved the right to challenge his pandering
conviction's constitutionality. The District Court rejected his
challenge, but the Eleventh Circuit reversed, finding the statute both
overbroad under the First Amendment and impermissibly vague
under the Due Process Clause.
Held:
overbroad because it is unclear whether it regulates a substantial
amount of protected speech. Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U. S. 489, 494-495, and nn. 6 and 7. The Eleventh
Circuit mistakenly believed that "in a manner that reflects the belief"
and "in a manner ... that is intended to cause another to believe"
were vague and standardless phrases that left the public with no
objective measure of conformance. What renders a statute vague,
however, is not the possibility that it will sometimes be difficult to
determine whether the incriminating fact it establishes has been
proved; but rather the indeterminacy of what that fact is. See, e.g.,
Coates v. Cincinnati, 402 U. S. 611, 614. There is no such
indeterminacy here. The statute's requirements are clear questions
of fact. It may be difficult in some cases to determine whether the
requirements have been met, but courts and juries every day pass
upon the reasonable import of a defendant's statements and upon
"knowledge, belief and intent." American Communications Assn. v.
Douds, 339 U. S. 382, 411. Pp. 18-21.

1. Section 2252A(a)(3)(B) is not overbroad under the First 444 F. 3d 1286, reversed.
Amendment. Pp. 6-18.
SCALIA, J., delivered the opinion of the Court, in which
(a) A statute is facially invalid if it prohibits a substantial ROBERTS, C. J., and STEVENS, KENNEDY, THOMAS, BREYER,
amount of protected speech. Section 2252A(a)(3)(B) generally and ALITO, JJ., joined. STEVENS, J., filed a concurring opinion, in
prohibits offers to provide and requests to obtain child pornography. which BREYER, J., joined. SOUTER, J., filed a dissenting opinion,
It targets not the underlying material, but the collateral speech in which GINSBURG, J., joined.
introducing such material into the child-pornography distribution
network. Its definition of material or purported material that may not
be pandered or solicited precisely tracks the material held
constitutionally proscribable in New York v. Ferber, 458 U. S. 747,
and Miller v. California, 413 U. S. 15: obscene material depicting
(actual or virtual) children engaged in sexually explicit conduct, and
any other material depicting actual children engaged in sexually
explicit conduct. The statute's important features include: (1) a
scienter requirement; (2) operative verbs that are reasonably read
to penalize speech that accompanies or seeks to induce a child
pornography transfer from one person to another; (3) a phrase--"in
a manner that reflects the belief," ibid.--that has both the subjective
component that the defendant must actually have held the "belief"
that the material or purported material was child pornography, and
the objective component that the statement or action must manifest
that belief; (4) a phrase--"in a manner ... that is intended to cause
another to believe," ibid --that has only the subjective element that
the defendant must "intend" that the listener believe the material to
be child pornography; and (5) a "sexually explicit conduct" definition
that is very similar to that in the New York statute upheld in Ferber.
Pp. 6-11.

(b) As thus construed, the statute does not criminalize a

substantial amount of protected expressive activity. Offers to
engage in illegal transactions are categorically excluded from First
Amendment protection. E.g., Pittsburgh Press Co. v. Pittsburgh
Comm'n on Human Relations, 413 U. S. 376, 388. The Eleventh
Circuit mistakenly believed that this exclusion extended only to
commercial offers to provide or receive contraband. The exclusion's
rationale, however, is based not on the less privileged status of
commercial speech, but on the principle that offers to give or receive
what it is unlawful to possess have no social value and thus enjoy
no First Amendment protection. The constitutional defect in Free
Speech Coalition's pandering provision was that it went beyond
pandering to prohibit possessing material that could not otherwise
be proscribed. The Eleventh Circuit's erroneous conclusion led it to
apply strict scrutiny to §2252A(a)(3)(B), lodging three fatal
objections that lack merit. Pp. 11-18.

2. Section 2252A(a)(3)(B) is not impermissibly vague under the

Due Process Clause. A conviction fails to comport with due process
if the statute under which it is obtained fails to provide a person of
ordinary intelligence fair notice of what is prohibited, or is so
standardless that it authorizes or encourages seriously
discriminatory enforcement. Hill v. Colorado, 530 U. S. 703, 732. In
the First Amendment context plaintiffs may argue that a statute is

FREEDOM OF THE PRESS
A.M. No. 93-2-037 SC April 6, 1995
IN RE Emil (Emiliano) P. JURADO Ex Rel.: Philippine Long
Distance Telephone Company (PLDT), per its First Vice-
President, Mr. Vicente R. Samson, appellant,
NARVASA, C.J.:
Liability for published statements demonstrably false or misleading,
and derogatory of the courts and individual judges, is what is
involved in the proceeding at bar — than which, upon its facts, there
is perhaps no more appropriate setting for an inquiry into the limits
of press freedom as it relates to public comment about the courts
and their workings within a constitutional order.
1. Basic Postulates
To resolve the issue raised by those facts, application of fairly
elementary and self-evident postulates is all that is needed, these
being:
1) that the utterance or publication by a person of falsehood
or half-truths, or of slanted or distorted versions of facts — or
accusations which he made no bona fide effort previously to verify,
and which he does not or disdains to prove — cannot be justified as
a legitimate exercise of the freedom of speech and of the press
guaranteed by the Constitution, and cannot be deemed an activity
shielded from sanction by that constitutional guaranty;
2) that such utterance or publication is also violative of "The
Philippine Journalist's Code of Ethics" which inter alia commands
the journalist to "scrupulously report and interpret the news, taking
care not to suppress essential facts nor to distort the truth by
improper omission or emphasis," and makes it his duty "to air the
other side and to correct substantive errors promptly;" 1
3) that such an utterance or publication, when it is offensive
to the dignity and reputation of a Court or of the judge presiding over
it or degrades or tends to place the courts in disrepute and disgrace
or otherwise to debase the administration of justice, constitutes
contempt of court and is punishable as such after due proceedings;
and
4) that prescinding from the obvious proposition that any
aggrieved party may file a complaint to declare the utterer or writer
in contempt, the initiation of appropriate contempt proceedings
against the latter by the court is not only its prerogative but indeed
its duty, imposed by the overmastering need to preserve and protect
its authority and the integrity, independence and dignity of the
nation's judicial system.
2. Antecedents
This proceeding treats of Emiliano P. Jurado, a journalist who writes
in a newspaper of general circulation, the "Manila Standard." He
describes himself as a columnist, who "incidentally happens to be a
lawyer," remarking that while he values his membership in the law
profession, "such membership is neither a critical nor indispensable
adjunct in the exercise of his occupation as a newspaperman." 2 His
column in the "Manila Standard" is entitled "Opinion."
Jurado had been writing about alleged improperties and
irregularities in the judiciary over several months (from about
October, 1992 to March, 1993). Other journalists had also been
making reports or comments on the same subject. At the same time,
anonymous communications were being extensively circulated, by
hand and through the mail, about alleged venality and corruption in
CONSTI LAW II I ACJUCO 322
the courts. And all these were being repeatedly and insistently
adverted to by certain sectors of society.
In light of these abnormal developments, the Chief Justice took an
extraordinary step. He issued Administrative Order No. 11-93 dated
January 25, 1993, "Creating an Ad Hoc Committee to Investigate
Reports of Corruption in the Judiciary," 3 reading as follows:
WHEREAS, the Court's attention has been drawn to the many and
persistent rumors and unverified reports respecting corruption in the
judiciary, said rumors and reports not only having been mentioned
by media and in anonymous communications, but having also been
adverted to by certain government officials and civic leaders.
NOW, THEREFORE, by authority of the Court, an Ad Hoc
committee is hereby constituted composed of Chief Justice Andres
R. Narvasa, as Chairman, and former Justices of the Court, Hon.
Lorenzo Relova and Hon. Ameurfina A. Melencio-Herrera, as
Members, which shall seek to ascertain the truth respecting said
reports and statements, and to this end, forthwith interview at
closed-door sessions or otherwise, such persons as may appear to
it to have some knowledge of the matter and who may be appealed
to to share that knowledge with the Court, and otherwise gather
such evidence as may be available. The Committee is hereby
authorized to use such facilities and personnel of the court as may
be necessary or convenient in the fulfillment of its assigned mission,
and shall submit its report to the Court within thirty (30) days.
Material to the present inquiry are Jurado's published statements
from late 1992 to the middle of February, 1993.
1. In his column of October 21, 1992, he wrote of "(j)udges
in a number of regional trial courts in Metro Manila (who) have
become so notorious in their dealings with litigants and lawyers that
they are now called the "Magnificent Seven."" He stated that "(i)t
has come to a point where lawyers and litigants try their darndest to
stay away from these judges. The answer, of course, is obvious."
2. In his February 3, 1993 column, he adverted to another
group, also named "Magnificent Seven," which, he said, should be
distinguished from the first. He wrote: "When lawyers speak of the
"Magnificent Seven" one has to make sure which group they are
referring to. Makati's "Magnificent Seven" are a bunch of Makati
regional trial court judges who fix drug-related cases. The
"Magnificent Seven" in the Supreme Court consists of a group of
justices who vote as one." 4
3. Aside from the "Magnificent Seven," he also wrote about
a group which he dubbed the "Dirty Dozen." In his column of
October 21, 1992 he said that there are " . . . 12 judges who have
acquired such reputation for graft and corruption that they are
collectively known as the "dirty dozen". These judges, I am told, are
not satisfied with accepting bribes; they actually sell their decisions
to the litigants and "solicit" their bids for what is clearly an auction
for the judge's decision."
According to him, the most corrupt judges now are Makati's "Dirty
Dozen" judges, supplanting some of those from Pasay, Pasig and
Quezon City; corruption in lower Courts had been admitted by an
Executive Judge in a Metro Manila Regional Trial Court (column of
November 9, 1992); and because the "Dirty Dozen" had given
Makati the reputation of having the most corrupt RTC in the country,
multi-nationals and financing institutions explicitly stipulate in their
agreements that litigation in connection with these contracts may be
held anywhere in Metro Manila except in Makati; and lawyers
confirm that Makati Judges, including some persons in the sheriffs
office, are the most corrupt, where before, Pasay and Quezon City
had that dubious distinction (column of December 1, 1992).
4. In his November 9, 1992 column, he wrote about "a former
appellate justice (who) "holds office" at a restaurant near the Court

of Appeals building. He is known as the contact man of five CA
divisions. Lawyers say that this former jurist really delivers." In his
column of January 29, 1993, he adverted to the same unnamed
former Justice as being "known for fixing cases for five CA divisions
(that is what he tells lawyers and litigants) for a fee. And if the price
is right, the lawyer of the litigant paying can even write his own
decision using a CA justice as ponente. This ex-justice holds court
at the mezzanine of a restaurant owned by the wife of a former
Marcos cabinet member and which has become a meeting place for
judges, CA justices, practicing lawyers, prosecutors and even
Supreme Court justices. The former CA justice also has his own
Chinese contact. After I exposed this last year, the habitues became
scarce. But they are back again, and the ex-justice is still-doing brisk
business."
5. In his column of March 24, 1993, he made the claim that
one can "get a temporary restraining order from a regional trial court
in Metro-Manila by paying the judge anywhere between P30,000.00
and P50,000.00."
Other columns of Jurado refer to:
a) a police from the South Capital Command . . . (to the
effect) that 8 Makati judges where paid for decisions favoring drug-
traffickers and other big-time criminals, naming the judges and
giving detailed accounts of the bribery (January 30, 1993);
b) a bank, later identified by him as the Equitable Banking
Corporation (Ermita Branch), which had "hosted a lunch at its
penthouse mainly for some justices, judges, prosecutors and law
practitioners" (January 12, 1993); 5
c) the lady secretary of an RTC Judge in Makati who
allegedly makes sure, for a fee of P10,000.00 or more, depending
on how much money is at stake, that a case is raffled off to a Judge
who will be "extremely sympathetic," and can arrange to have the
Court issue attachments or injunctions for a service fee of 1% over
and above the regular premium of the attachment or injunction
bond; a Chinese-Filipino businessman who paid this "miracle
worker" P300,000.00 on top of the regular premium on the
attachment/injunction bond (October 27, 1992);
d) Executive Judge de la Rosa, who "has unilaterally decided
to discard the rule that cases seeking provisional remedies should
be raffled off to the judges," thus violating the rule that no case may
be assigned in multi-sala courts without a raffle (January 28, 1993);
e) the Secretary of the Judicial and Bar Council (JBC), who
had supposedly gotten that body to nominate him to the Court of
Appeals; and a son and a nephew of JBC members, who were also
nominated to the Court of Appeals, contrary to ethics and
delicadeza (January l6, 1993; and January 29, 1993);
f) what he denominates "a major determinant of promotion,"
i.e., having a relative in the JBC or the Supreme Court, or having a
powerful politician as sponsor, citing specifically, the following
nominees to the Court of Appeals — Conrado Vasquez, Jr., son and
namesake of the Ombudsman and brother of the head of the
Presidential Management Staff; Rosalio de la Rosa, "nephew of
Justice Relova and cousin of Chief Justice Narvasa;" and the fact
that nomination of some worthy individuals was blocked because
they "incurred the ire of the powers that be," e.g., Judge Maximiano
Asuncion, Quezon City RTC, and Raul Victorino, closely identified
with former Senate President Salonga (January 25, 1993).
3. Events Directly Giving Rise
to the Proceeding at Bar
What may be called the seed of the proceeding at bar was sown by
the decision promulgated by this Court on August 27, 1992, in the
so-called "controversial case" of "Philippine Long Distance
CONSTI LAW II I ACJUCO 323
Telephone Company v. Eastern Telephone Philippines, Inc.
(ETPI)," G.R. No, 94374. In that decision the Court was sharply
divided; the vote was 9 to 4, in favor of the petitioner PLDT. Mr.
Justice Hugo E. Gutierrez, Jr., wrote the opinion for the
majority. 6 A motion for reconsideration of the decision was filed in
respondent's behalf on September 16, 1992, which has recently
been resolved.
In connection with this case, G.R. No. 94374, the "Philippine Daily
Inquirer" and one or two other newspapers published, on January
28, 1993, a report of the purported affidavit of a Mr. David Miles
Yerkes, an alleged expert in linguistics. This gentleman, it appears,
had been commissioned by one of the parties in the case, Eastern
Telephone Philippines, Inc. (ETPI), to examine and analyze the
decision of Justice Gutierrez in relation to a few of his prior
ponencias and the writings of one of the lawyers of PLDT, Mr. Eliseo
Alampay, to ascertain if the decision had been written, in whole or
in part, by the latter. Yerkes proffered the conclusion that the
Gutierrez decision "looks, reads and sounds like the writing of the
PLDT's counsel," 7
As might be expected, the Yerkes "revelations" spawned more
public discussion and comment about the judiciary and the Supreme
Court itself, much of it unfavorable. There were calls for
impeachment of the justices, for resignation of judges. There were
insistent and more widespread reiterations of denunciations of
incompetence and corruption in the judiciary. Another derogatory
epithet for judges was coined and quickly gained currency:
"Hoodlums in Robes."
It was at about this time and under these circumstances —
particularly the furor caused by the Yerkes opinion that the PLDT
decision was authored by a PLDT lawyer — that Jurado wrote in his
column on February 8, 1993, an item entitled, "Who will judge the
Justices?" referring among other things to" . . .
(a) report that six justices, their spouses, children and grandchildren
(a total of 36 persons) spent a vacation in Hong Kong some time
last year — and that luxurious hotel accommodations and all their
other expenses were paid by a pubic utility firm . . . and that the trip
. . . was arranged by the travel agency patronized by this public utility
firm." 8
This was the event that directly gave rise to the proceeding at bar.
a. Letter and Affidavit of PLDT
For shortly afterwards, on February 10, 1993, Mr. Vicente R.
Samson, First Vice President of the PLDT (Philippine Long Distance
Telephone Company), addressed a letter to the Chief Justice,
submitting his sworn statement in confutation of "the item in the
column of Mr. Emil P. Jurado of the Manila Standard on a vacation
trip supposedly taken by six Justices with their families last year,"
and requesting that the Court "take such action as may be
appropriate." In his affidavit, Samson made the following averments:
9
xxx xxx xxx
While the name of the public utility which supposedly financed the
alleged vacation of the Justices in Hongkong has not been disclosed
in the Jurado column, the publication thereof, taken in relation to the
spate of recent newspaper reports alleging that the decision of the
Supreme Court, penned by Mr. Justice Hugo E. Gutierrez, Jr., in the
pending case involving the PLDT and Eastern Telecommunications
Phils., Inc. was supposedly ghost written by a lawyer of PLDT, gives
rise to the innuendo or unfair inference that Emil Jurado is alluding
to PLDT in the said column; and, this in fact was the impression or
perception of those who talked to me and the other officers of the
PLDT after having read the Jurado column;

4. In as much as the PLDT case against Eastern
Telecommunications Philippines is still sub-judice, since the
motions for reconsideration filed by the losing litigants therein,
Eastern Telecommunications Philippines, Inc. and NTC are still
pending before the Court, we have tried to refrain from making any
public comments on these matters, lest any statement we make be
interpreted to be an attempt on our part to unduly influence the final
decision of the Supreme Court in the above described case.
However in the interest of truth and justice, PLDT is compelled to
emphatically and categorically declare that it is not the public utility
firm referred to in the Jurado column and that specifically, it has
never paid for any such trip, hotel or other accommodations for any
justice of the Supreme Court or his family during their vacation, if
any, in Hongkong last year. It is not even aware that any of the
justices or their families have made the trip referred to in the Jurado
column;
5. I further state that neither Atty. Emil P. Jurado nor anyone
in his behalf has ever spoken to me or any other responsible officer
of PLDT about the matter quoted in par. 2 hereof;
6. PLDT further emphatically and categorically denies that it
had ever talked to or made arrangements with any travel agency or
any person or entity in connection with any such alleged trip of the
Justices and their families to Hongkong, much less paid anything
therefor to such agencies, fully or in part, in the year 1992 as
referred to in Par. 2 hereinabove;
7. The travel agencies which PLDT patronizes or retains for
the trips, hotels or other accommodations of its officers and
employees are:
a. Philway Travel Corporation
M-7 Prince Tower Cond.
Tordesillas St., Salcedo Village
Makati, Metro Manila
b. Citi-World Travel Mart Corp.
Suite 3-4 Ramada Midtown Arcade
M. Adriatico Street
Ermita, Manila.
The records of these travel agencies will bear out the fact that no
arrangements were made by them at the instance of PLDT for the
trip referred to in the Jurado column.
b. Affidavit of Atty. William Veto
The Samson affidavit was followed by another submitted to the
Court by Atty. William Veto, the "in-house counsel of Equitable
Banking Corporation since 1958," subscribed and sworn to on
February 10, 1993, in relation to another article of Jurado. 10 Veto
deposed that on Tuesday, January 5, 1993 he had "hosted a lunch
party at the Officers' Lounge, 7th Floor of the Equitable Banking
Corporation Building, Ermita Branch . . . upon prior permission . . .
obtained;" that the "expenses for said party were exclusively from
my personal funds and the food was prepared in my house by my
wife and served by my house help . . . and four (4) waiters . . . hired
from the nearby Barrio Fiesta Restaurant;" that among the invited
guests "were members of the Supreme Court and Court of Appeals
who . . . were my friends of forty years since our days in law school;"
and that the party was held in the lounge of the bank instead of in
"my residence" "unlike in former years . . . because my birthday
happened to fall on a working day and my friends from the Equitable
Banking
Corporation . . . suggested that I hold it there (at the lounge) for their
convenience because my residence is far from down town."
However, this birthday luncheon of Atty. Veto was reported in
Jurado's column (in the Manila Standard issues of January 12 and
28, 1993) as having been "hosted (by the Equitable Bank) at its
CONSTI LAW II I ACJUCO 324
penthouse mainly for some justices, judges, prosecutors and law
practitioners. . . ." And upon this premise, Jurado indulged in the
following pontification: "When those in the judiciary fraternize this
way, what chances before the courts do other lawyers, who are not
"batang club," have against others who belong to the fraternity? In
the case of prosecutors and fiscals, what chances do opposing
counsels have against those in the fraternity?" (column of January
12, 1993)
c. Information from Ad Hoc Committee
At about this time, too, the Court received information from the Ad
Hoc Committee (created by Administrative Order No. 11-93) to the
following effect:
1) that by letter dated February 1, 1993, the Chairman of the
Ad Hoc Committee extended an invitation to Atty. Emiliano Jurado
to appear before it "at 2 o'clock in the afternoon of February 4, 1993
. . . (to) give the committee information that will assist it in its task,"
i.e., to definitely and accurately determine the facts as regards the
published rumors and reports of corruption in the judiciary;
2) that despite receipt of this letter by a responsible individual
at the business address of Jurado, the latter failed to appear at the
time and place indicated; that instead, in his column in the issue of
Manila Standard of February 4, 1993, Jurado stated that he was told
he was being summoned by the Ad Hoc Committee, but "(t)here is
really no need to summon me. The committee can go by the many
things I have written in my column about corruption in the judiciary.
Many of these column items have been borne out by subsequent
events."
3) that another letter was sent by the Chairman to Jurado,
dated February 5, 1993, reiterating the Committee's invitation, viz.:
It is regretted that you failed to respond to the invitation of the Ad
Hoc Committee to appear at its session of February 4, 1992. All
indications are that you are the person with the most knowledge
about corruption in the judiciary and hence, appear to be best
positioned to assist the Ad Hoc Committee in its function of obtaining
evidence, or leads, on the matter. You have, I believe, expressed
more than once the laudable desire that the judiciary rid itself of the
incompetents and the misfits in its ranks, and we believe you will
want to help the Court do precisely that, by furnishing the Committee
with competent evidence, testimonial or otherwise. Clearly, the
purging process cannot be accomplished without proof, testimonial
or otherwise, as you must no doubt realize, being yourself a lawyer.
We would like you to know that the Ad Hoc Committee created by
Administrative Order No. 11-93 is simply a fact-finding body. Its
function is evidence-gathering. Although possessed of the authority
to maintain and enforce order in its proceedings, and to compel
obedience to its processes, it is not an adjudicative body in the
sense that it will pronounce persons guilty or innocent, or impose
sanctions, on the basis of such proofs as may be presented to it.
That function is reserved to the Supreme Court itself, in which it is
lodged by the Constitution and the laws. Thus, at the conclusion of
its evidence-gathering mission, the Ad Hoc Committee will submit
its report and recommendations to the Court which will then take
such action as it deems appropriate.
The Ad Hoc Committee has scheduled hearings on the 11th and
12th of February, 1993. Mr. Justice Hilario G. Davide, Jr. will preside
as Chairman at these hearings since I will be unable to do so in view
of earlier commitments. We reiterate our invitation that you come
before the Committee, and you may opt to appear either on the 11th
or 12th of February, 1993, at 2 o'clock in the afternoon."
4) that notwithstanding receipt of this second letter by a
certain Mr. Gerry Gil of the Manila Standard, Jurado still failed to
appear.

4. Statement of the Case:
Resolutions and Pleadings
a. Resolution of the February 16, 1993
After considering all these circumstances, the Court by Resolution
dated February 16, 1993, ordered:
1) that the matter dealt with in the letter and affidavit of the
PLDT herein mentioned be duly DOCKETED, and hereafter
considered and acted upon as an official Court proceeding for the
determination of whether or not the allegations made by Atty. Emil
Jurado herein specified are true;
2) that the Clerk of Court SEND COPIES of the PLDT letter
and affidavit, and of the affidavit of Atty. William Veto to Atty. Emil
Jurado, c/o the Manila Standard, Railroad & 21 Streets, Port Area,
Manila; and copies of the same PLDT letter and affidavit, to Philway
Travel Corporation, M-7 Prince Tower Cond., Tordesillas St.,
Salcedo Village, Makati, Metro Manila; and Citi-World Travel Mart
Corp., Suite 3-4 Ramada Midtown Arcade, M. Adriatico Street,
Ermita, Manila;
3) that within five (5) days from their receipt of notice of this
resolution and of copies of the PLDT letter and affidavit, the Philway
Travel Corporations and the Citi-World Travel Mart Corporation
each FILE A SWORN STATEMENT affirming or denying the
contents of the PLDT affidavit; and
4) that within fifteen (15) days from his receipt of notice of
this resolution and of copies of said PLDT letter and affidavit and of
the affidavit of Atty. Veto, Atty. Emil Jurado FILE A COMMENT on
said affidavits as well as the allegations made by him in his columns,
herein specified, in which he shall make known to the Court the
factual or evidentiary bases of said allegations.
b. Jurado's Comment dated
March 1, 1993.
As directed, Jurado filed his comment, dated March 1, 1993.
He explained that he had not "snubbed" the invitation of the Ad Hoc
Committee, it being in fact his desire to cooperate in any
investigation on corruption in the judiciary as this was what "his
columns have always wanted to provoke." What had happened,
according to him, was that the first invitation of the Ad Hoc
Committee was routed to his desk at the Manila Standard office on
the day of the hearing itself, when it was already impossible to
cancel previous professional and business appointments; and the
second invitation, "if it was ever received" by his office, was never
routed to him; and he had yet to see
it." 11 If the impression had been created that he had indeed
"snubbed" the Ad Hoc Committee, he "sincerely apologizes."
He averred that his columns are self-explanatory and reflect his
beliefs, and there was no need to elaborate further on what he had
written. He expressed his firm belief that justice can be administered
only by a judicial system that is itself just and incorruptible, and the
hope that this Court would view his response in this light.
He also made the following specific observations:
1. The affidavit of Antonio Samson of the PLDT dated
February 9, 1993 was an assertion of the affiant's belief and opinion
and he (Jurado) would not comment on it except to say that while
Mr. Samson is entitled to his beliefs and opinions, these "bind only
him and the PLDT."
2. Atty. William Veto's affidavit substantially corroborated
what he had written in vital details; hence, further substantiation
CONSTI LAW II I ACJUCO 325
would be surplusage. In fact, the Supreme Court had confirmed the
story in its press statement quoted by him (Jurado) in his January
30, 1993 column. His column about the Veto party constitutes fair
comment on the public conduct of public officers.
3. The column about Executive Judge Rosalio de la Rosa
merely summarized the position of Judge Teresita Dy-Liaco Flores
on the actuations of Judge de la Rosa and called the attention of the
Court thereto, Judge Flores' complaint, a copy of which had been
sent to the Court Administrator, being on meriting its attention.
4. The "factual and evidentiary basis" of his column of
January 30, 1993 was the police report on seven (7) Makati judges
authored by Chief Inspector Laciste Jr., of the Narcotics Branch of
the RPIU, South CAPCOM, PNP, addressed to Vice-President
Joseph E. Estrada, a copy of which he had received in the news
room of the Manila Standard. The existence of the report had been
affirmed by a reporter of the Manila Standard, Jun Burgos, when he
appeared at the hearing of the Ad Hoc Committee on January 11,
1993.
5. His observations in his columns of January 6 and 29, 1993
regarding the nominations of relatives in the Judicial and Bar
Council echo the public perception, and constitute fair comment on
a matter of great public interest and concern.
6. His columns with respect to the "RTC's Magnificent
Seven" (October 20, 1992); the "RTC-Makati's Dirty Dozen"
(October 2, 1992, November 9, 1992, and December 1, 1992); the
"Magnificent Seven" in the Supreme Court (February 3,1993); 12
the lady secretary of an RTC Judge (October 27, 1992); and the
former Court of Appeals Justice "fixing" cases (January 29, 1993)
were all based on information given to him in strict confidence by
sources he takes to be highly reliable and credible; and he could not
elaborate on the factual and evidentiary basis of the information
without endangering his sources.
By necessity and custom and usage, he relies as a journalist not
only on first-hand knowledge but also on information from sources
he has found by experience to be trustworthy. He cannot
compromise these sources. He invokes Republic Act No. 53, as
amended by R.A. No. 1477, exempting the publisher, editor or
reporter of any publication from revealing the source of published
news or information obtained in confidence, and points out that none
of the matters subject of his columns has any bearing on the security
of the state.
c. Resolution of March 2, 1993
Subsequent to the Resolution of February 16, 1993 and before the
filing of Jurado's comment above mentioned, the Court received the
affidavits of the executive officials of the two travel agencies
mentioned in the affidavit of PLDT Executive Vice-President Vicente
R. Samson — in relation to the Jurado column of February 8, 1993:
that of Mr. Ermin Garcia, Jr., President of the Citi-World Travel Mart
Corporation, dated February 22, 1993, and that of Mrs. Marissa de
la Paz, General Manager of Philway Travel Corporation, dated
February 19, 1993. Both denied ever having made any travel
arrangements for any of the Justices of the Supreme Court or their
families to Hongkong, clearly and categorically belying the Jurado
article.
By Resolution dated March 2, 1993, the Court directed that Jurado
be given copies of these two (2) affidavits and that he submit
comment thereon, if desired, within ten (10) days from receipt
thereof.
d. Jurado's Supplemental Comment
with Request for Clarification

In response, Jurado filed a pleading entitled "Supplemental
Comment with Request for Clarification" dated March 15, 1993. In
this pleading he alleged that the sworn statements of Mr. Ermin
Garcia, Jr. and Mrs. Marissa de la Paz are affirmations of matters of
their own personal knowledge; that he (Jurado) had no specific
knowledge of "the contents of these, let alone their veracity;" and
that the affidavits "bind no one except the affiants and possibly the
PLDT." He also sought clarification on two points — as to the
capacity in which he is being cited in these administrative
proceedings — whether "as full time journalist or as a member of
the bar," and why he is being singled out, from all his other
colleagues in media who had also written about wrongdoings in the
judiciary, and required to comment in a specific administrative
matter before the Court sitting En Banc — so that he might "qualify
his comment and/or assert his right and privileges . . . .
e. Resolution of March 18, 1993
Through another Resolution, dated March 18, 1993, the Court
directed the Clerk of Court to inform Jurado that the Resolutions of
February 16 and March 2, 1993 had been addressed to him
(according to his own depiction) in his capacity as "a full-time
journalist" "who coincidentally happens to be a member of the bar
at the same time," and granted him fifteen (15) days from notice" to
qualify his comment and/or assert his rights and privileges . . . in an
appropriate manifestation or pleading."
f. Jurado's Manifestation
dated March 31, 1993
Again in response, Jurado filed a "Manifestation" under date of
March 31, 1993. He moved for the termination of the proceeding on
the following posited premises:
1. The court has no administrative supervision over him as a
member of the press or over his work as a journalist.
2. The present administrative matter is not a citation for (a)
direct contempt as there is no pending case or proceeding out of
which a direct contempt charge against him may arise, or (b) indirect
contempt as no formal charge for the same has been laid before the
court in accordance with Section 3 (Rule 71) of the Rules of Court.
3. His comments would be more relevant and helpful to the
Court if taken together with the other evidence and reports of other
journalists gathered before the Ad Hoc Committee. He perceives no
reason why his comments should be singled out and taken up in a
separate administrative proceeding.
It is against this background of the material facts and occurrences
that the Court will determine Jurado's liability, if any, for the above
mentioned statements published by him, as well as "such action as
may be appropriate" in the premises, as the PLDT asks.
5. Norms for Proper Exercise of
Press Freedom
a. Constitutional Law Norms
In Zaldivar v. Gonzalez (166 SCRA 316 [1988]), the Court
underscored the importance both of the constitutional guarantee of
free speech and the reality that there are fundamental and equally
important public interests which need on occasion to be balanced
against and accommodated with one and the other. There, the Court
stressed the importance of the public interest in the maintenance of
the integrity and orderly functioning of the administration of justice.
The Court said: 13
The principal defense of respondent Gonzalez is that he was merely
exercising his constitutional right of free speech. He also invokes
CONSTI LAW II I ACJUCO 326
the related doctrines of qualified privileged communications and fair
criticism in the public interest.
Respondent Gonzalez is entitled to the constitutional guarantee of
free speech. No one seeks to deny him that right, least of all this
Court. What respondent seems unaware of is that freedom of
speech and of expression, like all constitutional freedoms, is not
absolute and that freedom of expression needs on occasion to be
adjusted to and accommodated with the requirements of equally
important public interests. One of these fundamental public interests
is the maintenance of the integrity and orderly functioning of the
administration of justice. There is no antinomy between free
expression and the integrity of the system of administering justice.
For the protection and maintenance of freedom of expression itself
can be secured only within the context of a functioning and orderly
system of dispensing justice, within the context, in other words, of
viable independent institutions for delivery of justice which are
accepted by the general community. As Mr. Justice Frankfurter put
it:
. . . A free press is not to be preferred to an independent judiciary,
nor an independent judiciary to a free press. Neither has primacy
over the other; both are indispensable to a free society.
The freedom of the press in itself presupposes an independent
judiciary through which that freedom may, if necessary, be
vindicated. And one of the potent means for assuring judges their
independence is a free press. (Concurring in Pennekamp v. Florida,
328 U.S. 331 at 354-356 [1946]).
Mr. Justice. Malcolm of this Court expressed the same thought in
the following terms:
The Organic Act wisely guarantees freedom of speech and press.
This constitutional right must be protected in its fullest extent. The
Court has heretofore given evidence of its tolerant regard for
charges under the Libel Law which come dangerously close to its
violation. We shall continue in this chosen path. The liberty of the
citizens must be preserved in all of its completeness. But license or
abuse of liberty of the press and of the citizens should not be
confused with liberty in its true sense. As important as is the
maintenance of an unmuzzled press and the free exercise of the
rights of the citizens is the maintenance of the independence of the
Judiciary. Respect for the Judiciary cannot be had if persons are
privileged to scorn a resolution of the court adopted for good
purposes, and if such persons are to be permitted by subterranean
means to diffuse inaccurate accounts of confidential proceedings to
the embarrassment of the parties and the court. (In Re Severino
Lozano and Anastacio Quevedo, 54 Phil. 801 at 807 [1930]).
b. Civil Law Norms
The Civil Code, in its Article 19 lays down the norm for the proper
exercise of any right, constitutional or otherwise, viz.:
Art. 19. Every person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due,
and observe honesty and good faith.
The provision is reflective of the universally accepted precept of
"abuse of rights," "one of the most dominant principles which must
be deemed always implied in any system of law." 14 It parallels too
"the supreme norms of justice which the law develops" and which
are expressed in three familiar Latin maxims: honeste vivere,
alterum non laedere and jus suum quique tribuere (to live honorably,
not to injure others, and to render to every man his due). 15
Freedom of expression, the right of speech and of the press is, to
be sure, among the most zealously protected rights in the
Constitution. But every person exercising it is, as the Civil Code
stresses, obliged "to act with justice, give everyone his due, and

observe honesty and good faith." The constitutional right of freedom
of expression may not be availed of to broadcast lies or half-truths
— this would not be "to observe honesty and good faith;" it may not
be used to insult others; destroy their name or reputation or bring
them into disrepute. — this would not be "to act with justice" or "give
everyone his due."
c. Philippine Journalist's
Code of Ethics
Also relevant to the determination of the propriety of Jurado's acts
subject of the inquiry at bar are the norms laid down in "The
Philippine Journalist's Code of Ethics." The Code was published in
the issue of February 11, 1993 of the Manila Standard, for which
Jurado writes, as part of the paper's "Anniversary Supplement." The
first paragraph of the Code, 16 and its corresponding annotations,
read as follows:
1. I shall scrupulously report and interpret the news, taking
care not to suppress essential facts nor to distort the truth by
improper omission or emphasis. I recognize the duty to air the other
side and the duty to correct substantive errors promptly.
1. Scrupulous news gathering and beat coverage is required.
Relying exclusively on the telephone or on what fellow reporters say
happened at one's beat is irresponsible.
2. The ethical journalist does not bend the facts to suit his
biases or to please benefactors. He gathers all the facts, forms a
hypothesis, verifies it and arrives at an honest interpretation of what
happened.
3. The duty to air the other side means that the journalist
must contact the person or persons against whom accusations are
lodged. A court proceeding provides for this balance by presenting
the prosecution and then the defense. A news story or editorial
column that fails to present the other side is like a court that does
not hear the side of the defense.
4. Correcting substantive errors is the mark of mature
newspapers like the New York Times, the International Herald
Tribune, and some of Manila's papers.
d. Right to Private Honor
and Reputation
In the present proceeding, there is also involved an acknowledged
and important interest of individual persons: the right to private
reputation. Judges, by becoming such, are commonly and rightly
regarded as voluntarily subjecting themselves to norms of conduct
which embody more stringent standards of honesty, integrity, and
competence than are commonly required from private persons. 17
Nevertheless, persons who seek or accept from appointment to the
Judiciary cannot reasonably be regarded as having thereby forfeited
any right whatsoever to private honor and reputation. For so to rule
will be simply, in the generality of cases, to discourage all save those
who feel no need to maintain their self-respect as a human being in
society, from becoming judges, with obviously grievous
consequences for the quality of our judges and the quality of the
justice that they will dispense. Thus, the protection of the right of
individual persons to private reputations is also a matter of public
interest and must be reckoned with as a factor in identifying and
laying down the norms concerning the exercise of press freedom
and free speech.
Clearly, the public interest involved in freedom of speech and the
individual interest of judges (and for that matter, all other public
officials) in the maintenance of private honor and reputation need to
be accommodated one to the other. And the point of adjustment or
accommodation between these two legitimate interest is precisely
found in the norm which requires those who, invoking freedom of
CONSTI LAW II I ACJUCO 327
speech, publish statements which are clearly defamatory to
identifiable judges or other public officials to exercise bona fide care
in ascertaining the truth of the statements they publish. The norm
does not require that a journalist guarantee the truth of what he says
or publishes. But the norm does prohibit the reckless disregard of
private reputation by publishing or circulating defamatory
statements without any bona fide effort to ascertain the truth thereof.
That this norm represents the generally accepted point of balance
or adjustment between the two interests involved is clear from a
consideration of both the pertinent civil law norms and the Code of
Ethics adopted by the journalism profession in the Philippines. 17a
6. Analysis of Jurado Columns
a. Re "Public Utility Firm"
Now, Jurado's allegation in his column of February 8, 1993 — "that
six justices, their spouses, children and grandchildren (a total of 36
persons) spent a vacation in Hong Kong some time last year — and
that luxurious hotel accommodations and all their other expenses
were paid by a public utility firm and that the trip reportedly was
arranged by the travel agency patronized by this public utility firm,"
supra is — in the context of the facts under which it was made —
easily and quickly perceived as a transparent accusation that the
PLDT had bribed or "rewarded" six (6) justices for their votes in its
favor in the case of "Philippine Long Distance Telephone Company
v. Eastern Telephone Philippines, Inc. (ETPI)," G.R. No. 94374, 18
by not only paying all their expenses — i.e., hotel accommodations
and all other expenses for the trip — but also by having one of its
own travel agencies arrange for such a trip.
As already stated, that allegation was condemned as a lie, an
outright fabrication, by the PLDT itself, through one of its
responsible officers, Mr. Vicente Samson, as well as by the heads
of the two (2) travel agencies "patronized by it," Ermin Garcia, Jr.
and Marissa de la Paz, supra.
That categorical denial logically and justly placed on Jurado the
burden of proving the truth of his grave accusation, or showing that
it had been made through some honest mistake or error committed
despite good faith efforts to arrive at the truth, or if unable to do
either of these things, to offer to atone for the harm caused.
But the record discloses that Jurado did none of these things. He
exerted no effort whatever to contest or qualify in any manner
whatever the emphatic declaration of PLDT Vice-President Samson
that —
While the name of the public utility which supposedly financed the
alleged vacation of the Justices in Hongkong has not been disclosed
in the Jurado column, the publication thereof, taken in relation to the
spate of recent newspaper reports alleging that the decision of the
Supreme Court, penned by Mr. Justice Hugo E. Gutierrez, Jr., in the
pending case involving the PLDT and Eastern Telecommunications
Phils., Inc. was supposedly ghost written by a lawyer of PLDT, gives
rise to the innuendo or unfair inference that Emil Jurado is alluding
to PLDT in the said column; and, this in fact was the impression or
perception of those who talked to me and the other officers of the
PLDT after having read the Jurado column.
The record shows that he made no effort whatsoever to impugn,
modify, clarify or explain Samson's positive assertion that:
. . . (the PLDT) has never paid for any such trip, hotel or other
accommodations for any justice of the Supreme Court or his family
during their vacation, if any, in Hongkong last year. It is not even
aware that any of the justices or their families have made the trip
referred to in the Jurado column;

. . . neither Atty. Emil P. Jurado nor any one in his behalf has ever
spoken to me or any other responsible officer of PLDT about the
matter. . .;
. . . PLDT . . . (never) talked to or made arrangements with any travel
agency or any person or entity in connection with any such alleged
trip of the Justices and their families to Hongkong, much less paid
anything therefor to such agencies, fully or in part, in the year 1992
as referred to in Par. 2 hereinabove;
What appears from the record is that without first having made an
effort to talk to any one from the PLDT or the Supreme Court to
ascertain the veracity of his serious accusation, Jurado went ahead
and published it.
His explanation for having aired the accusation consists simply of a
declaration that Samson's affidavit, as well as the affidavits of the
heads of the two travel agencies regularly patronized by it, were just
assertions of the affiants' belief and opinion; and that he (Jurado)
would not comment on them except to say that while they are
entitled to their beliefs and opinions, these were binding on them
only. This is upon its face evasion of duty of the most cavalier kind;
sophistry of the most arrant sort. What is made plain is that Jurado
is in truth unable to challenge any of the averments in the affidavits
of PLDT and its travel agencies, or otherwise substantiate his
accusation, and that his is a mere resort to semantics to justify the
unjustifiable. What is made plain is that his accusation is false, and
possesses not even the saving grace of honest error.
If relying on second-hand sources of information is, as the
Journalists' Code states, irresponsible, supra, then indulging in pure
speculation or gossip is even more so; and a failure to "present the
other side" is equally reprehensible, being what in law amounts to a
denial of due process.
b. Re Equitable Bank Party
Jurado is also shown by the record to have so slanted his report of
the birthday luncheon given by Atty. William Veto (the "in-house
counsel of Equitable Banking Corporation since 1958") as to project
a completely false depiction of it. His description of that affair (in the
Manila Standard issues of January 12 and 28, 1993) as having been
hosted by the Equitable Bank "at its penthouse mainly for some
justices, judges, prosecutors and law
practitioners . . . , carries the sanctimonious postscript already
quoted, putting the rhetorical question about how such fraternization
affects the chances in court of lawyers outside that charmed circle.
When confronted with Veto's affidavit to the effect that the party was
given by him at his (Veto's) own expense, the food having been
prepared by his wife in his house, and served by his house help and
waiters privately hired by him; that he had invited many persons
including friends of long standing, among them justices of the
Supreme Court and the Court of Appeals; and that the party had
been held in the Officers' Lounge of Equitable Bank, instead of his
home, as in years past, to suit the convenience of his guests
because his birthday fell on a working day, Jurado could not, or
would not deign to, contradict any of those statements. He merely
stated that Veto's affidavit substantially corroborated what he had
written in vital details, which is obviously far from correct.
Most importantly, the record does not show that before he published
that story, Jurado ever got in touch with Veto or anyone in Equitable
Bank, Ermita Branch, to determine the accuracy of what he would
later report. If he did, he would quickly have learned that his sources,
whoever or whatever they were, were not to be relied upon. If he did
not, he was gravely at fault — at the very least for disregarding the
Journalist's Code of Ethics — in failing to exert bona fide efforts to
verify the accuracy of his information.
CONSTI LAW II I ACJUCO 328
In either case, his publication of the slanted, therefore misleading
and false, report of the affair is censurable. His proffered
explanation that the justices having confirmed their presence at the
luncheon, thus corroborating what he had written in vital details and
making further substantiation unnecessary, and that his report
constituted fair comment on the public conduct of public officers,
obviously does not at all explain why a party given by Atty. Veto was
reported by him as one tendered by Equitable Bank. The only
conclusion that may rationally be drawn from these circumstances
is that Jurado, unable to advance any plausible reason for the
conspicuous divergence between what in fact transpired and what
he reported, again resorts to semantics and sophistry to attempt an
explanation of the unexplainable. Paraphrasing the Code of Ethics,
he failed to scrupulously report and interpret the news; on the
contrary, his failure or refusal to verify such essential facts as who
really hosted and tendered the luncheon and spent for it, and his
playing up of the Bank's supposed role as such host have resulted
in an improper suppression of those facts and a gross distortion of
the truth about them.
c. Re Other Items
Jurado disregarded the truth again, and in the process vilified the
Supreme Court, in the item in his column of February 3, 1993
already adverted to, 19 and more fully quoted as follows:
When lawyers speak of the "Magnificent Seven" one has to make
sure which group they are referring to. Makati's "Magnificent Seven"
are a bunch of Makati regional trial court judges who fix drug related
cases. The "Magnificent Seven" in the Supreme Court consists of a
group of justices who vote as one."
About the last (italicized) statement there is, as in other accusations
of Jurado, not a shred of proof; and the volumes of the Supreme
Court Reports Annotated (SCRA) in which are reported the
decisions of the Supreme Court En Banc for the year 1992 (January
to December) and for January 1993, divulge not a single non-
unanimous decision or resolution where seven (7) justices voted "as
one," nor any group of decisions or resolutions where the recorded
votes would even suggest the existence of such a cabal.
This is yet another accusation which Jurado is unable to
substantiate otherwise than, as also already pointed out, by invoking
unnamed and confidential sources which he claims he considers
highly credible and reliable and which would be imperiled by
elaborating on the information furnished by them. He would justify
reliance on those sources on grounds of necessity, custom and
usage and claim the protection of Republic Act No. 53, as amended
by Republic Act No. 1477 from forced, revelation of confidential
news sources except when demanded by the security of the state.
20
Surely it cannot be postulated that the law protects a journalist who
deliberately, prints lies or distorts the truth; or that a newsman may
escape liability who publishes derogatory or defamatory allegations
against a person or entity, but recognizes no obligation bona fide to
establish beforehand the factual basis of such imputations and
refuses to submit proof thereof when challenged to do so. It
outrages all notions of fair play and due process, and reduces to
uselessness all the injunctions of the Journalists' Code of Ethics to
allow a newsman, with all the potential of his profession to influence
popular belief and shape public opinion, to make shameful and
offensive charges destructive of personal or institutional honor and
repute, and when called upon to justify the same, cavalierly beg off
by claiming that to do so would compromise his sources and
demanding acceptance of his word for the reliability of those
sources.
Jurado's other writings already detailed here are of the same sort.
While it might be tedious to recount what has already been stated
about the nature and content of those writings, it is necessary to do

so briefly in order not only to stress the gravity he makes, but also
to demonstrate that his response to the call for their substantiation
has been one of unvarying intransigence: an advertance to
confidential sources with whose reliability he professes satisfaction
and whom fuller disclosure would supposedly compromise.
There can be no doubt of the serious and degrading character —
not only to the Court of Appeals, but also to the judiciary in general
— of his columns of November 9, 1992 and January 29, 1993
concerning an unnamed former justice of the Court of Appeals who
had allegedly turned "fixer" for five of the Court's divisions and who,
for the right price, could guarantee that a party's lawyer could write
his own decision for and in the name of the ponente; and of his
column of March 24, 1993 to the effect that anywhere from P30,000
to P50,000 could buy a temporary restraining order from a regional
trial court in Manila.
The litany of falsehoods, and charges made without bona fide effort
at verification or substantiation, continues:
(a) Jurado's column of January 30, 1993 about eight (8)
Makati judges who were "handsomely paid" for decisions favoring
drug-traffickers and other big-time criminals was based on nothing
more than raw intelligence contained is confidential police report. It
does not appear that any part of that report has been reliably
confirmed.
(b) He has refused to offer any substantiation, either before
the Ad Hoc Committee or in this proceeding, for his report of October
27, 1992 concerning an unnamed lady secretary of a Makati RTC
Judge who, besides earning at least P10,000 for making sure a case
is raffled off to a "sympathetic" judge, can also arrange the issuance
of attachments and injunctions for a fee of one (1%) percent over
and above usual premium for the attachment or injunction bond, a
fee that in one instance amounted to P300,000.
(c) His report (columns of January 16 and 29, 1993) that the
Judicial and Bar Council acted contrary to ethics and delicadeza in
nominating to the Court of Appeals a son and a nephew of its
members is completely untrue. The most cursory review of the
records of the Council will show that since its organization in 1987,
there has not been a single instance of any son or nephew of a
member of the Council being nominated to the Court of Appeals
during said member's incumbency; and in this connection, he
mistakenly and carelessly identified RTC Judge Rosalio de la Rosa
as the nephew of Justice (and then Member of the Judicial and Bar
Council) Lorenzo Relova when the truth, which he subsequently
learned and admitted, was that the person referred to was Judge
Joselito de la Rosa, the son-in-law, not the nephew, of Justice
Relova. Had he bothered to make any further verification, he would
have learned that at all sessions of the Council where the
nomination of Judge Joselito de la Rosa was considered, Justice
Relova not only declined to take part in the deliberations, but
actually left the conference room; and he would also have learned
that Judge Rosalio de la Rosa had never been nominated — indeed,
to this date, he has not been nominated to the Court of Appeals.
(d) He has recklessly slandered the Judicial and Bar Council
by charging that it has improperly made nominations to the Court of
Appeals on considerations other than of merit or fitness, through the
manipulations of the Council's Secretary, Atty. Daniel Martinez; or
because the nominee happens to be a relative of a member of the
Council (e.g., Judge Joselito de la Rosa, initially identified as Judge
Rosalio de la Rosa) or of the Supreme Court (he could name none
so situated); or has powerful political sponsor (referring to RTC
Judge Conrado Vasquez, Jr., son and namesake of the
Ombudsman). Acceptance of the truth of these statements is
precluded, not only by the familiar and established presumption of
regularity in the performance of official functions, but also, and even
more conclusively by the records of the Judicial and Bar Council
itself, which attest to the qualifications of Atty. Daniel Martinez, Clerk
CONSTI LAW II I ACJUCO 329
of Court of the Supreme Court, Judge Joselito de la Rosa, and
Judge Conrado Vasquez, Jr., for membership in the Appellate
Tribunal;
(e) Equally false is Jurado's report (column of January 25,
1993) that nomination to the Court of Appeals of some worthy
individuals like Quezon City RTC Judge Maximiano Asuncion, and
Atty. Raul Victorino (who was closely identified with former Senate
President Salonga) had been blocked because they had "incurred
the ire of the powers that be," the truth, which could very easily have
been verified, being that a pending administrative case against
Judge Asuncion had stood in the way of his nomination, and since
Mr. Victorino had been sponsored or recommended by then Senate
President Salonga himself, the fact that he was not nominated can
hardly be attributed to the hostility or opposition of persons in
positions of power or influence.
(f) Jurado was similarly unfair, untruthful and unfoundedly
judgmental in his reporting about Executive Judge Rosalio de la
Rosa of the Manila Regional Trial Court as:
(1) having been nominated to the Court of Appeals by the
Judicial and Bar Council chiefly, if not only, by reason of being the
nephew of Justice Relova and the cousin of Chief Justice Narvasa,
the truth, as already pointed out, being that Judge Rosalio de la
Rosa had never been thus nominated to the Court of Appeals, the
nominee having been Judge Joselito de la Rosa, the son-in-law (not
nephew) of Justice Relova; and
(2) having discarded the rule that cases seeking provisional
remedies should be raffled off to the judges (column of January 28,
1993) and adopted a system of farming out applications for
temporary restraining orders, etc., among all the branches of the
court; here again, Jurado is shown to have written without thinking,
and made statements without verifying the accuracy of his
information or seeking the views of the subject of his pejorative
statements; the merest inquiry would have revealed to him that
while Circular No. 7 dated September 23, 1974 requires that no case
may be assigned in multi-sala courts without raffle (for purposes of
disposition on the merits), Administrative Order No. 6, dated June
30, 1975 (Sec. 15, Par. IV), 21 empowers Executive Judges to act
on all applications for provisional remedies (attachments,
injunctions, or temporary restraining orders, receiverships, etc.), or
on interlocutory matters before raffle, in order to "balance the
workload among courts and judges, (Sec. l, par. 2, id.), and exercise
such other powers and prerogatives as may in his judgment be
necessary or incidental to the performance of his functions as a
Court Administrator" (Sec. 7, par. 1, id.) — these provisions being
broad enough, not only to authorize unilateral action by the
Executive Judge himself on provisional remedies and interlocutory
matters even prior to raffle of the main case, but also to delegate
the authority to act thereon to other judges.
Jurado does not explain why: (1) he made no effort to verify the state
of the rules on the matter; (2) he precipitately assumed that the
views of Judge Teresita Dy-Liaco Flores, whose complaint on the
subject he claims he merely summarized, were necessarily correct
and the acts of Judge de la Rosa necessarily wrong or improper;
and (3) he did not try to get Judge de la Rosa's side at all.
Common to all these utterances of Jurado is the failure to undertake
even the most cursory verification of their objective truth; the
abdication of the journalist's duty to report and interpret the news
with scrupulous fairness; and the breach of the law's injunction that
a person act with justice, give everyone his due and observe
honesty and good faith both in the exercise of his rights and in the
performance of his duties.
7. Jurado's Proffered Excuses
and Defenses

The principle of press freedom is invoked by Jurado in justification
of these published writings. That invocation is obviously unavailing
in light of the basic postulates and the established axioms or norms
for the proper exercise of press freedom earlier set forth in this
opinion. 22
Jurado next puts in issue this Court's power to cite him for contempt.
The issue is quickly disposed of by adverting to the familiar principle
reiterated inter alia in Zaldivar v. Gonzales: 23
. . . (T)he Supreme Court has inherent power to punish for contempt,
to control in the furtherance of justice the conduct of ministerial
officers of the Court including lawyers and all other persons
connected in any manner with a case before the Court (In re Kelly,
35 Phil. 944 [1916]; In re Severino Lozano and Anastacio Quevedo,
54 Phil. 801 (1930]; In re Vicente Pelaez, 44 Phil. 567 [1923]; and
In re Vicente Sotto, 82 Phil. 595 [1949]). The power to punish for
contempt is "necessary for its own protection against improper
interference with the due administration of justice," "(i)t is not
dependent upon the complaint of any of the parties litigant" (Halili v.
Court of Industrial Relations, 136 SCRA 112 [1985]; Andres v.
Cabrera, 127 SCRA 802 [1984]; Montalban v. Canonoy, 38 SCRA
1 [1971]; Commissioner of Immigration v. Cloribel, 20 SCRA 1241
[1967]; Herras Teehankee v. Director of Prisons, 76 Phil. 630
[1946]).
Contempt is punishable, even if committed without relation to a
pending case. Philippine jurisprudence parallels a respectable array
of English decisions holding contumacious scurrilous attacks
against the courts calculated to bring them into disrepute, even
when made after the trial stage or after the end of the proceedings.
The original doctrine laid down in People vs. Alarcon 24 — that there
is no contempt if there is no pending case — has been abandoned
in subsequent rulings of this Court which have since adopted the
Moran dissent therein, 25 viz.:
Contempt, by reason of publications relating to court and to court
proceedings, are of two kinds. A publication which tends to impede,
obstruct, embarrass or influence the courts in administering justice
in a pending suit or proceeding, constitutes criminal contempt which
is summarily punishable by courts. This is the rule announced in the
cases relied upon by the majority. A publication which tends to
degrade the courts and to destroy public confidence in them or that
which tends to bring them in any way into disrepute, constitutes
likewise criminal contempt, and is equally punishable by courts. In
the language of the majority, what is sought, in the first kind of
contempt, to be shielded against the influence of newspaper
comments, is the all-important duty of the courts to administer
justice in the decision of a pending case. In the second kind of
contempt, the punitive hand of justice is extended to vindicate the
courts from any act or conduct calculated to bring them into disfavor
or to destroy public confidence in them. In the first, there is no
contempt where there is no action pending, as there is no decision
which might in any be influenced by the newspaper publication. In
the second, the contempt exists, with or without a pending case, as
what is sought to be protected is the court itself and its dignity. (12
Am. Jur. pp. 416-417.) Courts would lose their utility if public
confidence in them is destroyed.
The foregoing disposes of Jurado's other contention that the present
administrative matter is not a citation for direct contempt, there
being no pending case or proceeding out of which a charge of direct
contempt against him may arise; this, even without regard to the fact
that the statements made by him about sojourn in Hongkong of six
Justices of the Supreme Court were clearly in relation to a case
involving two (2) public utility companies, then pending in this Court.
26
His theory that there is no formal charge against him is specious.
His published statements about that alleged trip are branded as
false in no uncertain terms by the sworn statement and letter of Vice-
CONSTI LAW II I ACJUCO 330
President Vicente R. Samson of the Philippine Long Distance
Telephone Company which:
(a) "emphatically and categorically" deny that PLDT had
made any arrangements with any travel agency, or with the two
travel agencies it patronized or retained, or paid anything, on
account of such alleged trip;
(b) positively affirm (i) that PLDT was "not even aware that
any of the justices or their families . . . (had) made the trip referred
to in the Jurado column," and (ii) that neither Atty. Emil P. Jurado
nor anyone in his behalf has ever spoken to . . . (said Mr. Samson)
or any other responsible officer of PLDT about the matter . . .; and
(c) beseech the Court to "take such action (on the matter) as
may be appropriate.
As already stated, the Court, in its Resolution of February 16, 1993:
(a) ordered the subject of Samson's letter and affidavit docketed as
an official Court proceeding to determine the truth of Jurado's
allegations about it; and
(b) directed also that Jurado be furnished copies of Atty. William
Veto's affidavit on the luncheon party hosted by him (which Jurado
reported as one given by Equitable Bank) and that Jurado file
comment on said affidavits as well as allegations in specified
columns of his. Jurado was also furnished copies of the affidavits
later submitted by the two travel agencies mentioned in Samson's
statement, and was required to comment thereon.
It was thus made clear to him that he was being called to account
for his published statements about the matters referred to, and that
action would be taken thereon against him as "may be appropriate."
That that was in fact how he understood it is evident from his
submitted defenses, denying or negativing liability for contempt,
direct indirect. Indeed, as journalist of no little experience and a
lawyer to boot, he cannot credibly claim an inability to understand
the nature and import of the present proceedings.
Jurado would also claim that the Court has no administrative
supervision over him as a member of the press or over his work as
a journalist, and asks why he is being singled out, and, by being
required to submit to a separate administrative proceeding, treated
differently than his other colleagues in media who were only asked
to explain their reports and comments about wrongdoing in the
judiciary to the Ad Hoc Committee. The answer is that upon all that
has so far been said, the Court may hold anyone to answer for
utterances offensive to its dignity, honor or reputation which tend to
put it in disrepute, obstruct the administration of justice, or interfere
with the disposition of its business or the performance of its
functions in an orderly manner. Jurado has not been singled out.
What has happened is that there have been brought before the
Court, formally and in due course, sworn statements branding his
reports as lies and thus imposing upon him the alternatives of
substantiating those reports or assuming responsibility for their
publication.
Jurado would have the Court clarify in what capacity — whether a
journalist, or as a member of the bar — he has been cited in these
proceeding. Thereby he resurrects the issue he once raised in a
similar earlier proceeding: that he is being called to account as a
lawyer for his statements as a
journalist. 27 This is not the case at all. Upon the doctrines and
principles already inquired into and cited, he is open to sanctions as
journalist who has misused and abused press freedom to put the
judiciary in clear and present to the danger of disrepute and of public
obdium and opprobrium, detriment and prejudice of the
administration of justice. That he is at the same time a member of
the bar has nothing to do with the setting in of those sanctions,
although it may aggravate liability. At any rate, what was said about
the matter in that earlier case is equally cogent here:

Respondent expresses perplexity at being called to account for the
publications in question in his capacity as a member of the bar, not
as a journalist. The distinction is meaningless, since as the matter
stands, he has failed to justify his actuations in either capacity, and
there is no question of the Court's authority to call him to task either
as a newsman or as a lawyer. What respondent proposes is that in
considering his actions, the Court judge them only as those of a
member of the press and disregard the fact that he is also a lawyer.
But his actions cannot be put into such neat compartments. In the
natural order of things, a person's acts are determined by, and
reflect, the sum total of his knowledge, training and experience. In
the case of respondent in particular the Court will take judicial notice
of the frequent appearance in his regular columns of comments and
observations utilizing legal language and argument, bearing witness
to the fact that in pursuing his craft as a journalist he calls upon his
knowledge as a lawyer to help inform and influence his readers and
enhance his credibility. Even absent this circumstance, respondent
cannot honestly assert that in exercising his profession as journalist
he does not somehow, consciously or unconsciously, draw upon his
legal knowledge and training. It is thus not realistic, nor perhaps
even possible, to come to fair, informed and intelligent judgment of
respondent's actuations by divorcing from consideration the fact that
he is a lawyer as well as a newspaperman, even supposing, which
is not the case — that he may thereby be found without
accountability in this matter.
To repeat, respondent cannot claim absolution even were the Court
to lend ear to his plea that his actions be judged solely as those of
a newspaperman unburdened by the duties and responsibilities
peculiar to the law profession of which he is also a member.
8. The Dissents
The eloquent, well-crafted dissents of Messrs. Justices Puno and
Melo that would invoke freedom of the press to purge Jurado's
conduct of any taint of contempt must now be briefly addressed.
a. Apparent Misapprehension
of Antecedents and Issue
Regrettably, there appears to be some misapprehension not only
about the antecedents directly leading to the proceedings at bar but
also the basic issues involved.
The dissents appear to be of the view, for instance, that it was chiefly
Jurado's failure to appear before the Ad Hoc Committee in response
to two (2) letters of invitation issued to him, that compelled the Court
to order the matter to be docketed on February 16, 1993 and to
require respondent Jurado to file his Comment. This is not the case
at all. As is made clear in Sub-Heads 3 and 4 of this opinion, supra,
the direct cause of these proceedings was not Jurado's refusal to
appear and give evidence before the Ad Hoc Committee. The direct
cause was the letters of PLDT and Atty. William Veto, supported by
affidavits, denouncing certain of his stories as false, 28 with the
former praying that the Court take such action as may be
appropriate. And it was precisely "the matter dealt with in the letter
and affidavit of the PLDT" that this Court ordered to "be duly
DOCKETED, and hereafter considered and acted upon as an official
Court proceeding;" this, by Resolution dated February 16, 1993; the
Court also requiring, in the same Resolution, "that the Clerk of Court
SEND COPIES of the PLDT letter and affidavit, and of the affidavit
of Atty. William Veto to Atty. Emil Jurado . . .," and that Jurado
should comment thereon "as well as (on) the allegations made by
him in his columns, herein specified" — because of explicit claims,
and indications of the falsity or, inaccuracy thereof.
There thus also appears to be some misapprehension of the basic
issues, at least two of which are framed in this wise: (1) the right of
newsmen to refuse subpoenas, summons, or "invitations" to appear
in administrative investigations," and (2) their right "not to reveal
confidential sources of information under R.A. No. 53, as amended"
CONSTI LAW II I ACJUCO 331
— which are not really involved here — in respect of which it is
theorized that the majority opinion will have an inhibiting effect on
newsmen's confidential sources of information, and thereby
abridges the freedom of the press.
(1) No Summons or Subpoena
Ever Issued to Jurado
The fact is that no summons or subpoena was ever issued to Jurado
by the Ad Hoc Committee; nor was the issuance of any such or
similar processes, or any punitive measures for disobedience
thereto, intended or even contemplated. Like most witnesses who
gave evidence before the Committee, Jurado was merely invited to
appear before it to give information in aid of its assigned task of
ascertaining the truth concerning persistent rumors and reports
about corruption in the judiciary. When he declined to accept the
invitations, the Ad Hoc Committee took no action save to inform the
Court thereof; and the Court itself also took no action. There is thus
absolutely no occasion to ascribe to that investigation and the
invitation to appear thereat a "chilling effect" on the by and large
"hard-boiled" and self-assured members of the media fraternity. If at
all, the patience and forbearance of the Court, despite the
indifference of some of its invitees and projected witnesses, appear
to have generated an attitude on their part bordering on defiant
insolence.
(2) No Blanket Excuse Under RA 53
From Responding to Subpoena
Even assuming that the facts were as presented in the separate
opinion, i.e., that subpoenae had in fact been issued to and served
on Jurado, his unexplained failure to obey the same would prima
facie constitute constructive contempt under Section 3, Rule 71 of
the Rules of Court. It should be obvious that a journalist may not
refuse to appear at all as required by a subpoena on the bare plea
that under R.A. No 53, he may not be compelled to disclose the
source of his information. For until he knows what questions will be
put to him as witness — for which his presence has been compelled
— the relevance of R.A. No. 53 cannot be ascertained. His duty is
clear. He must obey the subpoena. He must appear at the appointed
place, date and hour, ready to answer questions, and he may invoke
the protection of the statute only at the appropriate time.
b. The Actual Issue
The issue therefore had nothing to do with any failure of Jurado's to
obey a subpoena, none ever having been issued to him, and the Ad
Hoc Committee having foreborne to take any action at all as regards
his failure to accept its invitations. The issue, as set out in the
opening sentence of this opinion, essentially concerns "(l)iability for
published statements demonstrably false or misleading, and
derogatory of the courts and individual judges."
Jurado is not being called to account for declining to identify the
sources of his news stories, or for refusing to appear and give
testimony before the Ad Hoc Committee. He is not being compelled
to guarantee the truth of what he publishes, but to exercise honest
and reasonable efforts to determine the truth of defamatory
statements before publishing them. He is being meted the
punishment appropriate to the publication of stories shown to be
false and defamatory of the judiciary — stories that he made no
effort whatsoever to verify and which, after being denounced as lies,
he has refused, or is unable, to substantiate.
c. RA 53 Confers No Immunity from Liability
for False or Defamatory Publications
This opinion neither negates nor seeks to enervate the proposition
that a newsman has a right to keep his sources confidential; that he
cannot be compelled by the courts to disclose them, as provided by
R.A. 53, unless the security of the State demands such revelation.

But it does hold that he cannot invoke such right as a shield against
liability for printing stories that are untrue and derogatory of the
courts, or others. The ruling, in other words, is that when called to
account for publications denounced as inaccurate and misleading,
the journalist has the option (a) to demonstrate their truthfulness or
accuracy even if in the process he disclose his sources, or (b) to
refuse, on the ground that to do so would require such disclosure.
In the latter event, however, he must be ready to accept the
consequences of publishing untruthful or misleading stories the truth
and accuracy of which he is unwilling or made no bona fide effort to
prove; for R.A. 53, as amended, is quite unequivocal that the right
of refusal to disclose sources is "without prejudice to . . . liability
under civil and criminal laws."
R.A. 53 thus confers no immunity from prosecution for libel or for
other sanction under law. It does not declare that the publication of
any news report or information which was "related in confidence" to
the journalist is not actionable; such circumstance (of confidentiality)
does not purge, the publication of its character as defamatory, if
indeed it be such, and actionable on that ground. All it does is give
the journalist the right to refuse (or not to be compelled) to reveal
the source of any news report published by him which was revealed
to him in confidence.
A journalist cannot say, e.g.: a person of whose veracity I have no
doubt told me in confidence that Justices X and Y received a bribe
of P1M each for their votes in such and such a case, or that a certain
Judge maintains a mistress, and when called to account for such
statements, absolve himself by claiming immunity under R.A. 53, or
invoking press freedom.
d. A Word about "Group Libel"
There is hardly need to belabor the familiar doctrine about group
libel and how it has become the familiar resort of unscrupulous
newsmen who can malign any number of anonymous members of
a common profession, calling or persuasion, thereby putting an
entire institution — like the judiciary in this case — in peril of public
contumely and mistrust without serious risk of being sued for
defamation. The preceding discussions have revealed Jurado's
predilection for, if not his normal practice of, refusing to specifically
identify or render identifiable the persons he maligns. Thus, he
speaks of the "Magnificent Seven," by merely referring to
undisclosed regional trial court judges in Makati; the "Magnificent
Seven" in the Supreme Court, as some undesignated justices who
supposedly vote as one; the "Dirty Dozen," as unidentified trial
judges in Makati and three other cities. He adverts to an anonymous
group of justices and judges for whom a bank allegedly hosted a
party; and six unnamed justices of this Court who reportedly spent
a prepaid vacation in Hong Kong with their families. This resort to
generalities and ambiguities is an old and familiar but reprehensible
expedient of newsmongers to avoid criminal sanctions since the
American doctrine of group libel is of restricted application in this
jurisdiction. For want of a definitely identified or satisfactorily
identifiable victim, there is generally no actionable libel, but such a
craven publication inevitably succeeds in putting all the members of
the judiciary thus all together referred to under a cloud of suspicion.
A veteran journalist and lawyer of long standing that he is, Jurado
could not have been unaware of the foregoing realities and
consequences.
e. Substantiation of News Report
Not Inconsistent with RA 53
It is argued that compelling a journalist to substantiate the news
report or information confidentially revealed to him would
necessarily negate or dilute his right to refuse disclosure of its
source. The argument will not stand scrutiny.
A journalist's "source" either exists or is fictitious. If the latter, plainly,
the journalist is entitled to no protection or immunity whatsoever.
CONSTI LAW II I ACJUCO 332
If the "source" actually exists, the information furnished is either
capable of independent substantiation, or it is not. If the first, the
journalist's duty is clear: ascertain, if not obtain, the evidence by
which the information may be verified before publishing the same;
and if thereafter called to account therefor, present such evidence
and in the process afford the party adversely affected thereby
opportunity to dispute the information or show it to be false.
If the information is not verifiable, and it is derogatory of any third
party, then it ought not to be published for obvious reasons. It would
be unfair to the subject of the report, who would be without means
of refuting the imputations against him. And it would afford an
unscrupulous journalist a ready device by which to smear third
parties without the obligation to substantiate his imputations by
merely claiming that the information had been given to him "in
confidence".
It is suggested that there is another face to the privileged character
of a journalist's source of information than merely the protection of
the journalist, and that it is intended to protect also the source itself.
What clearly is implied is that journalist may not reveal his source
without the latter's clearance or consent. This totally overlooks the
fact that the object of a derogatory publication has at least an equal
right to know the source thereof and, if indeed traduced, to the
opportunity of obtaining just satisfaction from the traducer.
9. Need for Guidelines
Advertences to lofty principle, however eloquent and enlightening,
hardly address the mundane, but immediate and very pertinent,
question of whether a journalist may put in print unverified
information derogatory of the courts and judges and yet remain
immune from liability for contempt for refusing, when called upon, to
demonstrate their truth on the ground of press freedom or by simply
claiming that he need not do so since (or if) it would compel him to
disclose the identity of his source or sources.
The question, too, is whether or not we are prepared to say that a
journalist's obligation to protect his sources of information
transcends, and is greater than, his duty to the truth; and that,
accordingly, he has no obligation whatsoever to verify, or exercise
bona fide efforts to verify, the information he is given or obtain the
side of the party adversely affected before he publishes the same.
True, the pre-eminent role of a free press in keeping freedom alive
and democracy in full bloom cannot be overemphasized. But it is
debatable if that role is well and truly filled by a press let loose to
print what it will, without reasonable restraints designed to assure
the truth and accuracy of what is published. The value of information
to a free society is in direct proportion to the truth it contains. That
value reduces to little or nothing when it is no longer possible for the
public to distinguish between truth and falsehood in news reports,
and the courts are denied the mechanisms by which to make
reasonably sure that only the truth reaches print.
a. No Constitutional Protection for Deliberately
False or Recklessly Inaccurate Reports
It is worth stressing that false reports about a public official or other
person are not shielded from sanction by the cardinal right to free
speech enshrined in the Constitution. Even the most liberal view of
free speech has never countenanced the publication of falsehoods,
specially the persistent and unmitigated dissemination of patent lies.
The U.S. Supreme Court, 29 while asserting that "(u)nder the First
Amendment there is no such thing as a false idea," and that
"(h)owever pernicious an opinion may seem, we depend for its
correction not on the conscience of judges and juries but on the
competition of other ideas" (citing a passage from the first Inaugural
Address of Thomas Jefferson), nonetheless made the firm
pronouncement that "there is no constitutional value in false

statements of fact," and "the erroneous statement of fact is not
worthy of constitutional protection (although) . . . nevertheless
inevitable in free debate." "Neither the intentional lie nor the careless
error," it said, "materially advances society's interest in "unhibited,
robust, and wide-open" debate on public issues. New York Times
Co. v. Sullivan, 376 US, at 270, 11 L Ed 2d 686, 95 ALR2d 1412.
They belong to that category of utterances which "are no essential
part of any exposition of ideas, and are of such slight social value
as a step to the truth that any benefit that may be derived from them
is clearly outweighed by the social interest in order and morality."
Chaplinsky v, new Hampshire, 315 US 568, 572, 86 L Ed 1031, 62
S Ct 766 (1942).
"The use of calculated falsehood," it was observed in another case,
30 "would put a different cast on the constitutional question.
Although honest utterances, even if inaccurate, may further the
fruitful exercise of the right of free speech, it does not follow that the
lie, knowingly and deliberately published about a public official,
should enjoy a like immunity. . . . (T)he knowingly false statement
and the false statement made with reckless disregard of the truth,
do not enjoy constitutional protection."
Similarly, in a 1969 case concerning a patently false accusation
made against a public employee avowedly in fulfillment of a "legal,
moral, or social duty," 31 this Court, through the late Chief Justice
Roberto Concepcion, ruled that the guaranty of free speech cannot
be considered as according protection to the disclosure of lies,
gossip or rumor, viz.:
. . . Defendant's civil duty was to help the Government clean house
and weed out dishonest, unfit or disloyal officers and employees
thereof, where there is reasonable ground to believe that they fall
under this category. He had no legal right, much less duty, to gossip,
or foster the circulation of rumors, or jump at conclusions and more
so if they are gratuitous or groundless. Otherwise, the freedom of
speech, which is guaranteed with a view to strengthening our
democratic institutions and promoting the general welfare, would be
a convenient excuse to engage in the vituperation of individuals, for
the attainment of private, selfish and vindictive ends, thereby
hampering the operation of the Government with. administrative
investigations of charges preferred without any color or appearance
of truth and with no other probable effect than the harassment of the
officer or employee concerned, to the detriment of public service
and public order.
b. No "Chilling Effect"
The fear expressed, and earlier adverted to, that the principles here
affirmed would have a "chilling effect" on media professionals,
seems largely unfounded and should be inconsequential to the
greater number of journalists in this country who, by and large, out
of considerations of truth, accuracy, and fair play, have
commendably refrained from ventilating what would otherwise be
"sensational" or "high-visibility" stories. In merely seeking to infuse
and perpetuate the same attitude and sense of responsibility in all
journalists, i.e., that there is a need to check out the truth and
correctness of information before publishing it, or that, on the other
hand, recklessness and crass sensationalism should be eschewed,
this decision, surely, cannot have such "chilling effect," and no
apprehension that it would deter the determination of truth or the
public exposure of wrong can reasonably be entertained.
The people's right to discover the truth is not advanced by unbridled
license in reportage that would find favor only with extremist
liberalism. If it has done nothing else, this case has made clear the
compelling necessity of the guidelines and parameters elsewhere
herein laid down. They are eminently reasonable, and no
responsible journalist should have cause to complain of difficulty in
their observance.
10. Afterword
CONSTI LAW II I ACJUCO 333
It seems fitting to close this opinion, with the words of Chief Justice
Moran, whose pronouncements have already been earlier quoted,
32 and are as germane today as when they were first written more
than fifty (50) years ago. 33
It may be said that respect to courts cannot be compelled and that
public confidence should be a tribute to judicial worth, virtue and
intelligence. But compelling respect to courts is one thing and
denying the courts the power to vindicate themselves when
outraged is another. I know of no principle of law that authorizes with
impunity a discontended citizen to unleash, by newspaper
publications, the avalanche of his wrath and venom upon courts and
judges. If he believes that a judge is corrupt and that justice has
somewhere been perverted, law and order require that he follow the
processes provided by the Constitution and the statutes by
instituting the corresponding proceedings for impeachment or
otherwise. . . .
xxx xxx xxx
It might be suggested that judges who are unjustly attacked have a
remedy in an action for libel. This suggestion has, however, no
rational basis in principle. In the first place, the outrage is not
directed to the judge as a private individual but to the judge as such
or to the court as an organ of the administration of justice. In the
second place, public interests will gravely suffer where the judge, as
such, will, from time to time, be pulled down and disrobed of his
judicial authority to face his assailant on equal grounds and
prosecute cases in his behalf as a private individual. The same
reasons of public policy which exempt a judge from civil liability in
the exercise of his judicial functions, most fundamental of which is
the policy to confine his time exclusively to the discharge of his
public duties, applies here with equal, if not superior, force (Hamilton
v. Williams, 26 Ala. 529; Busteed v. Parson, 54 Ala. 403; Ex parte
McLeod, 120 Fed. 130; Coons v. State, 191 Ind. 580; 134 N. E. 194).
...
Jurado's actuations, in the context in which they were done,
demonstrate gross irresponsibility, and indifference to factual
accuracy and the injury that he might cause to the name and
reputation of those of whom he wrote. They constitute contempt of
court, directly tending as they do to degrade or abase the
administration of justice and the judges engaged in that function. By
doing them, he has placed himself beyond the circle of reputable,
decent and responsible journalists who live by their Code or the
"Golden Rule" and who strive at all times to maintain the prestige
and nobility of their calling.
Clearly unrepentant, exhibiting no remorse for the acts and conduct
detailed here, Jurado has maintained a defiant stance. "This is a
fight I will not run from," he wrote in his column of March 21, 1993;
and again, "I will not run away from a good fight," in his column of
March 23, 1993. Such an attitude discourages leniency, and leaves
no choice save the application of sanctions appropriate to the
offense.
WHEREFORE, the Court declares Atty. Emil (Emiliano) P. Jurado
guilty of contempt of court and in accordance with Section 6, Rule
71 of the Rules of Court, hereby sentences him to pay a fine of one
thousand pesos (P1,000,00).
IT IS SO ORDERED.

FREEDOM OF ASSEMBLY
G.R. No. L-65366 November 9, 1983
JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION
(ABC), petitioner,
vs.
RAMON BAGATSING, as Mayor of the City of Manila,
respondent.
Lorenzo M. Tañada Jose W. Diokno and Haydee B. Yorac for
petitioner.
The Solicitor General for respondent.
FERNANDO, C.J.:ñé+.£ªwph!1
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 JB 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 Disbarmament, 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 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
CONSTI LAW II I ACJUCO 334
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 Court's 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 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 hot to be limited, much less denied, except on a
showing, as 's 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 Maicolm had
occasion to stress that it is a necessary consequence of our
republican institutions and complements the right of free speech. 19
To paraphrase opinion of Justice Rutledge speaking for the majority
of the American Supreme Court Thomas v. Collins, 20 it was not by
accident or coincidence that the right to freedom of speech and of
the press were toupled in a single guarantee with the and to petition
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. the every case, therefo re 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 one's 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 or oposed
march and rally starting from a public dark 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 block-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 vs.
State of New Hampshire, 312 U.S., 569. In that case, the statute of
New Hampshire P. L. chap. 145, section 2, providing that 'no parade
or procession upon any ground abutting thereon, shall 'De permitted
unless a special license therefor shall first be explained 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
CONSTI LAW II I ACJUCO 335
itself would be lost in the excesses of unrestricted abuses. The
authority of a municipality to impose regulations in order to assure
the safety and convenience of the people in the use of public
highways has never been regarded as inconsistent with civil liberties
but rather as one of the means of safeguarding the good order upon
which they ultimately depend. The control of travel on the streets of
cities is the most familiar illustration of this recognition of social
need. Where a restriction of the use of highways in that relation is
designed to promote the public convenience in the interest of all, it
cannot be disregarded by the attempted exercise of some civil right
which in other circumstances would be entitled to protection." 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 the 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 the 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 ill 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 tree 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
Disbarmament, 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 Police District, Metropolitan Police Force,
that the police force is in a position to cope with such emergency
should it arise That is to comply with its duty to extend protection to
the participants of such peaceable assembly. Also from him came
the commendable admission that there were the least five previous
demonstrations at the Bayview hotel Area and Plaza Ferguson in
front of the United States Embassy where no untoward event
occurred. It was made clear by petitioner, through counsel, that no
act offensive to the dignity of the United States Mission in the
Philippines would take place and that, as mentioned at the outset of
this opinion, "all the necessary steps would be taken by it 'to ensure
a peaceful march and rally.' " 40 Assistant Solicitor General
Montenegro expressed the view that the presence of policemen
may in itself be a provocation. It is a sufficient answer that they
should stay at a discreet distance, but ever ready and alert to cope
with any contingency. There is no need to repeat what 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 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,
then, can have recourse to the proper judicial authority. Free speech
CONSTI LAW II I ACJUCO 336
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 Justices Makasiar and
Plana certainly cannot be summarily brushed aside. The high estate
accorded the rights to free speech and peaceable assembly
demands nothing less.
10. Ordinarily, the remedy in cases of this character is to set
aside the denial or the modification of the permit sought and order
the respondent official, to grant it. Nonetheless, as there was
urgency in this case, the proposed march and rally being scheduled
for the next day after the hearing, this Court. in the exercise of its
conceded authority, granted the mandatory injunction in the
resolution of October 25, 1983. It may be noted that the peaceful
character of the peace march and rally on October 26 was not
marred by any untoward incident. So it has been in other assemblies
held elsewhere. It is quite reassuring such that both on the part of
the national government and the citizens, reason and moderation
have prevailed. That is as it should be.
WHEREFORE, the mandatory injunction prayed for is granted. No
costs.

G.R. No. L-62270 May 21, 1984
CRISPIN MALABANAN, EVELIO JALOS, BEN LUTHER
LUCAS, SOTERO LEONERO, and JUNE LEE, petitioners,
vs.
THE HONORABLE ANASTACIO D. RAMENTO, in his capacity
as the Director of the National Capital Region of the Ministry
of Education, Culture and Sports, THE GREGORIO ARANETA
UNIVERSITY FOUNDATION; CESAR MIJARES, in his capacity
as the President of the Gregorio Araneta University
Foundation, GONZALO DEL ROSARIO, in his capacity as the
Director for Academic Affairs of the Gregorio Araneta
University Foundation; TOMAS B. MESINA, in his capacity as
the Dean of Student Affairs of the Gregorio Araneta University
Foundation; ATTY. LEONARDO PADILLA, in his capacity as
Chief Legal Counsel & Security Supervisor of the Gregorio
Araneta University Foundation; ATTY. FABLITA AMMAY,
ROSENDO GALVANTE and EUGENIA TAYAO, in their
capacities as members of the Ad Hoc Committee of the
Gregorio Araneta University Foundation, respondents.
Honesto N. Salcedo for petitioners.
The Solicitor General and Leonardo G. Padilla & Pablita G.
Ammay for respondents.
FERNANDO, CJ.:
The failure to accord respect to the constitutional rights of freedom
of peaceable assembly and free speech is the grievance alleged by
petitioners, students of the Gregorio Araneta University Foundation,
in this certiorari, prohibition and mandamus proceeding. The
principal respondents are Anastacio D. Ramento, Director of the
National Capital Region of the Ministry of Education, Culture and
Sports and the Gregorio Araneta University Foundation. 1 The
nullification of the decision of respondent Ramento affirming the
action taken by respondent Gregorio Araneta University Foundation
finding petitioners guilty of illegal assembly and suspending them is
sought in this petition.
The facts are not open to dispute. Petitioners were officers of the
Supreme Student Council of respondent University. They sought
and were granted by tile school authorities a permit to hold a
meeting from 8:00 A.M. to 12:00 P.M, on August 27, 1982. Pursuant
to such permit, along with other students, they held a general
assembly at the Veterinary Medicine and Animal Science basketball
court (VMAS), the place indicated in such permit, not in the
basketball court as therein stated but at the second floor lobby. At
such gathering they manifested in vehement and vigorous language
their opposition to the proposed merger of the Institute of Animal
Science with the Institute of Agriculture. At 10:30 A.M., the same
day, they marched toward the Life Science Building and continued
their rally. It was outside the area covered by their permit. They
continued their demonstration, giving utterance to language
severely critical of the University authorities and using megaphones
in the process. There was, as a result, disturbance of the classes
being held. Also, the non-academic employees, within hearing
distance, stopped their work because of the noise created. They
were asked to explain on the same day why they should not be held
liable for holding an illegal assembly. Then on September 9, 1982,
they were formed through a memorandum that they were under
preventive suspension for their failure to explain the holding of an
illegal assembly in front of the Life Science Building. The validity
thereof was challenged by petitioners both before the Court of First
Instance of Rizal in a petition for mandamus with damages against
private respondents 2 and before the Ministry of Education, Culture,
and Sports. On October 20, 1982, respondent Ramento, as Director
of the National Capital Region, found petitioners guilty of the charge
of having violated par. 146(c) of the Manual for Private Schools
more specifically their holding of an illegal assembly which was
CONSTI LAW II I ACJUCO 337
characterized by the violation of the permit granted resulting in the
disturbance of classes and oral defamation. The penalty was
suspension for one academic year. Hence this petition.
On November 16, 1982, this Court issued the following resolution:
"Acting on the urgent ex-parte motion for the immediate issuance of
a temporary mandatory order filed by counsel for petitioners, dated
November 12, 1982, the Court Resolved to ISSUE A TEMPORARY
RESTRAINING ORDER enjoining all respondents or any person or
persons acting in their place or stead from enforcing the order of the
Ministry of' Education and Culture dated October 20, 1982 finding
the petitioners guilty of the charges against them and suspending
them for one (1) academic year with a stern warning that a
commission of the same or another offense will be dealt with utmost
severity, effective as of this date and continuing until otherwise
ordered by this Court, thus allowing them to enroll, if so minded. 3
Both public and private respondents submitted their comments.
Private respondents prayed for the dismissal of the petition "for lack
of factual and legal basis and likewise [prayed] for the lifting of the
temporary restraining order dated November 16, 1982." 4 Public
respondent Ramento, on the other hand, through the Office of the
Solicitor General, prayed for the dismissal of the petition based on
the following conclusion: "Consequently, it is respectfully submitted
that respondent Director of the MECS did not commit any error,
much less abused his discretion, when he affirmed the decision of
respondent University finding petitioners guilty of violations of the
provisions of the Manual of Regulations for Private Schools and the
Revised Student's Code of Discipline .and ordering their suspension
for one (1) academic school year. However, since said suspension
has not been enforced except only briefly, thereby enabling
petitioners Leonero, Jr., Lucas and Malabanan to finish their
courses, and allowing petitioners Lee and Jalos to continue their
schooling, if they so desire, this proceeding is now moot and
academic. 5
With the submission of such comments considered as the answers
of public and private respondents, the case was ready for decision.
This petition may be considered moot and academic if viewed solely
from the fact that by virtue of the temporary restraining order issued
by this Court petitioners were allowed to enroll in the ensuing
semester, with three of them doing so and with the other two equally
entitled to do so. Moreover, there is the added circumstance of more
than a year having passed since October 20, 1982 when respondent
Ramento issued the challenged decision suspending them for one
year. Nonetheless, with its validity having been put in issue, for
being violative of the constitutional rights of freedom of peaceable
assembly and free speech, there is need to pass squarely on the
question raised.
This Court accordingly rules that respect for the constitutional rights
of peaceable assembly and free speech calls for the setting aside
of the decision of respondent Ramento, the penalty imposed being
unduly severe. It is true that petitioners held the rally at a place other
than that specified in the permit and continued it longer than the time
allowed. Undeniably too, they did disturb the classes and caused
the work of the non-academic personnel to be left undone. Such
undesirable consequence could have been avoided by their holding
the assembly in the basketball court as indicated in the permit.
Nonetheless, suspending them for one year is out of proportion to
their misdeed. The petition must be granted and the decision of
respondent Ramento nullified, a much lesser penalty being
appropriate.
1. As is quite clear from the opinion in Reyes v. Bagatsing, 6
the invocation of the right to freedom of peaceable assembly carries
with it the implication that the right to free speech has likewise been
disregarded. Both are embraced in the concept of freedom of
expression which is Identified with the liberty to discuss publicly and
truthfully, any matter of public interest without censorship or

punishment and which "is not to be limited, much less denied,
except on a showing ... of a clear and present danger of a
substantive evil that the state has a right to prevent." 7
2. In the above case, a permit was sought to hold a peaceful
march and rally from the Luneta public park to the gates of the united
States Embassy, hardly two blocks away, where in an open space
of public property, a short program would be held. Necessarily then,
the question of the use of a public park and of the streets leading to
the United States Embassy was before this Court. We held that
streets and parks have immemorially been held in trust for the use
of the public and have been used for purposes of assembly to
communicate thoughts between citizens and to discuss public
issues. 8
3. The situation here is different. The assembly was to be
held not in a public place but in private premises, property of
respondent University. There is in the Reyes opinion as part of the
summary this relevant excerpt: "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." 9 Petitioners did seek such consent.
It was granted. According to the petition: "On August 27, 1982, by
virtue of a permit granted to them by the school administration, the
Supreme Student Council where your petitioners are among the
officers, held a General Assembly at the VMAS basketball court of
the respondent university." 10 There was an express admission in
the Comment of private respondent University as to a permit having
been granted for petitioners to hold a student assembly. 11 The
specific question to be resolved then is whether on the facts as
disclosed resulting in the disciplinary action and the penalty
imposed, there was an infringement of the right to peaceable
assembly and its cognate right of free speech.
4. Petitioners invoke their rights to peaceable assembly and
free speech. They are entitled to do so. They enjoy like the rest of
the citizens the freedom to express their views and communicate
their thoughts to those disposed to listen in gatherings such as was
held in this case. They do not, to borrow from the opinion of Justice
Fortas in Tinker v. Des Moines Community School District, 12 "shed
their constitutional rights to freedom of speech or expression at the
schoolhouse gate." 13 While, therefore, the authority of educational
institutions over the conduct of students must be recognized, it
cannot go so far as to be violative of constitutional safeguards. On
a more specific level there is persuasive force to this formulation in
the Fortas opinion: "The principal use to which the schools are
dedicated is to accommodate students during prescribed hours for
the purpose of certain types of activities. Among those activities is
personal intercommunication among the students. This is not only
an inevitable part of the process of attending school; it is also an
important part of the educational process. A student's rights,
therefore, do not embrace merely the classroom hours. When he is
in the cafeteria, or on the playing field, or on the campus during the
authorized hours, he may express his opinions, even on
controversial subjects like the conflict in Vietnam, if he does so
without 'materially and substantially interfer[ing] with the
requirements of appropriate discipline in the operation of the school'
and without colliding with the rights of others. ... But conduct by the
student, in class or out of it, which for any reason — whether it stems
from time, place, or type of behavior — materially disrupts classwork
or involves substantial disorder or invasion of the rights of others is,
of course, not immunized by the constitutional guarantee of freedom
of speech." 14
5. As tested by such a standard, what is the verdict on the
complaint of petitioners that there was a disregard of their
constitutional rights to peaceable assembly and free speech. It must
be in their favor, but subject to qualification in view of their continuing
their demonstration in a place other than that specified in the permit
for a longer period and their making use of megaphones therein,
CONSTI LAW II I ACJUCO 338
resulting in the disruption of classes and the stoppage of work by
the non-academic personnel in the vicinity of such assembly.
6. Objection is made by private respondents to the tenor of
the speeches by the student leaders. That there would be a vigorous
presentation of views opposed to the proposed merger of the
Institute of Animal Science with the Institute of Agriculture was to be
expected. There was no concealment of the fact that they were
against such a move as it confronted them with a serious problem
(iisang malaking suliranin.") 15 They believed that such a merger
would result in the increase in tuition fees, an additional headache
for their parents ("isa na naman sakit sa ulo ng ating mga
magulang."). 16 If in the course of such demonstration, with an
enthusiastic audience goading them on, utterances, extremely
critical, at times even vitriolic, were let loose, that is quite
understandable. Student leaders are hardly the timid, diffident
types. They are likely to be assertive and dogmatic. They would be
ineffective if during a rally they speak in the guarded and judicious
language of the academe. At any rate, even a sympathetic audience
is not disposed to accord full credence to their fiery exhortations.
They take into account the excitement of the occasion, the
propensity of speakers to exaggerate, the exuberance of youth,
They may give the speakers the benefit of their applause, but with
the activity taking place in the school premises and during the
daytime, no clear and present danger of public disorder is
discernible. This is without prejudice to the taking of disciplinary
action for conduct, which, to borrow from Tinker, "materially disrupts
classwork or involves substantial disorder or invasion of the rights
of others."
7. Nor is this a novel approach to the issue raised by
petitioners that they were denied the right to peaceable assembly.
In a 1907 decision, United States v. Apurado, 17 the facts disclosed
that shortly before the municipal council of San Carlos, Occidental
Negros, started its session, some five hundred residents of the
municipality assembled near the municipal building, and, upon the
opening of the session, a substantial number of such persons
barged into the council chamber, demanding that the municipal
treasurer, the municipal secretary, and the chief of police be
dismissed, submitting at the same time the proposed substitutes.
The municipal council gave its conformity. Such individuals were
wholly unarmed except that a few carried canes; the crowd was
fairly orderly and well-behaved except in so far as their pressing into
the council chamber during a session of that body could be called
disorder and misbehavior. It turned out that the movement had its
origin in religious differences. The defendant Filomeno Apurado and
many other participants were indicted and convicted of sedition in
that they allegedly prevented the municipal government from freely
exercising its duties. On appeal, the Supreme Court reversed.
Justice Carson, who penned the opinion, correctly pointed out that
"if the prosecution be permitted to seize upon every instance of such
disorderly conduct by individual members of a crowd as an excuse
to characterize the assembly as a seditious and tumultuous rising
against the authorities, then the right to assemble and to petition for
redress of grievances would become a delusion and a snare and
the attempt to exercise it on the most righteous occasion and in the
most peaceable manner would expose all those who took part
therein to the severest form of punishment, if the purposes which
they sought to attain did not happen to be pleasing to the
prosecuting authorities." 18 The principle to be followed is
enunciated thus: "If instances of disorderly conduct occur on such
occasions, the guilty individuals should be sought out and punished
therefor, but the utmost discretion must be exercised in drawing the
line between disorderly and seditious conduct and between an
essentially peaceable assembly and a tumultuous uprising." 19 A
careful reading of this decision is in order before private
respondents attach, as they did in their comments, a subversive
character to the rally held by the students under the leadership of
petitioners.
 CONSTI LAW II I ACJUCO 339

8. It does not follow, however, that petitioners can be totally

absolved for the events that transpired. Admittedly, there was a
violation of the terms of the permit. The rally was held at a place
other than that specified, in the second floor lobby, rather than the
basketball court, of the VMAS building of the University. Moreover,
it was continued longer than the period allowed. According to the
decision of respondent Ramento, the "concerted activity [referring
to such assembly] went on until 5:30 p. m. 20 Private respondents
could thus, take disciplinary action. On those facts, however, an
admonition, even a censure-certainly not a suspension-could be the
appropriate penalty. Private respondents could and did take
umbrage at the fact that in view of such infraction considering the
places where and the time when the demonstration took place-there
was a disruption of the classes and stoppage of work of the non-
academic personnel. They would not be unjustified then if they did
take a much more serious view of the matter. Even then a one-year
period of suspension is much too severe. While the discretion of
both respondent University and respondent Ramento is recognized,
the rule of reason, the dictate of fairness calls for a much lesser
penalty. If the concept of proportionality between the offense
connoted and the sanction imposed is not followed, an element of
arbitrariness intrudes. That would give rise to a due process
question. To avoid this constitutional objection, it is the holding of
this Court that a one-week suspension would be punishment
enough.

9. One last matter. The objection was raised that petitioners

failed to exhaust administrative remedies. That is true, but hardly
decisive. Here, a purely legal question is presented. Such being the
case, especially so where a decision on a question of law is
imperatively called for, and time being of the essence, this Court has
invariably viewed the issue as ripe for adjudication. What cannot be
too sufficiently stressed is that the constitutional rights to peaceable
assembly and free speech are invoked by petitioners. Moreover,
there was, and very likely there will continue to be in the future,
militancy and assertiveness of students on issues that they consider
of great importance, whether concerning their welfare or the general
public. That they have a right to do as citizens entitled to all the
protection in the Bill of Rights.

10. It would be most appropriate then, as was done in the case

of Reyes v. Bagatsing, 21 for this Court to lay down the principles
for the guidance of school authorities and students alike. The rights
to peaceable assembly and free speech are guaranteed students of
educational institutions. Necessarily, their exercise to discuss
matters affecting their welfare or involving public interest is not to be
subjected to previous restraint or subsequent punishment unless
there be a showing of a clear and present danger to a substantive
evil that the state, has a right to present. As a corollary, the utmost
leeway and scope is accorded the content of the placards displayed
or utterances made. The peaceable character of an assembly could
be lost, however, by an advocacy of disorder under the name of
dissent, whatever grievances that may be aired being susceptible to
correction through the ways of the law. If the assembly is to be held
in school premises, permit must be sought from its school
authorities, who are devoid of the power to deny such request
arbitrarily or unreasonably. In granting such permit, there may be
conditions as to the time and place of the assembly to avoid
disruption of classes or stoppage of work of the non-academic
personnel. Even if, however, there be violations of its terms, the
penalty incurred should not be disproportionate to the offense.

WHEREFORE, the petition is granted. The decision dated October

20, 1982 of respondent Ramento imposing a one-year suspension
is nullified and set aside. The temporary restraining order issued by
this Court in the resolution of November 18, 1982 is made
permanent. As of that date, petitioners had been suspended for
more than a week. In that sense, the one-week penalty had been
served. No costs.

G.R. No. 169838 April 25, 2006
BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG
PILIPINAS (KMP), GABRIELA, Fr. Jose Dizon, Renato
Constantino, Jr., Froyel Yaneza, and Fahima Tajar,
Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary,
Manila City Mayor LITO ATIENZA, Chief of the Philippine
National Police, Gen. ARTURO M. LOMIBAO, NCRPO Chief
Maj. Gen. VIDAL QUEROL, and Western Police District Chief
Gen. PEDRO BULAONG, Respondents.
x---------------------------------x
G.R. No. 169848 April 25, 2006
Jess Del Prado, Wilson Fortaleza, Leody de Guzman, Pedro
Pinlac, Carmelita Morante, Rasti Delizo, Paul Bangay, Marie Jo
Ocampo, Lilia dela Cruz, Cristeta Ramos, Adelaida Ramos,
Mary Grace Gonzales, Michael Torres, Rendo Sabusap,
Precious Balute, Roxanne Magboo, Ernie Bautista, Joseph de
Jesus, Margarita Escober, Djoannalyn Janier, Magdalena
Sellote, Manny Quiazon, Ericson Dizon, Nenita Cruzat,
Leonardo De los Reyes, Pedrito Fadrigon, Petitioners,
vs.
EDUARDO ERMITA, in his official capacity as The Executive
Secretary and in his personal capacity, ANGELO REYES, in
his official capacity as Secretary of the Interior and Local
Governments, ARTURO LOMIBAO, in his official capacity as
the Chief, Philippine National Police, VIDAL QUEROL, in his
official capacity as the Chief, National Capital Regional Police
Office (NCRPO), PEDRO BULAONG, in his official capacity as
the Chief, Manila Police District (MPD) AND ALL OTHER
PUBLIC OFFICERS GARCIA, and AND PRIVATE INDIVIDUALS
ACTING UNDER THEIR CONTROL, SUPERVISION AND
INSTRUCTIONS, Respondents.
x---------------------------------x
G.R. No. 169881 April 25, 2006
KILUSANG MAYO UNO, represented by its Chairperson
ELMER C. LABOG and Secretary General JOEL MAGLUNSOD,
NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG
MAYO UNO (NAFLU-KMU), represented by its National
President, JOSELITO V. USTAREZ, ANTONIO C. PASCUAL,
SALVADOR T. CARRANZA, GILDA SUMILANG, FRANCISCO
LASTRELLA, and ROQUE M. TAN, Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, PNP DIRECTOR
GENRAL ARTURO LOMIBAO, HONORABLE MAYOR LITO
ATIENZA, and PNP MPD CHIEF SUPT. PEDRO BULAONG,
Respondents.
DECISION
AZCUNA, J.:
Petitioners come in three groups.
The first petitioners, Bayan, et al., in G.R. No. 169838,1 allege that
they are citizens and taxpayers of the Philippines and that their
rights as organizations and individuals were violated when the rally
they participated in on October 6, 2005 was violently dispersed by
policemen implementing Batas Pambansa (B.P.) No. 880.
The second group consists of 26 individual petitioners, Jess del
Prado, et al., in G.R. No. 169848,2 who allege that they were
injured, arrested and detained when a peaceful mass action they
held on September 26, 2005 was preempted and violently dispersed
CONSTI LAW II I ACJUCO 340
by the police. They further assert that on October 5, 2005, a group
they participated in marched to Malacañang to protest issuances of
the Palace which, they claim, put the country under an "undeclared"
martial rule, and the protest was likewise dispersed violently and
many among them were arrested and suffered injuries.
The third group, Kilusang Mayo Uno (KMU), et al., petitioners in
G.R. No. 169881,3 allege that they conduct peaceful mass actions
and that their rights as organizations and those of their individual
members as citizens, specifically the right to peaceful assembly, are
affected by Batas Pambansa No. 880 and the policy of "Calibrated
Preemptive Response" (CPR) being followed to implement it.
KMU, et al., claim that on October 4, 2005, a rally KMU co-
sponsored was to be conducted at the Mendiola bridge but police
blocked them along C.M. Recto and Lepanto Streets and forcibly
dispersed them, causing injuries to several of their members. They
further allege that on October 6, 2005, a multi-sectoral rally which
KMU also co-sponsored was scheduled to proceed along España
Avenue in front of the University of Santo Tomas and going towards
Mendiola bridge. Police officers blocked them along Morayta Street
and prevented them from proceeding further. They were then
forcibly dispersed, causing injuries on one of them.4 Three other
rallyists were arrested.
All petitioners assail Batas Pambansa No. 880, some of them in toto
and others only Sections 4, 5, 6, 12, 13(a), and 14(a), as well as the
policy of CPR. They seek to stop violent dispersals of rallies under
the "no permit, no rally" policy and the CPR policy recently
announced.
B.P. No. 880, "The Public Assembly Act of 1985," provides:
Batas Pambansa Blg. 880
An Act Ensuring The Free Exercise By The People Of Their Right
Peaceably To Assemble And Petition The Government [And] For
Other Purposes
Be it enacted by the Batasang Pambansa in session assembled:
Section 1. Title. – This Act shall be known as "The Public Assembly
Act of 1985."
Sec. 2. Declaration of policy. – The constitutional right of the people
peaceably to assemble and petition the government for redress of
grievances is essential and vital to the strength and stability of the
State. To this end, the State shall ensure the free exercise of such
right without prejudice to the rights of others to life, liberty and equal
protection of the law.
Sec. 3. Definition of terms. – For purposes of this Act:
(a) "Public assembly" means any rally, demonstration, march,
parade, procession or any other form of mass or concerted action
held in a public place for the purpose of presenting a lawful cause;
or expressing an opinion to the general public on any particular
issue; or protesting or influencing any state of affairs whether
political, economic or social; or petitioning the government for
redress of grievances.
The processions, rallies, parades, demonstrations, public meetings
and assemblages for religious purposes shall be governed by local
ordinances; Provided, however, That the declaration of policy as
provided in Section 2 of this Act shall be faithfully observed.
The definition herein contained shall not include picketing and other
concerted action in strike areas by workers and employees resulting
from a labor dispute as defined by the Labor Code, its implementing
rules and regulations, and by the Batas Pambansa Bilang 227.

(b) "Public place" shall include any highway, boulevard, avenue,
road, street, bridge or other thoroughfare, park, plaza, square,
and/or any open space of public ownership where the people are
allowed access.
(c) "Maximum tolerance" means the highest degree of restraint that
the military, police and other peace keeping authorities shall
observe during a public assembly or in the dispersal of the same.
(d) "Modification of a permit" shall include the change of the place
and time of the public assembly, rerouting of the parade or street
march, the volume of loud-speakers or sound system and similar
changes.
Sec. 4. Permit when required and when not required. – A written
permit shall be required for any person or persons to organize and
hold a public assembly in a public place. However, no permit shall
be required if the public assembly shall be done or made in a
freedom park duly established by law or ordinance or in private
property, in which case only the consent of the owner or the one
entitled to its legal possession is required, or in the campus of a
government-owned and operated educational institution which shall
be subject to the rules and regulations of said educational institution.
Political meetings or rallies held during any election campaign
period as provided for by law are not covered by this Act.
Sec. 5. Application requirements. – All applications for a permit shall
comply with the following guidelines:
(a) The applications shall be in writing and shall include the names
of the leaders or organizers; the purpose of such public assembly;
the date, time and duration thereof, and place or streets to be used
for the intended activity; and the probable number of persons
participating, the transport and the public address systems to be
used.
(b) The application shall incorporate the duty and responsibility of
the applicant under Section 8 hereof.
(c) The application shall be filed with the office of the mayor of the
city or municipality in whose jurisdiction the intended activity is to be
held, at least five (5) working days before the scheduled public
assembly.
(d) Upon receipt of the application, which must be duly
acknowledged in writing, the office of the city or municipal mayor
shall cause the same to immediately be posted at a conspicuous
place in the city or municipal building.
Sec. 6. Action to be taken on the application. –
(a) It shall be the duty of the mayor or any official acting in his behalf
to issue or grant a permit unless there is clear and convincing
evidence that the public assembly will create a clear and present
danger to public order, public safety, public convenience, public
morals or public health.
(b) The mayor or any official acting in his behalf shall act on the
application within two (2) working days from the date the application
was filed, failing which, the permit shall be deemed granted. Should
for any reason the mayor or any official acting in his behalf refuse to
accept the application for a permit, said application shall be posted
by the applicant on the premises of the office of the mayor and shall
be deemed to have been filed.
(c) If the mayor is of the view that there is imminent and grave
danger of a substantive evil warranting the denial or modification of
the permit, he shall immediately inform the applicant who must be
heard on the matter.
CONSTI LAW II I ACJUCO 341
(d) The action on the permit shall be in writing and served on the
applica[nt] within twenty-four hours.
(e) If the mayor or any official acting in his behalf denies the
application or modifies the terms thereof in his permit, the applicant
may contest the decision in an appropriate court of law.
(f) In case suit is brought before the Metropolitan Trial Court, the
Municipal Trial Court, the Municipal Circuit Trial Court, the Regional
Trial Court, or the Intermediate Appellate court, its decisions may be
appealed to the appropriate court within forty-eight (48) hours after
receipt of the same. No appeal bond and record on appeal shall be
required. A decision granting such permit or modifying it in terms
satisfactory to the applicant shall be immediately executory.
(g) All cases filed in court under this section shall be decided within
twenty-four (24) hours from date of filing. Cases filed hereunder
shall be immediately endorsed to the executive judge for disposition
or, in his absence, to the next in rank.
(h) In all cases, any decision may be appealed to the Supreme
Court.
(i) Telegraphic appeals to be followed by formal appeals are hereby
allowed.
Sec. 7. Use of Public throroughfare. – Should the proposed public
assembly involve the use, for an appreciable length of time, of any
public highway, boulevard, avenue, road or street, the mayor or any
official acting in his behalf may, to prevent grave public
inconvenience, designate the route thereof which is convenient to
the participants or reroute the vehicular traffic to another direction
so that there will be no serious or undue interference with the free
flow of commerce and trade.
Sec. 8. Responsibility of applicant. – It shall be the duty and
responsibility of the leaders and organizers of a public assembly to
take all reasonable measures and steps to the end that the intended
public assembly shall be conducted peacefully in accordance with
the terms of the permit. These shall include but not be limited to the
following:
(a) To inform the participants of their responsibility under the
permit;|avvphi|.net
(b) To police the ranks of the demonstrators in order to prevent non-
demonstrators from disrupting the lawful activities of the public
assembly;
(c) To confer with local government officials concerned and law
enforcers to the end that the public assembly may be held
peacefully;
(d) To see to it that the public assembly undertaken shall not go
beyond the time stated in the permit; and
(e) To take positive steps that demonstrators do not molest any
person or do any act unduly interfering with the rights of other
persons not participating in the public assembly.
Sec. 9. Non-interference by law enforcement authorities. – Law
enforcement agencies shall not interfere with the holding of a public
assembly. However, to adequately ensure public safety, a law
enforcement contingent under the command of a responsible police
officer may be detailed and stationed in a place at least one hundred
(100) meters away from the area of activity ready to maintain peace
and order at all times.
Sec. 10. Police assistance when requested. – It shall be imperative
for law enforcement agencies, when their assistance is requested
by the leaders or organizers, to perform their duties always mindful

that their responsibility to provide proper protection to those
exercising their right peaceably to assemble and the freedom of
expression is primordial. Towards this end, law enforcement
agencies shall observe the following guidelines:
(a) Members of the law enforcement contingent who deal with the
demonstrators shall be in complete uniform with their nameplates
and units to which they belong displayed prominently on the front
and dorsal parts of their uniform and must observe the policy of
"maximum tolerance" as herein defined;
(b) The members of the law enforcement contingent shall not carry
any kind of firearms but may be equipped with baton or riot sticks,
shields, crash helmets with visor, gas masks, boots or ankle high
shoes with shin guards;
(c) Tear gas, smoke grenades, water cannons, or any similar anti-
riot device shall not be used unless the public assembly is attended
by actual violence or serious threats of violence, or deliberate
destruction of property.
Sec. 11. Dispersal of public assembly with permit. – No public
assembly with a permit shall be dispersed. However, when an
assembly becomes violent, the police may disperse such public
assembly as follows:
(a) At the first sign of impending violence, the ranking officer of the
law enforcement contingent shall call the attention of the leaders of
the public assembly and ask the latter to prevent any possible
disturbance;
(b) If actual violence starts to a point where rocks or other harmful
objects from the participants are thrown at the police or at the non-
participants, or at any property causing damage to such property,
the ranking officer of the law enforcement contingent shall audibly
warn the participants that if the disturbance persists, the public
assembly will be dispersed;
(c) If the violence or disturbance prevailing as stated in the
preceding subparagraph should not stop or abate, the ranking
officer of the law enforcement contingent shall audibly issue a
warning to the participants of the public assembly, and after allowing
a reasonable period of time to lapse, shall immediately order it to
forthwith disperse;
(d) No arrest of any leader, organizer or participant shall also be
made during the public assembly unless he violates during the
assembly a law, statute, ordinance or any provision of this Act. Such
arrest shall be governed by Article 125 of the Revised Penal Code,
as amended;
(e) Isolated acts or incidents of disorder or breach of the peace
during the public assembly shall not constitute a ground for
dispersal.
Sec. 12. Dispersal of public assembly without permit. – When the
public assembly is held without a permit where a permit is required,
the said public assembly may be peacefully dispersed.
Sec. 13. Prohibited acts. – The following shall constitute violations
of the Act:
(a) The holding of any public assembly as defined in this Act by any
leader or organizer without having first secured that written permit
where a permit is required from the office concerned, or the use of
such permit for such purposes in any place other than those set out
in said permit: Provided, however, That no person can be punished
or held criminally liable for participating in or attending an otherwise
peaceful assembly;
CONSTI LAW II I ACJUCO 342
(b) Arbitrary and unjustified denial or modification of a permit in
violation of the provisions of this Act by the mayor or any other
official acting in his behalf;
(c) The unjustified and arbitrary refusal to accept or acknowledge
receipt of the application for a permit by the mayor or any official
acting in his behalf;
(d) Obstructing, impeding, disrupting or otherwise denying the
exercise of the right to peaceful assembly;
(e) The unnecessary firing of firearms by a member of any law
enforcement agency or any person to disperse the public assembly;
(f) Acts in violation of Section 10 hereof;
(g) Acts described hereunder if committed within one hundred (100)
meters from the area of activity of the public assembly or on the
occasion thereof:
1. the carrying of a deadly or offensive weapon or device such as
firearm, pillbox, bomb, and the like;
2. the carrying of a bladed weapon and the like;
3. the malicious burning of any object in the streets or thoroughfares;
4. the carrying of firearms by members of the law enforcement unit;
5. the interfering with or intentionally disturbing the holding of a
public assembly by the use of a motor vehicle, its horns and loud
sound systems.
Sec. 14. Penalties. – Any person found guilty and convicted of any
of the prohibited acts defined in the immediately preceding section
shall be punished as follows:
(a) violation of subparagraph (a) shall be punished by imprisonment
of one month and one day to six months;
(b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4,
subparagraph (g) shall be punished by imprisonment of six months
and one day to six years;
(c) violation of item 1, subparagraph (g) shall be punished by
imprisonment of six months and one day to six years without
prejudice to prosecution under Presidential Decree No. 1866;
(d) violations of item 2, item 3, or item 5 of subparagraph (g) shall
be punished by imprisonment of one day to thirty days.
Sec. 15. Freedom parks. – Every city and municipality in the country
shall within six months after the effectivity of this Act establish or
designate at least one suitable "freedom park" or mall in their
respective jurisdictions which, as far as practicable, shall be
centrally located within the poblacion where demonstrations and
meetings may be held at any time without the need of any prior
permit.
In the cities and municipalities of Metropolitan Manila, the respective
mayors shall establish the freedom parks within the period of six
months from the effectivity this Act.
Sec. 16. Constitutionality. – Should any provision of this Act be
declared invalid or unconstitutional, the validity or constitutionality of
the other provisions shall not be affected thereby.
Sec. 17. Repealing clause. – All laws, decrees, letters of
instructions, resolutions, orders, ordinances or parts thereof which
are inconsistent with the provisions of this Act are hereby repealed,
amended, or modified accordingly.

Sec. 18. Effectivity. – This Act shall take effect upon its approval.
Approved, October 22, 1985.
CPR, on the other hand, is a policy set forth in a press release by
Malacañang dated September 21, 2005, shown in Annex "A" to the
Petition in G.R. No. 169848, thus:
Malacañang Official
Manila, Philippines NEWS
Release No. 2 September 21, 2005
STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA
On Unlawful Mass Actions
In view of intelligence reports pointing to credible plans of anti-
government groups to inflame the political situation, sow disorder
and incite people against the duly constituted authorities, we have
instructed the PNP as well as the local government units to strictly
enforce a "no permit, no rally" policy, disperse groups that run afoul
of this standard and arrest all persons violating the laws of the land
as well as ordinances on the proper conduct of mass actions and
demonstrations.
The rule of calibrated preemptive response is now in force, in lieu of
maximum tolerance. The authorities will not stand aside while those
with ill intent are herding a witting or unwitting mass of people and
inciting them into actions that are inimical to public order, and the
peace of mind of the national community.
Unlawful mass actions will be dispersed. The majority of law-abiding
citizens have the right to be protected by a vigilant and proactive
government.
We appeal to the detractors of the government to engage in lawful
and peaceful conduct befitting of a democratic society.
The President’s call for unity and reconciliation stands, based on the
rule of law.
Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is
clearly a violation of the Constitution and the International Covenant
on Civil and Political Rights and other human rights treaties of which
the Philippines is a signatory.5
They argue that B.P. No. 880 requires a permit before one can stage
a public assembly regardless of the presence or absence of a clear
and present danger. It also curtails the choice of venue and is thus
repugnant to the freedom of expression clause as the time and place
of a public assembly form part of the message for which the
expression is sought. Furthermore, it is not content-neutral as it
does not apply to mass actions in support of the government. The
words "lawful cause," "opinion," "protesting or influencing" suggest
the exposition of some cause not espoused by the government.
Also, the phrase "maximum tolerance" shows that the law applies to
assemblies against the government because they are being
tolerated. As a content-based legislation, it cannot pass the strict
scrutiny test.
Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is
unconstitutional as it is a curtailment of the right to peacefully
assemble and petition for redress of grievances because it puts a
condition for the valid exercise of that right. It also characterizes
public assemblies without a permit as illegal and penalizes them and
allows their dispersal. Thus, its provisions are not mere regulations
but are actually prohibitions.
CONSTI LAW II I ACJUCO 343
Furthermore, the law delegates powers to the Mayor without
providing clear standards. The two standards stated in the laws
(clear and present danger and imminent and grave danger) are
inconsistent.
Regarding the CPR policy, it is void for being an ultra vires act that
alters the standard of maximum tolerance set forth in B.P. No. 880,
aside from being void for being vague and for lack of publication.
Finally, petitioners KMU, et al., argue that the Constitution sets no
limits on the right to assembly and therefore B.P. No. 880 cannot
put the prior requirement of securing a permit. And even assuming
that the legislature can set limits to this right, the limits provided are
unreasonable: First, allowing the Mayor to deny the permit on clear
and convincing evidence of a clear and present danger is too
comprehensive. Second, the five-day requirement to apply for a
permit is too long as certain events require instant public assembly,
otherwise interest on the issue would possibly wane.
As to the CPR policy, they argue that it is preemptive, that the
government takes action even before the rallyists can perform their
act, and that no law, ordinance or executive order supports the
policy. Furthermore, it contravenes the maximum tolerance policy of
B.P. No. 880 and violates the Constitution as it causes a chilling
effect on the exercise by the people of the right to peaceably
assemble.
Respondents in G.R. No. 169838 are Eduardo Ermita, as Executive
Secretary, Manila City Mayor Lito Atienza, Chief, of the Philippine
National Police (PNP) Gen. Arturo Lomibao, National Capital
Region Police Office (NCRPO) Chief, PNP Maj. Gen. Vidal Querol,
and Manila Police District (MPD) Chief Gen. Pedro Bulaong.
Respondents in G.R. No. 169848 are Eduardo Ermita as Executive
Secretary and in his personal capacity; Angelo Reyes, as Secretary
of the Interior and Local Governments; Arturo Lomibao, as Chief
Vidal Querol, as Chief, NCRPO; Pedro Bulaong, as Chief, MPD, and
all other public officers and private individuals acting under their
control, supervision and instruction.
Respondents in G.R. No. 169881 are the Honorable Executive
Secretary, PNP Director General Arturo Lomibao, the Honorable
Mayor Joselito Atienza, and PNP MPD Chief Pedro Bulaong.
Respondents argue that:
1. Petitioners have no standing because they have not presented
evidence that they had been "injured, arrested or detained because
of the CPR," and that "those arrested stand to be charged with
violating Batas Pambansa [No.] 880 and other offenses."
2. Neither B.P. No. 880 nor CPR is void on its face. Petitioners
cannot honestly claim that the time, place and manner regulation
embodied in B.P. No. 880 violates the three-pronged test for such a
measure, to wit: (a) B.P. No. 880 is content-neutral, i.e., it has no
reference to content of regulated speech; (b) B.P. No. 880 is
narrowly tailored to serve a significant governmental interest, i.e.,
the interest cannot be equally well served by a means that is less
intrusive of free speech interests; and (c) B.P. No. 880 leaves open
alternative channels for communication of the information.6
3. B.P. No. 880 is content-neutral as seen from the text of the law.
Section 5 requires the statement of the public assembly’s time,
place and manner of conduct. It entails traffic re-routing to prevent
grave public inconvenience and serious or undue interference in the
free flow of commerce and trade. Furthermore, nothing in B.P. No.
880 authorizes the denial of a permit on the basis of a rally’s
program content or the statements of the speakers therein, except
under the constitutional precept of the "clear and present danger
test." The status of B.P. No. 880 as a content-neutral regulation has
been recognized in Osmeña v. Comelec.7

4. Adiong v. Comelec8 held that B.P. No. 880 is a content-neutral
regulation of the time, place and manner of holding public
assemblies and the law passes the test for such regulation, namely,
these regulations need only a substantial governmental interest to
support them.
5. Sangalang v. Intermediate Appellate Court9 held that a local chief
executive has the authority to exercise police power to meet "the
demands of the common good in terms of traffic decongestion and
public convenience." Furthermore, the discretion given to the mayor
is narrowly circumscribed by Sections 5 (d), and 6 (a), (b), (c), (d),
(e), 13 and 15 of the law.
6. The standards set forth in the law are not inconsistent. "Clear and
convincing evidence that the public assembly will create a clear and
present danger to public order, public safety, public convenience,
public morals or public health" and "imminent and grave danger of
a substantive evil" both express the meaning of the "clear and
present danger test."10
7. CPR is simply the responsible and judicious use of means
allowed by existing laws and ordinances to protect public interest
and restore public order. Thus, it is not accurate to call it a new rule
but rather it is a more pro-active and dynamic enforcement of
existing laws, regulations and ordinances to prevent chaos in the
streets. It does not replace the rule of maximum tolerance in B.P.
No. 880.
Respondent Mayor Joselito Atienza, for his part, submitted in his
Comment that the petition in G.R. No. 169838 should be dismissed
on the ground that Republic Act No. 7160 gives the Mayor power to
deny a permit independently of B.P. No. 880; that his denials of
permits were under the "clear and present danger" rule as there was
a clamor to stop rallies that disrupt the economy and to protect the
lives of other people; that J. B. L. Reyes v. Bagatsing,11 Primicias
v. Fugoso,12 and Jacinto v. CA,13 have affirmed the
constitutionality of requiring a permit; that the permit is for the use
of a public place and not for the exercise of rights; and that B.P. No.
880 is not a content-based regulation because it covers all rallies.
The petitions were ordered consolidated on February 14, 2006.
After the submission of all the Comments, the Court set the cases
for oral arguments on April 4, 2006,14 stating the principal issues,
as follows:
1. On the constitutionality of Batas Pambansa No. 880, specifically
Sections 4, 5, 6, 12 13(a) and 14(a) thereof, and Republic Act No.
7160:
(a) Are these content-neutral or content-based regulations?
(b) Are they void on grounds of overbreadth or vagueness?
(c) Do they constitute prior restraint?
(d) Are they undue delegations of powers to Mayors?
(e) Do they violate international human rights treaties and the
Universal Declaration of Human Rights?
2. On the constitutionality and legality of the policy of Calibrated
Preemptive Response (CPR):
(a) Is the policy void on its face or due to vagueness?
(b) Is it void for lack of publication?
(c) Is the policy of CPR void as applied to the rallies of September
26 and October 4, 5 and 6, 2005?
CONSTI LAW II I ACJUCO 344
During the course of the oral arguments, the following developments
took place and were approved and/or noted by the Court:
1. Petitioners, in the interest of a speedy resolution of the petitions,
withdrew the portions of their petitions raising factual issues,
particularly those raising the issue of whether B.P. No. 880 and/or
CPR is void as applied to the rallies of September 20, October 4, 5
and 6, 2005.
2. The Solicitor General agreed with the observation of the Chief
Justice that CPR should no longer be used as a legal term inasmuch
as, according to respondents, it was merely a "catchword" intended
to clarify what was thought to be a misunderstanding of the
maximum tolerance policy set forth in B.P. No. 880 and that, as
stated in the affidavit executed by Executive Secretary Eduardo
Ermita and submitted to the Ombudsman, it does not replace B.P.
No. 880 and the maximum tolerance policy embodied in that law.
The Court will now proceed to address the principal issues, taking
into account the foregoing developments.
Petitioners’ standing cannot be seriously challenged. Their right as
citizens to engage in peaceful assembly and exercise the right of
petition, as guaranteed by the Constitution, is directly affected by
B.P. No. 880 which requires a permit for all who would publicly
assemble in the nation’s streets and parks. They have, in fact,
purposely engaged in public assemblies without the required
permits to press their claim that no such permit can be validly
required without violating the Constitutional guarantee.
Respondents, on the other hand, have challenged such action as
contrary to law and dispersed the public assemblies held without the
permit.
Section 4 of Article III of the Constitution provides:
Sec. 4. No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to
assemble and petition the government for redress of grievances.
The first point to mark is that the right to peaceably assemble and
petition for redress of grievances is, together with freedom of
speech, of expression, and of the press, a right that enjoys primacy
in the realm of constitutional protection. For these rights constitute
the very basis of a functional democratic polity, without which all the
other rights would be meaningless and unprotected. As stated in
Jacinto v. CA,15 the Court, as early as the onset of this century, in
U.S. v. Apurado,16 already upheld the right to assembly and
petition, as follows:
There is no question as to the petitioners’ rights to peaceful
assembly to petition the government for a redress of grievances
and, for that matter, to organize or form associations for purposes
not contrary to law, as well as to engage in peaceful concerted
activities. These rights are guaranteed by no less than the
Constitution, particularly Sections 4 and 8 of the Bill of Rights,
Section 2(5) of Article IX, and Section 3 of Article XIII. Jurisprudence
abounds with hallowed pronouncements defending and promoting
the people’s exercise of these rights. As early as the onset of this
century, this Court in U.S. vs. Apurado, already upheld the right to
assembly and petition and even went as far as to acknowledge:
"It is rather to be expected that more or less disorder will mark the
public assembly of the people to protest against grievances whether
real or imaginary, because on such occasions feeling is always
wrought to a high pitch of excitement, and the greater, the grievance
and the more intense the feeling, the less perfect, as a rule will be
the disciplinary control of the leaders over their irresponsible
followers. But if the prosecution be permitted to seize upon every
instance of such disorderly conduct by individual members of a
crowd as an excuse to characterize the assembly as a seditious and
tumultuous rising against the authorities, then the right to assemble

and to petition for redress of grievances would become a delusion
and a snare and the attempt to exercise it on the most righteous
occasion and in the most peaceable manner would expose all those
who took part therein to the severest and most unmerited
punishment, if the purposes which they sought to attain did not
happen to be pleasing to the prosecuting authorities. If instances of
disorderly conduct occur on such occasions, the guilty individuals
should be sought out and punished therefor, but the utmost
discretion must be exercised in drawing the line between disorderly
and seditious conduct and between an essentially peaceable
assembly and a tumultuous uprising."
Again, in Primicias v. Fugoso,17 the Court likewise sustained the
primacy of freedom of speech and to assembly and petition over
comfort and convenience in the use of streets and parks.
Next, however, it must be remembered that the right, while
sacrosanct, is not absolute. In Primicias, this Court said:
The right to freedom of speech, and to peacefully assemble and
petition the government for redress of grievances, are fundamental
personal rights of the people recognized and guaranteed by the
constitutions of democratic countries. But it is a settled principle
growing out of the nature of well-ordered civil societies that the
exercise of those rights is not absolute for it may be so regulated
that it shall not be injurious to the equal enjoyment of others having
equal rights, nor injurious to the rights of the community or society.
The power to regulate the exercise of such and other constitutional
rights is termed the sovereign "police power," which is the power to
prescribe regulations, to promote the health, morals, peace,
education, good order or safety, and general welfare of the people.
This sovereign police power is exercised by the government through
its legislative branch by the enactment of laws regulating those and
other constitutional and civil rights, and it may be delegated to
political subdivisions, such as towns, municipalities and cities by
authorizing their legislative bodies called municipal and city councils
to enact ordinances for the purpose.18
Reyes v. Bagatsing19 further expounded on the right and its limits,
as follows:
1. It is thus clear that the Court is called upon to protect the exercise
of the cognate rights to free speech and peaceful assembly, arising
from the denial of a permit. The Constitution is quite explicit: "No law
shall be passed abridging the freedom of speech, or of the press, or
the right of the people peaceably to assemble and petition the
Government for redress of grievances." Free speech, like free
press, may be identified with the liberty to discuss publicly and
truthfully any matter of public concern without censorship or
punishment. There is to be then no previous restraint on the
communication of views or subsequent liability whether in libel suits,
prosecution for sedition, or action for damages, or contempt
proceedings unless there be a "clear and present danger of a
substantive evil that [the State] has a right to prevent." Freedom of
assembly connotes the right of the people to meet peaceably for
consultation and discussion of matters of public concern. It is
entitled to be accorded the utmost deference and respect. It is not
to be limited, much less denied, except on a showing, as is the case
with freedom of expression, of a clear and present danger of a
substantive evil that the state has a right to prevent. Even prior to
the 1935 Constitution, Justice Malcolm had occasion to stress that
it is a necessary consequence of our republican institutions and
complements the right of free speech. To paraphrase the opinion of
Justice Rutledge, speaking for the majority of the American
Supreme Court in Thomas v. Collins, it was not by accident or
coincidence that the rights to freedom of speech and of the press
were coupled in a single guarantee with the 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
CONSTI LAW II I ACJUCO 345
effects of the challenged governmental actuation. The sole
justification for a limitation on the exercise of this right, so
fundamental to the maintenance of democratic institutions, is the
danger, of a character both grave and imminent, of a serious evil to
public safety, public morals, public health, or any other legitimate
public interest.
2. Nowhere is the rationale that underlies the freedom of expression
and peaceable assembly better expressed than in this excerpt from
an opinion of Justice Frankfurter: "It must never be forgotten,
however, that the Bill of Rights was the child of the Enlightenment.
Back of the guaranty of free speech lay faith in the power of an
appeal to reason by all the peaceful means for gaining access to the
mind. It was in order to avert force and explosions due to restrictions
upon rational modes of communication that the guaranty of free
speech was given a generous scope. But utterance in a context of
violence can lose its significance as an appeal to reason and
become part of an instrument of force. Such utterance was not
meant to be sheltered by the Constitution." What was rightfully
stressed is the abandonment of reason, the utterance, whether
verbal or printed, being in a context of violence. It must always be
remembered that this right likewise provides for a safety valve,
allowing parties the opportunity to give vent to their views, even if
contrary to the prevailing climate of opinion. For if the peaceful
means of communication cannot be availed of, resort to non-
peaceful means may be the only alternative. Nor is this the sole
reason for the expression of dissent. It means more than just the
right to be heard of the person who feels aggrieved or who is
dissatisfied with things as they are. Its value may lie in the fact that
there may be something worth hearing from the dissenter. That is to
ensure a true ferment of ideas. There are, of course, well-defined
limits. What is guaranteed is peaceable assembly. One may not
advocate disorder in the name of protest, much less preach
rebellion under the cloak of dissent. The Constitution frowns on
disorder or tumult attending a rally or assembly. Resort to force is
ruled out and outbreaks of violence to be avoided. The utmost calm
though is not required. As pointed out in an early Philippine case,
penned in 1907 to be precise, United States v. Apurado: "It is rather
to be expected that more or less disorder will mark the public
assembly of the people to protest against grievances whether real
or imaginary, because on such occasions feeling is always wrought
to a high pitch of excitement, and the greater the grievance and the
more intense the feeling, the less perfect, as a rule, will be the
disciplinary control of the leaders over their irresponsible followers."
It bears repeating that for the constitutional right to be invoked,
riotous conduct, injury to property, and acts of vandalism must be
avoided. To give free rein to one’s destructive urges is to call for
condemnation. It is to make a mockery of the high estate occupied
by intellectual liberty in our scheme of values.
There can be no legal objection, absent the existence of a clear and
present danger of a substantive evil, on the choice of Luneta as the
place where the peace rally would start. The Philippines is
committed to the view expressed in the plurality opinion, of 1939
vintage, of Justice Roberts in Hague v. CIO: "Whenever the title of
streets and parks may rest, they have immemorially been held in
trust for the use of the public and, time out of mind, have been used
for purposes of assembly, communicating thoughts between
citizens, and discussing public questions. Such use of the streets
and public places has, from ancient times, been a part of the
privileges, immunities, rights and liberties of citizens. The privilege
of a citizen of the United States to use the streets and parks for
communication of views on national questions may be regulated in
the interest of all; it is not absolute, but relative, and must be
exercised in subordination to the general comfort and convenience,
and in consonance with peace and good order; but must not, in the
guise of regulation, be abridged or denied." The above excerpt was
quoted with approval in Primicias v. Fugoso. Primicias made explicit
what was implicit in Municipality of Cavite v. Rojas, a 1915 decision,
where this Court categorically affirmed that plazas or parks and
streets are outside the commerce of man and thus nullified a

contract that leased Plaza Soledad of plaintiff-municipality.
Reference was made to such plaza "being a promenade for public
use," which certainly is not the only purpose that it could serve. To
repeat, there can be no valid reason why a permit should not be
granted for the proposed march and rally starting from a public park
that is the Luneta.
4. Neither can there be any valid objection to the use of the streets
to the gates of the US embassy, hardly two blocks away at the
Roxas Boulevard. Primicias v. Fugoso has resolved any lurking
doubt on the matter. In holding that the then Mayor Fugoso of the
City of Manila should grant a permit for a public meeting at Plaza
Miranda in Quiapo, this Court categorically declared: "Our
conclusion finds support in the decision in the case of Willis Cox v.
State of New Hampshire, 312 U.S., 569. In that case, the statute of
New Hampshire P.L. chap. 145, section 2, providing that no parade
or procession upon any ground abutting thereon, shall be permitted
unless a special license therefor shall first be obtained from the
selectmen of the town or from licensing committee,’ was construed
by the Supreme Court of New Hampshire as not conferring upon the
licensing board unfettered discretion to refuse to grant the license,
and held valid. And the Supreme Court of the United States, in its
decision (1941) penned by Chief Justice Hughes affirming the
judgment of the State Supreme Court, held that ‘a statute requiring
persons using the public streets for a parade or procession to
procure a special license therefor from the local authorities is not an
unconstitutional abridgment of the rights of assembly or of freedom
of speech and press, where, as the statute is construed by the state
courts, the licensing authorities are strictly limited, in the issuance
of licenses, to a consideration of the time, place, and manner of the
parade or procession, with a view to conserving the public
convenience and of affording an opportunity to provide proper
policing, and are not invested with arbitrary discretion to issue or
refuse license, * * *. "Nor should the point made by Chief Justice
Hughes in a subsequent portion of the opinion be ignored: "Civil
liberties, as guaranteed by the Constitution, imply the existence of
an organized society maintaining public order without which liberty
itself would be lost in the excesses of unrestricted abuses. The
authority of a municipality to impose regulations in order to assure
the safety and convenience of the people in the use of public
highways has never been regarded as inconsistent with civil liberties
but rather as one of the means of safeguarding the good order upon
which they ultimately depend. The control of travel on the streets of
cities is the most familiar illustration of this recognition of social
need. Where a restriction of the use of highways in that relation is
designed to promote the public convenience in the interest of all, it
cannot be disregarded by the attempted exercise of some civil right
which in other circumstances would be entitled to protection."
xxx
6. x x x The principle under American doctrines was given utterance
by Chief Justice Hughes in these words: "The question, if the rights
of free speech and peaceable assembly are to be preserved, is not
as to the auspices under which the meeting is held but as to its
purpose; not as to the relations of the speakers, but whether their
utterances transcend the bounds of the freedom of speech which
the Constitution protects." There could be danger to public peace
and safety if such a gathering were marked by turbulence. That
would deprive it of its peaceful character. 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
CONSTI LAW II I ACJUCO 346
to be "abridged on the plea that it may be exercised in some other
place."
xxx
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. x x x.
B.P. No. 880 was enacted after this Court rendered its decision in
Reyes.
The provisions of B.P. No. 880 practically codify the ruling in Reyes:
Reyes v. Bagatsing
(G.R. No. L-65366, November 9, 1983,
125 SCRA 553, 569)
8. By way of a summary. The applicants for a permit to hold an
assembly should inform the licensing authority of the date, the public
place where and the time when it will take place. If it were a private
place, only the consent of the owner or the one entitled to its legal
possession is required. Such application should be filed well ahead
in time to enable the public official concerned to appraise whether
there may be valid objections to the grant of the permit or to its grant
but at another public place. It is an indispensable condition to such
refusal or modification that the clear and present danger test be the
standard for the decision reached. If he is of the view that there is
such an imminent and grave danger of a substantive evil, the
applicants must be heard on the matter. Thereafter, his decision,
whether favorable or adverse, must be transmitted to them at the
earliest opportunity. Thus if so minded, they can have recourse to
the proper judicial authority.
B.P. No. 880
Sec. 4. Permit when required and when not required.-- A written
permit shall be required for any person or persons to organize and
hold a public assembly in a public place. However, no permit shall
be required if the public assembly shall be done or made in a
freedom park duly established by law or ordinance or in private
property, in which case only the consent of the owner or the one
entitled to its legal possession is required, or in the campus of a
government-owned and operated educational institution which shall
be subject to the rules and regulations of said educational institution.
Political meetings or rallies held during any election campaign
period as provided for by law are not covered by this Act.

Sec. 5. Application requirements.-- All applications for a permit shall
comply with the following guidelines:
(a) The applications shall be in writing and shall include the names
of the leaders or organizers; the purpose of such public assembly;
the date, time and duration thereof, and place or streets to be used
for the intended activity; and the probable number of persons
participating, the transport and the public address systems to be
used.
(b) The application shall incorporate the duty and responsibility of
applicant under Section 8 hereof.
(c) The application shall be filed with the office of the mayor of the
city or municipality in whose jurisdiction the intended activity is to be
held, at least five (5) working days before the scheduled public
assembly.
(d) Upon receipt of the application, which must be duly
acknowledged in writing, the office of the city or municipal mayor
shall cause the same to immediately be posted at a conspicuous
place in the city or municipal building.
Sec. 6. Action to be taken on the application. –
(a) It shall be the duty of the mayor or any official acting in his behalf
to issue or grant a permit unless there is clear and convincing
evidence that the public assembly will create a clear and present
danger to public order, public safety, public convenience, public
morals or public health.
(b) The mayor or any official acting in his behalf shall act on the
application within two (2) working days from the date the application
was filed, failing which, the permit shall be deemed granted. Should
for any reason the mayor or any official acting in his behalf refuse to
accept the application for a permit, said application shall be posted
by the applicant on the premises of the office of the mayor and shall
be deemed to have been filed.
(c) If the mayor is of the view that there is imminent and grave
danger of a substantive evil warranting the denial or modification of
the permit, he shall immediately inform the applicant who must be
heard on the matter.
(d) The action on the permit shall be in writing and served on the
applica[nt] within twenty-four hours.
(e) If the mayor or any official acting in his behalf denies the
application or modifies the terms thereof in his permit, the applicant
may contest the decision in an appropriate court of law.
(f) In case suit is brought before the Metropolitan Trial Court, the
Municipal Trial Court, the Municipal Circuit Trial Court, the Regional
Trial Court, or the Intermediate Appellate Court, its decisions may
be appealed to the appropriate court within forty-eight (48) hours
after receipt of the same. No appeal bond and record on appeal shall
be required. A decision granting such permit or modifying it in terms
satisfactory to the applicant shall be immediately executory.
(g) All cases filed in court under this section shall be decided within
twenty-four (24) hours from date of filing. Cases filed hereunder
shall be immediately endorsed to the executive judge for disposition
or, in his absence, to the next in rank.
(h) In all cases, any decision may be appealed to the Supreme
Court.
(i) Telegraphic appeals to be followed by formal appeals are hereby
allowed.
CONSTI LAW II I ACJUCO 347
It is very clear, therefore, that B.P. No. 880 is not an absolute ban
of public assemblies but a restriction that simply regulates the time,
place and manner of the assemblies. This was adverted to in
Osmeña v. Comelec,20 where the Court referred to it as a "content-
neutral" regulation of the time, place, and manner of holding public
assemblies.21
A fair and impartial reading of B.P. No. 880 thus readily shows that
it refers to all kinds of public assemblies22 that would use public
places. The reference to "lawful cause" does not make it content-
based because assemblies really have to be for lawful causes,
otherwise they would not be "peaceable" and entitled to protection.
Neither are the words "opinion," "protesting" and "influencing" in the
definition of public assembly content based, since they can refer to
any subject. The words "petitioning the government for redress of
grievances" come from the wording of the Constitution, so its use
cannot be avoided. Finally, maximum tolerance is for the protection
and benefit of all rallyists and is independent of the content of the
expressions in the rally.
Furthermore, the permit can only be denied on the ground of clear
and present danger to public order, public safety, public
convenience, public morals or public health. This is a recognized
exception to the exercise of the right even under the Universal
Declaration of Human Rights and the International Covenant on
Civil and Political Rights, thus:
Universal Declaration of Human Rights
Article 20
1. Everyone has the right to freedom of peaceful assembly and
association.
xxx
Article 29
1. Everyone has duties to the community in which alone the free and
full development of his personality is possible.
2. In the exercise of his rights and freedoms, everyone shall be
subject only to such limitations as are determined by law solely for
the purpose of securing due recognition and respect for the rights
and freedoms of others and of meeting the just requirements of
morality, public order and the general welfare in a democratic
society.
3. These rights and freedoms may in no case be exercised contrary
to the purposes and principles of the United Nations.
The International Covenant on Civil and Political Rights
Article 19.
1. Everyone shall have the right to hold opinions without
interference.
2. Everyone shall have the right to freedom of expression; this right
shall include freedom to seek, receive and impart information and
ideas of all kinds, regardless of frontiers, either orally, in writing or
in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article
carries with it special duties and responsibilities. It may therefore be
subject to certain restrictions, but these shall only be such as are
provided by law and are necessary:
(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre
public), or of public health or morals.
Contrary to petitioner’s claim, the law is very clear and is nowhere
vague in its provisions. "Public" does not have to be defined. Its
ordinary meaning is well-known. Webster’s Dictionary defines it,
thus:23
public, n, x x x 2a: an organized body of people x x x 3: a group of
people distinguished by common interests or characteristics x x x.
Not every expression of opinion is a public assembly. The law refers
to "rally, demonstration, march, parade, procession or any other
form of mass or concerted action held in a public place." So it does
not cover any and all kinds of gatherings.
Neither is the law overbroad. It regulates the exercise of the right to
peaceful assembly and petition only to the extent needed to avoid a
clear and present danger of the substantive evils Congress has the
right to prevent.
There is, likewise, no prior restraint, since the content of the speech
is not relevant to the regulation.
As to the delegation of powers to the mayor, the law provides a
precise and sufficient standard – the clear and present danger test
stated in Sec. 6(a). The reference to "imminent and grave danger of
a substantive evil" in Sec. 6(c) substantially means the same thing
and is not an inconsistent standard. As to whether respondent
Mayor has the same power independently under Republic Act No.
716024 is thus not necessary to resolve in these proceedings, and
was not pursued by the parties in their arguments.
Finally, for those who cannot wait, Section 15 of the law provides for
an alternative forum through the creation of freedom parks where
no prior permit is needed for peaceful assembly and petition at any
time:
Sec. 15. Freedom parks. – Every city and municipality in the country
shall within six months after the effectivity of this Act establish or
designate at least one suitable "freedom park" or mall in their
respective jurisdictions which, as far as practicable, shall be
centrally located within the poblacion where demonstrations and
meetings may be held at any time without the need of any prior
permit.
In the cities and municipalities of Metropolitan Manila, the respective
mayors shall establish the freedom parks within the period of six
months from the effectivity this Act.
This brings up the point, however, of compliance with this provision.
The Solicitor General stated during the oral arguments that, to his
knowledge, only Cebu City has declared a freedom park – Fuente
Osmeña.
That of Manila, the Sunken Gardens, has since been converted into
a golf course, he added.
If this is so, the degree of observance of B.P. No. 880’s mandate
that every city and municipality set aside a freedom park within six
months from its effectivity in 1985, or 20 years ago, would be
pathetic and regrettable. The matter appears to have been taken for
granted amidst the swell of freedom that rose from the peaceful
revolution of 1986.
Considering that the existence of such freedom parks is an essential
part of the law’s system of regulation of the people’s exercise of their
right to peacefully assemble and petition, the Court is constrained
to rule that after thirty (30) days from the finality of this Decision, no
prior permit may be required for the exercise of such right in any
CONSTI LAW II I ACJUCO 348
public park or plaza of a city or municipality until that city or
municipality shall have complied with Section 15 of the law. For
without such alternative forum, to deny the permit would in effect be
to deny the right. Advance notices should, however, be given to the
authorities to ensure proper coordination and orderly proceedings.
The Court now comes to the matter of the CPR. As stated earlier,
the Solicitor General has conceded that the use of the term should
now be discontinued, since it does not mean anything other than the
maximum tolerance policy set forth in B.P. No. 880. This is stated in
the Affidavit of respondent Executive Secretary Eduardo Ermita,
submitted by the Solicitor General, thus:
14. The truth of the matter is the policy of "calibrated preemptive
response" is in consonance with the legal definition of "maximum
tolerance" under Section 3 (c) of B.P. Blg. 880, which is the "highest
degree of restraint that the military, police and other peacekeeping
authorities shall observe during a public assembly or in the dispersal
of the same." Unfortunately, however, the phrase "maximum
tolerance" has acquired a different meaning over the years. Many
have taken it to mean inaction on the part of law enforcers even in
the face of mayhem and serious threats to public order. More so,
other felt that they need not bother secure a permit when holding
rallies thinking this would be "tolerated." Clearly, the popular
connotation of "maximum tolerance" has departed from its real
essence under B.P. Blg. 880.
15. It should be emphasized that the policy of maximum tolerance
is provided under the same law which requires all pubic assemblies
to have a permit, which allows the dispersal of rallies without a
permit, and which recognizes certain instances when water cannons
may be used. This could only mean that "maximum tolerance" is not
in conflict with a "no permit, no rally policy" or with the dispersal and
use of water cannons under certain circumstances for indeed, the
maximum amount of tolerance required is dependent on how
peaceful or unruly a mass action is. Our law enforcers should
calibrate their response based on the circumstances on the ground
with the view to preempting the outbreak of violence.
16. Thus, when I stated that calibrated preemptive response is being
enforced in lieu of maximum tolerance I clearly was not referring to
its legal definition but to the distorted and much abused definition
that it has now acquired. I only wanted to disabuse the minds of the
public from the notion that law enforcers would shirk their
responsibility of keeping the peace even when confronted with
dangerously threatening behavior. I wanted to send a message that
we would no longer be lax in enforcing the law but would henceforth
follow it to the letter. Thus I said, "we have instructed the PNP as
well as the local government units to strictly enforce a no permit, no
rally policy . . . arrest all persons violating the laws of the land . . .
unlawful mass actions will be dispersed." None of these is at
loggerheads with the letter and spirit of Batas Pambansa Blg. 880.
It is thus absurd for complainants to even claim that I ordered my
co-respondents to violate any law.25
At any rate, the Court rules that in view of the maximum tolerance
mandated by B.P. No. 880, CPR serves no valid purpose if it means
the same thing as maximum tolerance and is illegal if it means
something else. Accordingly, what is to be followed is and should be
that mandated by the law itself, namely, maximum tolerance, which
specifically means the following:
Sec. 3. Definition of terms. – For purposes of this Act:
xxx
(c) "Maximum tolerance" means the highest degree of restraint that
the military, police and other peace keeping authorities shall
observe during a public assembly or in the dispersal of the same.
xxx

Sec. 9. Non-interference by law enforcement authorities. – Law
enforcement agencies shall not interfere with the holding of a public
assembly. However, to adequately ensure public safety, a law
enforcement contingent under the command of a responsible police
officer may be detailed and stationed in a place at least one hundred
(100) meters away from the area of activity ready to maintain peace
and order at all times.
Sec. 10. Police assistance when requested. – It shall be imperative
for law enforcement agencies, when their assistance is requested
by the leaders or organizers, to perform their duties always mindful
that their responsibility to provide proper protection to those
exercising their right peaceably to assemble and the freedom of
expression is primordial.1avvphil.net Towards this end, law
enforcement agencies shall observe the following guidelines:
(a) Members of the law enforcement contingent who deal with the
demonstrators shall be in complete uniform with their nameplates
and units to which they belong displayed prominently on the front
and dorsal parts of their uniform and must observe the policy of
"maximum tolerance" as herein defined;
(b) The members of the law enforcement contingent shall not carry
any kind of firearms but may be equipped with baton or riot sticks,
shields, crash helmets with visor, gas masks, boots or ankle high
shoes with shin guards;
(c) Tear gas, smoke grenades, water cannons, or any similar anti-
riot device shall not be used unless the public assembly is attended
by actual violence or serious threats of violence, or deliberate
destruction of property.
Sec. 11. Dispersal of public assembly with permit. – No public
assembly with a permit shall be dispersed. However, when an
assembly becomes violent, the police may disperse such public
assembly as follows:
(a) At the first sign of impending violence, the ranking officer of the
law enforcement contingent shall call the attention of the leaders of
the public assembly and ask the latter to prevent any possible
disturbance;
(b) If actual violence starts to a point where rocks or other harmful
objects from the participants are thrown at the police or at the non-
participants, or at any property causing damage to such property,
the ranking officer of the law enforcement contingent shall audibly
warn the participants that if the disturbance persists, the public
assembly will be dispersed;
(c) If the violence or disturbance prevailing as stated in the
preceding subparagraph should not stop or abate, the ranking
officer of the law enforcement contingent shall audibly issue a
warning to the participants of the public assembly, and after allowing
a reasonable period of time to lapse, shall immediately order it to
forthwith disperse;
(d) No arrest of any leader, organizer or participant shall also be
made during the public assembly unless he violates during the
assembly a law, statute, ordinance or any provision of this Act. Such
arrest shall be governed by Article 125 of the Revised Penal Code,
as amended;
(d) Isolated acts or incidents of disorder or breach of the peace
during the public assembly shall not constitute a ground for
dispersal.
xxx
CONSTI LAW II I ACJUCO 349
Sec. 12. Dispersal of public assembly without permit. – When the
public assembly is held without a permit where a permit is required,
the said public assembly may be peacefully dispersed.
Sec. 13. Prohibited acts. – The following shall constitute violations
of the Act:
(e) Obstructing, impeding, disrupting or otherwise denying the
exercise of the right to peaceful assembly;
(f) The unnecessary firing of firearms by a member of any law
enforcement agency or any person to disperse the public assembly;
(g) Acts described hereunder if committed within one hundred (100)
meters from the area of activity of the public assembly or on the
occasion thereof:
xxx
4. the carrying of firearms by members of the law enforcement unit;
5. the interfering with or intentionally disturbing the holding of a
public assembly by the use of a motor vehicle, its horns and loud
sound systems.
Furthermore, there is need to address the situation adverted to by
petitioners where mayors do not act on applications for a permit and
when the police demand a permit and the rallyists could not produce
one, the rally is immediately dispersed. In such a situation, as a
necessary consequence and part of maximum tolerance, rallyists
who can show the police an application duly filed on a given date
can, after two days from said date, rally in accordance with their
application without the need to show a permit, the grant of the permit
being then presumed under the law, and it will be the burden of the
authorities to show that there has been a denial of the application,
in which case the rally may be peacefully dispersed following the
procedure of maximum tolerance prescribed by the law.
In sum, this Court reiterates its basic policy of upholding the
fundamental rights of our people, especially freedom of expression
and freedom of assembly. In several policy addresses, Chief Justice
Artemio V. Panganiban has repeatedly vowed to uphold the liberty
of our people and to nurture their prosperity. He said that "in cases
involving liberty, the scales of justice should weigh heavily against
the government and in favor of the poor, the oppressed, the
marginalized, the dispossessed and the weak. Indeed, laws and
actions that restrict fundamental rights come to the courts with a
heavy presumption against their validity. These laws and actions are
subjected to heightened scrutiny."26
For this reason, the so-called calibrated preemptive response policy
has no place in our legal firmament and must be struck down as a
darkness that shrouds freedom. It merely confuses our people and
is used by some police agents to justify abuses. On the other hand,
B.P. No. 880 cannot be condemned as unconstitutional; it does not
curtail or unduly restrict freedoms; it merely regulates the use of
public places as to the time, place and manner of assemblies. Far
from being insidious, "maximum tolerance" is for the benefit of
rallyists, not the government. The delegation to the mayors of the
power to issue rally "permits" is valid because it is subject to the
constitutionally-sound "clear and present danger" standard.
In this Decision, the Court goes even one step further in
safeguarding liberty by giving local governments a deadline of 30
days within which to designate specific freedom parks as provided
under B.P. No. 880. If, after that period, no such parks are so
identified in accordance with Section 15 of the law, all public parks
and plazas of the municipality or city concerned shall in effect be
deemed freedom parks; no prior permit of whatever kind shall be
required to hold an assembly therein. The only requirement will be
 CONSTI LAW II I ACJUCO 350

written notices to the police and the mayor’s office to allow proper
coordination and orderly activities.

WHEREFORE, the petitions are GRANTED in part, and

respondents, more particularly the Secretary of the Interior and
Local Governments, are DIRECTED to take all necessary steps for
the immediate compliance with Section 15 of Batas Pambansa No.
880 through the establishment or designation of at least one suitable
freedom park or plaza in every city and municipality of the country.
After thirty (30) days from the finality of this Decision, subject to the
giving of advance notices, no prior permit shall be required to
exercise the right to peaceably assemble and petition in the public
parks or plazas of a city or municipality that has not yet complied
with Section 15 of the law. Furthermore, Calibrated Preemptive
Response (CPR), insofar as it would purport to differ from or be in
lieu of maximum tolerance, is NULL and VOID and respondents are
ENJOINED to REFRAIN from using it and to STRICTLY OBSERVE
the requirements of maximum tolerance. The petitions are
DISMISSED in all other respects, and the constitutionality of Batas
Pambansa No. 880 is SUSTAINED.

No costs.

RIGHT TO INFORMATION
G.R. No. L-72119 May 29, 1987
VALENTIN L. LEGASPI, petitioner,
vs.
CIVIL SERVICE COMMISSION, respondent.
CORTES, J.:
The fundamental right of the people to information on matters of
public concern is invoked in this special civil action for mandamus
instituted by petitioner Valentin L. Legaspi against the Civil Service
Commission. The respondent had earlier denied Legaspi's request
for information on the civil service eligibilities of certain persons
employed as sanitarians in the Health Department of Cebu City.
These government employees, Julian Sibonghanoy and Mariano
Agas, had allegedly represented themselves as civil service
eligibles who passed the civil service examinations for sanitarians.
Claiming that his right to be informed of the eligibilities of Julian
Sibonghanoy and Mariano Agas, is guaranteed by the Constitution,
and that he has no other plain, speedy and adequate remedy to
acquire the information, petitioner prays for the issuance of the
extraordinary writ of mandamus to compel the respondent
Commission to disclose said information.
This is not the first tune that the writ of mandamus is sought to
enforce the fundamental right to information. The same remedy was
resorted to in the case of Tanada et. al. vs. Tuvera et. al., (G.R. No.
L-63915, April 24,1985,136 SCRA 27) wherein the people's right to
be informed under the 1973 Constitution (Article IV, Section 6) was
invoked in order to compel the publication in the Official Gazette of
various presidential decrees, letters of instructions and other
presidential issuances. Prior to the recognition of the right in said
Constitution the statutory right to information provided for in the
Land Registration Act (Section 56, Act 496, as amended) was
claimed by a newspaper editor in another mandamus proceeding,
this time to demand access to the records of the Register of Deeds
for the purpose of gathering data on real estate transactions
involving aliens (Subido vs. Ozaeta, 80 Phil. 383 [1948]).
The constitutional right to information on matters of public concern
first gained recognition in the Bill of Rights, Article IV, of the 1973
Constitution, which states:
Sec. 6. The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to
documents and papers pertaining to official acts, transactions, or
decisions, shall be afforded the citizen subject to such limitations as
may be provided by law.
The foregoing provision has been retained and the right therein
provided amplified in Article III, Sec. 7 of the 1987 Constitution with
the addition of the phrase, "as well as to government research data
used as basis for policy development." The new provision reads:
The right of the people to information on matters of public concern
shall be recognized. Access to official records, and to documents,
and papers pertaining to official acts, transactions, or decisions, as
well as to government research data used as basis. for policy
development, shall be afforded the citizen, subject to such stations
as may be provided by law.
These constitutional provisions are self-executing. They supply the
rules by means of which the right to information may be enjoyed
(Cooley, A Treatise on the Constitutional Limitations 167 [1927]) by
guaranteeing the right and mandating the duty to afford access to
sources of information. Hence, the fundamental right therein
recognized may be asserted by the people upon the ratification of
CONSTI LAW II I ACJUCO 351
the constitution without need for any ancillary act of the Legislature.
(Id. at, p. 165) What may be provided for by the Legislature are
reasonable conditions and limitations upon the access to be
afforded which must, of necessity, be consistent with the declared
State policy of full public disclosure of all transactions involving
public interest (Constitution, Art. 11, Sec. 28). However, it cannot be
overemphasized that whatever limitation may be prescribed by the
Legislature, the right and the duty under Art. III Sec. 7 have become
operative and enforceable by virtue of the adoption of the New
Charter. Therefore, the right may be properly invoked in a
mandamus proceeding such as this one.
The Solicitor General interposes procedural objections to Our giving
due course to this Petition. He challenges the petitioner's standing
to sue upon the ground that the latter does not possess any clear
legal right to be informed of the civil service eligibilities of the
government employees concerned. He calls attention to the alleged
failure of the petitioner to show his actual interest in securing this
particular information. He further argues that there is no ministerial
duty on the part of the Commission to furnish the petitioner with the
information he seeks.
1. To be given due course, a Petition for mandamus must
have been instituted by a party aggrieved by the alleged inaction of
any tribunal, corporation, board or person which unlawfully excludes
said party from the enjoyment of a legal right. (Ant;-Chinese League
of the Philippines vs. Felix, 77 Phil. 1012 [1947]). The petitioner in
every case must therefore be an "aggrieved party" in the sense that
he possesses a clear legal right to be enforced and a direct interest
in the duty or act to be performed.
In the case before Us, the respondent takes issue on the personality
of the petitioner to bring this suit. It is asserted that, the instant
Petition is bereft of any allegation of Legaspi's actual interest in the
civil service eligibilities of Julian Sibonghanoy and Mariano Agas, At
most there is a vague reference to an unnamed client in whose
behalf he had allegedly acted when he made inquiries on the subject
(Petition, Rollo, p. 3).
But what is clear upon the face of the Petition is that the petitioner
has firmly anchored his case upon the right of the people to
information on matters of public concern, which, by its very nature,
is a public right. It has been held that:
* * * when the question is one of public right and the object of the
mandamus is to procure the enforcement of a public duty, the
people are regarded as the real party in interest and the relator at
whose instigation the proceedings are instituted need not show that
he has any legal or special interest in the result, it being sufficient to
show that he is a citizen and as such interested in the execution of
the laws * * * (Tanada et. al. vs. Tuvera, et. al., G.R. No. L- 63915,
April 24, 1985, 136 SCRA 27, 36).
From the foregoing, it becomes apparent that when a mandamus
proceeding involves the assertion of a public right, the requirement
of personal interest is satisfied by the mere fact that the petitioner is
a citizen, and therefore, part of the general "public" which possesses
the right.
The Court had opportunity to define the word "public" in the Subido
case, supra, when it held that even those who have no direct or
tangible interest in any real estate transaction are part of the "public"
to whom "(a)ll records relating to registered lands in the Office of the
Register of Deeds shall be open * * *" (Sec. 56, Act No. 496, as
amended). In the words of the Court:
* * * "Public" is a comprehensive, all-inclusive term. Properly
construed, it embraces every person. To say that only those who
have a present and existing interest of a pecuniary character in the
particular information sought are given the right of inspection is to

make an unwarranted distinction. *** (Subido vs. Ozaeta, supra at
p. 387).
The petitioner, being a citizen who, as such is clothed with
personality to seek redress for the alleged obstruction of the
exercise of the public right. We find no cogent reason to deny his
standing to bring the present suit.
2. For every right of the people recognized as fundamental,
there lies a corresponding duty on the part of those who govern, to
respect and protect that right. That is the very essence of the Bill of
Rights in a constitutional regime. Only governments operating under
fundamental rules defining the limits of their power so as to shield
individual rights against its arbitrary exercise can properly claim to
be constitutional (Cooley, supra, at p. 5). Without a government's
acceptance of the limitations imposed upon it by the Constitution in
order to uphold individual liberties, without an acknowledgment on
its part of those duties exacted by the rights pertaining to the
citizens, the Bill of Rights becomes a sophistry, and liberty, the
ultimate illusion.
In recognizing the people's right to be informed, both the 1973
Constitution and the New Charter expressly mandate the duty of the
State and its agents to afford access to official records, documents,
papers and in addition, government research data used as basis for
policy development, subject to such limitations as may be provided
by law. The guarantee has been further enhanced in the New
Constitution with the adoption of a policy of full public disclosure,
this time "subject to reasonable conditions prescribed by law," in
Article 11, Section 28 thereof, to wit:
Subject to reasonable conditions prescribed by law, the State
adopts and implements a policy of full public disclosure of all its
transactions involving public interest. (Art. 11, Sec. 28).
In the Tanada case, supra, the constitutional guarantee was
bolstered by what this Court declared as an imperative duty of the
government officials concerned to publish all important legislative
acts and resolutions of a public nature as well as all executive orders
and proclamations of general applicability. We granted mandamus
in said case, and in the process, We found occasion to expound
briefly on the nature of said duty:
* * * That duty must be enforced if the Constitutional right of the
people to be informed on matters of public concern is to be given
substance and reality. The law itself makes a list of what should be
published in the Official Gazette. Such listing, to our mind, leaves
respondents with no discretion whatsoever as to what must be in
included or excluded from such publication. (Tanada v. Tuvera,
supra, at 39). (Emphasis supplied).
The absence of discretion on the part of government agencia es in
allowing the examination of public records, specifically, the records
in the Office of the Register of Deeds, is emphasized in Subido vs.
Ozaeta, supra:
Except, perhaps when it is clear that the purpose of the examination
is unlawful, or sheer, idle curiosity, we do not believe it is the duty
under the law of registration officers to concern themselves with the
motives, reasons, and objects of the person seeking access to the
records. It is not their prerogative to see that the information which
the records contain is not flaunted before public gaze, or that
scandal is not made of it. If it be wrong to publish the contents of the
records, it is the legislature and not the officials having custody
thereof which is called upon to devise a remedy. *** (Subido v.
Ozaeta, supra at 388). (Emphasis supplied).
It is clear from the foregoing pronouncements of this Court that
government agencies are without discretion in refusing disclosure
of, or access to, information of public concern. This is not to lose
sight of the reasonable regulations which may be imposed by said
CONSTI LAW II I ACJUCO 352
agencies in custody of public records on the manner in which the
right to information may be exercised by the public. In the Subido
case, We recognized the authority of the Register of Deeds to
regulate the manner in which persons desiring to do so, may
inspect, examine or copy records relating to registered lands.
However, the regulations which the Register of Deeds may
promulgate are confined to:
* * * prescribing the manner and hours of examination to the end
that damage to or loss of, the records may be avoided, that undue
interference with the duties of the custodian of the books and
documents and other employees may be prevented, that the right of
other persons entitled to make inspection may be insured * * *
(Subido vs. Ozaeta, 80 Phil. 383, 387)
Applying the Subido ruling by analogy, We recognized a similar
authority in a municipal judge, to regulate the manner of inspection
by the public of criminal docket records in the case of Baldoza vs.
Dimaano (Adm. Matter No. 1120-MJ, May 5, 1976, 71 SCRA 14).
Said administrative case was filed against the respondent judge for
his alleged refusal to allow examination of the criminal docket
records in his sala. Upon a finding by the Investigating Judge that
the respondent had allowed the complainant to open and view the
subject records, We absolved the respondent. In effect, We have
also held that the rules and conditions imposed by him upon the
manner of examining the public records were reasonable.
In both the Subido and the Baldoza cases, We were emphatic in
Our statement that the authority to regulate the manner of
examining public records does not carry with it the power to prohibit.
A distinction has to be made between the discretion to refuse
outright the disclosure of or access to a particular information and
the authority to regulate the manner in which the access is to be
afforded. The first is a limitation upon the availability of access to
the information sought, which only the Legislature may impose (Art.
III, Sec. 6, 1987 Constitution). The second pertains to the
government agency charged with the custody of public records. Its
authority to regulate access is to be exercised solely to the end that
damage to, or loss of, public records may be avoided, undue
interference with the duties of said agencies may be prevented, and
more importantly, that the exercise of the same constitutional right
by other persons shall be assured (Subido vs. Ozaetal supra).
Thus, while the manner of examining public records may be subject
to reasonable regulation by the government agency in custody
thereof, the duty to disclose the information of public concern, and
to afford access to public records cannot be discretionary on the part
of said agencies. Certainly, its performance cannot be made
contingent upon the discretion of such agencies. Otherwise, the
enjoyment of the constitutional right may be rendered nugatory by
any whimsical exercise of agency discretion. The constitutional
duty, not being discretionary, its performance may be compelled by
a writ of mandamus in a proper case.
But what is a proper case for Mandamus to issue? In the case before
Us, the public right to be enforced and the concomitant duty of the
State are unequivocably set forth in the Constitution. The decisive
question on the propriety of the issuance of the writ of mandamus in
this case is, whether the information sought by the petitioner is
within the ambit of the constitutional guarantee.
3. The incorporation in the Constitution of a guarantee of
access to information of public concern is a recognition of the
essentiality of the free flow of ideas and information in a democracy
(Baldoza v. Dimaano, Adm. Matter No. 1120-MJ, May 5, 1976, 17
SCRA 14). In the same way that free discussion enables members
of society to cope with the exigencies of their time (Thornhill vs.
Alabama, 310 U.S. 88,102 [1939]), access to information of general
interest aids the people in democratic decision-making (87 Harvard
Law Review 1505 [1974]) by giving them a better perspective of the
vital issues confronting the nation.
 CONSTI LAW II I ACJUCO 353

But the constitutional guarantee to information on matters of public
concern is not absolute. It does not open every door to any and all
information. Under the Constitution, access to official records,
papers, etc., are "subject to limitations as may be provided by law"
(Art. III, Sec. 7, second sentence). The law may therefore exempt
certain types of information from public scrutiny, such as those
affecting national security (Journal No. 90, September 23, 1986, p.
10; and Journal No. 91, September 24, 1986, p. 32, 1986
Constitutional Commission). It follows that, in every case, the
availability of access to a particular public record must be
circumscribed by the nature of the information sought, i.e., (a) being
of public concern or one that involves public interest, and, (b) not
being exempted by law from the operation of the constitutional
guarantee. The threshold question is, therefore, whether or not the
information sought is of public interest or public concern.
a. This question is first addressed to the government agency
having custody of the desired information. However, as already
discussed, this does not give the agency concerned any discretion
to grant or deny access. In case of denial of access, the government
agency has the burden of showing that the information requested is
not of public concern, or, if it is of public concern, that the same has
been exempted by law from the operation of the guarantee. To hold
otherwise will serve to dilute the constitutional right. As aptly
observed, ". . . the government is in an advantageous position to
marshall and interpret arguments against release . . ." (87 Harvard
Law Review 1511 [1974]). To safeguard the constitutional right,
every denial of access by the government agency concerned is
subject to review by the courts, and in the proper case, access may
be compelled by a writ of Mandamus.
In the instant, case while refusing to confirm or deny the claims of
eligibility, the respondent has failed to cite any provision in the Civil
Service Law which would limit the petitioner's right to know who are,
and who are not, civil service eligibles. We take judicial notice of the
fact that the names of those who pass the civil service examinations,
as in bar examinations and licensure examinations for various
professions, are released to the public. Hence, there is nothing
secret about one's civil service eligibility, if actually possessed.
Petitioner's request is, therefore, neither unusual nor unreasonable.
And when, as in this case, the government employees concerned
claim to be civil service eligibles, the public, through any citizen, has
a right to verify their professed eligibilities from the Civil Service
Commission.
The civil service eligibility of a sanitarian being of public concern,
and in the absence of express limitations under the law upon access
to the register of civil service eligibles for said position, the duty of
the respondent Commission to confirm or deny the civil service
eligibility of any person occupying the position becomes imperative.
Mandamus, therefore lies.
WHEREFORE, the Civil Service Commission is ordered to open its
register of eligibles for the position of sanitarian, and to confirm or
deny, the civil service eligibility of Julian Sibonghanoy and Mariano
Agas, for said position in the Health Department of Cebu City, as
requested by the petitioner Valentin L. Legaspi.

In determining whether or not a particular information is of public

concern there is no rigid test which can be applied. "Public concern"
like "public interest" is a term that eludes exact definition. Both terms
embrace a broad spectrum of subjects which the public may want
to know, either because these directly affect their lives, or simply
because such matters naturally arouse the interest of an ordinary
citizen. In the final analysis, it is for the courts to determine in a case
by case basis whether the matter at issue is of interest or
importance, as it relates to or affects the public.

The public concern invoked in the case of Tanada v. Tuvera, supra,

was the need for adequate notice to the public of the various laws
which are to regulate the actions and conduct of citizens. In Subido
vs. Ozaeta, supra, the public concern deemed covered by the
statutory right was the knowledge of those real estate transactions
which some believed to have been registered in violation of the
Constitution.

The information sought by the petitioner in this case is the truth of

the claim of certain government employees that they are civil service
eligibles for the positions to which they were appointed. The
Constitution expressly declares as a State policy that:

Appointments in the civil service shall be made only according to

merit and fitness to be determined, as far as practicable, and except
as to positions which are policy determining, primarily confidential
or highly technical, by competitive examination. (Art. IX, B, Sec.
2.[2]).

Public office being a public trust, [Const. Art. XI, Sec. 1] it is the
legitimate concern of citizens to ensure that government positions
requiring civil service eligibility are occupied only by persons who
are eligibles. Public officers are at all times accountable to the
people even as to their eligibilities for their respective positions.

b. But then, it is not enough that the information sought is of

public interest. For mandamus to lie in a given case, the information
must not be among the species exempted by law from the operation
of the constitutional guarantee.

G.R. No. 74930 February 13, 1989
RICARDO VALMONTE, OSWALDO CARBONELL, DOY DEL
CASTILLO, ROLANDO BARTOLOME, LEO OBLIGAR, JUN
GUTIERREZ, REYNALDO BAGATSING, JUN "NINOY" ALBA,
PERCY LAPID, ROMMEL CORRO and ROLANDO FADUL,
petitioners,
vs.
FELICIANO BELMONTE, JR., respondent.
Ricardo C. Valmonte for and in his own behalf and his co-
petitioners.
The Solicitor General for respondent.
CORTES, J.:
Petitioners in this special civil action for mandamus with preliminary
injunction invoke their right to information and pray that respondent
be directed:
(a) to furnish petitioners the list of the names of the Batasang
Pambansa members belonging to the UNIDO and PDP-Laban who
were able to secure clean loans immediately before the February 7
election thru the intercession/marginal note of the then First Lady
Imelda Marcos; and/or
(b) to furnish petitioners with certified true copies of the
documents evidencing their respective loans; and/or
(c) to allow petitioners access to the public records for the
subject information. (Petition, pp. 4-5; paragraphing supplied.]
The controversy arose when petitioner Valmonte wrote respondent
Belmonte the following letter:
June 4, 1986
Hon. Feliciano Belmonte
GSIS General Manager
Arroceros, Manila
Sir:
As a lawyer, member of the media and plain citizen of our Republic,
I am requesting that I be furnished with the list of names of the
opposition members of (the) Batasang Pambansa who were able to
secure a clean loan of P2 million each on guarranty (sic) of Mrs.
Imelda Marcos. We understand that OIC Mel Lopez of Manila was
one of those aforesaid MPs. Likewise, may we be furnished with the
certified true copies of the documents evidencing their loan.
Expenses in connection herewith shall be borne by us.
If we could not secure the above documents could we have access
to them?
We are premising the above request on the following provision of
the Freedom Constitution of the present regime.
The right of the people to information on matters of public concern
shall be recognized. Access to official records, and to documents
and papers pertaining to official acts, transactions or decisions, shall
be afforded the citizen subject to such limitation as may be provided
by law. (Art. IV, Sec. 6).
We trust that within five (5) days from receipt hereof we will receive
your favorable response on the matter.
CONSTI LAW II I ACJUCO 354
Very truly yours,
(Sgd.) RICARDO C. VALMONTE
[Rollo, p. 7.]
To the aforesaid letter, the Deputy General Counsel of the GSIS
replied:
June 17, 1986
Atty. Ricardo C. Valmonte
108 E. Benin Street
Caloocan City
Dear Compañero:
Possibly because he must have thought that it contained serious
legal implications, President & General Manager Feliciano
Belmonte, Jr. referred to me for study and reply your letter to him of
June 4, 1986 requesting a list of the opposition members of
Batasang Pambansa who were able to secure a clean loan of P2
million each on guaranty of Mrs. Imelda Marcos.
My opinion in this regard is that a confidential relationship exists
between the GSIS and all those who borrow from it, whoever they
may be; that the GSIS has a duty to its customers to preserve this
confidentiality; and that it would not be proper for the GSIS to breach
this confidentiality unless so ordered by the courts.
As a violation of this confidentiality may mar the image of the GSIS
as a reputable financial institution, I regret very much that at this
time we cannot respond positively to your request.
Very truly yours,
(Sgd.) MEYNARDO A. TIRO
Deputy General Counsel
[Rollo, p. 40.]
On June 20, 1986, apparently not having yet received the reply of
the Government Service and Insurance System (GSIS) Deputy
General Counsel, petitioner Valmonte wrote respondent another
letter, saying that for failure to receive a reply, "(W)e are now
considering ourselves free to do whatever action necessary within
the premises to pursue our desired objective in pursuance of public
interest." [Rollo, p. 8.]
On June 26, 1986, Valmonte, joined by the other petitioners, filed
the instant suit.
On July 19, 1986, the Daily Express carried a news item reporting
that 137 former members of the defunct interim and regular
Batasang Pambansa, including ten (10) opposition members, were
granted housing loans by the GSIS [Rollo, p. 41.]
Separate comments were filed by respondent Belmonte and the
Solicitor General. After petitioners filed a consolidated reply, the
petition was given due course and the parties were required to file
their memoranda. The parties having complied, the case was
deemed submitted for decision.
In his comment respondent raises procedural objections to the
issuance of a writ of mandamus, among which is that petitioners
have failed to exhaust administrative remedies.
Respondent claims that actions of the GSIS General Manager are
reviewable by the Board of Trustees of the GSIS. Petitioners,
however, did not seek relief from the GSIS Board of Trustees. It is
therefore asserted that since administrative remedies were not
exhausted, then petitioners have no cause of action.

To this objection, petitioners claim that they have raised a purely
legal issue, viz., whether or not they are entitled to the documents
sought, by virtue of their constitutional right to information. Hence, it
is argued that this case falls under one of the exceptions to the
principle of exhaustion of administrative remedies.
Among the settled principles in administrative law is that before a
party can be allowed to resort to the courts, he is expected to have
exhausted all means of administrative redress available under the
law. The courts for reasons of law, comity and convenience will not
entertain a case unless the available administrative remedies have
been resorted to and the appropriate authorities have been given
opportunity to act and correct the errors committed in the
administrative forum. However, the principle of exhaustion of
administrative remedies is subject to settled exceptions, among
which is when only a question of law is involved [Pascual v.
Provincial Board, 106 Phil. 466 (1959); Aguilar v. Valencia, et al.,
G.R. No. L-30396, July 30, 1971, 40 SCRA 210; Malabanan v.
Ramento, G.R. No. L-2270, May 21, 1984, 129 SCRA 359.] The
issue raised by petitioners, which requires the interpretation of the
scope of the constitutional right to information, is one which can be
passed upon by the regular courts more competently than the GSIS
or its Board of Trustees, involving as it does a purely legal question.
Thus, the exception of this case from the application of the general
rule on exhaustion of administrative remedies is warranted. Having
disposed of this procedural issue, We now address ourselves to the
issue of whether or not mandamus hes to compel respondent to
perform the acts sought by petitioners to be done, in pursuance of
their right to information.
We shall deal first with the second and third alternative acts sought
to be done, both of which involve the issue of whether or not
petitioners are entitled to access to the documents evidencing loans
granted by the GSIS.
This is not the first time that the Court is confronted with a
controversy directly involving the constitutional right to information.
In Tañada v. Tuvera, G.R. No. 63915, April 24,1985, 136 SCRA 27
and in the recent case of Legaspi v. Civil Service Commission, G.R.
No. 72119, May 29, 1987,150 SCRA 530, the Court upheld the
people's constitutional right to be informed of matters of public
interest and ordered the government agencies concerned to act as
prayed for by the petitioners.
The pertinent provision under the 1987 Constitution is Art. 111, Sec.
7 which states:
The right of the people to information on matters of public concern
shall be recognized. Access to official records, and to documents,
and papers pertaining to official acts, transactions, or decisions, as
well as to government research data used as basis for policy
development, shall be afforded the citizen, subject to such
limitations as may be provided by law.
The right of access to information was also recognized in the 1973
Constitution, Art. IV Sec. 6 of which provided:
The right of the people to information on 'matters of public concern
shall be recognized. Access to official records, and to documents
and papers pertaining to official acts, transactions, or decisions,
shall be afforded the citizen subject to such limitations as may be
provided by law.
An informed citizenry with access to the diverse currents in political,
moral and artistic thought and data relative to them, and the free
exchange of ideas and discussion of issues thereon, is vital to the
democratic government envisioned under our Constitution. The
cornerstone of this republican system of government is delegation
of power by the people to the State. In this system, governmental
agencies and institutions operate within the limits of the authority
CONSTI LAW II I ACJUCO 355
conferred by the people. Denied access to information on the inner
workings of government, the citizenry can become prey to the
whims and caprices of those to whom the power had been
delegated. The postulate of public office as a public trust,
institutionalized in the Constitution (in Art. XI, Sec. 1) to protect the
people from abuse of governmental power, would certainly be were
empty words if access to such information of public concern is
denied, except under limitations prescribed by implementing
legislation adopted pursuant to the Constitution.
Petitioners are practitioners in media. As such, they have both the
right to gather and the obligation to check the accuracy of
information the disseminate. For them, the freedom of the press and
of speech is not only critical, but vital to the exercise of their
professions. The right of access to information ensures that these
freedoms are not rendered nugatory by the government's
monopolizing pertinent information. For an essential element of
these freedoms is to keep open a continuing dialogue or process of
communication between the government and the people. It is in the
interest of the State that the channels for free political discussion be
maintained to the end that the government may perceive and be
responsive to the people's will. Yet, this open dialogue can be
effective only to the extent that the citizenry is informed and thus
able to formulate its will intelligently. Only when the participants in
the discussion are aware of the issues and have access to
information relating thereto can such bear fruit.
The right to information is an essential premise of a meaningful right
to speech and expression. But this is not to say that the right to
information is merely an adjunct of and therefore restricted in
application by the exercise of the freedoms of speech and of the
press. Far from it. The right to information goes hand-in-hand with
the constitutional policies of full public disclosure * and honesty in
the public service. ** It is meant to enhance the widening role of the
citizenry in governmental decision-making as well as in checking
abuse in government.
Yet, like all the constitutional guarantees, the right to information is
not absolute. As stated in Legaspi, the people's right to information
is limited to "matters of public concern," and is further "subject to
such limitations as may be provided by law." Similarly, the State's
policy of full disclosure is limited to "transactions involving public
interest," and is "subject to reasonable conditions prescribed by
law."
Hence, before mandamus may issue, it must be clear that the
information sought is of "public interest" or "public concern," and is
not exempted by law from the operation of the constitutional
guarantee [Legazpi v. Civil Service Commission, supra, at p. 542.]
The Court has always grappled with the meanings of the terms
"public interest" and "public concern". As observed in Legazpi:
In determining whether or not a particular information is of public
concern there is no rigid test which can be applied. "Public concern"
like "public interest" is a term that eludes exact definition. Both terms
embrace a broad spectrum of subjects which the public may want
to know, either because these directly affect their lives, or simply
because such matters naturally arouse the interest of an ordinary
citezen. In the final analysis, it is for the courts to determine on a
case by case basis whether the matter at issue is of interest or
importance, as it relates to or affects the public. [Ibid. at p. 541]
In the Tañada case the public concern deemed covered by the
constitutional right to information was the need for adequate notice
to the public of the various laws which are to regulate the actions
and conduct of citezens. In Legaspi, it was the "legitimate concern
of citezensof ensure that government positions requiring civil
service eligibility are occupied only by persons who are eligibles"
[Supra at p. 539.]

The information sought by petitioners in this case is the truth of
reports that certain Members of the Batasang Pambansa belonging
to the opposition were able to secure "clean" loans from the GSIS
immediately before the February 7, 1986 election through the
intercession of th eformer First Lady, Mrs. Imelda Marcos.
The GSIS is a trustee of contributions from the government and its
employees and the administrator of various insurance programs for
the benefit of the latter. Undeniably, its funds assume a public
character. More particularly, Secs. 5(b) and 46 of P.D. 1146, as
amended (the Revised Government Service Insurance Act of 1977),
provide for annual appropriations to pay the contributions,
premiums, interest and other amounts payable to GSIS by the
government, as employer, as well as the obligations which the
Republic of the Philippines assumes or guarantees to pay.
Considering the nature of its funds, the GSIS is expected to manage
its resources with utmost prudence and in strict compliance with the
pertinent laws or rules and regulations. Thus, one of the reasons
that prompted the revision of the old GSIS law (C.A. No. 186, as
amended) was the necessity "to preserve at all times the actuarial
solvency of the funds administered by the System" [Second
Whereas Clause, P.D. No. 1146.] Consequently, as respondent
himself admits, the GSIS "is not supposed to grant 'clean loans.'"
[Comment, p. 8.] It is therefore the legitimate concern of the public
to ensure that these funds are managed properly with the end in
view of maximizing the benefits that accrue to the insured
government employees. Moreover, the supposed borrowers were
Members of the defunct Batasang Pambansa who themselves
appropriated funds for the GSIS and were therefore expected to be
the first to see to it that the GSIS performed its tasks with the
greatest degree of fidelity and that an its transactions were above
board.
In sum, the public nature of the loanable funds of the GSIS and the
public office held by the alleged borrowers make the information
sought clearly a matter of public interest and concern.
A second requisite must be met before the right to information may
be enforced through mandamus proceedings, viz., that the
information sought must not be among those excluded by law.
Respondent maintains that a confidential relationship exists
between the GSIS and its borrowers. It is argued that a policy of
confidentiality restricts the indiscriminate dissemination of
information.
Yet, respondent has failed to cite any law granting the GSIS the
privilege of confidentiality as regards the documents subject of this
petition. His position is apparently based merely on considerations
of policy. The judiciary does not settle policy issues. The Court can
only declare what the law is, and not what the law should be. Under
our system of government, policy issues are within the domain of
the political branches of the government, and of the people
themselves as the repository of all State power.
Respondent however contends that in view of the right to privacy
which is equally protected by the Constitution and by existing laws,
the documents evidencing loan transactions of the GSIS must be
deemed outside the ambit of the right to information.
There can be no doubt that right to privacy is constitutionally
protected. In the landmark case of Morfe v. Mutuc [130 Phil. 415
(1968), 22 SCRA 424], this Court, speaking through then Mr. Justice
Fernando, stated:
... The right to privacy as such is accorded recognition
independently of its identification with liberty; in itself, it is fully
deserving of constitutional protection. The language of Prof.
Emerson is particularly apt: "The concept of limited government has
always included the idea that governmental powers stop short of
certain intrusions into the personal life of the citizen. This is indeed
CONSTI LAW II I ACJUCO 356
one of the basic distinctions between absolute and limited
government. UItimate and pervasive control of the individual, in all
aspects of his life, is the hallmark of the absolute. state, In contrast,
a system of limited government safeguards a private sector, which
belongs to the individual, firmly distinguishing it from the public
sector, which the state can control. Protection of this private sector
— protection, in other words, of the dignity and integrity of the
individual — has become increasingly important as modem society
has developed. All the forces of technological age —
industrialization, urbanization, and organization — operate to
narrow the area of privacy and facilitate intrusion into it. In modern
terms, the capacity to maintain and support this enclave of private
life marks the difference between a democratic and a totalitarian
society." [at pp. 444-445.]
When the information requested from the government intrudes into
the privacy of a citizen, a potential conflict between the rights to
information and to privacy may arise. However, the competing
interests of these rights need not be resolved in this case. Apparent
from the above-quoted statement of the Court in Morfe is that the
right to privacy belongs to the individual in his private capacity, and
not to public and governmental agencies like the GSIS. Moreover,
the right cannot be invoked by juridical entities like the GSIS. As
held in the case of Vassar College v. Loose Wills Biscuit Co. [197
F. 982 (1912)], a corporation has no right of privacy in its name since
the entire basis of the right to privacy is an injury to the feelings and
sensibilities of the party and a corporation would have no such
ground for relief.
Neither can the GSIS through its General Manager, the respondent,
invoke the right to privacy of its borrowers. The right is purely
personal in nature [Cf. Atkinson v. John Doherty & Co., 121 Mich
372, 80 N.W. 285, 46 L.RA. 219 (1899); Schuyler v. Curtis, 147 N.Y.
434, 42 N.E. 22, 31 L.R.A. 286 (1895)), and hence may be invoked
only by the person whose privacy is claimed to be violated.
It may be observed, however, that in the instant case, the concerned
borrowers themselves may not succeed if they choose to invoke
their right to privacy, considering the public offices they were holding
at the time the loans were alleged to have been granted. It cannot
be denied that because of the interest they generate and their
newsworthiness, public figures, most especially those holding
responsible positions in government, enjoy a more limited right to
privacy as compared to ordinary individuals, their actions being
subject to closer public scrutiny [Cf. Ayer Productions Pty. Ltd. v.
Capulong, G.R. Nos. 82380 and 82398, April 29, 1988; See also
Cohen v. Marx, 211 P. 2d 321 (1949).]
Respondent next asserts that the documents evidencing the loan
transactions of the GSIS are private in nature and hence, are not
covered by the Constitutional right to information on matters of
public concern which guarantees "(a)ccess to official records, and
to documents, and papers pertaining to official acts, transactions, or
decisions" only.
It is argued that the records of the GSIS, a government corporation
performing proprietary functions, are outside the coverage of the
people's right of access to official records.
It is further contended that since the loan function of the GSIS is
merely incidental to its insurance function, then its loan transactions
are not covered by the constitutional policy of full public disclosure
and the right to information which is applicable only to "official"
transactions.
First of all, the "constituent — ministrant" dichotomy characterizing
government function has long been repudiated. In ACCFA v.
Confederation of Unions and Government Corporations and Offices
(G.R. Nos. L-21484 and L-23605, November 29, 1969, 30 SCRA
6441, the Court said that the government, whether carrying out its
 CONSTI LAW II I ACJUCO 357

sovereign attributes or running some business, discharges the
same function of service to the people.
Consequently, that the GSIS, in granting the loans, was exercising
a proprietary function would not justify the exclusion of the
transactions from the coverage and scope of the right to information.
Moreover, the intent of the members of the Constitutional
Commission of 1986, to include government-owned and controlled
corporations and transactions entered into by them within the
coverage of the State policy of fun public disclosure is manifest from
the records of the proceedings:
xxx xxx xxx
THE PRESIDING OFFICER (Mr. Colayco).
Commissioner Suarez is recognized.
MR. SUAREZ. Thank you. May I ask the Gentleman a few
question?
and hours of examination, to the end that damage to or loss of the
records may be avoided, that undue interference with the duties of
the custodian of the records may be prevented and that the right of
other persons entitled to inspect the records may be insured
[Legaspi v. Civil Service Commission, supra at p. 538, quoting
Subido v. Ozaeta, 80 Phil. 383, 387.] The petition, as to the second
and third alternative acts sought to be done by petitioners, is
meritorious.
However, the same cannot be said with regard to the first act sought
by petitioners, i.e., "to furnish petitioners the list of the names of the
Batasang Pambansa members belonging to the UNIDO and PDP-
Laban who were able to secure clean loans immediately before the
February 7 election thru the intercession/marginal note of the then
First Lady Imelda Marcos."
Although citizens are afforded the right to information and, pursuant
thereto, are entitled to "access to official records," the Constitution
does not accord them a right to compel custodians of official records
to prepare lists, abstracts, summaries and the like in their desire to
acquire information on matters of public concern.

MR. OPLE. Very gladly.
MR. SUAREZ. Thank you.
When we declare a "policy of full public disclosure of all its
transactions" — referring to the transactions of the State — and
when we say the "State" which I suppose would include all of the
various agencies, departments, ministries and instrumentalities of
the government....
MR. OPLE. Yes, and individual public officers, Mr. Presiding
Officer.
MR. SUAREZ. Including government-owned and controlled
corporations.
MR. OPLE. That is correct, Mr. Presiding Officer.
MR. SUAREZ. And when we say "transactions" which should
be distinguished from contracts, agreements, or treaties or
whatever, does the Gentleman refer to the steps leading to the
consummation of the contract, or does he refer to the contract itself?
It must be stressed that it is essential for a writ of mandamus to
issue that the applicant has a well-defined, clear and certain legal
right to the thing demanded and that it is the imperative duty of
defendant to perform the act required. The corresponding duty of
the respondent to perform the required act must be clear and
specific [Lemi v. Valencia, G.R. No. L-20768, November
29,1968,126 SCRA 203; Ocampo v. Subido, G.R. No. L-28344,
August 27, 1976, 72 SCRA 443.] The request of the petitioners fails
to meet this standard, there being no duty on the part of respondent
to prepare the list requested.
WHEREFORE, the instant petition is hereby granted and
respondent General Manager of the Government Service Insurance
System is ORDERED to allow petitioners access to documents and
records evidencing loans granted to Members of the former
Batasang Pambansa, as petitioners may specify, subject to
reasonable regulations as to the time and manner of inspection, not
incompatible with this decision, as the GSIS may deem necessary.
SO ORDERED.

MR. OPLE. The "transactions" used here I suppose is

generic and, therefore, it can cover both steps leading to a contract,
and already a consummated contract, Mr. Presiding Officer.

MR. SUAREZ. This contemplates inclusion of negotiations

leading to the consummation of the transaction.

MR. OPLE. Yes, subject only to reasonable safeguards on

the national interest.

MR. SUAREZ. Thank you. [V Record of the Constitutional

Commission 24-25.] (Emphasis supplied.)

Considering the intent of the framers of the Constitution which,

though not binding upon the Court, are nevertheless persuasive,
and considering further that government-owned and controlled
corporations, whether performing proprietary or governmental
functions are accountable to the people, the Court is convinced that
transactions entered into by the GSIS, a government-controlled
corporation created by special legislation are within the ambit of the
people's right to be informed pursuant to the constitutional policy of
transparency in government dealings.

In fine, petitioners are entitled to access to the documents

evidencing loans granted by the GSIS, subject to reasonable
regulations that the latter may promulgate relating to the manner

G.R. No. 130716 December 9, 1998
FRANCISCO I. CHAVEZ, petitioner,
vs.
PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT
(PCGG) and MAGTANGGOL GUNIGUNDO (in his capacity as
chairman of the PCGG), respondents, GLORIA A. JOPSON,
CELNAN A. JOPSON, SCARLET A. JOPSON, and TERESA A.
JOPSON, petitioners-in-intervention.
PANGANIBAN, J.:
Petitioner asks this Court to define the nature and the extent of the
people's constitutional right to information on matters of public
concern. Does this right include access to the terms of government
negotiations prior to their consummation or conclusion? May the
government, through the Presidential Commission on Good
Government (PCGG), be required to reveal the proposed terms of
a compromise agreement with the Marcos heirs as regards their
alleged ill-gotten wealth? More specifically, are the "General
Agreement" and "Supplemental Agreement," both dated December
28, 1993 and executed between the PCGG and the Marcos heirs,
valid and binding?
The Case
These are the main questions raised in this original action seeking
(1) to prohibit and "[e]njoin respondents [PCGG and its chairman]
from privately entering into, perfecting and/or executing any
greement with the heirs of the late President Ferdinand E. Marcos .
. . relating to and concerning the properties and assets of Ferdinand
Marcos located in the Philippines and/or abroad — including the so-
called Marcos gold hoard"; and (2) to "[c]ompel respondent[s] to
make public all negotiations and agreement, be they ongoing or
perfected, and all documents related to or relating to such
negotiations and agreement between the PCGG and the Marcos
heirs."1
The Facts
Petitioner Francisco I. Chavez, as "taxpayer, citizen and former
government official who initiated the prosecution of the Marcoses
and their cronies who committed unmitigated plunder of the public
treasury and the systematic subjugation of the country's economy,"
alleges that what impelled him to bring this action were several news
reports 2 bannered in a number of broadsheets sometime in
September 1997. These news items referred to (1) the alleged
discovery of billions of dollars of Marcos assets deposited in various
coded accounts in Swiss banks; and (2) the reported execution of a
compromise, between the government (through PCGG) and the
Marcos heirs, on how to split or share these assets.
Petitioner, invoking his constitutional right to information 3 and the
correlative duty of the state to disclose publicly all its transactions
involving the national interest,4 demands that respondents make
public any and all negotiations and agreements pertaining to
PCGG's task of recovering the Marcoses' ill-gotten wealth. He
claims that any compromise on the alleged billions of ill-gotten
wealth involves an issue of "paramount public interest," since it has
a "debilitating effect on the country's economy" that would be greatly
prejudicial to the national interest of the Filipino people. Hence, the
people in general have a right to know the transactions or deals
being contrived and effected by the government.
Respondents, on the other hand, do not deny forging a compromise
agreement with the Marcos heirs. They claim, though, that
petitioner's action is premature, because there is no showing that
he has asked the PCGG to disclose the negotiations and the
Agreements. And even if he has, PCGG may not yet be compelled
CONSTI LAW II I ACJUCO 358
to make any disclosure, since the proposed terms and conditions of
the Agreements have not become effective and binding.
Respondents further aver that the Marcos heirs have submitted the
subject Agreements to the Sandiganbayan for its approval in Civil
Case No. 141, entitled Republic v. Heirs of Ferdinand E. Marcos,
and that the Republic opposed such move on the principal grounds
that (1) said Agreements have not been ratified by or even submitted
to the President for approval, pursuant to Item No. 8 of the General
Agreement; and (2) the Marcos heirs have failed to comply with their
undertakings therein, particularly the collation and submission of an
inventory of their assets. The Republic also cited an April 11, 1995
Resolution in Civil Case No. 0165, in which the Sandiganbayan
dismissed a similar petition filed by the Marcoses' attorney-in-fact.
Furthermore, then President Fidel V. Ramos, in his May 4, 1998
Memorandum 5 to then PCGG Chairman Magtanggol Gunigundo,
categorically stated:
This is to reiterate my previous position embodied in the Palace
Press Release of 6 April 1995 that I have not authorized you to
approve the Compromise Agreements of December 28, 1993 or any
agreement at all with the Marcoses, and would have disapproved
them had they been submitted to me.
The Full Powers of Attorney of March 1994 and July 4, 1994, did not
authorize you to approve said Agreements, which I reserve for
myself as President of the Republic of the Philippines.
The assailed principal Agreement 6 reads:
GENERAL AGREEMENT
KNOW ALL MEN BY THESE PRESENTS:
This Agreement entered into this 28th day of December, 1993, by
and between —
The Republic of the Philippines, through the Presidential
Commission on Good Government (PCGG), a governmental
agency vested with authority defined under Executive Orders Nos.
1, 2 and 14, with offices at the philcomcen Building, Pasig, Metro
Manila, represented by its Chairman referred to as FIRST PARTY,
— and —
Estate of Ferdinand E. Marcos, represented by Imelda Romualdez
Marcos and Ferdinand R. Marcos, Jr., all of legal age, and with
address at c/o No. 154 Lopez Rizal St., Mandaluyong, Metro Manila,
and Imelda Romualdez Marcos, Imee Marcos Manotoc, Ferdinand
E. Marcos, Jr., and Irene Marcos Araneta, hereinafter collectively
referred to as the PRIVATE PARTY.
W I T N E S S E T H:
WHEREAS, the PRIVATE PARTY has been impelled by their sense
of nationalism and love of country and of the entire Filipino people,
and their desire to set up a foundation and finance impact projects
like installation of power plants in selected rural areas and initiation
of other community projects for the empowerment of the people;
WHEREAS, the FIRST PARTY has obtained a judgment from the
Swiss Federal Tribunal of December 21, 1990, that the $356 million
belongs in principle to the Republic of the Philippines provided
certain conditionalities are met, but even after 7 years, the FIRST
PARTY has not been able to procure a final judgment of conviction
against the PRIVATE PARTY;
WHEREAS, the FIRST PARTY is desirous of avoiding a long-drawn
out litigation which, as proven by the past 7 years, is consuming
money, time and effort, and is counter-productive and ties up assets
 CONSTI LAW II I ACJUCO 359

which the FIRST PARTY could otherwise utilize for its
Comprehensive Agrarian Reform Program, and other urgent needs;
WHEREAS, His Excellency, President Fidel V. Ramos, has adopted
a policy of unity and reconciliation in order to bind the nation's
wounds and start the process of rebuilding this nation as it goes on
to the twenty-first century;
WHEREAS, this Agreement settles all claims and counterclaims
which the parties may have against one another, whether past,
present, or future, matured or inchoate.
NOW, THEREFORE, for and in consideration of the mutual
covenants set forth herein, the parties agree as follows:
1. The parties will collate all assets presumed to be owned
by, or held by other parties for the benefit of, the PRIVATE PARTY
for purposes of determining the totality of the assets covered by the
settlement. The subject assets shall be classified by the nature
thereof, namely: (a) real estate; (b) jewelry; (c) paintings and other
works of art; (d) securities; (e) funds on deposit; (f) precious metals,
if any, and (g) miscellaneous assets or assets which could not
appropriately fall under any of the preceding classification. The list
shall be based on the full disclosure of the PRIVATE PARTY to
insure its accuracy.
2. Based on the inventory, the FIRST PARTY shall
determine which shall be ceded to the FIRST PARTY, and which
shall be assigned to/retained by the PRIVATE PARTY. The assets
of the PRIVATE PARTY shall be net of and exempt from, any form
of taxes due the Republic of the Philippines. However, considering
the unavailability of all pertinent and relevant documents and
information as to balances and ownership, the actual specification
of assets to be retained by the PRIVATE PARTY shall be covered
by supplemental agreements which shall form part of this
Agreement.
3. Foreign assets which the PRIVATE PARTY shall fully
disclose but which are held by trustees, nominees, agents or
foundations are hereby waived over by the PRIVATE PARTY in
favor of the FIRST PARTY. For this purpose, the parties shall
cooperate in taking the appropriate action, judicial and/or
extrajudicial, to recover the same for the FIRST PARTY.
list per No. 1 for whatever reason shall automatically belong to the
FIRST PARTY, and the PRIVATE PARTY in accordance with No. 4
above, waives any right thereto.
7. This Agreement shall be binding on and inure to the
benefit of, the parties and their respective legal representatives,
successors and assigns and shall supersede any other prior
agreement.
8. The PARTIES shall submit this and any other
implementing Agreements to the President of the Philippines for
approval. In the same manner, the PRIVATE PARTY shall provide
the FIRST PARTY assistance by way of testimony or deposition on
any information it may have that could shed light on the cases being
pursued by the FIRST PARTY against other parties. The FIRST
PARTY shall desist from instituting new suits already subject of this
Agreement against the PRIVATE PARTY and cause the dismissal
of all other cases pending in the Sandiganbayan and in other courts.
9. In case of violation by the PRIVATE PARTY of any of the
conditions herein contained, the PARTIES shall be restored
automatically to the status quo ante the signing of this Agreement.
For purposes of this Agreement, the PRIVATE PARTY shall be
represented by Atty. Simeon M. Mesina, Jr., as their only Attorney-
in-Fact.
IN WITNESS WHEREOF, the parties have signed this instrument
this 28th day of December, 1993, in Makati, Metro Manila.
PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT
By:
[Sgd.] MAGTANGGOL C. GUNIGUNDO
Chairman
ESTATE OF FERDINAND E. MARCOS,
IMELDA R. MARCOS, MA. IMELDA

4. All disclosures of assets made by the PRIVATE PARTY MARCOS-MANOTOC, FERDINAND R.

shall not be used as evidence by the FIRST PARTY in any criminal,
civil, tax or administrative case, but shall be valid and binding MARCOS, JR., & IRENE MARCOS-
against said PARTY for use by the FIRST PARTY in withdrawing
any account and/or recovering any asset. The PRIVATE PARTY ARANETA
withdraws any objection to the withdrawal by and/or release to the
FIRST PARTY by the Swiss banks and/or Swiss authorities of the By:
$356 million, its accrued interests, and/or any other account; over
which the PRIVATE PARTY waives any right, interest or [Sgd.] IMELDA ROMUALDEZ-MARCOS
participation in favor of the FIRST PARTY. However, any withdrawal
or release of any account aforementioned by the FIRST PARTY [Sgd.] MA. IMELDA MARCOS-MANOTOC
shall be made in the presence of any authorized representative of
the PRIVATE PARTY. FERDINAND R. MARCOS, JR.7

5. The trustees, custodians, safekeepers, depositaries, [Sgd.] IRENE MARCOS-ARANETA

agents, nominees, administrators, lawyers, or any other party acting
in similar capacity in behalf of the PRIVATE PARTY are hereby Assisted by:
informed through this General Agreement to insure that it is fully
implemented and this shall serve as absolute authority from both [Sgd.] ATTY. SIMEON M. MESINA, JR.
parties for full disclosure to the FIRST PARTY of said assets and for
the FIRST PARTY to withdraw said account and/or assets and any Counsel & Attorney-in-Fact
other assets which the FIRST PARTY on its own or through the help
of the PRIVATE PARTY/their trustees, etc., may discover. Petitioner also denounces this supplement to the above
Agreement:8
6. Any asset which may be discovered in the future as
belonging to the PRIVATE PARTY or is being held by another for SUPPLEMENTAL AGREEMENT
the benefit of the PRIVATE PARTY and which is not included in the

This Agreement entered into this 28th day of December, 1993, by
and between —
The Republic of the Philippines, through the Presidential
Commission on Good Government (PCGG), a governmental
agency vested with authority defined under Executive Orders Nos.
1, 2 and 14, with offices at the Philcomcen Building, Pasig, Metro
Manila, represented by its Chairman Magtanggol C. Gunigundo,
hereinafter referred to as the FIRST PARTY,
— and —
Estate of Ferdinand E. Marcos, represented by Imelda Romualdez
Marcos and Ferdinand R. Marcos, Jr., all of legal age, and with
address at c/o No. 154 Lopez Rizal St., Mandaluyong, Metro Manila,
and Imelda Romualdez Marcos, Imee Marcos Manotoc, Ferdinand
E. Marcos, Jr., and Irene Marcos Araneta, hereinafter collectively
referred to as the PRIVATE PARTY.
W I T N E S S E T H:
The parties in this case entered into a General Agreement dated
Dec. 28, 1993;
The PRIVATE PARTY expressly reserve their right to pursue their
interest and/or sue over local assets located in the Philippines
against parties other than the FIRST PARTY.
The parties hereby agree that all expenses related to the recovery
and/or withdrawal of all assets including lawyers' fees, agents' fees,
nominees' service fees, bank charges, traveling expenses and all
other expenses related thereto shall be for the account of the
PRIVATE PARTY.
In consideration of the foregoing, the parties hereby agree that the
PRIVATE PARTY shall be entitled to the equivalent of 25% of the
amount that may be eventually withdrawn from said $356 million
Swiss deposits.
IN WITNESS WHEREOF, the parties have signed this instrument
this 28th day of December, 1993, in Makati, Metro Manila.
PRESIDENTIAL COMMISSION ON
GOOD GOVERNMENT
By:
[Sgd.] MAGTANGGOL C. GUNIGUNDO
Chairman
ESTATE OF FERDINAND E. MARCOS,
IMELDA R. MARCOS, MA. IMELDA
MARCOS-MANOTOC, FERDINAND R.
MARCOS, JR., & IRENE MARCOS-
ARANETA
By:
[Sgd.] IMELDA ROMUALDEZ-MARCOS
[Sgd.] MA. IMELDA MARCOS-MANOTOC
FERDINAND R. MARCOS, JR.9
[Sgd.] IRENE MARCOS-ARANETA
CONSTI LAW II I ACJUCO 360
Assisted by:
[Sgd.] ATTY. SIMEON M. MESINA, JR.
Counsel & Attorney-in-Fact
Acting on a motion of petitioner, the Court issued a Temporary
Restraining Order 10 dated March 23, enjoining respondents, their
agents and/or representatives from "entering into, or perfecting
and/or executing any agreement with the heirs of the late President
Ferdinand E. Marcos relating to and concerning their ill-gotten
wealth."
Issues
The Oral Argument, held on March 16, 1998, focused on the
following issues:
(a) Procedural:
(1) Whether or not the petitioner has the personality or legal
standing to file the instant petition; and
(2) Whether or not this Court is the proper court before which
this action may be filed.
(b) Substantive:
(1) Whether or not this Court could require the PCGG to
disclose to the public the details of any agreement, perfected or not,
with the Marcoses; and
(2) Whether or not there exist any legal restraints against a
compromise agreement between the Marcoses and the PCGG
relative to the Marcoses' ill-gotten wealth. 11
After their oral presentations, the parties filed their respective
memoranda.
On August 19, 1998, Gloria, Celnan, Scarlet and Teresa, all
surnamed Jopson, filed before the Court a Motion for Intervention,
attaching thereto their Petition in Intervention. They aver that they
are "among the 10,000 claimants whose right to claim from the
Marcos Family and/or the Marcos Estate is recognized by the
decision in In re Estate of Ferdinand Marcos, Human Rights
Litigation, Maximo Hilao, et al., Class Plaintiffs No. 92-15526, U.S.
Court of Appeals for the 9th Circuit US App. Lexis 14796, June 16,
1994 and the Decision of the Swiss Supreme Court of December
10, 1997." As such, they claim to have personal and direct interest
in the subject matter of the instant case, since a distribution or
disposition of the Marcos properties may adversely affect their
legitimate claims. In a minute Resolution issued on August 24, 1998,
the Court granted their motion to intervene and required the
respondents to comment thereon. The September 25, 1998
Comment 12 of the solicitor general on said motion merely
reiterated his aforecited arguments against the main petition. 13
The Court's Ruling
The petition id imbued with merit.
First Procedural Issue:
Petitioner's Standing
Petitioner, on the one hand, explains that as a taxpayer and citizen,
he has the legal personality to file the instant petition. He submits
that since ill-gotten wealth "belongs to the Filipino people and [is], in
truth hand in fact, part of the public treasury," any compromise in
relation to it would constitute a diminution of the public funds, which

can be enjoined by a taxpayer whose interest is for a full, if not
substantial, recovery of such assets.
Besides, petitioner emphasize, the matter of recovering the ill-gotten
wealth of the Marcoses is an issue "of transcendental importance
the public." He asserts that ordinary taxpayers have a right to initiate
and prosecute actions questioning the validity of acts or orders of
government agencies or instrumentalities, if the issues raised are
"of paramount public interest;" and if they "immeasurably affect the
social, economic, and moral well-being of the people."
Moreover, the mere fact that he is a citizen satisfies the requirement
of personal interest, when the proceeding involves the assertion of
a public right, 14 such as in this case. He invokes several decisions
15 of this Court which have set aside the procedural matter of locus
standi, when the subject of the case involved public interest.
On the other hand, the solicitor general, on behalf of respondents,
contends that petitioner has no standing to institute the present
action, because no expenditure of public funds is involved and said
petitioner has no actual interest in the alleged agreement.
Respondents further insist that the instant petition is premature,
since there is no showing that petitioner has requested PCGG to
disclose any such negotiations and agreements; or that, if he has,
the Commission has refused to do so.
Indeed, the arguments cited by petitioner constitute the controlling
decisional rule as regards his legal standing to institute the instant
petition. Access to public documents and records is a public right,
and the real parties in interest are the people themselves. 16
In Tañada v. Tuvera, 17 the Court asserted that when the issue
concerns a public a right and the object of mandamus is to obtain
the enforcement of a public duty, the people are regarded as the
real parties in interest; and because it is sufficient that petitioner is
a citizen and as such is interested in the execution of the laws, he
need not show that he has any legal or special interest in the result
of the action. 18 In the aforesaid case, the petitioners sought to
enforce their right to be informed on matters of public concern, a
right then recognized in Section 6, Article IV of the 1973
Constitution, 19 in connection with the rule that laws in order to be
valid and enforceable must be published in the Official Gazette or
otherwise effectively promulgated. In ruling for the petitioners' legal
standing, the Court declared that the right they sought to be
enforced "is a public right recognized by no less than the
fundamental law of the land."
Legaspi v. Civil Service Commission, 20 while reiterating Tañada,
further declared that "when a mandamus proceeding involves the
assertion of a public right, the requirement of personal interest is
satisfied by the mere fact that petitioner is a citizen and, therefore,
part of the general 'public' which possesses the right." 21
Further, in Albano v. Reyes, 22 we said that while expenditure of
public funds may not have been involved under the questioned
contract for the development, the management and the operation of
the Manila International Container Terminal, "public interest [was]
definitely involved considering the important role [of the subject
contract] . . . in the economic development of the country and the
magnitude of the financial consideration involved." We concluded
that, as a consequence, the disclosure provision in the Constitution
would constitute sufficient authority for upholding the petitioner's
standing.
Similarly, the instant petition is anchored on the right of the people
to information and access to official records, documents and papers
— a right guaranteed under Section 7, Article III of the 1987
Constitution. Petitioner, a former solicitor general, is a Filipino
citizen. Because of the satisfaction of the two basic requisites laid
down by decisional law to sustain petitioner's legal standing, i.e. (1)
CONSTI LAW II I ACJUCO 361
the enforcement of a public right (2) espoused by a Filipino citizen,
we rule that the petition at bar should be allowed.
In any event, the question on the standing of Petitioner Chavez is
rendered moot by the intervention of the Jopsons, who are among
the legitimate claimants to the Marcos wealth. The standing of the
Jopsons is not seriously contested by the solicitor general. Indeed,
said petitioners-intervenors have a legal interest in the subject
matter of the instant case, since a distribution or disposition of the
Marcoses' ill-gotten properties may adversely affect the satisfaction
of their claims.
Second Procedural Issue:
The Court's Jurisdiction
Petitioner asserts that because this petition is an original action for
mandamus and one that is not intended to delay any proceeding in
the Sandiganbayan, its having been filed before this Court was
proper. He invokes Section 5, Article VIII of the Constitution, which
confers upon the Supreme Court original jurisdiction over petitions
for prohibition and mandamus.
The solicitor general, on the other hand, argues that the petition has
been erroneously brought before this Court, since there is neither a
justiciable controversy nor a violation of petitioner's rights by the
PCGG. He alleges that the assailed agreements are already the
very lis mota in Sandiganbayan Civil Case No. 0141, which has yet
to dispose of the issue; thus, this petition is premature. Furthermore,
respondents themselves have opposed the Marcos heirs' motion,
filed in the graft court, for the approval of the subject Agreements.
Such opposition belies petitioner's claim that the government,
through respondents, has concluded a settlement with the
Marcoses as regards their alleged ill-gotten assets.
In Tañada and Legaspi, we upheld therein petitioners' resort to a
mandamus proceeding, seeking to enforce a public right as well as
to compel performance of a public duty mandated by no less than
the fundamental law. 23 Further, Section 5, Article VIII of the
Constitution, expressly confers upon the Supreme Court original
jurisdiction over petitions for certiorari, prohibition, mandamus, quo
warranto and habeas corpus.
Respondents argue that petitioner should have properly sought
relief before the Sandiganbayan, particularly in Civil Case No. 0141,
in which the enforcement of the compromise Agreements is pending
resolution. There may seem to be some merit in such argument, if
petitioner is merely seeking to enjoin the enforcement of the
compromise and/or to compel the PCGG to disclose to the public
the terms contained in said Agreements. However, petitioner is here
seeking the public disclose of "all negotiations and agreement, be
they ongoing or perfected, and documents related to or relating to
such negotiations and agreement between the PCGG and the
Marcos heirs."
In other words, this petition is not confined to the Agreements that
have already been drawn, but likewise to any other ongoing or future
undertaking towards any settlement on the alleged Marcos loot.
Ineluctably, the core issue boils down to the precise interpretation,
in terms of scope, of the twin constitutional provisions on "public
transactions." This broad and prospective relief sought by the
instant petition brings it out of the realm of Civil Case No. 0141.
First Substantive Issue:
Public Disclosure of Terms of
Any Agreement, Perfected or Not
In seeking the public disclosure of negotiations and agreements
pertaining to a compromise settlement with the Marcoses as

regards their alleged ill-gotten wealth, petitioner invokes the
following provisions of the Constitution:
Sec. 7 [Article III]. The right of the people to information on
matters of public concern shall be recognized. Access to official
records, and to documents, and papers pertaining to official acts,
transactions, or decisions, as well as to government research data
used as basis for policy development, shall be afforded the citizen,
subject to such limitations as may be provided by law.
Sec. 28 [Article II]. Subject to reasonable conditions prescribed by
law, the State adopts and implements a policy of full public
disclosure of all its transactions involving public interest.
Respondents' opposite view is that the above constitutional
provisions refer to completed and operative official acts, not to those
still being considered. As regards the assailed Agreements entered
into by the PCGG with the Marcoses, there is yet no right of action
that has accrued, because said Agreements have not been
approved by the President, and the Marcos heirs have failed to fulfill
their express undertaking therein. Thus, the Agreements have not
become effective. Respondents add that they are not aware of any
ongoing negotiation for another compromise with the Marcoses
regarding their alleged ill-gotten assets.
The "information" and the "transactions" referred to in the subject
provisions of the Constitution have as yet no defined scope and
extent. There are no specific laws prescribing the exact limitations
within which the right may be exercised or the correlative state duty
may be obliged. However, the following are some of the recognized
restrictions: (1) national security matters and intelligence
information, (2) trade secrets and banking transactions, (3) criminal
matters, and (4) other confidential information.
Limitations to the Right:
(1) National Security Matters
At the very least, this jurisdiction recognizes the common law
holding that there is a governmental privilege against public
disclosure with respect to state secrets regarding military, diplomatic
and other national security matters. 24 But where there is no need
to protect such state secrets, the privilege may not be invoked to
withhold documents and other information, 25 provided that they are
examined "in strict confidence" and given "scrupulous protection."
Likewise, information on inter-government exchanges prior to the
conclusion of treaties and executive agreements may be subject to
reasonable safeguards for the sake of national interest. 26
(2) Trade Secrets and
Banking Transactions
The drafters of the Constitution also unequivocally affirmed that,
aside from national security matters and intelligence information,
trade or industrial secrets (pursuant to the Intellectual Property
Code 27 and other related laws) as well as banking transactions
(pursuant to the Secrecy of Bank Deposits Act 28) are also
exempted from compulsory disclosure. 29
(3) Criminal Matters
Also excluded are classified law enforcement matters, such as
those relating to the apprehension, the prosecution and the
detention of criminals, 30 which courts may nor inquire into prior to
such arrest, detention and prosecution. Efforts at effective law
enforcement would be seriously jeopardized by free public access
to, for example, police information regarding rescue operations, the
whereabouts of fugitives, or leads on covert criminal activities.
CONSTI LAW II I ACJUCO 362
(4) Other Confidential
Information
The Ethical Standards Act 31 further prohibits public officials and
employees from using or divulging "confidential or classified
information officially known to them by reason of their office and not
made available to the public." 32
Other acknowledged limitations to information access include
diplomatic correspondence, closed door Cabinet meetings and
executive sessions of either house of Congress, as well as the
internal deliberations of the Supreme Court. 33
Scope: Matters of Public Concern and
Transactions Involving Public Interest
In Valmonte v. Belmonte Jr., 34 the Court emphasized that the
information sought must be "matters of public concern," access to
which may be limited by law. Similarly, the state policy of full public
disclosure extends only to "transactions involving public interest"
and may also be "subject to reasonable conditions prescribed by
law." As to the meanings of the terms "public interest" and "public
concern," the Court, in Legaspi v. Civil Service Commission, 35
elucidated:
In determining whether or not a particular information is of public
concern there is no rigid test which can be applied. "Public concern"
like "public interest" is a term that eludes exact definition. Both terms
embrace a broad spectrum of subjects which the public may want
to know, either because these directly affect their lives, or simply
because such matters naturally arouse the interest of an ordinary
citizen. In the final analysis, it is for the courts to determine on a
case by case basis whether the matter at issue is of interest or
importance, as it relates to or affects the public.
Considered a public concern in the above-mentioned case was the
"legitimate concern of citizens to ensure that government positions
requiring civil service eligibility are occupied only by persons who
are eligibles." So was the need to give the general public adequate
notification of various laws that regulate and affect the actions and
conduct of citizens, as held in Tañada. Likewise did the "public
nature of the loanable funds of the GSIS and the public office held
by the alleged borrowers (members of the defunct Batasang
Pambansa)" qualify the information sought in Valmonte as matters
of public interest and concern. In Aquino-Sarmiento v. Morato, 36
the Court also held that official acts of public officers done in pursuit
if their official functions are public in character; hence, the records
pertaining to such official acts and decisions are within the ambit of
the constitutional right of access to public records.
Under Republic Act No. 6713, public officials and employees are
mandated to "provide information on their policies and procedures
in clear and understandable language, [and] ensure openness of
information, public consultations and hearings whenever
appropriate . . .," except when "otherwise provided by law or when
required by the public interest." In particular, the law mandates free
public access, at reasonable hours, to the annual performance
reports of offices and agencies of government and government-
owned or controlled corporations; and the statements of assets,
liabilities and financial disclosures of all public officials and
employees. 37
In general, writings coming into the hands of public officers in
connection with their official functions must be accessible to the
public, consistent with the policy of transparency of governmental
affairs. This principle is aimed at affording the people an opportunity
to determine whether those to whom they have entrusted the affairs
of the government are honesty, faithfully and competently
performing their functions as public servants. 38 Undeniably, the

essence of democracy lies in the free flow of thought; 39 but
thoughts and ideas must be well-informed so that the public would
gain a better perspective of vital issues confronting them and, thus,
be able to criticize as well as participate in the affairs of the
government in a responsible, reasonable and effective manner.
Certainly, it is by ensuring an unfettered and uninhibited exchange
of ideas among a well-informed public that a government remains
responsive to the changes desired by the people. 40
The Nature of the Marcoses'
Alleged Ill-Gotten Wealth
We now come to the immediate matter under consideration.
Upon the departure from the country of the Marcos family and their
cronies in February 1986, the new government headed by President
Corazon C. Aquino was specifically mandated to "[r]ecover ill-gotten
properties amassed by the leaders and supporters of the previous
regime and [to] protect the interest of the people through orders of
sequestration or freezing of assets or
accounts." 41 Thus, President Aquino's very first executive orders
(which partook of the nature of legislative enactments) dealt with the
recovery of these alleged ill-gotten properties.
Executive Order No. 1, promulgated on February 28, 1986, only two
(2) days after the Marcoses fled the country, created the PCGG
which was primarily tasked to assist the President in the recovery of
vast government resources allegedly amassed by former President
Marcos, his immediate family, relatives and close associates both
here and abroad.
Under Executive Order No. 2, issued twelve (12) days later, all
persons and entities who had knowledge or possession of ill-gotten
assets and properties were warned and, under pain of penalties
prescribed by law, prohibited from concealing, transferring or
dissipating them or from otherwise frustrating or obstructing the
recovery efforts of the government.
On May 7, 1986, another directive (EO No. 14) was issued giving
additional powers to the PCGG which, taking into account the
overriding considerations of national interest and national survival,
required it to achieve expeditiously and effectively its vital task of
recovering ill-gotten wealth.
With such pronouncements of our government, whose authority
emanates from the people, there is no doubt that the recovery of the
Marcoses' alleged ill-gotten wealth is a matter of public concern and
imbued with public interest. 42 We may also add that "ill-gotten
wealth," by its very nature, assumes a public character. Based on
the aforementioned Executive Orders, "ill-gotten wealth" refers to
assets and properties purportedly acquired, directly or indirectly, by
former President Marcos, his immediate family, relatives and close
associates through or as a result of their improper or illegal use of
government funds or properties; or their having taken undue
advantage of their public office; or their use of powers, influences or
relationships, "resulting in their unjust enrichment and causing
grave damage and prejudice to the Filipino people and the Republic
of the Philippines." Clearly, the assets and properties referred to
supposedly originated from the government itself. To all intents and
purposes, therefore, they belong to the people. As such, upon
reconveyance they will be returned to the public treasury, subject
only to the satisfaction of positive claims of certain persons as may
be adjudged by competent courts. Another declared overriding
consideration for the expeditious recovery of ill-gotten wealth is that
it may be used for national economic recovery.
We believe the foregoing disquisition settles the question of whether
petitioner has a right to respondents' disclosure of any agreement
that may be arrived at concerning the Marcoses' purported ill-gotten
wealth.
CONSTI LAW II I ACJUCO 363
Access to Information
on Negotiating Terms
But does the constitutional provision likewise guarantee access to
information regarding ongoing negotiations or proposals prior to the
final agreement? This same clarification was sought and clearly
addressed by the constitutional commissioners during their
deliberations, which we quote hereunder: 43
MR. SUAREZ. And when we say "transactions" which should be
distinguished from contracts, agreements, or treaties or whatever,
does the Gentleman refer to the steps leading to the consummation
of the contract, or does he refer to the contract itself?
MR. OPLE. The "transactions" used here, I suppose, is generic and,
therefore, it can cover both steps leading to a contract, and already
a consummated contract, Mr. Presiding Officer.
MR. SUAREZ. This contemplates inclusion of negotiations leading
to the consummation of the transaction?
MR. OPLE. Yes, subject to reasonable safeguards on the national
interest.
Considering the intent of the Constitution, we believe that it is
incumbent upon the PCGG and its officers, as well as other
government representatives, to disclose sufficient public information
on any proposed settlement they have decided to take up with the
ostensible owners and holders of ill-gotten wealth. Such information,
though, must pertain to definite propositions of the government, not
necessarily to intra-agency or inter-agency recommendations or
communications 44 during the stage when common assertions are
still in the process of being formulated or are in the "exploratory"
stage. There is a need, of course, to observe the same restrictions
on disclosure of information in general, as discussed earlier — such
as on matters involving national security, diplomatic or foreign
relations, intelligence and other classified information.
Second Substantive Issue:
Legal Restraints on a Marcos-PCGG Compromise
Petitioner lastly contends that any compromise agreement between
the government and the Marcoses will be a virtual condonation of
all the alleged wrongs done by them, as well as an unwarranted
permission to commit graft and corruption.
Respondents, for their part, assert that there is no legal restraint on
entering into a compromise with the Marcos heirs, provided the
agreement does not violate any law.
Prohibited Compromises
In general, the law encourages compromises in civil cases, except
with regard to the following matters: (1) the civil status of persons,
(2) the validity of a marriage or a legal separation, (3) any ground
for legal separation, (4) future support, (5) the jurisdiction of courts,
and (6) future legitimate. 45 And like any other contract, the terms
and conditions of a compromise must not be contrary to law, morals,
good customs, public policy or public order. 46 A compromise is
binding and has the force of law between the parties, 47 unless the
consent of a party is vitiated — such as by mistake, fraud, violence,
intimidation or undue influence — or when there is forgery, or if the
terms of the settlment are so palpably unconscionable. In the latter
instances, the agreement may be invalidated by the courts. 48
Effect of Compromise
on Civil Actions

One of the consequences of a compromise, and usually its primary
object, is to avoid or to end a litigation. 49 In fact, the law urges
courts to persuade the parties in a civil case to agree to a fair
settlement. 50 As an incentive, a court may mitigate damages to be
paid by a losing party who shows a sincere desire to compromise.
51
In Republic & Campos Jr. v. Sandiganbayan, 52 which affirmed the
grant by the PCGG of civil and criminal immunity to Jose Y. Campos
and the family, the Court held that in the absence an express
prohibition, the rule on compromises in civil actions under the Civil
Code is applicable to PCGG cases. Such principle is pursuant to the
objectives of EO No. 14 particularly the just and expeditious
recovery of ill-gotten wealth, so that it may be used to hasten
economic recovery. The same principle was upheld in Benedicto v.
Board of Administrators of Television Stations RPN, BBC and IBC
53 and Republic v. Benedicto, 54 which ruled in favor of the validity
of the PCGG compromise agreement with Roberto S. Benedicto.
Immunity from
Criminal Prosecution
However, any compromise relating to the civil liability arising from
an offense does not automatically terminate the criminal proceeding
against or extinguish the criminal liability of the malefactor. 55 While
a compromise in civil suits is expressly authorized by law, there is
no similar general sanction as regards criminal liability. The
authority must be specifically conferred. In the present case, the
power to grant criminal immunity was confered on PCGG by Section
5 of EO No. 14, as amended by EO No. 14-A, whci provides:
Sec. 5. The President Commission on Good Government is
authorized to grant immunity from criminal prosecution to any
person who provides information or testifies in any investigation
conducted by such Commission to establish the unlawful manner in
which any respondent, defendant or accused has acquired or
accumulated the property or properties in question in any case
where such information or testimony is necessary to ascertain or
prove the latter's guilt or his civil liability. The immunity thereby
granted shall be continued to protect the witness who repeats such
testimony before the Sandiganbayan when required to do so by the
latter or by the Commission.
The above provision specifies that the PCGG may exercise such
authority under these conditions: (1) the person to whom criminal
immunity is granted provides information or testifies in an
investigation conducted by the Commission; (2) the information or
testimony pertains to the unlawful manner in which the respondent,
defendant or accused acquired or accumulated ill-gotten property;
and (3) such information or testimony is necessary to ascertain or
prove guilt or civil liability of such individual. From the wording of the
law, it can be easily deducted that the person referred to is a witness
in the proceeding, not the principal respondent, defendant or
accused.
Thus, in the case of Jose Y. Campos, the grant of both civil and
criminal immunity to him and his family was "[i]n consideration of the
full cooperation of Mr. Jose Y. Campos [with] this Commission, his
voluntary surrender of the properties and assets [—] disclosed and
declared by him to belong to deposed President Ferdinand E.
Marcos [—] to the Government of the Republic of the Philippines[;]
his full, complete and truthful disclosures[;] and his commitment to
pay a sum of money as determined by the Philippine Government."
56 Moreover, the grant of criminal immunity to the Camposes and
the Benedictos was limited to acts and omissions prior to February
25, 1996. At the time such immunity was granted, no criminal cases
have yet been filed against them before the competent court.
Validity of the PCGG-Marcos
CONSTI LAW II I ACJUCO 364
Compromise Agreements
Going now to the subject General and Supplemental Agreements
between the PCGG and the Marcos heirs, a cursory perusal thereof
reveals serious legal flaws. First, the Agreements do not conform to
the above requirements of EO Nos. 14 and 14-A. We believe that
criminal immunity under Section 5 cannot be granted to the
Marcoses, who are the principal defendants in the spate of ill-gotten
wealth cases now pending before the Sandiganbayan. As stated
earlier, the provision is applicable mainly to witnesses who provide
information or testify against a respondent, defendant or accused in
an ill-gotten wealth case.
While the General Agreement states that the Marcoses "shall
provide the [government] assistance by way of testimony or
deposition on any information [they] may have that could shed light
on the cases being pursued by the [government] against other
parties," 57 the clause does not fully comply with the law. Its
inclusion in the Agreement may have been only an afterthought,
conceived in pro forma compliance with Section 5 of EO No. 14, as
amended. There is no indication whatsoever that any of the Marcos
heirs has indeed provided vital information against any respondent
or defendant as to the manner in which the latter may have
unlawfully acquired public property.
Second, under Item No. 2 of the General Agreement, the PCGG
commits to exempt from all forms of taxes the properties to be
retained by the Marcos heirs. This is a clear violation of the
Construction. The power to tax and to grant tax exemptions is
vested in the Congress and, to a certain extent, in the local
legislative bodies. 58 Section 28 (4), Article VI of the Constitution,
specifically provides: "No law granting any tax exemption shall be
passed without the concurrence of a majority of all the Member of
the Congress." The PCGG has absolutely no power to grant tax
exemptions, even under the cover of its authority to compromise ill-
gotten wealth cases.
Even granting that Congress enacts a law exempting the Marcoses
form paying taxes on their properties, such law will definitely not
pass the test of the equal protection clause under the Bill of Rights.
Any special grant of tax exemption in favor only of the Marcos heirs
will constitute class legislation. It will also violate the constitutional
rule that "taxation shall be uniform and equitable." 59
Neither can the stipulation be construed to fall within the power of
the commissioner of internal revenue to compromise taxes. Such
authority may be exercised only when (1) there is reasonable doubt
as to the validity of the claim against the taxpayer, and (2) the
taxpayer's financial position demonstrates a clear inability to pay. 60
Definitely, neither requisite is present in the case of the Marcoses,
because under the Agreement they are effectively conceding the
validity of the claims against their properties, part of which they will
be allowed to retain. Nor can the PCGG grant of tax exemption fall
within the power of the commissioner to abate or cancel a tax
liability. This power can be exercised only when (1) the tax appears
to be unjustly or excessively assessed, or (2) the administration and
collection costs involved do not justify the collection of the tax due.
61 In this instance, the cancellation of tax liability is done even
before the determination of the amount due. In any event, criminal
violations of the Tax Code, for which legal actions have been filed
in court or in which fraud is involved, cannot be compromised. 62
Third, the government binds itself to cause the dismissal of all cases
against the Marcos heirs, pending before the Sandiganbayan and
other court. 63 This is a direct encroachment on judicial powers,
particularly in regard to criminal jurisdiction. Well-settled is the
doctrine that once a case has been filed before a court of competent
jurisdiction, the matter of its dismissal or pursuance lies within the
full discretion and control of the judge. In a criminal case, the
manner in which the prosecution is handled, including the matter of
 CONSTI LAW II I ACJUCO 365

whom to present as witnesses, may lie within the sound discretion compromise settlment, as well as the final agreement, relating to
of the government prosecution; 64 but the court decides, based on such alleged ill-gotten wealth, in accordance with the discussions
the evidence proffered, in what manner it will dispose of the case. embodied in this Decision. No pronouncement as to cost.
Jurisdiction, once acquired by the trial court, is not lost despite a
resolution, even by the justice secretary, to withdraw the information SO ORDERED.
or to dismiss the complaint. 65 The prosecution's motion to withdraw
or to dismiss is not the least binding upon the court. On the contrary,
decisional rules require the trial court to make its own evaluation of
the merit of the case, because granting such motion is equivalent to
effecting a disposition of the case itself. 66

Thus, the PCGG, as the government prosecutor of ill-gotten wealth

cases, cannot guarantee the dismissal of all such criminal cases
against the Marcoses pending in the courts, for said dismissal is not
within its sole power and discretion.

Fourth, the government also waives all claims and counterclaims,

"whether past, present, or future, matured or inchoate," against the
Marcoses. 67 Again, this ill-encompassing stipulation is contrary to
law. Under the Civil Code, an action for future fraud may not be
waived. 68 The stipulation in the Agreement does not specify the
exact scope of future claims against the Marcoses that the
government thereby relinquishes. Such vague and broad statement
may well be interpreted to include all future illegal acts of any of the
Marcos heirs, practically giving them a license to perpetrate fraud
against the government without any liability at all. This is a palpable
violation of the due process and equal protection guarantees of the
Constitution. It effectively ensconces the Marcoses beyond the
reach of the law. It also sets a dangerous precedent for public
accountability. It is a virtual warrant for public officials to amass
public funds illegally, since there is an open option to compromise
their liability in exchange for only a portion of their ill-gotten wealth.

Fifth, the Agreements do not provide for a definite or determinable

period within which the parties shall fulfill their respective
prestations. It may take a lifetime before the Marcoses submit an
inventory of their total assets.

Sixth, the Agreements do not state with specificity the standards for
determining which assets shall be forfeited by the government and
which shall be retained by the Marcoses. While the Supplemental
Agreement provides that the Marcoses shall be entitled to 25 per
cent of the $356 million Swiss deposits (less government recovery
expenses), such sharing arrangement pertains only to the said
deposits. No similar splitting scheme is defined with respect to the
other properties. Neither is there, anywhere in the Agreements, a
statement of the basis for the 25-75 percent sharing ratio. Public
officers entering into an arrangement appearing to be manifestly
and grossly disadvantageous to the government, in violation of the
Ati-Graft and Corruption Practice Act, 69 invite their indictment for
corruption under the said law.

Finally, the absence of then President Ramos' approval of the

principal Agreement, an express condition therein, renders the
compromise incomplete and unenforceable. Nevertheless, as
detailed above, even if such approval were obtained, the
Agreements would still not be valid.

From the foregoing disquisition, it is crystal clear to the Court that

the General and Supplemental Agreements, both dated December
28, 1993, which the PCGG entered into with the Marcos heirs, are
violative of the Constitution and the laws aforementioned.

WHEREFORE, the petition is GRANTED. The General and

Supplemental Agreement dated December 28, 1993, which PCGG
and the Marcos heirs entered into are hereby declared NULL AND
VOID for being contrary to law and the Constitution. Respondent
PCGG, its officers and all government functionaries and officials
who are or may be directly ot indirectly involved in the recovery of
the alleged ill-gotten wealth of the Marcoses and their associates
are DIRECTED to disclose to the public the terms of any proposed

G.R. No. 170516 July 16, 2008
AKBAYAN CITIZENS ACTION PARTY ("AKBAYAN"),
PAMBANSANG KATIPUNAN NG MGA SAMAHAN SA
KANAYUNAN ("PKSK"), ALLIANCE OF PROGRESSIVE
LABOR ("APL"), VICENTE A. FABE, ANGELITO R. MENDOZA,
MANUEL P. QUIAMBAO, ROSE BEATRIX CRUZ-ANGELES,
CONG. LORENZO R. TANADA III, CONG. MARIO JOYO
AGUJA, CONG. LORETA ANN P. ROSALES, CONG. ANA
THERESIA HONTIVEROS-BARAQUEL, AND CONG.
EMMANUEL JOEL J. VILLANUEVA, Petitioners,
vs.
THOMAS G. AQUINO, in his capacity as Undersecretary of the
Department of Trade and Industry (DTI) and Chairman and
Chief Delegate of the Philippine Coordinating Committee
(PCC) for the Japan-Philippines Economic Partnership
Agreement, EDSEL T. CUSTODIO, in his capacity as
Undersecretary of the Department of Foreign Affairs (DFA)
and Co-Chair of the PCC for the JPEPA, EDGARDO ABON, in
his capacity as Chairman of the Tariff Commission and lead
negotiator for Competition Policy and Emergency Measures
of the JPEPA, MARGARITA SONGCO, in her capacity as
Assistant Director-General of the National Economic
Development Authority (NEDA) and lead negotiator for Trade
in Services and Cooperation of the JPEPA, MALOU
MONTERO, in her capacity as Foreign Service Officer I, Office
of the Undersecretary for International Economic Relations of
the DFA and lead negotiator for the General and Final
Provisions of the JPEPA, ERLINDA ARCELLANA, in her
capacity as Director of the Board of Investments and lead
negotiator for Trade in Goods (General Rules) of the JPEPA,
RAQUEL ECHAGUE, in her capacity as lead negotiator for
Rules of Origin of the JPEPA, GALLANT SORIANO, in his
official capacity as Deputy Commissioner of the Bureau of
Customs and lead negotiator for Customs Procedures and
Paperless Trading of the JPEPA, MA. LUISA GIGETTE
IMPERIAL, in her capacity as Director of the Bureau of Local
Employment of the Department of Labor and Employment
(DOLE) and lead negotiator for Movement of Natural Persons
of the JPEPA, PASCUAL DE GUZMAN, in his capacity as
Director of the Board of Investments and lead negotiator for
Investment of the JPEPA, JESUS MOTOOMULL, in his
capacity as Director for the Bureau of Product Standards of
the DTI and lead negotiator for Mutual Recognition of the
JPEPA, LOUIE CALVARIO, in his capacity as lead negotiator
for Intellectual Property of the JPEPA, ELMER H. DORADO, in
his capacity as Officer-in-Charge of the Government
Procurement Policy Board Technical Support Office, the
government agency that is leading the negotiations on
Government Procurement of the JPEPA, RICARDO V. PARAS,
in his capacity as Chief State Counsel of the Department of
Justice (DOJ) and lead negotiator for Dispute Avoidance and
Settlement of the JPEPA, ADONIS SULIT, in his capacity as
lead negotiator for the General and Final Provisions of the
JPEPA, EDUARDO R. ERMITA, in his capacity as Executive
Secretary, and ALBERTO ROMULO, in his capacity as
Secretary of the DFA,* Respondents.
DECISION
CARPIO MORALES, J.:
Petitioners – non-government organizations, Congresspersons,
citizens and taxpayers – seek via the present petition for mandamus
and prohibition to obtain from respondents the full text of the Japan-
Philippines Economic Partnership Agreement (JPEPA) including
the Philippine and Japanese offers submitted during the negotiation
process and all pertinent attachments and annexes thereto.
Petitioners Congressmen Lorenzo R. Tañada III and Mario Joyo
Aguja filed on January 25, 2005 House Resolution No. 551 calling
CONSTI LAW II I ACJUCO 366
for an inquiry into the bilateral trade agreements then being
negotiated by the Philippine government, particularly the JPEPA.
The Resolution became the basis of an inquiry subsequently
conducted by the House Special Committee on Globalization (the
House Committee) into the negotiations of the JPEPA.
In the course of its inquiry, the House Committee requested herein
respondent Undersecretary Tomas Aquino (Usec. Aquino),
Chairman of the Philippine Coordinating Committee created under
Executive Order No. 213 ("Creation of A Philippine Coordinating
Committee to Study the Feasibility of the Japan-Philippines
Economic Partnership Agreement")1 to study and negotiate the
proposed JPEPA, and to furnish the Committee with a copy of the
latest draft of the JPEPA. Usec. Aquino did not heed the request,
however.
Congressman Aguja later requested for the same document, but
Usec. Aquino, by letter of November 2, 2005, replied that the
Congressman shall be provided with a copy thereof "once the
negotiations are completed and as soon as a thorough legal review
of the proposed agreement has been conducted."
In a separate move, the House Committee, through Congressman
Herminio G. Teves, requested Executive Secretary Eduardo Ermita
to furnish it with "all documents on the subject including the latest
draft of the proposed agreement, the requests and offers etc."2
Acting on the request, Secretary Ermita, by letter of June 23, 2005,
wrote Congressman Teves as follows:
In its letter dated 15 June 2005 (copy enclosed), [the] D[epartment
of] F[oreign] A[ffairs] explains that the Committee’s request to be
furnished all documents on the JPEPA may be difficult to
accomplish at this time, since the proposed Agreement has been a
work in progress for about three years. A copy of the draft JPEPA
will however be forwarded to the Committee as soon as the text
thereof is settled and complete. (Emphasis supplied)
Congressman Aguja also requested NEDA Director-General
Romulo Neri and Tariff Commission Chairman Edgardo Abon, by
letter of July 1, 2005, for copies of the latest text of the JPEPA.
Chairman Abon replied, however, by letter of July 12, 2005 that the
Tariff Commission does not have a copy of the documents being
requested, albeit he was certain that Usec. Aquino would provide
the Congressman with a copy "once the negotiation is completed."
And by letter of July 18, 2005, NEDA Assistant Director-General
Margarita R. Songco informed the Congressman that his request
addressed to Director-General Neri had been forwarded to Usec.
Aquino who would be "in the best position to respond" to the
request.
In its third hearing conducted on August 31, 2005, the House
Committee resolved to issue a subpoena for the most recent draft
of the JPEPA, but the same was not pursued because by Committee
Chairman Congressman Teves’ information, then House Speaker
Jose de Venecia had requested him to hold in abeyance the
issuance of the subpoena until the President gives her consent to
the disclosure of the documents.3
Amid speculations that the JPEPA might be signed by the Philippine
government within December 2005, the present petition was filed on
December 9, 2005.4 The agreement was to be later signed on
September 9, 2006 by President Gloria Macapagal-Arroyo and
Japanese Prime Minister Junichiro Koizumi in Helsinki, Finland,
following which the President endorsed it to the Senate for its
concurrence pursuant to Article VII, Section 21 of the Constitution.
To date, the JPEPA is still being deliberated upon by the Senate.
The JPEPA, which will be the first bilateral free trade agreement to
be entered into by the Philippines with another country in the event
the Senate grants its consent to it, covers a broad range of topics
which respondents enumerate as follows: trade in goods, rules of

origin, customs procedures, paperless trading, trade in services,
investment, intellectual property rights, government procurement,
movement of natural persons, cooperation, competition policy,
mutual recognition, dispute avoidance and settlement, improvement
of the business environment, and general and final provisions.5
While the final text of the JPEPA has now been made accessible to
the public since September 11, 2006,6 respondents do not dispute
that, at the time the petition was filed up to the filing of petitioners’
Reply – when the JPEPA was still being negotiated – the initial drafts
thereof were kept from public view.
Before delving on the substantive grounds relied upon by petitioners
in support of the petition, the Court finds it necessary to first resolve
some material procedural issues.
Standing
For a petition for mandamus such as the one at bar to be given due
course, it must be instituted by a party aggrieved by the alleged
inaction of any tribunal, corporation, board or person which
unlawfully excludes said party from the enjoyment of a legal right.7
Respondents deny that petitioners have such standing to sue. "[I]n
the interest of a speedy and definitive resolution of the substantive
issues raised," however, respondents consider it sufficient to cite a
portion of the ruling in Pimentel v. Office of Executive Secretary8
which emphasizes the need for a "personal stake in the outcome of
the controversy" on questions of standing.
In a petition anchored upon the right of the people to information on
matters of public concern, which is a public right by its very nature,
petitioners need not show that they have any legal or special interest
in the result, it being sufficient to show that they are citizens and,
therefore, part of the general public which possesses the right.9 As
the present petition is anchored on the right to information and
petitioners are all suing in their capacity as citizens and groups of
citizens including petitioners-members of the House of
Representatives who additionally are suing in their capacity as such,
the standing of petitioners to file the present suit is grounded in
jurisprudence.
Mootness
Considering, however, that "[t]he principal relief petitioners are
praying for is the disclosure of the contents of the JPEPA prior to its
finalization between the two States parties,"10 public disclosure of
the text of the JPEPA after its signing by the President, during the
pendency of the present petition, has been largely rendered moot
and academic.
With the Senate deliberations on the JPEPA still pending, the
agreement as it now stands cannot yet be considered as final and
binding between the two States. Article 164 of the JPEPA itself
provides that the agreement does not take effect immediately upon
the signing thereof. For it must still go through the procedures
required by the laws of each country for its entry into force, viz:
Article 164
Entry into Force
This Agreement shall enter into force on the thirtieth day after the
date on which the Governments of the Parties exchange diplomatic
notes informing each other that their respective legal procedures
necessary for entry into force of this Agreement have been
completed. It shall remain in force unless terminated as provided for
in Article 165.11 (Emphasis supplied)
President Arroyo’s endorsement of the JPEPA to the Senate for
concurrence is part of the legal procedures which must be met prior
to the agreement’s entry into force.
CONSTI LAW II I ACJUCO 367
The text of the JPEPA having then been made accessible to the
public, the petition has become moot and academic to the extent
that it seeks the disclosure of the "full text" thereof.
The petition is not entirely moot, however, because petitioners seek
to obtain, not merely the text of the JPEPA, but also the Philippine
and Japanese offers in the course of the negotiations.12
A discussion of the substantive issues, insofar as they impinge on
petitioners’ demand for access to the Philippine and Japanese
offers, is thus in order.
Grounds relied upon by petitioners
Petitioners assert, first, that the refusal of the government to
disclose the documents bearing on the JPEPA negotiations violates
their right to information on matters of public concern13 and
contravenes other constitutional provisions on transparency, such
as that on the policy of full public disclosure of all transactions
involving public interest.14 Second, they contend that non-
disclosure of the same documents undermines their right to effective
and reasonable participation in all levels of social, political, and
economic decision-making.15 Lastly, they proffer that divulging the
contents of the JPEPA only after the agreement has been
concluded will effectively make the Senate into a mere rubber stamp
of the Executive, in violation of the principle of separation of powers.
Significantly, the grounds relied upon by petitioners for the
disclosure of the latest text of the JPEPA are, except for the last, the
same as those cited for the disclosure of the Philippine and
Japanese offers.
The first two grounds relied upon by petitioners which bear on the
merits of respondents’ claim of privilege shall be discussed. The
last, being purely speculatory given that the Senate is still
deliberating on the JPEPA, shall not.
The JPEPA is a matter of public concern
To be covered by the right to information, the information sought
must meet the threshold requirement that it be a matter of public
concern. Apropos is the teaching of Legaspi v. Civil Service
Commission:
In determining whether or not a particular information is of public
concern there is no rigid test which can be applied. ‘Public concern’
like ‘public interest’ is a term that eludes exact definition. Both terms
embrace a broad spectrum of subjects which the public may want
to know, either because these directly affect their lives, or simply
because such matters naturally arouse the interest of an ordinary
citizen. In the final analysis, it is for the courts to determine on a
case by case basis whether the matter at issue is of interest or
importance, as it relates to or affects the public.16 (Underscoring
supplied)
From the nature of the JPEPA as an international trade agreement,
it is evident that the Philippine and Japanese offers submitted during
the negotiations towards its execution are matters of public concern.
This, respondents do not dispute. They only claim that diplomatic
negotiations are covered by the doctrine of executive privilege, thus
constituting an exception to the right to information and the policy of
full public disclosure.
Respondents’ claim of privilege
It is well-established in jurisprudence that neither the right to
information nor the policy of full public disclosure is absolute, there
being matters which, albeit of public concern or public interest, are
recognized as privileged in nature. The types of information which
may be considered privileged have been elucidated in Almonte v.
Vasquez,17 Chavez v. PCGG,18 Chavez v. Public Estate’s

Authority,19 and most recently in Senate v. Ermita20 where the
Court reaffirmed the validity of the doctrine of executive privilege in
this jurisdiction and dwelt on its scope.
Whether a claim of executive privilege is valid depends on the
ground invoked to justify it and the context in which it is made.21 In
the present case, the ground for respondents’ claim of privilege is
set forth in their Comment, viz:
x x x The categories of information that may be considered
privileged includes matters of diplomatic character and under
negotiation and review. In this case, the privileged character of the
diplomatic negotiations has been categorically invoked and clearly
explained by respondents particularly respondent DTI Senior
Undersecretary.
The documents on the proposed JPEPA as well as the text which is
subject to negotiations and legal review by the parties fall under the
exceptions to the right of access to information on matters of public
concern and policy of public disclosure. They come within the
coverage of executive privilege. At the time when the Committee
was requesting for copies of such documents, the negotiations were
ongoing as they are still now and the text of the proposed JPEPA is
still uncertain and subject to change. Considering the status and
nature of such documents then and now, these are evidently
covered by executive privilege consistent with existing legal
provisions and settled jurisprudence.
Practical and strategic considerations likewise counsel against the
disclosure of the "rolling texts" which may undergo radical change
or portions of which may be totally abandoned. Furthermore, the
negotiations of the representatives of the Philippines as well as of
Japan must be allowed to explore alternatives in the course of the
negotiations in the same manner as judicial deliberations and
working drafts of opinions are accorded strict confidentiality.22
(Emphasis and underscoring supplied)
The ground relied upon by respondents is thus not simply that the
information sought involves a diplomatic matter, but that it pertains
to diplomatic negotiations then in progress.
Privileged character of diplomatic negotiations
The privileged character of diplomatic negotiations has been
recognized in this jurisdiction. In discussing valid limitations on the
right to information, the Court in Chavez v. PCGG held that
"information on inter-government exchanges prior to the conclusion
of treaties and executive agreements may be subject to reasonable
safeguards for the sake of national interest."23 Even earlier, the
same privilege was upheld in People’s Movement for Press
Freedom (PMPF) v. Manglapus24 wherein the Court discussed the
reasons for the privilege in more precise terms.
In PMPF v. Manglapus, the therein petitioners were seeking
information from the President’s representatives on the state of the
then on-going negotiations of the RP-US Military Bases
Agreement.25 The Court denied the petition, stressing that "secrecy
of negotiations with foreign countries is not violative of the
constitutional provisions of freedom of speech or of the press nor of
the freedom of access to information." The Resolution went on to
state, thus:
The nature of diplomacy requires centralization of authority and
expedition of decision which are inherent in executive action.
Another essential characteristic of diplomacy is its confidential
nature. Although much has been said about "open" and "secret"
diplomacy, with disparagement of the latter, Secretaries of State
Hughes and Stimson have clearly analyzed and justified the
practice. In the words of Mr. Stimson:
CONSTI LAW II I ACJUCO 368
"A complicated negotiation . . . cannot be carried through without
many, many private talks and discussion, man to man; many
tentative suggestions and proposals. Delegates from other
countries come and tell you in confidence of their troubles at home
and of their differences with other countries and with other
delegates; they tell you of what they would do under certain
circumstances and would not do under other circumstances. . . If
these reports . . . should become public . . . who would ever trust
American Delegations in another conference? (United States
Department of State, Press Releases, June 7, 1930, pp. 282-284.)."
xxxx
There is frequent criticism of the secrecy in which negotiation with
foreign powers on nearly all subjects is concerned. This, it is
claimed, is incompatible with the substance of democracy. As
expressed by one writer, "It can be said that there is no more rigid
system of silence anywhere in the world." (E.J. Young, Looking
Behind the Censorship, J. B. Lippincott Co., 1938) President Wilson
in starting his efforts for the conclusion of the World War declared
that we must have "open covenants, openly arrived at." He quickly
abandoned his thought.
No one who has studied the question believes that such a method
of publicity is possible. In the moment that negotiations are started,
pressure groups attempt to "muscle in." An ill-timed speech by one
of the parties or a frank declaration of the concession which are
exacted or offered on both sides would quickly lead to widespread
propaganda to block the negotiations. After a treaty has been
drafted and its terms are fully published, there is ample opportunity
for discussion before it is approved. (The New American
Government and Its Works, James T. Young, 4th Edition, p. 194)
(Emphasis and underscoring supplied)
Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S.
v. Curtiss-Wright Export Corp.26 that the President is the sole organ
of the nation in its negotiations with foreign countries, viz:
"x x x In this vast external realm, with its important, complicated,
delicate and manifold problems, the President alone has the power
to speak or listen as a representative of the nation. He makes
treaties with the advice and consent of the Senate; but he alone
negotiates. Into the field of negotiation the Senate cannot intrude;
and Congress itself is powerless to invade it. As Marshall said in his
great argument of March 7, 1800, in the House of Representatives,
"The President is the sole organ of the nation in its external
relations, and its sole representative with foreign nations." Annals,
6th Cong., col. 613. . . (Emphasis supplied; underscoring in the
original)
Applying the principles adopted in PMPF v. Manglapus, it is clear
that while the final text of the JPEPA may not be kept perpetually
confidential – since there should be "ample opportunity for
discussion before [a treaty] is approved" – the offers exchanged by
the parties during the negotiations continue to be privileged even
after the JPEPA is published. It is reasonable to conclude that the
Japanese representatives submitted their offers with the
understanding that "historic confidentiality"27 would govern the
same. Disclosing these offers could impair the ability of the
Philippines to deal not only with Japan but with other foreign
governments in future negotiations.
A ruling that Philippine offers in treaty negotiations should now be
open to public scrutiny would discourage future Philippine
representatives from frankly expressing their views during
negotiations. While, on first impression, it appears wise to deter
Philippine representatives from entering into compromises, it bears
noting that treaty negotiations, or any negotiation for that matter,
normally involve a process of quid pro quo, and oftentimes
negotiators have to be willing to grant concessions in an area of
lesser importance in order to obtain more favorable terms in an area

of greater national interest. Apropos are the following observations
of Benjamin S. Duval, Jr.:
x x x [T]hose involved in the practice of negotiations appear to be in
agreement that publicity leads to "grandstanding," tends to freeze
negotiating positions, and inhibits the give-and-take essential to
successful negotiation. As Sissela Bok points out, if "negotiators
have more to gain from being approved by their own sides than by
making a reasoned agreement with competitors or adversaries, then
they are inclined to 'play to the gallery . . .'' In fact, the public reaction
may leave them little option. It would be a brave, or foolish, Arab
leader who expressed publicly a willingness for peace with Israel
that did not involve the return of the entire West Bank, or Israeli
leader who stated publicly a willingness to remove Israel's existing
settlements from Judea and Samaria in return for peace.28
(Emphasis supplied)
Indeed, by hampering the ability of our representatives to
compromise, we may be jeopardizing higher national goals for the
sake of securing less critical ones.
Diplomatic negotiations, therefore, are recognized as privileged in
this jurisdiction, the JPEPA negotiations constituting no exception.
It bears emphasis, however, that such privilege is only presumptive.
For as Senate v. Ermita holds, recognizing a type of information as
privileged does not mean that it will be considered privileged in all
instances. Only after a consideration of the context in which the
claim is made may it be determined if there is a public interest that
calls for the disclosure of the desired information, strong enough to
overcome its traditionally privileged status.
Whether petitioners have established the presence of such a public
interest shall be discussed later. For now, the Court shall first pass
upon the arguments raised by petitioners against the application of
PMPF v. Manglapus to the present case.
Arguments proffered by petitioners against the application of PMPF
v. Manglapus
Petitioners argue that PMPF v. Manglapus cannot be applied in toto
to the present case, there being substantial factual distinctions
between the two.
To petitioners, the first and most fundamental distinction lies in the
nature of the treaty involved. They stress that PMPF v. Manglapus
involved the Military Bases Agreement which necessarily pertained
to matters affecting national security; whereas the present case
involves an economic treaty that seeks to regulate trade and
commerce between the Philippines and Japan, matters which,
unlike those covered by the Military Bases Agreement, are not so
vital to national security to disallow their disclosure.
Petitioners’ argument betrays a faulty assumption that information,
to be considered privileged, must involve national security. The
recognition in Senate v. Ermita29 that executive privilege has
encompassed claims of varying kinds, such that it may even be
more accurate to speak of "executive privileges," cautions against
such generalization.
While there certainly are privileges grounded on the necessity of
safeguarding national security such as those involving military
secrets, not all are founded thereon. One example is the "informer’s
privilege," or the privilege of the Government not to disclose the
identity of a person or persons who furnish information of violations
of law to officers charged with the enforcement of that law.30 The
suspect involved need not be so notorious as to be a threat to
national security for this privilege to apply in any given instance.
Otherwise, the privilege would be inapplicable in all but the most
high-profile cases, in which case not only would this be contrary to
long-standing practice. It would also be highly prejudicial to law
enforcement efforts in general.
CONSTI LAW II I ACJUCO 369
Also illustrative is the privilege accorded to presidential
communications, which are presumed privileged without
distinguishing between those which involve matters of national
security and those which do not, the rationale for the privilege being
that
x x x [a] frank exchange of exploratory ideas and assessments, free
from the glare of publicity and pressure by interested parties, is
essential to protect the independence of decision-making of those
tasked to exercise Presidential, Legislative and Judicial power. x x
x31 (Emphasis supplied)
In the same way that the privilege for judicial deliberations does not
depend on the nature of the case deliberated upon, so presidential
communications are privileged whether they involve matters of
national security.
It bears emphasis, however, that the privilege accorded to
presidential communications is not absolute, one significant
qualification being that "the Executive cannot, any more than the
other branches of government, invoke a general confidentiality
privilege to shield its officials and employees from investigations by
the proper governmental institutions into possible criminal
wrongdoing." 32 This qualification applies whether the privilege is
being invoked in the context of a judicial trial or a congressional
investigation conducted in aid of legislation.33
Closely related to the "presidential communications" privilege is the
deliberative process privilege recognized in the United States. As
discussed by the U.S. Supreme Court in NLRB v. Sears, Roebuck
& Co,34 deliberative process covers documents reflecting advisory
opinions, recommendations and deliberations comprising part of a
process by which governmental decisions and policies are
formulated. Notably, the privileged status of such documents rests,
not on the need to protect national security but, on the "obvious
realization that officials will not communicate candidly among
themselves if each remark is a potential item of discovery and front
page news," the objective of the privilege being to enhance the
quality of agency
decisionshttp://web2.westlaw.com/find/default.wl?rs=WLW7.07&se
rialnum=1975129772&fn=_top&sv=Split&tc=-1&findtype=Y&tf=-
1&db=708&utid=%7b532A6DBF-9B4C-4A5A-8F16-
C20D9BAA36C4%7d&vr=2.0&rp=%2ffind%2fdefault.wl&mt=WLIG
eneralSubscription. 35
The diplomatic negotiations privilege bears a close resemblance to
the deliberative process and presidential communications privilege.
It may be readily perceived that the rationale for the confidential
character of diplomatic negotiations, deliberative process, and
presidential communications is similar, if not identical.
The earlier discussion on PMPF v. Manglapus36 shows that the
privilege for diplomatic negotiations is meant to encourage a frank
exchange of exploratory ideas between the negotiating parties by
shielding such negotiations from public view. Similar to the privilege
for presidential communications, the diplomatic negotiations
privilege seeks, through the same means, to protect the
independence in decision-making of the President, particularly in its
capacity as "the sole organ of the nation in its external relations, and
its sole representative with foreign nations." And, as with the
deliberative process privilege, the privilege accorded to diplomatic
negotiations arises, not on account of the content of the information
per se, but because the information is part of a process of
deliberation which, in pursuit of the public interest, must be
presumed confidential.
The decision of the U.S. District Court, District of Columbia in
Fulbright & Jaworski v. Department of the Treasury37 enlightens on
the close relation between diplomatic negotiations and deliberative
process privileges. The plaintiffs in that case sought access to notes

taken by a member of the U.S. negotiating team during the U.S.-
French tax treaty negotiations. Among the points noted therein were
the issues to be discussed, positions which the French and U.S.
teams took on some points, the draft language agreed on, and
articles which needed to be amended. Upholding the confidentiality
of those notes, Judge Green ruled, thus:
Negotiations between two countries to draft a treaty represent a true
example of a deliberative process. Much give-and-take must occur
for the countries to reach an accord. A description of the
negotiations at any one point would not provide an onlooker a
summary of the discussions which could later be relied on as law. It
would not be "working law" as the points discussed and positions
agreed on would be subject to change at any date until the treaty
was signed by the President and ratified by the Senate.
The policies behind the deliberative process privilege support non-
disclosure. Much harm could accrue to the negotiations process if
these notes were revealed. Exposure of the pre-agreement
positions of the French negotiators might well offend foreign
governments and would lead to less candor by the U. S. in recording
the events of the negotiations process. As several months pass in
between negotiations, this lack of record could hinder readily the U.
S. negotiating team. Further disclosure would reveal prematurely
adopted policies. If these policies should be changed, public
confusion would result easily.
Finally, releasing these snapshot views of the negotiations would be
comparable to releasing drafts of the treaty, particularly when the
notes state the tentative provisions and language agreed on. As
drafts of regulations typically are protected by the deliberative
process privilege, Arthur Andersen & Co. v. Internal Revenue
Service, C.A. No. 80-705 (D.C.Cir., May 21, 1982), drafts of treaties
should be accorded the same protection. (Emphasis and
underscoring supplied)
Clearly, the privilege accorded to diplomatic negotiations follows as
a logical consequence from the privileged character of the
deliberative process.
The Court is not unaware that in Center for International
Environmental Law (CIEL), et al. v. Office of U.S. Trade
Representative38 – where the plaintiffs sought information relating
to the just-completed negotiation of a United States-Chile Free
Trade Agreement – the same district court, this time under Judge
Friedman, consciously refrained from applying the doctrine in
Fulbright and ordered the disclosure of the information being
sought.
Since the factual milieu in CIEL seemed to call for the straight
application of the doctrine in Fulbright, a discussion of why the
district court did not apply the same would help illumine this Court’s
own reasons for deciding the present case along the lines of
Fulbright.
In both Fulbright and CIEL, the U.S. government cited a statutory
basis for withholding information, namely, Exemption 5 of the
Freedom of Information Act (FOIA).39 In order to qualify for
protection under Exemption 5, a document must satisfy two
conditions: (1) it must be either inter-agency or intra-agency in
nature, and (2) it must be both pre-decisional and part of the
agency's deliberative or decision-making process.40
Judge Friedman, in CIEL, himself cognizant of a "superficial
similarity of context" between the two cases, based his decision on
what he perceived to be a significant distinction: he found the
negotiator’s notes that were sought in Fulbright to be "clearly
internal," whereas the documents being sought in CIEL were those
produced by or exchanged with an outside party, i.e. Chile. The
documents subject of Fulbright being clearly internal in character,
the question of disclosure therein turned not on the threshold
CONSTI LAW II I ACJUCO 370
requirement of Exemption 5 that the document be inter-agency, but
on whether the documents were part of the agency's pre-decisional
deliberative process. On this basis, Judge Friedman found that
"Judge Green's discussion [in Fulbright] of the harm that could result
from disclosure therefore is irrelevant, since the documents at issue
[in CIEL] are not inter-agency, and the Court does not reach the
question of deliberative process." (Emphasis supplied)
In fine, Fulbright was not overturned. The court in CIEL merely found
the same to be irrelevant in light of its distinct factual setting.
Whether this conclusion was valid – a question on which this Court
would not pass – the ruling in Fulbright that "[n]egotiations between
two countries to draft a treaty represent a true example of a
deliberative process" was left standing, since the CIEL court
explicitly stated that it did not reach the question of deliberative
process.
Going back to the present case, the Court recognizes that the
information sought by petitioners includes documents produced and
communicated by a party external to the Philippine government,
namely, the Japanese representatives in the JPEPA negotiations,
and to that extent this case is closer to the factual circumstances of
CIEL than those of Fulbright.
Nonetheless, for reasons which shall be discussed shortly, this
Court echoes the principle articulated in Fulbright that the public
policy underlying the deliberative process privilege requires that
diplomatic negotiations should also be accorded privileged status,
even if the documents subject of the present case cannot be
described as purely internal in character.
It need not be stressed that in CIEL, the court ordered the disclosure
of information based on its finding that the first requirement of FOIA
Exemption 5 – that the documents be inter-agency – was not met.
In determining whether the government may validly refuse
disclosure of the exchanges between the U.S. and Chile, it
necessarily had to deal with this requirement, it being laid down by
a statute binding on them.
In this jurisdiction, however, there is no counterpart of the FOIA, nor
is there any statutory requirement similar to FOIA Exemption 5 in
particular. Hence, Philippine courts, when assessing a claim of
privilege for diplomatic negotiations, are more free to focus directly
on the issue of whether the privilege being claimed is indeed
supported by public policy, without having to consider – as the CIEL
court did – if these negotiations fulfill a formal requirement of being
"inter-agency." Important though that requirement may be in the
context of domestic negotiations, it need not be accorded the same
significance when dealing with international negotiations.
There being a public policy supporting a privilege for diplomatic
negotiations for the reasons explained above, the Court sees no
reason to modify, much less abandon, the doctrine in PMPF v.
Manglapus.
A second point petitioners proffer in their attempt to differentiate
PMPF v. Manglapus from the present case is the fact that the
petitioners therein consisted entirely of members of the mass media,
while petitioners in the present case include members of the House
of Representatives who invoke their right to information not just as
citizens but as members of Congress.
Petitioners thus conclude that the present case involves the right of
members of Congress to demand information on negotiations of
international trade agreements from the Executive branch, a matter
which was not raised in PMPF v. Manglapus.
While indeed the petitioners in PMPF v. Manglapus consisted only
of members of the mass media, it would be incorrect to claim that
the doctrine laid down therein has no bearing on a controversy such

as the present, where the demand for information has come from
members of Congress, not only from private citizens.
The privileged character accorded to diplomatic negotiations does
not ipso facto lose all force and effect simply because the same
privilege is now being claimed under different circumstances. The
probability of the claim succeeding in the new context might differ,
but to say that the privilege, as such, has no validity at all in that
context is another matter altogether.
The Court’s statement in Senate v. Ermita that "presidential refusals
to furnish information may be actuated by any of at least three
distinct kinds of considerations [state secrets privilege, informer’s
privilege, and a generic privilege for internal deliberations], and may
be asserted, with differing degrees of success, in the context of
either judicial or legislative investigations,"41 implies that a
privilege, once recognized, may be invoked under different
procedural settings. That this principle holds true particularly with
respect to diplomatic negotiations may be inferred from PMPF v.
Manglapus itself, where the Court held that it is the President alone
who negotiates treaties, and not even the Senate or the House of
Representatives, unless asked, may intrude upon that process.
Clearly, the privilege for diplomatic negotiations may be invoked not
only against citizens’ demands for information, but also in the
context of legislative investigations.
Hence, the recognition granted in PMPF v. Manglapus to the
privileged character of diplomatic negotiations cannot be considered
irrelevant in resolving the present case, the contextual differences
between the two cases notwithstanding.
As third and last point raised against the application of PMPF v.
Manglapus in this case, petitioners proffer that "the socio-political
and historical contexts of the two cases are worlds apart." They
claim that the constitutional traditions and concepts prevailing at the
time PMPF v. Manglapus came about, particularly the school of
thought that the requirements of foreign policy and the ideals of
transparency were incompatible with each other or the
"incompatibility hypothesis," while valid when international relations
were still governed by power, politics and wars, are no longer so in
this age of international cooperation.42
Without delving into petitioners’ assertions respecting the
"incompatibility hypothesis," the Court notes that the ruling in PMPF
v. Manglapus is grounded more on the nature of treaty negotiations
as such than on a particular socio-political school of thought. If
petitioners are suggesting that the nature of treaty negotiations have
so changed that "[a]n ill-timed speech by one of the parties or a frank
declaration of the concession which are exacted or offered on both
sides" no longer "lead[s] to widespread propaganda to block the
negotiations," or that parties in treaty negotiations no longer expect
their communications to be governed by historic confidentiality, the
burden is on them to substantiate the same. This petitioners failed
to discharge.
Whether the privilege applies only at certain stages of the
negotiation process
Petitioners admit that "diplomatic negotiations on the JPEPA are
entitled to a reasonable amount of confidentiality so as not to
jeopardize the diplomatic process." They argue, however, that the
same is privileged "only at certain stages of the negotiating process,
after which such information must necessarily be revealed to the
public."43 They add that the duty to disclose this information was
vested in the government when the negotiations moved from the
formulation and exploratory stage to the firming up of definite
propositions or official recommendations, citing Chavez v. PCGG44
and Chavez v. PEA.45
CONSTI LAW II I ACJUCO 371
The following statement in Chavez v. PEA, however, suffices to
show that the doctrine in both that case and Chavez v. PCGG with
regard to the duty to disclose "definite propositions of the
government" does not apply to diplomatic negotiations:
We rule, therefore, that the constitutional right to information
includes official information on on-going negotiations before a final
contract. The information, however, must constitute definite
propositions by the government and should not cover recognized
exceptions like privileged information, military and diplomatic
secrets and similar matters affecting national security and public
order. x x x46 (Emphasis and underscoring supplied)
It follows from this ruling that even definite propositions of the
government may not be disclosed if they fall under "recognized
exceptions." The privilege for diplomatic negotiations is clearly
among the recognized exceptions, for the footnote to the
immediately quoted ruling cites PMPF v. Manglapus itself as an
authority.
Whether there is sufficient public interest to overcome the claim of
privilege
It being established that diplomatic negotiations enjoy a
presumptive privilege against disclosure, even against the demands
of members of Congress for information, the Court shall now
determine whether petitioners have shown the existence of a public
interest sufficient to overcome the privilege in this instance.
To clarify, there are at least two kinds of public interest that must be
taken into account. One is the presumed public interest in favor of
keeping the subject information confidential, which is the reason for
the privilege in the first place, and the other is the public interest in
favor of disclosure, the existence of which must be shown by the
party asking for information. 47
The criteria to be employed in determining whether there is a
sufficient public interest in favor of disclosure may be gathered from
cases such as U.S. v. Nixon,48 Senate Select Committee on
Presidential Campaign Activities v. Nixon,49 and In re Sealed
Case.50
U.S. v. Nixon, which involved a claim of the presidential
communications privilege against the subpoena duces tecum of a
district court in a criminal case, emphasized the need to balance
such claim of privilege against the constitutional duty of courts to
ensure a fair administration of criminal justice.
x x x the allowance of the privilege to withhold evidence that is
demonstrably relevant in a criminal trial would cut deeply into the
guarantee of due process of law and gravely impair the basic
function of the courts. A President’s acknowledged need for
confidentiality in the communications of his office is general in
nature, whereas the constitutional need for production of relevant
evidence in a criminal proceeding is specific and central to the fair
adjudication of a particular criminal case in the administration of
justice. Without access to specific facts a criminal prosecution may
be totally frustrated. The President’s broad interest in confidentiality
of communications will not be vitiated by disclosure of a limited
number of conversations preliminarily shown to have some bearing
on the pending criminal cases. (Emphasis, italics and underscoring
supplied)
Similarly, Senate Select Committee v. Nixon,51 which involved a
claim of the presidential communications privilege against the
subpoena duces tecum of a Senate committee, spoke of the need
to balance such claim with the duty of Congress to perform its
legislative functions.
The staged decisional structure established in Nixon v. Sirica was
designed to ensure that the President and those upon whom he

directly relies in the performance of his duties could continue to work
under a general assurance that their deliberations would remain
confidential. So long as the presumption that the public interest
favors confidentiality can be defeated only by a strong showing of
need by another institution of government- a showing that the
responsibilities of that institution cannot responsibly be fulfilled
without access to records of the President's deliberations- we
believed in Nixon v. Sirica, and continue to believe, that the effective
functioning of the presidential office will not be impaired. x x x
xxxx
The sufficiency of the Committee's showing of need has come to
depend, therefore, entirely on whether the subpoenaed materials
are critical to the performance of its legislative functions. x x x
(Emphasis and underscoring supplied)
In re Sealed Case52 involved a claim of the deliberative process
and presidential communications privileges against a subpoena
duces tecum of a grand jury. On the claim of deliberative process
privilege, the court stated:
The deliberative process privilege is a qualified privilege and can be
overcome by a sufficient showing of need. This need determination
is to be made flexibly on a case-by-case, ad hoc basis. "[E]ach time
[the deliberative process privilege] is asserted the district court must
undertake a fresh balancing of the competing interests," taking into
account factors such as "the relevance of the evidence," "the
availability of other evidence," "the seriousness of the litigation," "the
role of the government," and the "possibility of future timidity by
government employees. x x x (Emphasis, italics and underscoring
supplied)
Petitioners have failed to present the strong and "sufficient showing
of need" referred to in the immediately cited cases. The arguments
they proffer to establish their entitlement to the subject documents
fall short of this standard.
Petitioners go on to assert that the non-involvement of the Filipino
people in the JPEPA negotiation process effectively results in the
bargaining away of their economic and property rights without their
knowledge and participation, in violation of the due process clause
of the Constitution. They claim, moreover, that it is essential for the
people to have access to the initial offers exchanged during the
negotiations since only through such disclosure can their
constitutional right to effectively participate in decision-making be
brought to life in the context of international trade agreements.
Whether it can accurately be said that the Filipino people were not
involved in the JPEPA negotiations is a question of fact which this
Court need not resolve. Suffice it to state that respondents had
presented documents purporting to show that public consultations
were conducted on the JPEPA. Parenthetically, petitioners consider
these "alleged consultations" as "woefully selective and
inadequate."53
AT ALL EVENTS, since it is not disputed that the offers exchanged
by the Philippine and Japanese representatives have not been
disclosed to the public, the Court shall pass upon the issue of
whether access to the documents bearing on them is, as petitioners
claim, essential to their right to participate in decision-making.
The case for petitioners has, of course, been immensely weakened
by the disclosure of the full text of the JPEPA to the public since
September 11, 2006, even as it is still being deliberated upon by the
Senate and, therefore, not yet binding on the Philippines. Were the
Senate to concur with the validity of the JPEPA at this moment,
there has already been, in the words of PMPF v. Manglapus, "ample
opportunity for discussion before [the treaty] is approved."
CONSTI LAW II I ACJUCO 372
The text of the JPEPA having been published, petitioners have
failed to convince this Court that they will not be able to meaningfully
exercise their right to participate in decision-making unless the initial
offers are also published.
It is of public knowledge that various non-government sectors and
private citizens have already publicly expressed their views on the
JPEPA, their comments not being limited to general observations
thereon but on its specific provisions. Numerous articles and
statements critical of the JPEPA have been posted on the
Internet.54 Given these developments, there is no basis for
petitioners’ claim that access to the Philippine and Japanese offers
is essential to the exercise of their right to participate in decision-
making.
Petitioner-members of the House of Representatives additionally
anchor their claim to have a right to the subject documents on the
basis of Congress’ inherent power to regulate commerce, be it
domestic or international. They allege that Congress cannot
meaningfully exercise the power to regulate international trade
agreements such as the JPEPA without being given copies of the
initial offers exchanged during the negotiations thereof. In the same
vein, they argue that the President cannot exclude Congress from
the JPEPA negotiations since whatever power and authority the
President has to negotiate international trade agreements is derived
only by delegation of Congress, pursuant to Article VI, Section 28(2)
of the Constitution and Sections 401 and 402 of Presidential Decree
No. 1464.55
The subject of Article VI Section 28(2) of the Constitution is not the
power to negotiate treaties and international agreements, but the
power to fix tariff rates, import and export quotas, and other taxes.
Thus it provides:
(2) The Congress may, by law, authorize the President to fix within
specified limits, and subject to such limitations and restrictions as it
may impose, tariff rates, import and export quotas, tonnage and
wharfage dues, and other duties or imposts within the framework of
the national development program of the Government.
As to the power to negotiate treaties, the constitutional basis thereof
is Section 21 of Article VII – the article on the Executive Department
– which states:
No treaty or international agreement shall be valid and effective
unless concurred in by at least two-thirds of all the Members of the
Senate.
The doctrine in PMPF v. Manglapus that the treaty-making power is
exclusive to the President, being the sole organ of the nation in its
external relations, was echoed in BAYAN v. Executive Secretary56
where the Court held:
By constitutional fiat and by the intrinsic nature of his office, the
President, as head of State, is the sole organ and authority in the
external affairs of the country. In many ways, the President is the
chief architect of the nation's foreign policy; his "dominance in the
field of foreign relations is (then) conceded." Wielding vast powers
and influence, his conduct in the external affairs of the nation, as
Jefferson describes, is "executive altogether."
As regards the power to enter into treaties or international
agreements, the Constitution vests the same in the President,
subject only to the concurrence of at least two thirds vote of all the
members of the Senate. In this light, the negotiation of the VFA and
the subsequent ratification of the agreement are exclusive acts
which pertain solely to the President, in the lawful exercise of his
vast executive and diplomatic powers granted him no less than by
the fundamental law itself. Into the field of negotiation the Senate
cannot intrude, and Congress itself is powerless to invade it. x x x
(Italics in the original; emphasis and underscoring supplied)

The same doctrine was reiterated even more recently in Pimentel v.
Executive Secretary57 where the Court ruled:
In our system of government, the President, being the head of state,
is regarded as the sole organ and authority in external relations and
is the country's sole representative with foreign nations. As the chief
architect of foreign policy, the President acts as the country's
mouthpiece with respect to international affairs. Hence, the
President is vested with the authority to deal with foreign states and
governments, extend or withhold recognition, maintain diplomatic
relations, enter into treaties, and otherwise transact the business of
foreign relations. In the realm of treaty-making, the President has
the sole authority to negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate
and enter into treaties, the Constitution provides a limitation to his
power by requiring the concurrence of 2/3 of all the members of the
Senate for the validity of the treaty entered into by him. x x x
(Emphasis and underscoring supplied)
While the power then to fix tariff rates and other taxes clearly
belongs to Congress, and is exercised by the President only by
delegation of that body, it has long been recognized that the power
to enter into treaties is vested directly and exclusively in the
President, subject only to the concurrence of at least two-thirds of
all the Members of the Senate for the validity of the treaty. In this
light, the authority of the President to enter into trade agreements
with foreign nations provided under P.D. 146458 may be interpreted
as an acknowledgment of a power already inherent in its office. It
may not be used as basis to hold the President or its representatives
accountable to Congress for the conduct of treaty negotiations.
This is not to say, of course, that the President’s power to enter into
treaties is unlimited but for the requirement of Senate concurrence,
since the President must still ensure that all treaties will
substantively conform to all the relevant provisions of the
Constitution.
It follows from the above discussion that Congress, while
possessing vast legislative powers, may not interfere in the field of
treaty negotiations. While Article VII, Section 21 provides for Senate
concurrence, such pertains only to the validity of the treaty under
consideration, not to the conduct of negotiations attendant to its
conclusion. Moreover, it is not even Congress as a whole that has
been given the authority to concur as a means of checking the
treaty-making power of the President, but only the Senate.
Thus, as in the case of petitioners suing in their capacity as private
citizens, petitioners-members of the House of Representatives fail
to present a "sufficient showing of need" that the information sought
is critical to the performance of the functions of Congress, functions
that do not include treaty-negotiation.
Respondents’ alleged failure to timely claim executive privilege
On respondents’ invocation of executive privilege, petitioners find
the same defective, not having been done seasonably as it was
raised only in their Comment to the present petition and not during
the House Committee hearings.
That respondents invoked the privilege for the first time only in their
Comment to the present petition does not mean that the claim of
privilege should not be credited. Petitioners’ position presupposes
that an assertion of the privilege should have been made during the
House Committee investigations, failing which respondents are
deemed to have waived it.
When the House Committee and petitioner-Congressman Aguja
requested respondents for copies of the documents subject of this
case, respondents replied that the negotiations were still on-going
CONSTI LAW II I ACJUCO 373
and that the draft of the JPEPA would be released once the text
thereof is settled and complete. There was no intimation that the
requested copies are confidential in nature by reason of public
policy. The response may not thus be deemed a claim of privilege
by the standards of Senate v. Ermita, which recognizes as claims of
privilege only those which are accompanied by precise and certain
reasons for preserving the confidentiality of the information being
sought.
Respondents’ failure to claim the privilege during the House
Committee hearings may not, however, be construed as a waiver
thereof by the Executive branch. As the immediately preceding
paragraph indicates, what respondents received from the House
Committee and petitioner-Congressman Aguja were mere requests
for information. And as priorly stated, the House Committee itself
refrained from pursuing its earlier resolution to issue a subpoena
duces tecum on account of then Speaker Jose de Venecia’s alleged
request to Committee Chairperson Congressman Teves to hold the
same in abeyance.
While it is a salutary and noble practice for Congress to refrain from
issuing subpoenas to executive officials – out of respect for their
office – until resort to it becomes necessary, the fact remains that
such requests are not a compulsory process. Being mere requests,
they do not strictly call for an assertion of executive privilege.
The privilege is an exemption to Congress’ power of inquiry.59 So
long as Congress itself finds no cause to enforce such power, there
is no strict necessity to assert the privilege. In this light, respondents’
failure to invoke the privilege during the House Committee
investigations did not amount to a waiver thereof.
The Court observes, however, that the claim of privilege appearing
in respondents’ Comment to this petition fails to satisfy in full the
requirement laid down in Senate v. Ermita that the claim should be
invoked by the President or through the Executive Secretary "by
order of the President."60 Respondents’ claim of privilege is being
sustained, however, its flaw notwithstanding, because of
circumstances peculiar to the case.
The assertion of executive privilege by the Executive Secretary, who
is one of the respondents herein, without him adding the phrase "by
order of the President," shall be considered as partially complying
with the requirement laid down in Senate v. Ermita. The requirement
that the phrase "by order of the President" should accompany the
Executive Secretary’s claim of privilege is a new rule laid down for
the first time in Senate v. Ermita, which was not yet final and
executory at the time respondents filed their Comment to the
petition.61 A strict application of this requirement would thus be
unwarranted in this case.
Response to the Dissenting Opinion of the Chief Justice
We are aware that behind the dissent of the Chief Justice lies a
genuine zeal to protect our people’s right to information against any
abuse of executive privilege. It is a zeal that We fully share.
The Court, however, in its endeavor to guard against the abuse of
executive privilege, should be careful not to veer towards the
opposite extreme, to the point that it would strike down as invalid
even a legitimate exercise thereof.
We respond only to the salient arguments of the Dissenting Opinion
which have not yet been sufficiently addressed above.
1. After its historical discussion on the allocation of power over
international trade agreements in the United States, the dissent
concludes that "it will be turning somersaults with history to contend
that the President is the sole organ for external relations" in that
jurisdiction. With regard to this opinion, We make only the following
observations:

There is, at least, a core meaning of the phrase "sole organ of the
nation in its external relations" which is not being disputed, namely,
that the power to directly negotiate treaties and international
agreements is vested by our Constitution only in the Executive.
Thus, the dissent states that "Congress has the power to regulate
commerce with foreign nations but does not have the power to
negotiate international agreements directly."62
What is disputed is how this principle applies to the case at bar.
The dissent opines that petitioner-members of the House of
Representatives, by asking for the subject JPEPA documents, are
not seeking to directly participate in the negotiations of the JPEPA,
hence, they cannot be prevented from gaining access to these
documents.
On the other hand, We hold that this is one occasion where the
following ruling in Agan v. PIATCO63 – and in other cases both
before and since – should be applied:
This Court has long and consistently adhered to the legal maxim
that those that cannot be done directly cannot be done indirectly. To
declare the PIATCO contracts valid despite the clear statutory
prohibition against a direct government guarantee would not only
make a mockery of what the BOT Law seeks to prevent -- which is
to expose the government to the risk of incurring a monetary
obligation resulting from a contract of loan between the project
proponent and its lenders and to which the Government is not a
party to -- but would also render the BOT Law useless for what it
seeks to achieve –- to make use of the resources of the private
sector in the "financing, operation and maintenance of infrastructure
and development projects" which are necessary for national growth
and development but which the government, unfortunately, could ill-
afford to finance at this point in time.64
Similarly, while herein petitioners-members of the House of
Representatives may not have been aiming to participate in the
negotiations directly, opening the JPEPA negotiations to their
scrutiny – even to the point of giving them access to the offers
exchanged between the Japanese and Philippine delegations –
would have made a mockery of what the Constitution sought to
prevent and rendered it useless for what it sought to achieve when
it vested the power of direct negotiation solely with the President.
What the U.S. Constitution sought to prevent and aimed to achieve
in defining the treaty-making power of the President, which our
Constitution similarly defines, may be gathered from Hamilton’s
explanation of why the U.S. Constitution excludes the House of
Representatives from the treaty-making process:
x x x The fluctuating, and taking its future increase into account, the
multitudinous composition of that body, forbid us to expect in it those
qualities which are essential to the proper execution of such a trust.
Accurate and comprehensive knowledge of foreign politics; a steady
and systematic adherence to the same views; a nice and uniform
sensibility to national character, decision, secrecy and dispatch; are
incompatible with a body so variable and so numerous. The very
complication of the business by introducing a necessity of the
concurrence of so many different bodies, would of itself afford a solid
objection. The greater frequency of the calls upon the house of
representatives, and the greater length of time which it would often
be necessary to keep them together when convened, to obtain their
sanction in the progressive stages of a treaty, would be source of
so great inconvenience and expense, as alone ought to condemn
the project.65
These considerations a fortiori apply in this jurisdiction, since the
Philippine Constitution, unlike that of the U.S., does not even grant
the Senate the power to advise the Executive in the making of
treaties, but only vests in that body the power to concur in the validity
CONSTI LAW II I ACJUCO 374
of the treaty after negotiations have been concluded.66 Much less,
therefore, should it be inferred that the House of Representatives
has this power.
Since allowing petitioner-members of the House of Representatives
access to the subject JPEPA documents would set a precedent for
future negotiations, leading to the contravention of the public
interests articulated above which the Constitution sought to protect,
the subject documents should not be disclosed.
2. The dissent also asserts that respondents can no longer claim
the diplomatic secrets privilege over the subject JPEPA documents
now that negotiations have been concluded, since their reasons for
nondisclosure cited in the June 23, 2005 letter of Sec. Ermita, and
later in their Comment, necessarily apply only for as long as the
negotiations were still pending;
In their Comment, respondents contend that "the negotiations of the
representatives of the Philippines as well as of Japan must be
allowed to explore alternatives in the course of the negotiations in
the same manner as judicial deliberations and working drafts of
opinions are accorded strict confidentiality." That respondents liken
the documents involved in the JPEPA negotiations to judicial
deliberations and working drafts of opinions evinces, by itself, that
they were claiming confidentiality not only until, but even after, the
conclusion of the negotiations.
Judicial deliberations do not lose their confidential character once a
decision has been promulgated by the courts. The same holds true
with respect to working drafts of opinions, which are comparable to
intra-agency recommendations. Such intra-agency
recommendations are privileged even after the position under
consideration by the agency has developed into a definite
proposition, hence, the rule in this jurisdiction that agencies have
the duty to disclose only definite propositions, and not the inter-
agency and intra-agency communications during the stage when
common assertions are still being formulated.67
3. The dissent claims that petitioner-members of the House of
Representatives have sufficiently shown their need for the same
documents to overcome the privilege. Again, We disagree.
The House Committee that initiated the investigations on the JPEPA
did not pursue its earlier intention to subpoena the documents. This
strongly undermines the assertion that access to the same
documents by the House Committee is critical to the performance
of its legislative functions. If the documents were indeed critical, the
House Committee should have, at the very least, issued a subpoena
duces tecum or, like what the Senate did in Senate v. Ermita, filed
the present petition as a legislative body, rather than leaving it to the
discretion of individual Congressmen whether to pursue an action
or not. Such acts would have served as strong indicia that Congress
itself finds the subject information to be critical to its legislative
functions.
Further, given that respondents have claimed executive privilege,
petitioner-members of the House of Representatives should have,
at least, shown how its lack of access to the Philippine and
Japanese offers would hinder the intelligent crafting of legislation.
Mere assertion that the JPEPA covers a subject matter over which
Congress has the power to legislate would not suffice. As Senate
Select Committee v. Nixon68 held, the showing required to
overcome the presumption favoring confidentiality turns, not only on
the nature and appropriateness of the function in the performance
of which the material was sought, but also the degree to which the
material was necessary to its fulfillment. This petitioners failed to do.
Furthermore, from the time the final text of the JPEPA including its
annexes and attachments was published, petitioner-members of the
House of Representatives have been free to use it for any legislative
purpose they may see fit. Since such publication, petitioners’ need,

if any, specifically for the Philippine and Japanese offers leading to
the final version of the JPEPA, has become even less apparent.
In asserting that the balance in this instance tilts in favor of
disclosing the JPEPA documents, the dissent contends that the
Executive has failed to show how disclosing them after the
conclusion of negotiations would impair the performance of its
functions. The contention, with due respect, misplaces the onus
probandi. While, in keeping with the general presumption of
transparency, the burden is initially on the Executive to provide
precise and certain reasons for upholding its claim of privilege, once
the Executive is able to show that the documents being sought are
covered by a recognized privilege, the burden shifts to the party
seeking information to overcome the privilege by a strong showing
of need.
When it was thus established that the JPEPA documents are
covered by the privilege for diplomatic negotiations pursuant to
PMPF v. Manglapus, the presumption arose that their disclosure
would impair the performance of executive functions. It was then
incumbent on petitioner- requesting parties to show that they have
a strong need for the information sufficient to overcome the
privilege. They have not, however.
4. Respecting the failure of the Executive Secretary to explicitly
state that he is claiming the privilege "by order of the President," the
same may not be strictly applied to the privilege claim subject of this
case.
When the Court in Senate v. Ermita limited the power of invoking
the privilege to the President alone, it was laying down a new rule
for which there is no counterpart even in the United States from
which the concept of executive privilege was adopted. As held in the
2004 case of Judicial Watch, Inc. v. Department of Justice,69 citing
In re Sealed Case,70 "the issue of whether a President must
personally invoke the [presidential communications] privilege
remains an open question." U.S. v. Reynolds,71 on the other hand,
held that "[t]here must be a formal claim of privilege, lodged by the
head of the department which has control over the matter, after
actual personal consideration by that officer."
The rule was thus laid down by this Court, not in adherence to any
established precedent, but with the aim of preventing the abuse of
the privilege in light of its highly exceptional nature. The Court’s
recognition that the Executive Secretary also bears the power to
invoke the privilege, provided he does so "by order of the President,"
is meant to avoid laying down too rigid a rule, the Court being aware
that it was laying down a new restriction on executive privilege. It is
with the same spirit that the Court should not be overly strict with
applying the same rule in this peculiar instance, where the claim of
executive privilege occurred before the judgment in Senate v.
Ermita became final.
5. To show that PMPF v. Manglapus may not be applied in the
present case, the dissent implies that the Court therein erred in
citing US v. Curtiss Wright72 and the book entitled The New
American Government and Its Work73 since these authorities, so
the dissent claims, may not be used to calibrate the importance of
the right to information in the Philippine setting.
The dissent argues that since Curtiss-Wright referred to a conflict
between the executive and legislative branches of government, the
factual setting thereof was different from that of PMPF v. Manglapus
which involved a collision between governmental power over the
conduct of foreign affairs and the citizen’s right to information.
That the Court could freely cite Curtiss-Wright – a case that upholds
the secrecy of diplomatic negotiations against congressional
demands for information – in the course of laying down a ruling on
the public right to information only serves to underscore the principle
mentioned earlier that the privileged character accorded to
CONSTI LAW II I ACJUCO 375
diplomatic negotiations does not ipso facto lose all force and effect
simply because the same privilege is now being claimed under
different circumstances.
PMPF v. Manglapus indeed involved a demand for information from
private citizens and not an executive-legislative conflict, but so did
Chavez v. PEA74 which held that "the [public’s] right to information
. . . does not extend to matters recognized as privileged information
under the separation of powers." What counts as privileged
information in an executive-legislative conflict is thus also
recognized as such in cases involving the public’s right to
information.
Chavez v. PCGG75 also involved the public’s right to information,
yet the Court recognized as a valid limitation to that right the same
privileged information based on separation of powers – closed-door
Cabinet meetings, executive sessions of either house of Congress,
and the internal deliberations of the Supreme Court.
These cases show that the Court has always regarded claims of
privilege, whether in the context of an executive-legislative conflict
or a citizen’s demand for information, as closely intertwined, such
that the principles applicable to one are also applicable to the other.
The reason is obvious. If the validity of claims of privilege were to
be assessed by entirely different criteria in each context, this may
give rise to the absurd result where Congress would be denied
access to a particular information because of a claim of executive
privilege, but the general public would have access to the same
information, the claim of privilege notwithstanding.
Absurdity would be the ultimate result if, for instance, the Court
adopts the "clear and present danger" test for the assessment of
claims of privilege against citizens’ demands for information. If
executive information, when demanded by a citizen, is privileged
only when there is a clear and present danger of a substantive evil
that the State has a right to prevent, it would be very difficult for the
Executive to establish the validity of its claim in each instance. In
contrast, if the demand comes from Congress, the Executive merely
has to show that the information is covered by a recognized privilege
in order to shift the burden on Congress to present a strong showing
of need. This would lead to a situation where it would be more
difficult for Congress to access executive information than it would
be for private citizens.
We maintain then that when the Executive has already shown that
an information is covered by executive privilege, the party
demanding the information must present a "strong showing of
need," whether that party is Congress or a private citizen.
The rule that the same "showing of need" test applies in both these
contexts, however, should not be construed as a denial of the
importance of analyzing the context in which an executive privilege
controversy may happen to be placed. Rather, it affirms it, for it
means that the specific need being shown by the party seeking
information in every particular instance is highly significant in
determining whether to uphold a claim of privilege. This "need" is,
precisely, part of the context in light of which every claim of privilege
should be assessed.
Since, as demonstrated above, there are common principles that
should be applied to executive privilege controversies across
different contexts, the Court in PMPF v. Manglapus did not err when
it cited the Curtiss-Wright case.
The claim that the book cited in PMPF v. Manglapus entitled The
New American Government and Its Work could not have taken into
account the expanded statutory right to information in the FOIA
assumes that the observations in that book in support of the
confidentiality of treaty negotiations would be different had it been

written after the FOIA. Such assumption is, with due respect, at best,
speculative.
As to the claim in the dissent that "[i]t is more doubtful if the same
book be used to calibrate the importance of the right of access to
information in the Philippine setting considering its elevation as a
constitutional right," we submit that the elevation of such right as a
constitutional right did not set it free from the legitimate restrictions
of executive privilege which is itself constitutionally-based.76
Hence, the comments in that book which were cited in PMPF v.
Manglapus remain valid doctrine.
6. The dissent further asserts that the Court has never used "need"
as a test to uphold or allow inroads into rights guaranteed under the
Constitution. With due respect, we assert otherwise. The Court has
done so before, albeit without using the term "need."
In executive privilege controversies, the requirement that parties
present a "sufficient showing of need" only means, in substance,
that they should show a public interest in favor of disclosure
sufficient in degree to overcome the claim of privilege.77 Verily, the
Court in such cases engages in a balancing of interests. Such a
balancing of interests is certainly not new in constitutional
adjudication involving fundamental rights. Secretary of Justice v.
Lantion,78 which was cited in the dissent, applied just such a test.
Given that the dissent has clarified that it does not seek to apply the
"clear and present danger" test to the present controversy, but the
balancing test, there seems to be no substantial dispute between
the position laid down in this ponencia and that reflected in the
dissent as to what test to apply. It would appear that the only
disagreement is on the results of applying that test in this instance.
The dissent, nonetheless, maintains that "it suffices that information
is of public concern for it to be covered by the right, regardless of
the public’s need for the information," and that the same would hold
true even "if they simply want to know it because it interests them."
As has been stated earlier, however, there is no dispute that the
information subject of this case is a matter of public concern. The
Court has earlier concluded that it is a matter of public concern, not
on the basis of any specific need shown by petitioners, but from the
very nature of the JPEPA as an international trade agreement.
However, when the Executive has – as in this case – invoked the
privilege, and it has been established that the subject information is
indeed covered by the privilege being claimed, can a party
overcome the same by merely asserting that the information being
demanded is a matter of public concern, without any further showing
required? Certainly not, for that would render the doctrine of
executive privilege of no force and effect whatsoever as a limitation
on the right to information, because then the sole test in such
controversies would be whether an information is a matter of public
concern.
Moreover, in view of the earlier discussions, we must bear in mind
that, by disclosing the documents of the JPEPA negotiations, the
Philippine government runs the grave risk of betraying the trust
reposed in it by the Japanese representatives, indeed, by the
Japanese government itself. How would the Philippine government
then explain itself when that happens? Surely, it cannot bear to say
that it just had to release the information because certain persons
simply wanted to know it "because it interests them."
Thus, the Court holds that, in determining whether an information is
covered by the right to information, a specific "showing of need" for
such information is not a relevant consideration, but only whether
the same is a matter of public concern. When, however, the
government has claimed executive privilege, and it has established
that the information is indeed covered by the same, then the party
demanding it, if it is to overcome the privilege, must show that that
the information is vital, not simply for the satisfaction of its curiosity,
CONSTI LAW II I ACJUCO 376
but for its ability to effectively and reasonably participate in social,
political, and economic decision-making.79
7. The dissent maintains that "[t]he treaty has thus entered the
ultimate stage where the people can exercise their right to
participate in the discussion whether the Senate should concur in its
ratification or not." (Emphasis supplied) It adds that this right "will be
diluted unless the people can have access to the subject JPEPA
documents". What, to the dissent, is a dilution of the right to
participate in decision-making is, to Us, simply a recognition of the
qualified nature of the public’s right to information. It is beyond
dispute that the right to information is not absolute and that the
doctrine of executive privilege is a recognized limitation on that right.
Moreover, contrary to the submission that the right to participate in
decision-making would be diluted, We reiterate that our people have
been exercising their right to participate in the discussion on the
issue of the JPEPA, and they have been able to articulate their
different opinions without need of access to the JPEPA negotiation
documents.
Thus, we hold that the balance in this case tilts in favor of executive
privilege.
8. Against our ruling that the principles applied in U.S. v. Nixon, the
Senate Select Committee case, and In re Sealed Case, are similarly
applicable to the present controversy, the dissent cites the caveat in
the Nixon case that the U.S. Court was there addressing only the
President’s assertion of privilege in the context of a criminal trial, not
a civil litigation nor a congressional demand for information. What
this caveat means, however, is only that courts must be careful not
to hastily apply the ruling therein to other contexts. It does not,
however, absolutely mean that the principles applied in that case
may never be applied in such contexts.
Hence, U.S. courts have cited U.S. v. Nixon in support of their
rulings on claims of executive privilege in contexts other than a
criminal trial, as in the case of Nixon v. Administrator of General
Services80 – which involved former President Nixon’s invocation of
executive privilege to challenge the constitutionality of the
"Presidential Recordings and Materials Preservation Act"81 – and
the above-mentioned In re Sealed Case which involved a claim of
privilege against a subpoena duces tecum issued in a grand jury
investigation.
Indeed, in applying to the present case the principles found in U.S.
v. Nixon and in the other cases already mentioned, We are merely
affirming what the Chief Justice stated in his Dissenting Opinion in
Neri v. Senate Committee on Accountability82 – a case involving an
executive-legislative conflict over executive privilege. That
dissenting opinion stated that, while Nixon was not concerned with
the balance between the President’s generalized interest in
confidentiality and congressional demands for information,
"[n]onetheless the [U.S.] Court laid down principles and procedures
that can serve as torch lights to illumine us on the scope and use of
Presidential communication privilege in the case at bar."83 While
the Court was divided in Neri, this opinion of the Chief Justice was
not among the points of disagreement, and We similarly hold now
that the Nixon case is a useful guide in the proper resolution of the
present controversy, notwithstanding the difference in context.
Verily, while the Court should guard against the abuse of executive
privilege, it should also give full recognition to the validity of the
privilege whenever it is claimed within the proper bounds of
executive power, as in this case. Otherwise, the Court would
undermine its own credibility, for it would be perceived as no longer
aiming to strike a balance, but seeking merely to water down
executive privilege to the point of irrelevance.
Conclusion
 CONSTI LAW II I ACJUCO 377

To recapitulate, petitioners’ demand to be furnished with a copy of

the full text of the JPEPA has become moot and academic, it having
been made accessible to the public since September 11, 2006. As
for their demand for copies of the Philippine and Japanese offers
submitted during the JPEPA negotiations, the same must be denied,
respondents’ claim of executive privilege being valid.

Diplomatic negotiations have, since the Court promulgated its

Resolution in PMPF v. Manglapus on September 13, 1988, been
recognized as privileged in this jurisdiction and the reasons
proffered by petitioners against the application of the ruling therein
to the present case have not persuaded the Court. Moreover,
petitioners – both private citizens and members of the House of
Representatives – have failed to present a "sufficient showing of
need" to overcome the claim of privilege in this case.

That the privilege was asserted for the first time in respondents’
Comment to the present petition, and not during the hearings of the
House Special Committee on Globalization, is of no moment, since
it cannot be interpreted as a waiver of the privilege on the part of the
Executive branch.

For reasons already explained, this Decision shall not be interpreted

as departing from the ruling in Senate v. Ermita that executive
privilege should be invoked by the President or through the
Executive Secretary "by order of the President."

WHEREFORE, the petition is DISMISSED.


G.R. No. 183591 October 14, 2008
THE PROVINCE OF NORTH COTABATO, duly represented by
GOVERNOR JESUS SACDALAN and/or VICE-GOVERNOR
EMMANUEL PIÑOL, for and in his own behalf, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented
by SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO,
ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN
and/or GEN. HERMOGENES ESPERON, JR., the latter in his
capacity as the present and duly-appointed Presidential
Adviser on the Peace Process (OPAPP) or the so-called Office
of the Presidential Adviser on the Peace Process,
respondents.
x--------------------------------------------x
G.R. No. 183752 October 14, 2008
CITY GOVERNMENT OF ZAMBOANGA, as represented by
HON. CELSO L. LOBREGAT, City Mayor of Zamboanga, and in
his personal capacity as resident of the City of Zamboanga,
Rep. MA. ISABELLE G. CLIMACO, District 1, and Rep. ERICO
BASILIO A. FABIAN, District 2, City of Zamboanga,
petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE NEGOTIATING PANEL (GRP), as represented by
RODOLFO C. GARCIA, LEAH ARMAMENTO, SEDFREY
CANDELARIA, MARK RYAN SULLIVAN and HERMOGENES
ESPERON, in his capacity as the Presidential Adviser on
Peace Process, respondents.
x--------------------------------------------x
G.R. No. 183893 October 14, 2008
THE CITY OF ILIGAN, duly represented by CITY MAYOR
LAWRENCE LLUCH CRUZ, petitioner,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented
by SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO,
ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN;
GEN. HERMOGENES ESPERON, JR., in his capacity as the
present and duly appointed Presidential Adviser on the Peace
Process; and/or SEC. EDUARDO ERMITA, in his capacity as
Executive Secretary. respondents.
x--------------------------------------------x
G.R. No. 183951 October 14, 2008
THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL
NORTE, as represented by HON. ROLANDO E. YEBES, in his
capacity as Provincial Governor, HON. FRANCIS H. OLVIS, in
his capacity as Vice-Governor and Presiding Officer of the
Sangguniang Panlalawigan, HON. CECILIA JALOSJOS
CARREON, Congresswoman, 1st Congressional District,
HON. CESAR G. JALOSJOS, Congressman, 3rd
Congressional District, and Members of the Sangguniang
Panlalawigan of the Province of Zamboanga del Norte,
namely, HON. SETH FREDERICK P. JALOSJOS, HON.
FERNANDO R. CABIGON, JR., HON. ULDARICO M.
MEJORADA II, HON. EDIONAR M. ZAMORAS, HON. EDGAR J.
BAGUIO, HON. CEDRIC L. ADRIATICO, HON. FELIXBERTO C.
BOLANDO, HON. JOSEPH BRENDO C. AJERO, HON.
NORBIDEIRI B. EDDING, HON. ANECITO S. DARUNDAY, HON.
ANGELICA J. CARREON and HON. LUZVIMINDA E. TORRINO,
petitioners,
CONSTI LAW II I ACJUCO 378
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE NEGOTIATING PANEL [GRP], as represented by HON.
RODOLFO C. GARCIA and HON. HERMOGENES ESPERON, in
his capacity as the Presidential Adviser of Peace Process,
respondents.
x--------------------------------------------x
G.R. No. 183962 October 14, 2008
ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO L.
PIMENTEL III, petitioners,
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES
PEACE NEGOTIATING PANEL, represented by its Chairman
RODOLFO C. GARCIA, and the MORO ISLAMIC LIBERATION
FRONT PEACE NEGOTIATING PANEL, represented by its
Chairman MOHAGHER IQBAL, respondents.
x--------------------------------------------x
FRANKLIN M. DRILON and ADEL ABBAS TAMANO,
petitioners-in-intervention.
x--------------------------------------------x
SEN. MANUEL A. ROXAS, petitioners-in-intervention.
x--------------------------------------------x
MUNICIPALITY OF LINAMON duly represented by its
Municipal Mayor NOEL N. DEANO, petitioners-in-intervention,
x--------------------------------------------x
THE CITY OF ISABELA, BASILAN PROVINCE, represented by
MAYOR CHERRYLYN P. SANTOS-AKBAR, petitioners-in-
intervention.
x--------------------------------------------x
THE PROVINCE OF SULTAN KUDARAT, rep. by HON.
SUHARTO T. MANGUDADATU, in his capacity as Provincial
Governor and a resident of the Province of Sultan Kudarat,
petitioner-in-intervention.
x-------------------------------------------x
RUY ELIAS LOPEZ, for and in his own behalf and on behalf of
Indigenous Peoples in Mindanao Not Belonging to the MILF,
petitioner-in-intervention.
x--------------------------------------------x
CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT,
JOSELITO C. ALISUAG and RICHALEX G. JAGMIS, as citizens
and residents of Palawan, petitioners-in-intervention.
x--------------------------------------------x
MARINO RIDAO and KISIN BUXANI, petitioners-in-
intervention.
x--------------------------------------------x
MUSLIM LEGAL ASSISTANCE FOUNDATION, INC (MUSLAF),
respondent-in-intervention.
x--------------------------------------------x

MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE &
DEVELOPMENT (MMMPD), respondent-in-intervention.
x--------------------------------------------x
DECISION
CARPIO MORALES, J.:
Subject of these consolidated cases is the extent of the powers of
the President in pursuing the peace process. While the facts
surrounding this controversy center on the armed conflict in
Mindanao between the government and the Moro Islamic Liberation
Front (MILF), the legal issue involved has a bearing on all areas in
the country where there has been a long-standing armed conflict.
Yet again, the Court is tasked to perform a delicate balancing act. It
must uncompromisingly delineate the bounds within which the
President may lawfully exercise her discretion, but it must do so in
strict adherence to the Constitution, lest its ruling unduly restricts the
freedom of action vested by that same Constitution in the Chief
Executive precisely to enable her to pursue the peace process
effectively.
I. FACTUAL ANTECEDENTS OF THE PETITIONS
On August 5, 2008, the Government of the Republic of the
Philippines (GRP) and the MILF, through the Chairpersons of their
respective peace negotiating panels, were scheduled to sign a
Memorandum of Agreement on the Ancestral Domain (MOA-AD)
Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in
Kuala Lumpur, Malaysia.
The MILF is a rebel group which was established in March 1984
when, under the leadership of the late Salamat Hashim, it splintered
from the Moro National Liberation Front (MNLF) then headed by Nur
Misuari, on the ground, among others, of what Salamat perceived
to be the manipulation of the MNLF away from an Islamic basis
towards Marxist-Maoist orientations.1
The signing of the MOA-AD between the GRP and the MILF was
not to materialize, however, for upon motion of petitioners,
specifically those who filed their cases before the scheduled signing
of the MOA-AD, this Court issued a Temporary Restraining Order
enjoining the GRP from signing the same.
The MOA-AD was preceded by a long process of negotiation and
the concluding of several prior agreements between the two parties
beginning in 1996, when the GRP-MILF peace negotiations began.
On July 18, 1997, the GRP and MILF Peace Panels signed the
Agreement on General Cessation of Hostilities. The following year,
they signed the General Framework of Agreement of Intent on
August 27, 1998.
The Solicitor General, who represents respondents, summarizes
the MOA-AD by stating that the same contained, among others, the
commitment of the parties to pursue peace negotiations, protect and
respect human rights, negotiate with sincerity in the resolution and
pacific settlement of the conflict, and refrain from the use of threat
or force to attain undue advantage while the peace negotiations on
the substantive agenda are on-going.2
Early on, however, it was evident that there was not going to be any
smooth sailing in the GRP-MILF peace process. Towards the end
of 1999 up to early 2000, the MILF attacked a number of
municipalities in Central Mindanao and, in March 2000, it took
control of the town hall of Kauswagan, Lanao del Norte.3 In
response, then President Joseph Estrada declared and carried out
an "all-out-war" against the MILF.
When President Gloria Macapagal-Arroyo assumed office, the
military offensive against the MILF was suspended and the
CONSTI LAW II I ACJUCO 379
government sought a resumption of the peace talks. The MILF,
according to a leading MILF member, initially responded with deep
reservation, but when President Arroyo asked the Government of
Malaysia through Prime Minister Mahathir Mohammad to help
convince the MILF to return to the negotiating table, the MILF
convened its Central Committee to seriously discuss the matter and,
eventually, decided to meet with the GRP.4
The parties met in Kuala Lumpur on March 24, 2001, with the talks
being facilitated by the Malaysian government, the parties signing
on the same date the Agreement on the General Framework for the
Resumption of Peace Talks Between the GRP and the MILF. The
MILF thereafter suspended all its military actions.5
Formal peace talks between the parties were held in Tripoli, Libya
from June 20-22, 2001, the outcome of which was the GRP-MILF
Tripoli Agreement on Peace (Tripoli Agreement 2001) containing
the basic principles and agenda on the following aspects of the
negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral
Domain Aspect. With regard to the Ancestral Domain Aspect, the
parties in Tripoli Agreement 2001 simply agreed "that the same be
discussed further by the Parties in their next meeting."
A second round of peace talks was held in Cyberjaya, Malaysia on
August 5-7, 2001 which ended with the signing of the Implementing
Guidelines on the Security Aspect of the Tripoli Agreement 2001
leading to a ceasefire status between the parties. This was followed
by the Implementing Guidelines on the Humanitarian Rehabilitation
and Development Aspects of the Tripoli Agreement 2001, which
was signed on May 7, 2002 at Putrajaya, Malaysia. Nonetheless,
there were many incidence of violence between government forces
and the MILF from 2002 to 2003.
Meanwhile, then MILF Chairman Salamat Hashim passed away on
July 13, 2003 and he was replaced by Al Haj Murad, who was then
the chief peace negotiator of the MILF. Murad's position as chief
peace negotiator was taken over by Mohagher Iqbal.6
In 2005, several exploratory talks were held between the parties in
Kuala Lumpur, eventually leading to the crafting of the draft MOA-
AD in its final form, which, as mentioned, was set to be signed last
August 5, 2008.
II. STATEMENT OF THE PROCEEDINGS
Before the Court is what is perhaps the most contentious
"consensus" ever embodied in an instrument - the MOA-AD which
is assailed principally by the present petitions bearing docket
numbers 183591, 183752, 183893, 183951 and 183962.
Commonly impleaded as respondents are the GRP Peace Panel on
Ancestral Domain7 and the Presidential Adviser on the Peace
Process (PAPP) Hermogenes Esperon, Jr.
On July 23, 2008, the Province of North Cotabato8 and Vice-
Governor Emmanuel Piñol filed a petition, docketed as G.R. No.
183591, for Mandamus and Prohibition with Prayer for the Issuance
of Writ of Preliminary Injunction and Temporary Restraining Order.9
Invoking the right to information on matters of public concern,
petitioners seek to compel respondents to disclose and furnish them
the complete and official copies of the MOA-AD including its
attachments, and to prohibit the slated signing of the MOA-AD,
pending the disclosure of the contents of the MOA-AD and the
holding of a public consultation thereon. Supplementarily,
petitioners pray that the MOA-AD be declared unconstitutional.10
This initial petition was followed by another one, docketed as G.R.
No. 183752, also for Mandamus and Prohibition11 filed by the City
of Zamboanga,12 Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco
and Rep. Erico Basilio Fabian who likewise pray for similar
injunctive reliefs. Petitioners herein moreover pray that the City of

Zamboanga be excluded from the Bangsamoro Homeland and/or
Bangsamoro Juridical Entity and, in the alternative, that the MOA-
AD be declared null and void.
By Resolution of August 4, 2008, the Court issued a Temporary
Restraining Order commanding and directing public respondents
and their agents to cease and desist from formally signing the MOA-
AD.13 The Court also required the Solicitor General to submit to the
Court and petitioners the official copy of the final draft of the MOA-
AD,14 to which she complied.15
Meanwhile, the City of Iligan16 filed a petition for Injunction and/or
Declaratory Relief, docketed as G.R. No. 183893, praying that
respondents be enjoined from signing the MOA-AD or, if the same
had already been signed, from implementing the same, and that the
MOA-AD be declared unconstitutional. Petitioners herein
additionally implead Executive Secretary Eduardo Ermita as
respondent.
The Province of Zamboanga del Norte,17 Governor Rolando Yebes,
Vice-Governor Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep.
Cesar Jalosjos, and the members18 of the Sangguniang
Panlalawigan of Zamboanga del Norte filed on August 15, 2008 a
petition for Certiorari, Mandamus and Prohibition,19 docketed as
G.R. No. 183951. They pray, inter alia, that the MOA-AD be
declared null and void and without operative effect, and that
respondents be enjoined from executing the MOA-AD.
On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino
Pimentel III filed a petition for Prohibition,20 docketed as G.R. No.
183962, praying for a judgment prohibiting and permanently
enjoining respondents from formally signing and executing the
MOA-AD and or any other agreement derived therefrom or similar
thereto, and nullifying the MOA-AD for being unconstitutional and
illegal. Petitioners herein additionally implead as respondent the
MILF Peace Negotiating Panel represented by its Chairman
Mohagher Iqbal.
Various parties moved to intervene and were granted leave of court
to file their petitions-/comments-in-intervention. Petitioners-in-
Intervention include Senator Manuel A. Roxas, former Senate
President Franklin Drilon and Atty. Adel Tamano, the City of
Isabela21 and Mayor Cherrylyn Santos-Akbar, the Province of
Sultan Kudarat22 and Gov. Suharto Mangudadatu, the Municipality
of Linamon in Lanao del Norte,23 Ruy Elias Lopez of Davao City
and of the Bagobo tribe, Sangguniang Panlungsod member Marino
Ridao and businessman Kisin Buxani, both of Cotabato City; and
lawyers Carlo Gomez, Gerardo Dilig, Nesario Awat, Joselito
Alisuag, Richalex Jagmis, all of Palawan City. The Muslim Legal
Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral
Movement for Peace and Development (MMMPD) filed their
respective Comments-in-Intervention.
By subsequent Resolutions, the Court ordered the consolidation of
the petitions. Respondents filed Comments on the petitions, while
some of petitioners submitted their respective Replies.
Respondents, by Manifestation and Motion of August 19, 2008,
stated that the Executive Department shall thoroughly review the
MOA-AD and pursue further negotiations to address the issues
hurled against it, and thus moved to dismiss the cases. In the
succeeding exchange of pleadings, respondents' motion was met
with vigorous opposition from petitioners.
The cases were heard on oral argument on August 15, 22 and 29,
2008 that tackled the following principal issues:
1. Whether the petitions have become moot and academic
CONSTI LAW II I ACJUCO 380
(i) insofar as the mandamus aspect is concerned, in view of the
disclosure of official copies of the final draft of the Memorandum of
Agreement (MOA); and
(ii) insofar as the prohibition aspect involving the Local Government
Units is concerned, if it is considered that consultation has become
fait accompli with the finalization of the draft;
2. Whether the constitutionality and the legality of the MOA is ripe
for adjudication;
3. Whether respondent Government of the Republic of the
Philippines Peace Panel committed grave abuse of discretion
amounting to lack or excess of jurisdiction when it negotiated and
initiated the MOA vis-à-vis ISSUES Nos. 4 and 5;
4. Whether there is a violation of the people's right to information on
matters of public concern (1987 Constitution, Article III, Sec. 7)
under a state policy of full disclosure of all its transactions involving
public interest (1987 Constitution, Article II, Sec. 28) including public
consultation under Republic Act No. 7160 (LOCAL GOVERNMENT
CODE OF 1991)[;]
If it is in the affirmative, whether prohibition under Rule 65 of the
1997 Rules of Civil Procedure is an appropriate remedy;
5. Whether by signing the MOA, the Government of the Republic of
the Philippines would be BINDING itself
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as
a separate state, or a juridical, territorial or political subdivision not
recognized by law;
b) to revise or amend the Constitution and existing laws to conform
to the MOA;
c) to concede to or recognize the claim of the Moro Islamic
Liberation Front for ancestral domain in violation of Republic Act No.
8371 (THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997),
particularly Section 3(g) & Chapter VII (DELINEATION,
RECOGNITION OF ANCESTRAL DOMAINS)[;]
If in the affirmative, whether the Executive Branch has the authority
to so bind the Government of the Republic of the Philippines;
6. Whether the inclusion/exclusion of the Province of North
Cotabato, Cities of Zamboanga, Iligan and Isabela, and the
Municipality of Linamon, Lanao del Norte in/from the areas covered
by the projected Bangsamoro Homeland is a justiciable question;
and
7. Whether desistance from signing the MOA derogates any prior
valid commitments of the Government of the Republic of the
Philippines.24
The Court, thereafter, ordered the parties to submit their respective
Memoranda. Most of the parties submitted their memoranda on
time.
III. OVERVIEW OF THE MOA-AD
As a necessary backdrop to the consideration of the objections
raised in the subject five petitions and six petitions-in-intervention
against the MOA-AD, as well as the two comments-in-intervention
in favor of the MOA-AD, the Court takes an overview of the MOA.
The MOA-AD identifies the Parties to it as the GRP and the MILF.
Under the heading "Terms of Reference" (TOR), the MOA-AD
includes not only four earlier agreements between the GRP and
MILF, but also two agreements between the GRP and the MNLF:

the 1976 Tripoli Agreement, and the Final Peace Agreement on the
Implementation of the 1976 Tripoli Agreement, signed on
September 2, 1996 during the administration of President Fidel
Ramos.
The MOA-AD also identifies as TOR two local statutes - the organic
act for the Autonomous Region in Muslim Mindanao (ARMM)25 and
the Indigenous Peoples Rights Act (IPRA),26 and several
international law instruments - the ILO Convention No. 169
Concerning Indigenous and Tribal Peoples in Independent
Countries in relation to the UN Declaration on the Rights of the
Indigenous Peoples, and the UN Charter, among others.
The MOA-AD includes as a final TOR the generic category of
"compact rights entrenchment emanating from the regime of dar-ul-
mua'hada (or territory under compact) and dar-ul-sulh (or territory
under peace agreement) that partakes the nature of a treaty device."
During the height of the Muslim Empire, early Muslim jurists tended
to see the world through a simple dichotomy: there was the dar-ul-
Islam (the Abode of Islam) and dar-ul-harb (the Abode of War). The
first referred to those lands where Islamic laws held sway, while the
second denoted those lands where Muslims were persecuted or
where Muslim laws were outlawed or ineffective.27 This way of
viewing the world, however, became more complex through the
centuries as the Islamic world became part of the international
community of nations.
As Muslim States entered into treaties with their neighbors, even
with distant States and inter-governmental organizations, the
classical division of the world into dar-ul-Islam and dar-ul-harb
eventually lost its meaning. New terms were drawn up to describe
novel ways of perceiving non-Muslim territories. For instance, areas
like dar-ul-mua'hada (land of compact) and dar-ul-sulh (land of
treaty) referred to countries which, though under a secular regime,
maintained peaceful and cooperative relations with Muslim States,
having been bound to each other by treaty or agreement. Dar-ul-
aman (land of order), on the other hand, referred to countries which,
though not bound by treaty with Muslim States, maintained freedom
of religion for Muslims.28
It thus appears that the "compact rights entrenchment" emanating
from the regime of dar-ul-mua'hada and dar-ul-sulh simply refers to
all other agreements between the MILF and the Philippine
government - the Philippines being the land of compact and peace
agreement - that partake of the nature of a treaty device, "treaty"
being broadly defined as "any solemn agreement in writing that sets
out understandings, obligations, and benefits for both parties which
provides for a framework that elaborates the principles declared in
the [MOA-AD]."29
The MOA-AD states that the Parties "HAVE AGREED AND
ACKNOWLEDGED AS FOLLOWS," and starts with its main body.
The main body of the MOA-AD is divided into four strands, namely,
Concepts and Principles, Territory, Resources, and Governance.
A. CONCEPTS AND PRINCIPLES
This strand begins with the statement that it is "the birthright of all
Moros and all Indigenous peoples of Mindanao to identify
themselves and be accepted as ‘Bangsamoros.'" It defines
"Bangsamoro people" as the natives or original inhabitants of
Mindanao and its adjacent islands including Palawan and the Sulu
archipelago at the time of conquest or colonization, and their
descendants whether mixed or of full blood, including their
spouses.30
Thus, the concept of "Bangsamoro," as defined in this strand of the
MOA-AD, includes not only "Moros" as traditionally understood even
by Muslims,31 but all indigenous peoples of Mindanao and its
CONSTI LAW II I ACJUCO 381
adjacent islands. The MOA-AD adds that the freedom of choice of
indigenous peoples shall be respected. What this freedom of choice
consists in has not been specifically defined.
The MOA-AD proceeds to refer to the "Bangsamoro homeland," the
ownership of which is vested exclusively in the Bangsamoro people
by virtue of their prior rights of occupation.32 Both parties to the
MOA-AD acknowledge that ancestral domain does not form part of
the public domain.33
The Bangsamoro people are acknowledged as having the right to
self-governance, which right is said to be rooted on ancestral
territoriality exercised originally under the suzerain authority of their
sultanates and the Pat a Pangampong ku Ranaw. The sultanates
were described as states or "karajaan/kadatuan" resembling a body
politic endowed with all the elements of a nation-state in the modern
sense.34
The MOA-AD thus grounds the right to self-governance of the
Bangsamoro people on the past suzerain authority of the sultanates.
As gathered, the territory defined as the Bangsamoro homeland was
ruled by several sultanates and, specifically in the case of the
Maranao, by the Pat a Pangampong ku Ranaw, a confederation of
independent principalities (pangampong) each ruled by datus and
sultans, none of whom was supreme over the others.35
The MOA-AD goes on to describe the Bangsamoro people as "the
‘First Nation' with defined territory and with a system of government
having entered into treaties of amity and commerce with foreign
nations."
The term "First Nation" is of Canadian origin referring to the
indigenous peoples of that territory, particularly those known as
Indians. In Canada, each of these indigenous peoples is equally
entitled to be called "First Nation," hence, all of them are usually
described collectively by the plural "First Nations."36 To that extent,
the MOA-AD, by identifying the Bangsamoro people as "the First
Nation" - suggesting its exclusive entitlement to that designation -
departs from the Canadian usage of the term.
The MOA-AD then mentions for the first time the "Bangsamoro
Juridical Entity" (BJE) to which it grants the authority and jurisdiction
over the Ancestral Domain and Ancestral Lands of the
Bangsamoro.37
B. TERRITORY
The territory of the Bangsamoro homeland is described as the land
mass as well as the maritime, terrestrial, fluvial and alluvial domains,
including the aerial domain and the atmospheric space above it,
embracing the Mindanao-Sulu-Palawan geographic region.38
More specifically, the core of the BJE is defined as the present
geographic area of the ARMM - thus constituting the following
areas: Lanao del Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan, and
Marawi City. Significantly, this core also includes certain
municipalities of Lanao del Norte that voted for inclusion in the
ARMM in the 2001 plebiscite.39
Outside of this core, the BJE is to cover other provinces, cities,
municipalities and barangays, which are grouped into two
categories, Category A and Category B. Each of these areas is to
be subjected to a plebiscite to be held on different dates, years apart
from each other. Thus, Category A areas are to be subjected to a
plebiscite not later than twelve (12) months following the signing of
the MOA-AD.40 Category B areas, also called "Special Intervention
Areas," on the other hand, are to be subjected to a plebiscite twenty-
five (25) years from the signing of a separate agreement - the
Comprehensive Compact.41

The Parties to the MOA-AD stipulate that the BJE shall have
jurisdiction over all natural resources within its "internal waters,"
defined as extending fifteen (15) kilometers from the coastline of the
BJE area;42 that the BJE shall also have "territorial waters," which
shall stretch beyond the BJE internal waters up to the baselines of
the Republic of the Philippines (RP) south east and south west of
mainland Mindanao; and that within these territorial waters, the BJE
and the "Central Government" (used interchangeably with RP) shall
exercise joint jurisdiction, authority and management over all natural
resources.43 Notably, the jurisdiction over the internal waters is not
similarly described as "joint."
The MOA-AD further provides for the sharing of minerals on the
territorial waters between the Central Government and the BJE, in
favor of the latter, through production sharing and economic
cooperation agreement.44 The activities which the Parties are
allowed to conduct on the territorial waters are enumerated, among
which are the exploration and utilization of natural resources,
regulation of shipping and fishing activities, and the enforcement of
police and safety measures.45 There is no similar provision on the
sharing of minerals and allowed activities with respect to the internal
waters of the BJE.
C. RESOURCES
The MOA-AD states that the BJE is free to enter into any economic
cooperation and trade relations with foreign countries and shall have
the option to establish trade missions in those countries. Such
relationships and understandings, however, are not to include
aggression against the GRP. The BJE may also enter into
environmental cooperation agreements.46
The external defense of the BJE is to remain the duty and obligation
of the Central Government. The Central Government is also bound
to "take necessary steps to ensure the BJE's participation in
international meetings and events" like those of the ASEAN and the
specialized agencies of the UN. The BJE is to be entitled to
participate in Philippine official missions and delegations for the
negotiation of border agreements or protocols for environmental
protection and equitable sharing of incomes and revenues involving
the bodies of water adjacent to or between the islands forming part
of the ancestral domain.47
With regard to the right of exploring for, producing, and obtaining all
potential sources of energy, petroleum, fossil fuel, mineral oil and
natural gas, the jurisdiction and control thereon is to be vested in
the BJE "as the party having control within its territorial jurisdiction."
This right carries the proviso that, "in times of national emergency,
when public interest so requires," the Central Government may, for
a fixed period and under reasonable terms as may be agreed upon
by both Parties, assume or direct the operation of such resources.48
The sharing between the Central Government and the BJE of total
production pertaining to natural resources is to be 75:25 in favor of
the BJE.49
The MOA-AD provides that legitimate grievances of the
Bangsamoro people arising from any unjust dispossession of their
territorial and proprietary rights, customary land tenures, or their
marginalization shall be acknowledged. Whenever restoration is no
longer possible, reparation is to be in such form as mutually
determined by the Parties.50
The BJE may modify or cancel the forest concessions, timber
licenses, contracts or agreements, mining concessions, Mineral
Production and Sharing Agreements (MPSA), Industrial Forest
Management Agreements (IFMA), and other land tenure
instruments granted by the Philippine Government, including those
issued by the present ARMM.51
D. GOVERNANCE
CONSTI LAW II I ACJUCO 382
The MOA-AD binds the Parties to invite a multinational third-party
to observe and monitor the implementation of the Comprehensive
Compact. This compact is to embody the "details for the effective
enforcement" and "the mechanisms and modalities for the actual
implementation" of the MOA-AD. The MOA-AD explicitly provides
that the participation of the third party shall not in any way affect the
status of the relationship between the Central Government and the
BJE.52
The "associative" relationship
between the Central Government
and the BJE
The MOA-AD describes the relationship of the Central Government
and the BJE as "associative," characterized by shared authority and
responsibility. And it states that the structure of governance is to be
based on executive, legislative, judicial, and administrative
institutions with defined powers and functions in the Comprehensive
Compact.
The MOA-AD provides that its provisions requiring "amendments to
the existing legal framework" shall take effect upon signing of the
Comprehensive Compact and upon effecting the aforesaid
amendments, with due regard to the non-derogation of prior
agreements and within the stipulated timeframe to be contained in
the Comprehensive Compact. As will be discussed later, much of
the present controversy hangs on the legality of this provision.
The BJE is granted the power to build, develop and maintain its own
institutions inclusive of civil service, electoral, financial and banking,
education, legislation, legal, economic, police and internal security
force, judicial system and correctional institutions, the details of
which shall be discussed in the negotiation of the comprehensive
compact.
As stated early on, the MOA-AD was set to be signed on August 5,
2008 by Rodolfo Garcia and Mohagher Iqbal, Chairpersons of the
Peace Negotiating Panels of the GRP and the MILF, respectively.
Notably, the penultimate paragraph of the MOA-AD identifies the
signatories as "the representatives of the Parties," meaning the
GRP and MILF themselves, and not merely of the negotiating
panels.53 In addition, the signature page of the MOA-AD states that
it is "WITNESSED BY" Datuk Othman Bin Abd Razak, Special
Adviser to the Prime Minister of Malaysia, "ENDORSED BY"
Ambassador Sayed Elmasry, Adviser to Organization of the Islamic
Conference (OIC) Secretary General and Special Envoy for Peace
Process in Southern Philippines, and SIGNED "IN THE PRESENCE
OF" Dr. Albert G. Romulo, Secretary of Foreign Affairs of RP and
Dato' Seri Utama Dr. Rais Bin Yatim, Minister of Foreign Affairs,
Malaysia, all of whom were scheduled to sign the Agreement last
August 5, 2008.
Annexed to the MOA-AD are two documents containing the
respective lists cum maps of the provinces, municipalities, and
barangays under Categories A and B earlier mentioned in the
discussion on the strand on TERRITORY.
IV. PROCEDURAL ISSUES
A. RIPENESS
The power of judicial review is limited to actual cases or
controversies.54 Courts decline to issue advisory opinions or to
resolve hypothetical or feigned problems, or mere academic
questions.55 The limitation of the power of judicial review to actual
cases and controversies defines the role assigned to the judiciary in
a tripartite allocation of power, to assure that the courts will not
intrude into areas committed to the other branches of
government.56

An actual case or controversy involves a conflict of legal rights, an
assertion of opposite legal claims, susceptible of judicial resolution
as distinguished from a hypothetical or abstract difference or
dispute. There must be a contrariety of legal rights that can be
interpreted and enforced on the basis of existing law and
jurisprudence.57 The Court can decide the constitutionality of an act
or treaty only when a proper case between opposing parties is
submitted for judicial determination.58
Related to the requirement of an actual case or controversy is the
requirement of ripeness. A question is ripe for adjudication when the
act being challenged has had a direct adverse effect on the
individual challenging it.59 For a case to be considered ripe for
adjudication, it is a prerequisite that something had then been
accomplished or performed by either branch before a court may
come into the picture,60 and the petitioner must allege the existence
of an immediate or threatened injury to itself as a result of the
challenged action.61 He must show that he has sustained or is
immediately in danger of sustaining some direct injury as a result of
the act complained of.62
The Solicitor General argues that there is no justiciable controversy
that is ripe for judicial review in the present petitions, reasoning that
The unsigned MOA-AD is simply a list of consensus points subject
to further negotiations and legislative enactments as well as
constitutional processes aimed at attaining a final peaceful
agreement. Simply put, the MOA-AD remains to be a proposal that
does not automatically create legally demandable rights and
obligations until the list of operative acts required have been duly
complied with. x x x
xxxx
In the cases at bar, it is respectfully submitted that this Honorable
Court has no authority to pass upon issues based on hypothetical
or feigned constitutional problems or interests with no concrete
bases. Considering the preliminary character of the MOA-AD, there
are no concrete acts that could possibly violate petitioners' and
intervenors' rights since the acts complained of are mere
contemplated steps toward the formulation of a final peace
agreement. Plainly, petitioners and intervenors' perceived injury, if
at all, is merely imaginary and illusory apart from being unfounded
and based on mere conjectures. (Underscoring supplied)
The Solicitor General cites63 the following provisions of the MOA-
AD:
TERRITORY
xxxx
2. Toward this end, the Parties enter into the following stipulations:
xxxx
d. Without derogating from the requirements of prior agreements,
the Government stipulates to conduct and deliver, using all possible
legal measures, within twelve (12) months following the signing of
the MOA-AD, a plebiscite covering the areas as enumerated in the
list and depicted in the map as Category A attached herein (the
"Annex"). The Annex constitutes an integral part of this framework
agreement. Toward this end, the Parties shall endeavor to complete
the negotiations and resolve all outstanding issues on the
Comprehensive Compact within fifteen (15) months from the signing
of the MOA-AD.
xxxx
GOVERNANCE
CONSTI LAW II I ACJUCO 383
xxxx
7. The Parties agree that mechanisms and modalities for the actual
implementation of this MOA-AD shall be spelt out in the
Comprehensive Compact to mutually take such steps to enable it to
occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing
legal framework shall come into force upon the signing of a
Comprehensive Compact and upon effecting the necessary
changes to the legal framework with due regard to non-derogation
of prior agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact.64 (Underscoring
supplied)
The Solicitor General's arguments fail to persuade.
Concrete acts under the MOA-AD are not necessary to render the
present controversy ripe. In Pimentel, Jr. v. Aguirre,65 this Court
held:
x x x [B]y the mere enactment of the questioned law or the approval
of the challenged action, the dispute is said to have ripened into a
judicial controversy even without any other overt act. Indeed, even
a singular violation of the Constitution and/or the law is enough to
awaken judicial duty.
xxxx
By the same token, when an act of the President, who in our
constitutional scheme is a coequal of Congress, is seriously alleged
to have infringed the Constitution and the laws x x x settling the
dispute becomes the duty and the responsibility of the courts.66
In Santa Fe Independent School District v. Doe,67 the United States
Supreme Court held that the challenge to the constitutionality of the
school's policy allowing student-led prayers and speeches before
games was ripe for adjudication, even if no public prayer had yet
been led under the policy, because the policy was being challenged
as unconstitutional on its face.68
That the law or act in question is not yet effective does not negate
ripeness. For example, in New York v. United States,69 decided in
1992, the United States Supreme Court held that the action by the
State of New York challenging the provisions of the Low-Level
Radioactive Waste Policy Act was ripe for adjudication even if the
questioned provision was not to take effect until January 1, 1996,
because the parties agreed that New York had to take immediate
action to avoid the provision's consequences.70
The present petitions pray for Certiorari,71 Prohibition, and
Mandamus. Certiorari and Prohibition are remedies granted by law
when any tribunal, board or officer has acted, in the case of
certiorari, or is proceeding, in the case of prohibition, without or in
excess of its jurisdiction or with grave abuse of discretion amounting
to lack or excess of jurisdiction.72 Mandamus is a remedy granted
by law when any tribunal, corporation, board, officer or person
unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or
station, or unlawfully excludes another from the use or enjoyment of
a right or office to which such other is entitled.73 Certiorari,
Mandamus and Prohibition are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify, when
proper, acts of legislative and executive officials.74
The authority of the GRP Negotiating Panel is defined by Executive
Order No. 3 (E.O. No. 3), issued on February 28, 2001.75 The said
executive order requires that "[t]he government's policy framework
for peace, including the systematic approach and the administrative
structure for carrying out the comprehensive peace process x x x be
governed by this Executive Order."76

The present petitions allege that respondents GRP Panel and PAPP
Esperon drafted the terms of the MOA-AD without consulting the
local government units or communities affected, nor informing them
of the proceedings. As will be discussed in greater detail later, such
omission, by itself, constitutes a departure by respondents from their
mandate under E.O. No. 3.
Furthermore, the petitions allege that the provisions of the MOA-AD
violate the Constitution. The MOA-AD provides that "any provisions
of the MOA-AD requiring amendments to the existing legal
framework shall come into force upon the signing of a
Comprehensive Compact and upon effecting the necessary
changes to the legal framework," implying an amendment of the
Constitution to accommodate the MOA-AD. This stipulation, in
effect, guaranteed to the MILF the amendment of the Constitution.
Such act constitutes another violation of its authority. Again, these
points will be discussed in more detail later.
As the petitions allege acts or omissions on the part of respondent
that exceed their authority, by violating their duties under E.O. No.
3 and the provisions of the Constitution and statutes, the petitions
make a prima facie case for Certiorari, Prohibition, and Mandamus,
and an actual case or controversy ripe for adjudication exists. When
an act of a branch of government is seriously alleged to have
infringed the Constitution, it becomes not only the right but in fact
the duty of the judiciary to settle the dispute.77
B. LOCUS STANDI
For a party to have locus standi, one must allege "such a personal
stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which
the court so largely depends for illumination of difficult constitutional
questions."78
Because constitutional cases are often public actions in which the
relief sought is likely to affect other persons, a preliminary question
frequently arises as to this interest in the constitutional question
raised.79
When suing as a citizen, the person complaining must allege that
he has been or is about to be denied some right or privilege to which
he is lawfully entitled or that he is about to be subjected to some
burdens or penalties by reason of the statute or act complained
of.80 When the issue concerns a public right, it is sufficient that the
petitioner is a citizen and has an interest in the execution of the
laws.81
For a taxpayer, one is allowed to sue where there is an assertion
that public funds are illegally disbursed or deflected to an illegal
purpose, or that there is a wastage of public funds through the
enforcement of an invalid or unconstitutional law.82 The Court
retains discretion whether or not to allow a taxpayer's suit.83
In the case of a legislator or member of Congress, an act of the
Executive that injures the institution of Congress causes a derivative
but nonetheless substantial injury that can be questioned by
legislators. A member of the House of Representatives has standing
to maintain inviolate the prerogatives, powers and privileges vested
by the Constitution in his office.84
An organization may be granted standing to assert the rights of its
members,85 but the mere invocation by the Integrated Bar of the
Philippines or any member of the legal profession of the duty to
preserve the rule of law does not suffice to clothe it with standing.86
As regards a local government unit (LGU), it can seek relief in order
to protect or vindicate an interest of its own, and of the other
LGUs.87
CONSTI LAW II I ACJUCO 384
Intervenors, meanwhile, may be given legal standing upon showing
of facts that satisfy the requirements of the law authorizing
intervention,88 such as a legal interest in the matter in litigation, or
in the success of either of the parties.
In any case, the Court has discretion to relax the procedural
technicality on locus standi, given the liberal attitude it has
exercised, highlighted in the case of David v. Macapagal-Arroyo,89
where technicalities of procedure were brushed aside, the
constitutional issues raised being of paramount public interest or of
transcendental importance deserving the attention of the Court in
view of their seriousness, novelty and weight as precedents.90 The
Court's forbearing stance on locus standi on issues involving
constitutional issues has for its purpose the protection of
fundamental rights.
In not a few cases, the Court, in keeping with its duty under the
Constitution to determine whether the other branches of
government have kept themselves within the limits of the
Constitution and the laws and have not abused the discretion given
them, has brushed aside technical rules of procedure.91
In the petitions at bar, petitioners Province of North Cotabato (G.R.
No. 183591) Province of Zamboanga del Norte (G.R. No. 183951),
City of Iligan (G.R. No. 183893) and City of Zamboanga (G.R. No.
183752) and petitioners-in-intervention Province of Sultan Kudarat,
City of Isabela and Municipality of Linamon have locus standi in view
of the direct and substantial injury that they, as LGUs, would suffer
as their territories, whether in whole or in part, are to be included in
the intended domain of the BJE. These petitioners allege that they
did not vote for their inclusion in the ARMM which would be
expanded to form the BJE territory. Petitioners' legal standing is thus
beyond doubt.
In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and
Aquilino Pimentel III would have no standing as citizens and
taxpayers for their failure to specify that they would be denied some
right or privilege or there would be wastage of public funds. The fact
that they are a former Senator, an incumbent mayor of Makati City,
and a resident of Cagayan de Oro, respectively, is of no
consequence. Considering their invocation of the transcendental
importance of the issues at hand, however, the Court grants them
standing.
Intervenors Franklin Drilon and Adel Tamano, in alleging their
standing as taxpayers, assert that government funds would be
expended for the conduct of an illegal and unconstitutional plebiscite
to delineate the BJE territory. On that score alone, they can be given
legal standing. Their allegation that the issues involved in these
petitions are of "undeniable transcendental importance" clothes
them with added basis for their personality to intervene in these
petitions.
With regard to Senator Manuel Roxas, his standing is premised on
his being a member of the Senate and a citizen to enforce
compliance by respondents of the public's constitutional right to be
informed of the MOA-AD, as well as on a genuine legal interest in
the matter in litigation, or in the success or failure of either of the
parties. He thus possesses the requisite standing as an intervenor.
With respect to Intervenors Ruy Elias Lopez, as a former
congressman of the 3rd district of Davao City, a taxpayer and a
member of the Bagobo tribe; Carlo B. Gomez, et al., as members of
the IBP Palawan chapter, citizens and taxpayers; Marino Ridao, as
taxpayer, resident and member of the Sangguniang Panlungsod of
Cotabato City; and Kisin Buxani, as taxpayer, they failed to allege
any proper legal interest in the present petitions. Just the same, the
Court exercises its discretion to relax the procedural technicality on
locus standi given the paramount public interest in the issues at
hand.

Intervening respondents Muslim Multi-Sectoral Movement for
Peace and Development, an advocacy group for justice and the
attainment of peace and prosperity in Muslim Mindanao; and Muslim
Legal Assistance Foundation Inc., a non-government organization
of Muslim lawyers, allege that they stand to be benefited or
prejudiced, as the case may be, in the resolution of the petitions
concerning the MOA-AD, and prays for the denial of the petitions on
the grounds therein stated. Such legal interest suffices to clothe
them with standing.
B. MOOTNESS
Respondents insist that the present petitions have been rendered
moot with the satisfaction of all the reliefs prayed for by petitioners
and the subsequent pronouncement of the Executive Secretary that
"[n]o matter what the Supreme Court ultimately decides[,] the
government will not sign the MOA."92
In lending credence to this policy decision, the Solicitor General
points out that the President had already disbanded the GRP Peace
Panel.93
In David v. Macapagal-Arroyo,94 this Court held that the "moot and
academic" principle not being a magical formula that automatically
dissuades courts in resolving a case, it will decide cases, otherwise
moot and academic, if it finds that (a) there is a grave violation of
the Constitution;95 (b) the situation is of exceptional character and
paramount public interest is involved;96 (c) the constitutional issue
raised requires formulation of controlling principles to guide the
bench, the bar, and the public;97 and (d) the case is capable of
repetition yet evading review.98
Another exclusionary circumstance that may be considered is where
there is a voluntary cessation of the activity complained of by the
defendant or doer. Thus, once a suit is filed and the doer voluntarily
ceases the challenged conduct, it does not automatically deprive the
tribunal of power to hear and determine the case and does not
render the case moot especially when the plaintiff seeks damages
or prays for injunctive relief against the possible recurrence of the
violation.99
The present petitions fall squarely into these exceptions to thus
thrust them into the domain of judicial review. The grounds cited
above in David are just as applicable in the present cases as they
were, not only in David, but also in Province of Batangas v.
Romulo100 and Manalo v. Calderon101 where the Court similarly
decided them on the merits, supervening events that would
ordinarily have rendered the same moot notwithstanding.
Petitions not mooted
Contrary then to the asseverations of respondents, the non-signing
of the MOA-AD and the eventual dissolution of the GRP Peace
Panel did not moot the present petitions. It bears emphasis that the
signing of the MOA-AD did not push through due to the Court's
issuance of a Temporary Restraining Order.
Contrary too to respondents' position, the MOA-AD cannot be
considered a mere "list of consensus points," especially given its
nomenclature, the need to have it signed or initialed by all the parties
concerned on August 5, 2008, and the far-reaching Constitutional
implications of these "consensus points," foremost of which is the
creation of the BJE.
In fact, as what will, in the main, be discussed, there is a
commitment on the part of respondents to amend and effect
necessary changes to the existing legal framework for certain
provisions of the MOA-AD to take effect. Consequently, the present
petitions are not confined to the terms and provisions of the MOA-
AD, but to other on-going and future negotiations and agreements
necessary for its realization. The petitions have not, therefore, been
CONSTI LAW II I ACJUCO 385
rendered moot and academic simply by the public disclosure of the
MOA-AD,102 the manifestation that it will not be signed as well as
the disbanding of the GRP Panel not withstanding.
Petitions are imbued with paramount public interest
There is no gainsaying that the petitions are imbued with paramount
public interest, involving a significant part of the country's territory
and the wide-ranging political modifications of affected LGUs. The
assertion that the MOA-AD is subject to further legal enactments
including possible Constitutional amendments more than ever
provides impetus for the Court to formulate controlling principles to
guide the bench, the bar, the public and, in this case, the
government and its negotiating entity.
Respondents cite Suplico v. NEDA, et al.103 where the Court did
not "pontificat[e] on issues which no longer legitimately constitute
an actual case or controversy [as this] will do more harm than good
to the nation as a whole."
The present petitions must be differentiated from Suplico. Primarily,
in Suplico, what was assailed and eventually cancelled was a stand-
alone government procurement contract for a national broadband
network involving a one-time contractual relation between two
parties-the government and a private foreign corporation. As the
issues therein involved specific government procurement policies
and standard principles on contracts, the majority opinion in Suplico
found nothing exceptional therein, the factual circumstances being
peculiar only to the transactions and parties involved in the
controversy.
The MOA-AD is part of a series of agreements
In the present controversy, the MOA-AD is a significant part of a
series of agreements necessary to carry out the Tripoli Agreement
2001. The MOA-AD which dwells on the Ancestral Domain Aspect
of said Tripoli Agreement is the third such component to be
undertaken following the implementation of the Security Aspect in
August 2001 and the Humanitarian, Rehabilitation and
Development Aspect in May 2002.
Accordingly, even if the Executive Secretary, in his Memorandum of
August 28, 2008 to the Solicitor General, has stated that "no matter
what the Supreme Court ultimately decides[,] the government will
not sign the MOA[-AD]," mootness will not set in in light of the terms
of the Tripoli Agreement 2001.
Need to formulate principles-guidelines
Surely, the present MOA-AD can be renegotiated or another one will
be drawn up to carry out the Ancestral Domain Aspect of the Tripoli
Agreement 2001, in another or in any form, which could contain
similar or significantly drastic provisions. While the Court notes the
word of the Executive Secretary that the government "is committed
to securing an agreement that is both constitutional and equitable
because that is the only way that long-lasting peace can be
assured," it is minded to render a decision on the merits in the
present petitions to formulate controlling principles to guide the
bench, the bar, the public and, most especially, the government in
negotiating with the MILF regarding Ancestral Domain.
Respondents invite the Court's attention to the separate opinion of
then Chief Justice Artemio Panganiban in Sanlakas v. Reyes104 in
which he stated that the doctrine of "capable of repetition yet
evading review" can override mootness, "provided the party raising
it in a proper case has been and/or continue to be prejudiced or
damaged as a direct result of their issuance." They contend that the
Court must have jurisdiction over the subject matter for the doctrine
to be invoked.

The present petitions all contain prayers for Prohibition over which
this Court exercises original jurisdiction. While G.R. No. 183893
(City of Iligan v. GRP) is a petition for Injunction and Declaratory
Relief, the Court will treat it as one for Prohibition as it has far
reaching implications and raises questions that need to be
resolved.105 At all events, the Court has jurisdiction over most if not
the rest of the petitions.
Indeed, the present petitions afford a proper venue for the Court to
again apply the doctrine immediately referred to as what it had done
in a number of landmark cases.106 There is a reasonable
expectation that petitioners, particularly the Provinces of North
Cotabato, Zamboanga del Norte and Sultan Kudarat, the Cities of
Zamboanga, Iligan and Isabela, and the Municipality of Linamon,
will again be subjected to the same problem in the future as
respondents' actions are capable of repetition, in another or any
form.
It is with respect to the prayers for Mandamus that the petitions have
become moot, respondents having, by Compliance of August 7,
2008, provided this Court and petitioners with official copies of the
final draft of the MOA-AD and its annexes. Too, intervenors have
been furnished, or have procured for themselves, copies of the
MOA-AD.
V. SUBSTANTIVE ISSUES
As culled from the Petitions and Petitions-in-Intervention, there are
basically two SUBSTANTIVE issues to be resolved, one relating to
the manner in which the MOA-AD was negotiated and finalized, the
other relating to its provisions, viz:
1. Did respondents violate constitutional and statutory provisions on
public consultation and the right to information when they negotiated
and later initialed the MOA-AD?
2. Do the contents of the MOA-AD violate the Constitution and the
laws?
ON THE FIRST SUBSTANTIVE ISSUE
Petitioners invoke their constitutional right to information on matters
of public concern, as provided in Section 7, Article III on the Bill of
Rights:
Sec. 7. The right of the people to information on matters of public
concern shall be recognized. Access to official records, and to
documents, and papers pertaining to official acts, transactions, or
decisions, as well as to government research data used as basis for
policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law.107
As early as 1948, in Subido v. Ozaeta,108 the Court has recognized
the statutory right to examine and inspect public records, a right
which was eventually accorded constitutional status.
The right of access to public documents, as enshrined in both the
1973 Constitution and the 1987 Constitution, has been recognized
as a self-executory constitutional right.109
In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the Court
ruled that access to public records is predicated on the right of the
people to acquire information on matters of public concern since,
undoubtedly, in a democracy, the pubic has a legitimate interest in
matters of social and political significance.
x x x The incorporation of this right in the Constitution is a
recognition of the fundamental role of free exchange of information
in a democracy. There can be no realistic perception by the public
of the nation's problems, nor a meaningful democratic decision-
making if they are denied access to information of general interest.
CONSTI LAW II I ACJUCO 386
Information is needed to enable the members of society to cope with
the exigencies of the times. As has been aptly observed:
"Maintaining the flow of such information depends on protection for
both its acquisition and its dissemination since, if either process is
interrupted, the flow inevitably ceases." x x x111
In the same way that free discussion enables members of society to
cope with the exigencies of their time, access to information of
general interest aids the people in democratic decision-making by
giving them a better perspective of the vital issues confronting the
nation112 so that they may be able to criticize and participate in the
affairs of the government in a responsible, reasonable and effective
manner. It is by ensuring an unfettered and uninhibited exchange of
ideas among a well-informed public that a government remains
responsive to the changes desired by the people.113
The MOA-AD is a matter of public concern
That the subject of the information sought in the present cases is a
matter of public concern114 faces no serious challenge. In fact,
respondents admit that the MOA-AD is indeed of public concern.115
In previous cases, the Court found that the regularity of real estate
transactions entered in the Register of Deeds,116 the need for
adequate notice to the public of the various laws,117 the civil service
eligibility of a public employee,118 the proper management of GSIS
funds allegedly used to grant loans to public officials,119 the
recovery of the Marcoses' alleged ill-gotten wealth,120 and the
identity of party-list nominees,121 among others, are matters of
public concern. Undoubtedly, the MOA-AD subject of the present
cases is of public concern, involving as it does the sovereignty and
territorial integrity of the State, which directly affects the lives of the
public at large.
Matters of public concern covered by the right to information include
steps and negotiations leading to the consummation of the contract.
In not distinguishing as to the executory nature or commercial
character of agreements, the Court has categorically ruled:
x x x [T]he right to information "contemplates inclusion of
negotiations leading to the consummation of the transaction."
Certainly, a consummated contract is not a requirement for the
exercise of the right to information. Otherwise, the people can never
exercise the right if no contract is consummated, and if one is
consummated, it may be too late for the public to expose its defects.
Requiring a consummated contract will keep the public in the dark
until the contract, which may be grossly disadvantageous to the
government or even illegal, becomes fait accompli. This negates the
State policy of full transparency on matters of public concern, a
situation which the framers of the Constitution could not have
intended. Such a requirement will prevent the citizenry from
participating in the public discussion of any proposed contract,
effectively truncating a basic right enshrined in the Bill of Rights. We
can allow neither an emasculation of a constitutional right, nor a
retreat by the State of its avowed "policy of full disclosure of all its
transactions involving public interest."122 (Emphasis and italics in
the original)
Intended as a "splendid symmetry"123 to the right to information
under the Bill of Rights is the policy of public disclosure under
Section 28, Article II of the Constitution reading:
Sec. 28. Subject to reasonable conditions prescribed by law, the
State adopts and implements a policy of full public disclosure of all
its transactions involving public interest.124
The policy of full public disclosure enunciated in above-quoted
Section 28 complements the right of access to information on
matters of public concern found in the Bill of Rights. The right to
information guarantees the right of the people to demand

information, while Section 28 recognizes the duty of officialdom to
give information even if nobody demands.125
The policy of public disclosure establishes a concrete ethical
principle for the conduct of public affairs in a genuinely open
democracy, with the people's right to know as the centerpiece. It is
a mandate of the State to be accountable by following such
policy.126 These provisions are vital to the exercise of the freedom
of expression and essential to hold public officials at all times
accountable to the people.127
Whether Section 28 is self-executory, the records of the
deliberations of the Constitutional Commission so disclose:
MR. SUAREZ. And since this is not self-executory, this policy will
not be enunciated or will not be in force and effect until after
Congress shall have provided it.
MR. OPLE. I expect it to influence the climate of public ethics
immediately but, of course, the implementing law will have to be
enacted by Congress, Mr. Presiding Officer.128
The following discourse, after Commissioner Hilario Davide, Jr.,
sought clarification on the issue, is enlightening.
MR. DAVIDE. I would like to get some clarifications on this. Mr.
Presiding Officer, did I get the Gentleman correctly as having said
that this is not a self-executing provision? It would require a
legislation by Congress to implement?
MR. OPLE. Yes. Originally, it was going to be self-executing, but I
accepted an amendment from Commissioner Regalado, so that the
safeguards on national interest are modified by the clause "as may
be provided by law"
MR. DAVIDE. But as worded, does it not mean that this will
immediately take effect and Congress may provide for reasonable
safeguards on the sole ground national interest?
MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that
it should immediately influence the climate of the conduct of public
affairs but, of course, Congress here may no longer pass a law
revoking it, or if this is approved, revoking this principle, which is
inconsistent with this policy.129 (Emphasis supplied)
Indubitably, the effectivity of the policy of public disclosure need not
await the passing of a statute. As Congress cannot revoke this
principle, it is merely directed to provide for "reasonable
safeguards." The complete and effective exercise of the right to
information necessitates that its complementary provision on public
disclosure derive the same self-executory nature. Since both
provisions go hand-in-hand, it is absurd to say that the broader130
right to information on matters of public concern is already
enforceable while the correlative duty of the State to disclose its
transactions involving public interest is not enforceable until there is
an enabling law. Respondents cannot thus point to the absence of
an implementing legislation as an excuse in not effecting such
policy.
An essential element of these freedoms is to keep open a continuing
dialogue or process of communication between the government and
the people. It is in the interest of the State that the channels for free
political discussion be maintained to the end that the government
may perceive and be responsive to the people's will.131 Envisioned
to be corollary to the twin rights to information and disclosure is the
design for feedback mechanisms.
MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will
the people be able to participate? Will the government provide
feedback mechanisms so that the people can participate and can
react where the existing media facilities are not able to provide full
CONSTI LAW II I ACJUCO 387
feedback mechanisms to the government? I suppose this will be
part of the government implementing operational mechanisms.
MR. OPLE. Yes. I think through their elected representatives and
that is how these courses take place. There is a message and a
feedback, both ways.
xxxx
MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one
last sentence?
I think when we talk about the feedback network, we are not talking
about public officials but also network of private business o[r]
community-based organizations that will be reacting. As a matter of
fact, we will put more credence or credibility on the private network
of volunteers and voluntary community-based organizations. So I do
not think we are afraid that there will be another OMA in the
making.132 (Emphasis supplied)
The imperative of a public consultation, as a species of the right to
information, is evident in the "marching orders" to respondents. The
mechanics for the duty to disclose information and to conduct public
consultation regarding the peace agenda and process is manifestly
provided by E.O. No. 3.133 The preambulatory clause of E.O. No.
3 declares that there is a need to further enhance the contribution
of civil society to the comprehensive peace process by
institutionalizing the people's participation.
One of the three underlying principles of the comprehensive peace
process is that it "should be community-based, reflecting the
sentiments, values and principles important to all Filipinos" and
"shall be defined not by the government alone, nor by the different
contending groups only, but by all Filipinos as one community."134
Included as a component of the comprehensive peace process is
consensus-building and empowerment for peace, which includes
"continuing consultations on both national and local levels to build
consensus for a peace agenda and process, and the mobilization
and facilitation of people's participation in the peace process."135
Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite
to effectuate "continuing" consultations, contrary to respondents'
position that plebiscite is "more than sufficient consultation."136
Further, E.O. No. 3 enumerates the functions and responsibilities of
the PAPP, one of which is to "[c]onduct regular dialogues with the
National Peace Forum (NPF) and other peace partners to seek
relevant information, comments, recommendations as well as to
render appropriate and timely reports on the progress of the
comprehensive peace process."137 E.O. No. 3 mandates the
establishment of the NPF to be "the principal forum for the PAPP to
consult with and seek advi[c]e from the peace advocates, peace
partners and concerned sectors of society on both national and local
levels, on the implementation of the comprehensive peace process,
as well as for government[-]civil society dialogue and consensus-
building on peace agenda and initiatives."138
In fine, E.O. No. 3 establishes petitioners' right to be consulted on
the peace agenda, as a corollary to the constitutional right to
information and disclosure.
PAPP Esperon committed grave abuse of discretion
The PAPP committed grave abuse of discretion when he failed to
carry out the pertinent consultation. The furtive process by which the
MOA-AD was designed and crafted runs contrary to and in excess
of the legal authority, and amounts to a whimsical, capricious,
oppressive, arbitrary and despotic exercise thereof.
The Court may not, of course, require the PAPP to conduct the
consultation in a particular way or manner. It may, however, require

him to comply with the law and discharge the functions within the
authority granted by the President.139
Petitioners are not claiming a seat at the negotiating table, contrary
to respondents' retort in justifying the denial of petitioners' right to
be consulted. Respondents' stance manifests the manner by which
they treat the salient provisions of E.O. No. 3 on people's
participation. Such disregard of the express mandate of the
President is not much different from superficial conduct toward
token provisos that border on classic lip service.140 It illustrates a
gross evasion of positive duty and a virtual refusal to perform the
duty enjoined.
As for respondents' invocation of the doctrine of executive privilege,
it is not tenable under the premises. The argument defies sound
reason when contrasted with E.O. No. 3's explicit provisions on
continuing consultation and dialogue on both national and local
levels. The executive order even recognizes the exercise of the
public's right even before the GRP makes its official
recommendations or before the government proffers its definite
propositions.141 It bear emphasis that E.O. No. 3 seeks to elicit
relevant advice, information, comments and recommendations from
the people through dialogue.
AT ALL EVENTS, respondents effectively waived the defense of
executive privilege in view of their unqualified disclosure of the
official copies of the final draft of the MOA-AD. By unconditionally
complying with the Court's August 4, 2008 Resolution, without a
prayer for the document's disclosure in camera, or without a
manifestation that it was complying therewith ex abundante ad
cautelam.
Petitioners' assertion that the Local Government Code (LGC) of
1991 declares it a State policy to "require all national agencies and
offices to conduct periodic consultations with appropriate local
government units, non-governmental and people's organizations,
and other concerned sectors of the community before any project or
program is implemented in their respective jurisdictions"142 is well-
taken. The LGC chapter on intergovernmental relations puts flesh
into this avowed policy:
Prior Consultations Required. - No project or program shall be
implemented by government authorities unless the consultations
mentioned in Sections 2 (c) and 26 hereof are complied with, and
prior approval of the sanggunian concerned is obtained: Provided,
That occupants in areas where such projects are to be implemented
shall not be evicted unless appropriate relocation sites have been
provided, in accordance with the provisions of the Constitution.143
(Italics and underscoring supplied)
In Lina, Jr. v. Hon. Paño,144 the Court held that the above-stated
policy and above-quoted provision of the LGU apply only to national
programs or projects which are to be implemented in a particular
local community. Among the programs and projects covered are
those that are critical to the environment and human ecology
including those that may call for the eviction of a particular group of
people residing in the locality where these will be implemented.145
The MOA-AD is one peculiar program that unequivocally and
unilaterally vests ownership of a vast territory to the Bangsamoro
people,146 which could pervasively and drastically result to the
diaspora or displacement of a great number of inhabitants from their
total environment.
With respect to the indigenous cultural communities/indigenous
peoples (ICCs/IPs), whose interests are represented herein by
petitioner Lopez and are adversely affected by the MOA-AD, the
ICCs/IPs have, under the IPRA, the right to participate fully at all
levels of decision-making in matters which may affect their rights,
lives and destinies.147 The MOA-AD, an instrument recognizing
ancestral domain, failed to justify its non-compliance with the clear-
cut mechanisms ordained in said Act,148 which entails, among
CONSTI LAW II I ACJUCO 388
other things, the observance of the free and prior informed consent
of the ICCs/IPs.
Notably, the IPRA does not grant the Executive Department or any
government agency the power to delineate and recognize an
ancestral domain claim by mere agreement or compromise. The
recognition of the ancestral domain is the raison d'etre of the MOA-
AD, without which all other stipulations or "consensus points"
necessarily must fail. In proceeding to make a sweeping declaration
on ancestral domain, without complying with the IPRA, which is
cited as one of the TOR of the MOA-AD, respondents clearly
transcended the boundaries of their authority. As it seems, even the
heart of the MOA-AD is still subject to necessary changes to the
legal framework. While paragraph 7 on Governance suspends the
effectivity of all provisions requiring changes to the legal framework,
such clause is itself invalid, as will be discussed in the following
section.
Indeed, ours is an open society, with all the acts of the government
subject to public scrutiny and available always to public cognizance.
This has to be so if the country is to remain democratic, with
sovereignty residing in the people and all government authority
emanating from them.149
ON THE SECOND SUBSTANTIVE ISSUE
With regard to the provisions of the MOA-AD, there can be no
question that they cannot all be accommodated under the present
Constitution and laws. Respondents have admitted as much in the
oral arguments before this Court, and the MOA-AD itself recognizes
the need to amend the existing legal framework to render effective
at least some of its provisions. Respondents, nonetheless, counter
that the MOA-AD is free of any legal infirmity because any
provisions therein which are inconsistent with the present legal
framework will not be effective until the necessary changes to that
framework are made. The validity of this argument will be
considered later. For now, the Court shall pass upon how
The MOA-AD is inconsistent with the Constitution and laws as
presently worded.
In general, the objections against the MOA-AD center on the extent
of the powers conceded therein to the BJE. Petitioners assert that
the powers granted to the BJE exceed those granted to any local
government under present laws, and even go beyond those of the
present ARMM. Before assessing some of the specific powers that
would have been vested in the BJE, however, it would be useful to
turn first to a general idea that serves as a unifying link to the
different provisions of the MOA-AD, namely, the international law
concept of association. Significantly, the MOA-AD explicitly alludes
to this concept, indicating that the Parties actually framed its
provisions with it in mind.
Association is referred to in paragraph 3 on TERRITORY,
paragraph 11 on RESOURCES, and paragraph 4 on
GOVERNANCE. It is in the last mentioned provision, however, that
the MOA-AD most clearly uses it to describe the envisioned
relationship between the BJE and the Central Government.
4. The relationship between the Central Government and the
Bangsamoro juridical entity shall be associative characterized by
shared authority and responsibility with a structure of governance
based on executive, legislative, judicial and administrative
institutions with defined powers and functions in the comprehensive
compact. A period of transition shall be established in a
comprehensive peace compact specifying the relationship between
the Central Government and the BJE. (Emphasis and underscoring
supplied)
The nature of the "associative" relationship may have been intended
to be defined more precisely in the still to be forged Comprehensive

Compact. Nonetheless, given that there is a concept of
"association" in international law, and the MOA-AD - by its inclusion
of international law instruments in its TOR- placed itself in an
international legal context, that concept of association may be
brought to bear in understanding the use of the term "associative"
in the MOA-AD.
Keitner and Reisman state that
[a]n association is formed when two states of unequal power
voluntarily establish durable links. In the basic model, one state, the
associate, delegates certain responsibilities to the other, the
principal, while maintaining its international status as a state. Free
associations represent a middle ground between integration and
independence. x x x150 (Emphasis and underscoring supplied)
For purposes of illustration, the Republic of the Marshall Islands and
the Federated States of Micronesia (FSM), formerly part of the U.S.-
administered Trust Territory of the Pacific Islands,151 are
associated states of the U.S. pursuant to a Compact of Free
Association. The currency in these countries is the U.S. dollar,
indicating their very close ties with the U.S., yet they issue their own
travel documents, which is a mark of their statehood. Their
international legal status as states was confirmed by the UN
Security Council and by their admission to UN membership.
According to their compacts of free association, the Marshall Islands
and the FSM generally have the capacity to conduct foreign affairs
in their own name and right, such capacity extending to matters such
as the law of the sea, marine resources, trade, banking, postal, civil
aviation, and cultural relations. The U.S. government, when
conducting its foreign affairs, is obligated to consult with the
governments of the Marshall Islands or the FSM on matters which it
(U.S. government) regards as relating to or affecting either
government.
In the event of attacks or threats against the Marshall Islands or the
FSM, the U.S. government has the authority and obligation to
defend them as if they were part of U.S. territory. The U.S.
government, moreover, has the option of establishing and using
military areas and facilities within these associated states and has
the right to bar the military personnel of any third country from
having access to these territories for military purposes.
It bears noting that in U.S. constitutional and international practice,
free association is understood as an international association
between sovereigns. The Compact of Free Association is a treaty
which is subordinate to the associated nation's national constitution,
and each party may terminate the association consistent with the
right of independence. It has been said that, with the admission of
the U.S.-associated states to the UN in 1990, the UN recognized
that the American model of free association is actually based on an
underlying status of independence.152
In international practice, the "associated state" arrangement has
usually been used as a transitional device of former colonies on their
way to full independence. Examples of states that have passed
through the status of associated states as a transitional phase are
Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent
and Grenada. All have since become independent states.153
Back to the MOA-AD, it contains many provisions which are
consistent with the international legal concept of association,
specifically the following: the BJE's capacity to enter into economic
and trade relations with foreign countries, the commitment of the
Central Government to ensure the BJE's participation in meetings
and events in the ASEAN and the specialized UN agencies, and the
continuing responsibility of the Central Government over external
defense. Moreover, the BJE's right to participate in Philippine official
missions bearing on negotiation of border agreements,
environmental protection, and sharing of revenues pertaining to the
CONSTI LAW II I ACJUCO 389
bodies of water adjacent to or between the islands forming part of
the ancestral domain, resembles the right of the governments of
FSM and the Marshall Islands to be consulted by the U.S.
government on any foreign affairs matter affecting them.
These provisions of the MOA indicate, among other things, that the
Parties aimed to vest in the BJE the status of an associated state
or, at any rate, a status closely approximating it.
The concept of association is not recognized under the present
Constitution
No province, city, or municipality, not even the ARMM, is recognized
under our laws as having an "associative" relationship with the
national government. Indeed, the concept implies powers that go
beyond anything ever granted by the Constitution to any local or
regional government. It also implies the recognition of the
associated entity as a state. The Constitution, however, does not
contemplate any state in this jurisdiction other than the Philippine
State, much less does it provide for a transitory status that aims to
prepare any part of Philippine territory for independence.
Even the mere concept animating many of the MOA-AD's
provisions, therefore, already requires for its validity the amendment
of constitutional provisions, specifically the following provisions of
Article X:
SECTION 1. The territorial and political subdivisions of the Republic
of the Philippines are the provinces, cities, municipalities, and
barangays. There shall be autonomous regions in Muslim Mindanao
and the Cordilleras as hereinafter provided.
SECTION 15. There shall be created autonomous regions in Muslim
Mindanao and in the Cordilleras consisting of provinces, cities,
municipalities, and geographical areas sharing common and
distinctive historical and cultural heritage, economic and social
structures, and other relevant characteristics within the framework
of this Constitution and the national sovereignty as well as territorial
integrity of the Republic of the Philippines.
The BJE is a far more powerful
entity than the autonomous region
recognized in the Constitution
It is not merely an expanded version of the ARMM, the status of its
relationship with the national government being fundamentally
different from that of the ARMM. Indeed, BJE is a state in all but
name as it meets the criteria of a state laid down in the Montevideo
Convention,154 namely, a permanent population, a defined
territory, a government, and a capacity to enter into relations with
other states.
Even assuming arguendo that the MOA-AD would not necessarily
sever any portion of Philippine territory, the spirit animating it - which
has betrayed itself by its use of the concept of association - runs
counter to the national sovereignty and territorial integrity of the
Republic.
The defining concept underlying the relationship between the
national government and the BJE being itself contrary to the present
Constitution, it is not surprising that many of the specific provisions
of the MOA-AD on the formation and powers of the BJE are in
conflict with the Constitution and the laws.
Article X, Section 18 of the Constitution provides that "[t]he creation
of the autonomous region shall be effective when approved by a
majority of the votes cast by the constituent units in a plebiscite
called for the purpose, provided that only provinces, cities, and
geographic areas voting favorably in such plebiscite shall be
included in the autonomous region." (Emphasis supplied)

As reflected above, the BJE is more of a state than an autonomous
region. But even assuming that it is covered by the term
"autonomous region" in the constitutional provision just quoted, the
MOA-AD would still be in conflict with it. Under paragraph 2(c) on
TERRITORY in relation to 2(d) and 2(e), the present geographic
area of the ARMM and, in addition, the municipalities of Lanao del
Norte which voted for inclusion in the ARMM during the 2001
plebiscite - Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal
- are automatically part of the BJE without need of another
plebiscite, in contrast to the areas under Categories A and B
mentioned earlier in the overview. That the present components of
the ARMM and the above-mentioned municipalities voted for
inclusion therein in 2001, however, does not render another
plebiscite unnecessary under the Constitution, precisely because
what these areas voted for then was their inclusion in the ARMM,
not the BJE.
The MOA-AD, moreover, would not
comply with Article X, Section 20 of
the Constitution
since that provision defines the powers of autonomous regions as
follows:
SECTION 20. Within its territorial jurisdiction and subject to the
provisions of this Constitution and national laws, the organic act of
autonomous regions shall provide for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the
promotion of the general welfare of the people of the region.
(Underscoring supplied)
Again on the premise that the BJE may be regarded as an
autonomous region, the MOA-AD would require an amendment that
would expand the above-quoted provision. The mere passage of
new legislation pursuant to sub-paragraph No. 9 of said
constitutional provision would not suffice, since any new law that
might vest in the BJE the powers found in the MOA-AD must, itself,
comply with other provisions of the Constitution. It would not do, for
instance, to merely pass legislation vesting the BJE with treaty-
making power in order to accommodate paragraph 4 of the strand
on RESOURCES which states: "The BJE is free to enter into any
economic cooperation and trade relations with foreign countries:
provided, however, that such relationships and understandings do
not include aggression against the Government of the Republic of
the Philippines x x x." Under our constitutional system, it is only the
President who has that power. Pimentel v. Executive Secretary155
instructs:
In our system of government, the President, being the head of state,
is regarded as the sole organ and authority in external relations and
is the country's sole representative with foreign nations. As the chief
architect of foreign policy, the President acts as the country's
mouthpiece with respect to international affairs. Hence, the
President is vested with the authority to deal with foreign states and
CONSTI LAW II I ACJUCO 390
governments, extend or withhold recognition, maintain diplomatic
relations, enter into treaties, and otherwise transact the business of
foreign relations. In the realm of treaty-making, the President has
the sole authority to negotiate with other states. (Emphasis and
underscoring supplied)
Article II, Section 22 of the Constitution must also be amended if the
scheme envisioned in the MOA-AD is to be effected. That
constitutional provision states: "The State recognizes and promotes
the rights of indigenous cultural communities within the framework
of national unity and development." (Underscoring supplied) An
associative arrangement does not uphold national unity. While there
may be a semblance of unity because of the associative ties
between the BJE and the national government, the act of placing a
portion of Philippine territory in a status which, in international
practice, has generally been a preparation for independence, is
certainly not conducive to national unity.
Besides being irreconcilable with the Constitution, the MOA-AD is
also inconsistent with prevailing statutory law, among which are
R.A. No. 9054156 or the Organic Act of the ARMM, and the
IPRA.157
Article X, Section 3 of the Organic Act of the ARMM is a bar to the
adoption of the definition of "Bangsamoro people" used in the MOA-
AD. Paragraph 1 on Concepts and Principles states:
1. It is the birthright of all Moros and all Indigenous peoples of
Mindanao to identify themselves and be accepted as
"Bangsamoros". The Bangsamoro people refers to those who are
natives or original inhabitants of Mindanao and its adjacent islands
including Palawan and the Sulu archipelago at the time of conquest
or colonization of its descendants whether mixed or of full blood.
Spouses and their descendants are classified as Bangsamoro. The
freedom of choice of the Indigenous people shall be respected.
(Emphasis and underscoring supplied)
This use of the term Bangsamoro sharply contrasts with that found
in the Article X, Section 3 of the Organic Act, which, rather than
lumping together the identities of the Bangsamoro and other
indigenous peoples living in Mindanao, clearly distinguishes
between Bangsamoro people and Tribal peoples, as follows:
"As used in this Organic Act, the phrase "indigenous cultural
community" refers to Filipino citizens residing in the autonomous
region who are:
(a) Tribal peoples. These are citizens whose social, cultural and
economic conditions distinguish them from other sectors of the
national community; and
(b) Bangsa Moro people. These are citizens who are believers in
Islam and who have retained some or all of their own social,
economic, cultural, and political institutions."
Respecting the IPRA, it lays down the prevailing procedure for the
delineation and recognition of ancestral domains. The MOA-AD's
manner of delineating the ancestral domain of the Bangsamoro
people is a clear departure from that procedure. By paragraph 1 of
Territory, the Parties simply agree that, subject to the delimitations
in the agreed Schedules, "[t]he Bangsamoro homeland and historic
territory refer to the land mass as well as the maritime, terrestrial,
fluvial and alluvial domains, and the aerial domain, the atmospheric
space above it, embracing the Mindanao-Sulu-Palawan geographic
region."
Chapter VIII of the IPRA, on the other hand, lays down a detailed
procedure, as illustrated in the following provisions thereof:

SECTION 52. Delineation Process. - The identification and
delineation of ancestral domains shall be done in accordance with
the following procedures:
xxxx
b) Petition for Delineation. - The process of delineating a specific
perimeter may be initiated by the NCIP with the consent of the
ICC/IP concerned, or through a Petition for Delineation filed with the
NCIP, by a majority of the members of the ICCs/IPs;
c) Delineation Proper. - The official delineation of ancestral domain
boundaries including census of all community members therein,
shall be immediately undertaken by the Ancestral Domains Office
upon filing of the application by the ICCs/IPs concerned. Delineation
will be done in coordination with the community concerned and shall
at all times include genuine involvement and participation by the
members of the communities concerned;
d) Proof Required. - Proof of Ancestral Domain Claims shall include
the testimony of elders or community under oath, and other
documents directly or indirectly attesting to the possession or
occupation of the area since time immemorial by such ICCs/IPs in
the concept of owners which shall be any one (1) of the following
authentic documents:
1) Written accounts of the ICCs/IPs customs and traditions;
2) Written accounts of the ICCs/IPs political structure and institution;
3) Pictures showing long term occupation such as those of old
improvements, burial grounds, sacred places and old villages;
4) Historical accounts, including pacts and agreements concerning
boundaries entered into by the ICCs/IPs concerned with other
ICCs/IPs;
5) Survey plans and sketch maps;
6) Anthropological data;
7) Genealogical surveys;
8) Pictures and descriptive histories of traditional communal forests
and hunting grounds;
9) Pictures and descriptive histories of traditional landmarks such as
mountains, rivers, creeks, ridges, hills, terraces and the like; and
10) Write-ups of names and places derived from the native dialect
of the community.
e) Preparation of Maps. - On the basis of such investigation and the
findings of fact based thereon, the Ancestral Domains Office of the
NCIP shall prepare a perimeter map, complete with technical
descriptions, and a description of the natural features and
landmarks embraced therein;
f) Report of Investigation and Other Documents. - A complete copy
of the preliminary census and a report of investigation, shall be
prepared by the Ancestral Domains Office of the NCIP;
g) Notice and Publication. - A copy of each document, including a
translation in the native language of the ICCs/IPs concerned shall
be posted in a prominent place therein for at least fifteen (15) days.
A copy of the document shall also be posted at the local, provincial
and regional offices of the NCIP, and shall be published in a
newspaper of general circulation once a week for two (2)
consecutive weeks to allow other claimants to file opposition thereto
within fifteen (15) days from date of such publication: Provided, That
in areas where no such newspaper exists, broadcasting in a radio
CONSTI LAW II I ACJUCO 391
station will be a valid substitute: Provided, further, That mere posting
shall be deemed sufficient if both newspaper and radio station are
not available;
h) Endorsement to NCIP. - Within fifteen (15) days from publication,
and of the inspection process, the Ancestral Domains Office shall
prepare a report to the NCIP endorsing a favorable action upon a
claim that is deemed to have sufficient proof. However, if the proof
is deemed insufficient, the Ancestral Domains Office shall require
the submission of additional evidence: Provided, That the Ancestral
Domains Office shall reject any claim that is deemed patently false
or fraudulent after inspection and verification: Provided, further, That
in case of rejection, the Ancestral Domains Office shall give the
applicant due notice, copy furnished all concerned, containing the
grounds for denial. The denial shall be appealable to the NCIP:
Provided, furthermore, That in cases where there are conflicting
claims among ICCs/IPs on the boundaries of ancestral domain
claims, the Ancestral Domains Office shall cause the contending
parties to meet and assist them in coming up with a preliminary
resolution of the conflict, without prejudice to its full adjudication
according to the section below.
xxxx
To remove all doubts about the irreconcilability of the MOA-AD with
the present legal system, a discussion of not only the Constitution
and domestic statutes, but also of international law is in order, for
Article II, Section 2 of the Constitution states that the Philippines
"adopts the generally accepted principles of international law as part
of the law of the land."
Applying this provision of the Constitution, the Court, in Mejoff v.
Director of Prisons,158 held that the Universal Declaration of
Human Rights is part of the law of the land on account of which it
ordered the release on bail of a detained alien of Russian descent
whose deportation order had not been executed even after two
years. Similarly, the Court in Agustin v. Edu159 applied the
aforesaid constitutional provision to the 1968 Vienna Convention on
Road Signs and Signals.
International law has long recognized the right to self-determination
of "peoples," understood not merely as the entire population of a
State but also a portion thereof. In considering the question of
whether the people of Quebec had a right to unilaterally secede from
Canada, the Canadian Supreme Court in REFERENCE RE
SECESSION OF QUEBEC160 had occasion to acknowledge that
"the right of a people to self-determination is now so widely
recognized in international conventions that the principle has
acquired a status beyond ‘convention' and is considered a general
principle of international law."
Among the conventions referred to are the International Covenant
on Civil and Political Rights161 and the International Covenant on
Economic, Social and Cultural Rights162 which state, in Article 1 of
both covenants, that all peoples, by virtue of the right of self-
determination, "freely determine their political status and freely
pursue their economic, social, and cultural development."
The people's right to self-determination should not, however, be
understood as extending to a unilateral right of secession. A
distinction should be made between the right of internal and external
self-determination. REFERENCE RE SECESSION OF QUEBEC is
again instructive:
"(ii) Scope of the Right to Self-determination
126. The recognized sources of international law establish that the
right to self-determination of a people is normally fulfilled through
internal self-determination - a people's pursuit of its political,
economic, social and cultural development within the framework of

an existing state. A right to external self-determination (which in this
case potentially takes the form of the assertion of a right to unilateral
secession) arises in only the most extreme of cases and, even then,
under carefully defined circumstances. x x x
External self-determination can be defined as in the following
statement from the Declaration on Friendly Relations, supra, as
The establishment of a sovereign and independent State, the free
association or integration with an independent State or the
emergence into any other political status freely determined by a
people constitute modes of implementing the right of self-
determination by that people. (Emphasis added)
127. The international law principle of self-determination has
evolved within a framework of respect for the territorial integrity of
existing states. The various international documents that support
the existence of a people's right to self-determination also contain
parallel statements supportive of the conclusion that the exercise of
such a right must be sufficiently limited to prevent threats to an
existing state's territorial integrity or the stability of relations between
sovereign states.
x x x x (Emphasis, italics and underscoring supplied)
The Canadian Court went on to discuss the exceptional cases in
which the right to external self-determination can arise, namely,
where a people is under colonial rule, is subject to foreign
domination or exploitation outside a colonial context, and - less
definitely but asserted by a number of commentators - is blocked
from the meaningful exercise of its right to internal self-
determination. The Court ultimately held that the population of
Quebec had no right to secession, as the same is not under colonial
rule or foreign domination, nor is it being deprived of the freedom to
make political choices and pursue economic, social and cultural
development, citing that Quebec is equitably represented in
legislative, executive and judicial institutions within Canada, even
occupying prominent positions therein.
The exceptional nature of the right of secession is further
exemplified in the REPORT OF THE INTERNATIONAL
COMMITTEE OF JURISTS ON THE LEGAL ASPECTS OF THE
AALAND ISLANDS QUESTION.163 There, Sweden presented to
the Council of the League of Nations the question of whether the
inhabitants of the Aaland Islands should be authorized to determine
by plebiscite if the archipelago should remain under Finnish
sovereignty or be incorporated in the kingdom of Sweden. The
Council, before resolving the question, appointed an International
Committee composed of three jurists to submit an opinion on the
preliminary issue of whether the dispute should, based on
international law, be entirely left to the domestic jurisdiction of
Finland. The Committee stated the rule as follows:
x x x [I]n the absence of express provisions in international treaties,
the right of disposing of national territory is essentially an attribute
of the sovereignty of every State. Positive International Law does
not recognize the right of national groups, as such, to separate
themselves from the State of which they form part by the simple
expression of a wish, any more than it recognizes the right of other
States to claim such a separation. Generally speaking, the grant or
refusal of the right to a portion of its population of determining its
own political fate by plebiscite or by some other method, is,
exclusively, an attribute of the sovereignty of every State which is
definitively constituted. A dispute between two States concerning
such a question, under normal conditions therefore, bears upon a
question which International Law leaves entirely to the domestic
jurisdiction of one of the States concerned. Any other solution would
amount to an infringement of sovereign rights of a State and would
involve the risk of creating difficulties and a lack of stability which
would not only be contrary to the very idea embodied in term "State,"
but would also endanger the interests of the international
CONSTI LAW II I ACJUCO 392
community. If this right is not possessed by a large or small section
of a nation, neither can it be held by the State to which the national
group wishes to be attached, nor by any other State. (Emphasis and
underscoring supplied)
The Committee held that the dispute concerning the Aaland Islands
did not refer to a question which is left by international law to the
domestic jurisdiction of Finland, thereby applying the exception
rather than the rule elucidated above. Its ground for departing from
the general rule, however, was a very narrow one, namely, the
Aaland Islands agitation originated at a time when Finland was
undergoing drastic political transformation. The internal situation of
Finland was, according to the Committee, so abnormal that, for a
considerable time, the conditions required for the formation of a
sovereign State did not exist. In the midst of revolution, anarchy,
and civil war, the legitimacy of the Finnish national government was
disputed by a large section of the people, and it had, in fact, been
chased from the capital and forcibly prevented from carrying out its
duties. The armed camps and the police were divided into two
opposing forces. In light of these circumstances, Finland was not,
during the relevant time period, a "definitively constituted" sovereign
state. The Committee, therefore, found that Finland did not possess
the right to withhold from a portion of its population the option to
separate itself - a right which sovereign nations generally have with
respect to their own populations.
Turning now to the more specific category of indigenous peoples,
this term has been used, in scholarship as well as international,
regional, and state practices, to refer to groups with distinct cultures,
histories, and connections to land (spiritual and otherwise) that have
been forcibly incorporated into a larger governing society. These
groups are regarded as "indigenous" since they are the living
descendants of pre-invasion inhabitants of lands now dominated by
others. Otherwise stated, indigenous peoples, nations, or
communities are culturally distinctive groups that find themselves
engulfed by settler societies born of the forces of empire and
conquest.164 Examples of groups who have been regarded as
indigenous peoples are the Maori of New Zealand and the aboriginal
peoples of Canada.
As with the broader category of "peoples," indigenous peoples
situated within states do not have a general right to independence
or secession from those states under international law,165 but they
do have rights amounting to what was discussed above as the right
to internal self-determination.
In a historic development last September 13, 2007, the UN General
Assembly adopted the United Nations Declaration on the Rights of
Indigenous Peoples (UN DRIP) through General Assembly
Resolution 61/295. The vote was 143 to 4, the Philippines being
included among those in favor, and the four voting against being
Australia, Canada, New Zealand, and the U.S. The Declaration
clearly recognized the right of indigenous peoples to self-
determination, encompassing the right to autonomy or self-
government, to wit:
Article 3
Indigenous peoples have the right to self-determination. By virtue of
that right they freely determine their political status and freely pursue
their economic, social and cultural development.
Article 4
Indigenous peoples, in exercising their right to self-determination,
have the right to autonomy or self-government in matters relating to
their internal and local affairs, as well as ways and means for
financing their autonomous functions.
Article 5

Indigenous peoples have the right to maintain and strengthen their
distinct political, legal, economic, social and cultural institutions,
while retaining their right to participate fully, if they so choose, in the
political, economic, social and cultural life of the State.
Self-government, as used in international legal discourse pertaining
to indigenous peoples, has been understood as equivalent to
"internal self-determination."166 The extent of self-determination
provided for in the UN DRIP is more particularly defined in its
subsequent articles, some of which are quoted hereunder:
Article 8
1. Indigenous peoples and individuals have the right not to be
subjected to forced assimilation or destruction of their culture.
2. States shall provide effective mechanisms for prevention of, and
redress for:
(a) Any action which has the aim or effect of depriving them of their
integrity as distinct peoples, or of their cultural values or ethnic
identities;
(b) Any action which has the aim or effect of dispossessing them of
their lands, territories or resources;
(c) Any form of forced population transfer which has the aim or effect
of violating or undermining any of their rights;
(d) Any form of forced assimilation or integration;
(e) Any form of propaganda designed to promote or incite racial or
ethnic discrimination directed against them.
Article 21
1. Indigenous peoples have the right, without discrimination, to the
improvement of their economic and social conditions, including,
inter alia, in the areas of education, employment, vocational training
and retraining, housing, sanitation, health and social security.
2. States shall take effective measures and, where appropriate,
special measures to ensure continuing improvement of their
economic and social conditions. Particular attention shall be paid to
the rights and special needs of indigenous elders, women, youth,
children and persons with disabilities.
Article 26
1. Indigenous peoples have the right to the lands, territories and
resources which they have traditionally owned, occupied or
otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and
control the lands, territories and resources that they possess by
reason of traditional ownership or other traditional occupation or
use, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands,
territories and resources. Such recognition shall be conducted with
due respect to the customs, traditions and land tenure systems of
the indigenous peoples concerned.
Article 30
1. Military activities shall not take place in the lands or territories of
indigenous peoples, unless justified by a relevant public interest or
otherwise freely agreed with or requested by the indigenous peoples
concerned.
CONSTI LAW II I ACJUCO 393
2. States shall undertake effective consultations with the indigenous
peoples concerned, through appropriate procedures and in
particular through their representative institutions, prior to using their
lands or territories for military activities.
Article 32
1. Indigenous peoples have the right to determine and develop
priorities and strategies for the development or use of their lands or
territories and other resources.
2. States shall consult and cooperate in good faith with the
indigenous peoples concerned through their own representative
institutions in order to obtain their free and informed consent prior to
the approval of any project affecting their lands or territories and
other resources, particularly in connection with the development,
utilization or exploitation of mineral, water or other resources.
3. States shall provide effective mechanisms for just and fair redress
for any such activities, and appropriate measures shall be taken to
mitigate adverse environmental, economic, social, cultural or
spiritual impact.
Article 37
1. Indigenous peoples have the right to the recognition, observance
and enforcement of treaties, agreements and other constructive
arrangements concluded with States or their successors and to
have States honour and respect such treaties, agreements and
other constructive arrangements.
2. Nothing in this Declaration may be interpreted as diminishing or
eliminating the rights of indigenous peoples contained in treaties,
agreements and other constructive arrangements.
Article 38
States in consultation and cooperation with indigenous peoples,
shall take the appropriate measures, including legislative measures,
to achieve the ends of this Declaration.
Assuming that the UN DRIP, like the Universal Declaration on
Human Rights, must now be regarded as embodying customary
international law - a question which the Court need not definitively
resolve here - the obligations enumerated therein do not strictly
require the Republic to grant the Bangsamoro people, through the
instrumentality of the BJE, the particular rights and powers provided
for in the MOA-AD. Even the more specific provisions of the UN
DRIP are general in scope, allowing for flexibility in its application
by the different States.
There is, for instance, no requirement in the UN DRIP that States
now guarantee indigenous peoples their own police and internal
security force. Indeed, Article 8 presupposes that it is the State
which will provide protection for indigenous peoples against acts like
the forced dispossession of their lands - a function that is normally
performed by police officers. If the protection of a right so essential
to indigenous people's identity is acknowledged to be the
responsibility of the State, then surely the protection of rights less
significant to them as such peoples would also be the duty of States.
Nor is there in the UN DRIP an acknowledgement of the right of
indigenous peoples to the aerial domain and atmospheric space.
What it upholds, in Article 26 thereof, is the right of indigenous
peoples to the lands, territories and resources which they have
traditionally owned, occupied or otherwise used or acquired.
Moreover, the UN DRIP, while upholding the right of indigenous
peoples to autonomy, does not obligate States to grant indigenous
peoples the near-independent status of an associated state. All the
rights recognized in that document are qualified in Article 46 as
follows:

1. Nothing in this Declaration may be interpreted as implying for any
State, people, group or person any right to engage in any activity or
to perform any act contrary to the Charter of the United Nations or
construed as authorizing or encouraging any action which would
dismember or impair, totally or in part, the territorial integrity or
political unity of sovereign and independent States.
Even if the UN DRIP were considered as part of the law of the land
pursuant to Article II, Section 2 of the Constitution, it would not
suffice to uphold the validity of the MOA-AD so as to render its
compliance with other laws unnecessary.
It is, therefore, clear that the MOA-AD contains numerous provisions
that cannot be reconciled with the Constitution and the laws as
presently worded. Respondents proffer, however, that the signing of
the MOA-AD alone would not have entailed any violation of law or
grave abuse of discretion on their part, precisely because it
stipulates that the provisions thereof inconsistent with the laws shall
not take effect until these laws are amended. They cite paragraph 7
of the MOA-AD strand on GOVERNANCE quoted earlier, but which
is reproduced below for convenience:
7. The Parties agree that the mechanisms and modalities for the
actual implementation of this MOA-AD shall be spelt out in the
Comprehensive Compact to mutually take such steps to enable it to
occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing
legal framework shall come into force upon signing of a
Comprehensive Compact and upon effecting the necessary
changes to the legal framework with due regard to non derogation
of prior agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact.
Indeed, the foregoing stipulation keeps many controversial
provisions of the MOA-AD from coming into force until the
necessary changes to the legal framework are effected. While the
word "Constitution" is not mentioned in the provision now under
consideration or anywhere else in the MOA-AD, the term "legal
framework" is certainly broad enough to include the Constitution.
Notwithstanding the suspensive clause, however, respondents, by
their mere act of incorporating in the MOA-AD the provisions thereof
regarding the associative relationship between the BJE and the
Central Government, have already violated the Memorandum of
Instructions From The President dated March 1, 2001, which states
that the "negotiations shall be conducted in accordance with x x x
the principles of the sovereignty and territorial integrity of the
Republic of the Philippines." (Emphasis supplied) Establishing an
associative relationship between the BJE and the Central
Government is, for the reasons already discussed, a preparation for
independence, or worse, an implicit acknowledgment of an
independent status already prevailing.
Even apart from the above-mentioned Memorandum, however, the
MOA-AD is defective because the suspensive clause is invalid, as
discussed below.
The authority of the GRP Peace Negotiating Panel to negotiate with
the MILF is founded on E.O. No. 3, Section 5(c), which states that
there shall be established Government Peace Negotiating Panels
for negotiations with different rebel groups to be "appointed by the
President as her official emissaries to conduct negotiations,
dialogues, and face-to-face discussions with rebel groups." These
negotiating panels are to report to the President, through the PAPP
on the conduct and progress of the negotiations.
It bears noting that the GRP Peace Panel, in exploring lasting
solutions to the Moro Problem through its negotiations with the
MILF, was not restricted by E.O. No. 3 only to those options
CONSTI LAW II I ACJUCO 394
available under the laws as they presently stand. One of the
components of a comprehensive peace process, which E.O. No. 3
collectively refers to as the "Paths to Peace," is the pursuit of social,
economic, and political reforms which may require new legislation
or even constitutional amendments. Sec. 4(a) of E.O. No. 3, which
reiterates Section 3(a), of E.O. No. 125,167 states:
SECTION 4. The Six Paths to Peace. - The components of the
comprehensive peace process comprise the processes known as
the "Paths to Peace". These component processes are interrelated
and not mutually exclusive, and must therefore be pursued
simultaneously in a coordinated and integrated fashion. They shall
include, but may not be limited to, the following:
a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL
REFORMS. This component involves the vigorous implementation
of various policies, reforms, programs and projects aimed at
addressing the root causes of internal armed conflicts and social
unrest. This may require administrative action, new legislation or
even constitutional amendments.
x x x x (Emphasis supplied)
The MOA-AD, therefore, may reasonably be perceived as an
attempt of respondents to address, pursuant to this provision of E.O.
No. 3, the root causes of the armed conflict in Mindanao. The E.O.
authorized them to "think outside the box," so to speak. Hence, they
negotiated and were set on signing the MOA-AD that included
various social, economic, and political reforms which cannot,
however, all be accommodated within the present legal framework,
and which thus would require new legislation and constitutional
amendments.
The inquiry on the legality of the "suspensive clause," however,
cannot stop here, because it must be asked whether the President
herself may exercise the power delegated to the GRP Peace Panel
under E.O. No. 3, Sec. 4(a).
The President cannot delegate a power that she herself does not
possess. May the President, in the course of peace negotiations,
agree to pursue reforms that would require new legislation and
constitutional amendments, or should the reforms be restricted only
to those solutions which the present laws allow? The answer to this
question requires a discussion of the extent of the President's power
to conduct peace negotiations.
That the authority of the President to conduct peace negotiations
with rebel groups is not explicitly mentioned in the Constitution does
not mean that she has no such authority. In Sanlakas v. Executive
Secretary,168 in issue was the authority of the President to declare
a state of rebellion - an authority which is not expressly provided for
in the Constitution. The Court held thus:
"In her ponencia in Marcos v. Manglapus, Justice Cortes put her
thesis into jurisprudence. There, the Court, by a slim 8-7 margin,
upheld the President's power to forbid the return of her exiled
predecessor. The rationale for the majority's ruling rested on the
President's
. . . unstated residual powers which are implied from the grant of
executive power and which are necessary for her to comply with her
duties under the Constitution. The powers of the President are not
limited to what are expressly enumerated in the article on the
Executive Department and in scattered provisions of the
Constitution. This is so, notwithstanding the avowed intent of the
members of the Constitutional Commission of 1986 to limit the
powers of the President as a reaction to the abuses under the
regime of Mr. Marcos, for the result was a limitation of specific
powers of the President, particularly those relating to the
commander-in-chief clause, but not a diminution of the general grant
of executive power.

Thus, the President's authority to declare a state of rebellion springs
in the main from her powers as chief executive and, at the same
time, draws strength from her Commander-in-Chief powers. x x x
(Emphasis and underscoring supplied)
Similarly, the President's power to conduct peace negotiations is
implicitly included in her powers as Chief Executive and
Commander-in-Chief. As Chief Executive, the President has the
general responsibility to promote public peace, and as Commander-
in-Chief, she has the more specific duty to prevent and suppress
rebellion and lawless violence.169
As the experience of nations which have similarly gone through
internal armed conflict will show, however, peace is rarely attained
by simply pursuing a military solution. Oftentimes, changes as far-
reaching as a fundamental reconfiguration of the nation's
constitutional structure is required. The observations of Dr. Kirsti
Samuels are enlightening, to wit:
x x x [T]he fact remains that a successful political and governance
transition must form the core of any post-conflict peace-building
mission. As we have observed in Liberia and Haiti over the last ten
years, conflict cessation without modification of the political
environment, even where state-building is undertaken through
technical electoral assistance and institution- or capacity-building, is
unlikely to succeed. On average, more than 50 percent of states
emerging from conflict return to conflict. Moreover, a substantial
proportion of transitions have resulted in weak or limited
democracies.
The design of a constitution and its constitution-making process can
play an important role in the political and governance transition.
Constitution-making after conflict is an opportunity to create a
common vision of the future of a state and a road map on how to
get there. The constitution can be partly a peace agreement and
partly a framework setting up the rules by which the new democracy
will operate.170
In the same vein, Professor Christine Bell, in her article on the
nature and legal status of peace agreements, observed that the
typical way that peace agreements establish or confirm
mechanisms for demilitarization and demobilization is by linking
them to new constitutional structures addressing governance,
elections, and legal and human rights institutions.171
In the Philippine experience, the link between peace agreements
and constitution-making has been recognized by no less than the
framers of the Constitution. Behind the provisions of the Constitution
on autonomous regions172 is the framers' intention to implement a
particular peace agreement, namely, the Tripoli Agreement of 1976
between the GRP and the MNLF, signed by then Undersecretary of
National Defense Carmelo Z. Barbero and then MNLF Chairman
Nur Misuari.
MR. ROMULO. There are other speakers; so, although I have some
more questions, I will reserve my right to ask them if they are not
covered by the other speakers. I have only two questions.
I heard one of the Commissioners say that local autonomy already
exists in the Muslim region; it is working very well; it has, in fact,
diminished a great deal of the problems. So, my question is: since
that already exists, why do we have to go into something new?
MR. OPLE. May I answer that on behalf of Chairman Nolledo.
Commissioner Yusup Abubakar is right that certain definite steps
have been taken to implement the provisions of the Tripoli
Agreement with respect to an autonomous region in Mindanao. This
is a good first step, but there is no question that this is merely a
partial response to the Tripoli Agreement itself and to the fuller
CONSTI LAW II I ACJUCO 395
standard of regional autonomy contemplated in that agreement, and
now by state policy.173(Emphasis supplied)
The constitutional provisions on autonomy and the statutes enacted
pursuant to them have, to the credit of their drafters, been partly
successful. Nonetheless, the Filipino people are still faced with the
reality of an on-going conflict between the Government and the
MILF. If the President is to be expected to find means for bringing
this conflict to an end and to achieve lasting peace in Mindanao,
then she must be given the leeway to explore, in the course of peace
negotiations, solutions that may require changes to the Constitution
for their implementation. Being uniquely vested with the power to
conduct peace negotiations with rebel groups, the President is in a
singular position to know the precise nature of their grievances
which, if resolved, may bring an end to hostilities.
The President may not, of course, unilaterally implement the
solutions that she considers viable, but she may not be prevented
from submitting them as recommendations to Congress, which
could then, if it is minded, act upon them pursuant to the legal
procedures for constitutional amendment and revision. In particular,
Congress would have the option, pursuant to Article XVII, Sections
1 and 3 of the Constitution, to propose the recommended
amendments or revision to the people, call a constitutional
convention, or submit to the electorate the question of calling such
a convention.
While the President does not possess constituent powers - as those
powers may be exercised only by Congress, a Constitutional
Convention, or the people through initiative and referendum - she
may submit proposals for constitutional change to Congress in a
manner that does not involve the arrogation of constituent powers.
In Sanidad v. COMELEC,174 in issue was the legality of then
President Marcos' act of directly submitting proposals for
constitutional amendments to a referendum, bypassing the interim
National Assembly which was the body vested by the 1973
Constitution with the power to propose such amendments.
President Marcos, it will be recalled, never convened the interim
National Assembly. The majority upheld the President's act, holding
that "the urges of absolute necessity" compelled the President as
the agent of the people to act as he did, there being no interim
National Assembly to propose constitutional amendments. Against
this ruling, Justices Teehankee and Muñoz Palma vigorously
dissented. The Court's concern at present, however, is not with
regard to the point on which it was then divided in that controversial
case, but on that which was not disputed by either side.
Justice Teehankee's dissent,175 in particular, bears noting. While
he disagreed that the President may directly submit proposed
constitutional amendments to a referendum, implicit in his opinion is
a recognition that he would have upheld the President's action along
with the majority had the President convened the interim National
Assembly and coursed his proposals through it. Thus Justice
Teehankee opined:
"Since the Constitution provides for the organization of the essential
departments of government, defines and delimits the powers of
each and prescribes the manner of the exercise of such powers,
and the constituent power has not been granted to but has been
withheld from the President or Prime Minister, it follows that the
President's questioned decrees proposing and submitting
constitutional amendments directly to the people (without the
intervention of the interim National Assembly in whom the power is
expressly vested) are devoid of constitutional and legal basis."176
(Emphasis supplied)
From the foregoing discussion, the principle may be inferred that the
President - in the course of conducting peace negotiations - may
validly consider implementing even those policies that require
changes to the Constitution, but she may not unilaterally implement

them without the intervention of Congress, or act in any way as if
the assent of that body were assumed as a certainty.
Since, under the present Constitution, the people also have the
power to directly propose amendments through initiative and
referendum, the President may also submit her recommendations
to the people, not as a formal proposal to be voted on in a plebiscite
similar to what President Marcos did in Sanidad, but for their
independent consideration of whether these recommendations
merit being formally proposed through initiative.
These recommendations, however, may amount to nothing more
than the President's suggestions to the people, for any further
involvement in the process of initiative by the Chief Executive may
vitiate its character as a genuine "people's initiative." The only
initiative recognized by the Constitution is that which truly proceeds
from the people. As the Court stated in Lambino v. COMELEC:177
"The Lambino Group claims that their initiative is the ‘people's
voice.' However, the Lambino Group unabashedly states in ULAP
Resolution No. 2006-02, in the verification of their petition with the
COMELEC, that ‘ULAP maintains its unqualified support to the
agenda of Her Excellency President Gloria Macapagal-Arroyo for
constitutional reforms.' The Lambino Group thus admits that their
‘people's' initiative is an ‘unqualified support to the agenda' of the
incumbent President to change the Constitution. This forewarns the
Court to be wary of incantations of ‘people's voice' or ‘sovereign will'
in the present initiative."
It will be observed that the President has authority, as stated in her
oath of office,178 only to preserve and defend the Constitution.
Such presidential power does not, however, extend to allowing her
to change the Constitution, but simply to recommend proposed
amendments or revision. As long as she limits herself to
recommending these changes and submits to the proper procedure
for constitutional amendments and revision, her mere
recommendation need not be construed as an unconstitutional act.
The foregoing discussion focused on the President's authority to
propose constitutional amendments, since her authority to propose
new legislation is not in controversy. It has been an accepted
practice for Presidents in this jurisdiction to propose new legislation.
One of the more prominent instances the practice is usually done is
in the yearly State of the Nation Address of the President to
Congress. Moreover, the annual general appropriations bill has
always been based on the budget prepared by the President, which
- for all intents and purposes - is a proposal for new legislation
coming from the President.179
The "suspensive clause" in the MOA-AD viewed in light of the
above-discussed standards
Given the limited nature of the President's authority to propose
constitutional amendments, she cannot guarantee to any third party
that the required amendments will eventually be put in place, nor
even be submitted to a plebiscite. The most she could do is submit
these proposals as recommendations either to Congress or the
people, in whom constituent powers are vested.
Paragraph 7 on Governance of the MOA-AD states, however, that
all provisions thereof which cannot be reconciled with the present
Constitution and laws "shall come into force upon signing of a
Comprehensive Compact and upon effecting the necessary
changes to the legal framework." This stipulation does not bear the
marks of a suspensive condition - defined in civil law as a future and
uncertain event - but of a term. It is not a question of whether the
necessary changes to the legal framework will be effected, but
when. That there is no uncertainty being contemplated is plain from
what follows, for the paragraph goes on to state that the
contemplated changes shall be "with due regard to non derogation
CONSTI LAW II I ACJUCO 396
of prior agreements and within the stipulated timeframe to be
contained in the Comprehensive Compact."
Pursuant to this stipulation, therefore, it is mandatory for the GRP to
effect the changes to the legal framework contemplated in the MOA-
AD - which changes would include constitutional amendments, as
discussed earlier. It bears noting that,
By the time these changes are put in place, the MOA-AD itself would
be counted among the "prior agreements" from which there could
be no derogation.
What remains for discussion in the Comprehensive Compact would
merely be the implementing details for these "consensus points"
and, notably, the deadline for effecting the contemplated changes
to the legal framework.
Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent
with the limits of the President's authority to propose constitutional
amendments, it being a virtual guarantee that the Constitution and
the laws of the Republic of the Philippines will certainly be adjusted
to conform to all the "consensus points" found in the MOA-AD.
Hence, it must be struck down as unconstitutional.
A comparison between the "suspensive clause" of the MOA-AD with
a similar provision appearing in the 1996 final peace agreement
between the MNLF and the GRP is most instructive.
As a backdrop, the parties to the 1996 Agreement stipulated that it
would be implemented in two phases. Phase I covered a three-year
transitional period involving the putting up of new administrative
structures through Executive Order, such as the Special Zone of
Peace and Development (SZOPAD) and the Southern Philippines
Council for Peace and Development (SPCPD), while Phase II
covered the establishment of the new regional autonomous
government through amendment or repeal of R.A. No. 6734, which
was then the Organic Act of the ARMM.
The stipulations on Phase II consisted of specific agreements on the
structure of the expanded autonomous region envisioned by the
parties. To that extent, they are similar to the provisions of the MOA-
AD. There is, however, a crucial difference between the two
agreements. While the MOA-AD virtually guarantees that the
"necessary changes to the legal framework" will be put in place, the
GRP-MNLF final peace agreement states thus: "Accordingly, these
provisions [on Phase II] shall be recommended by the GRP to
Congress for incorporation in the amendatory or repealing law."
Concerns have been raised that the MOA-AD would have given rise
to a binding international law obligation on the part of the Philippines
to change its Constitution in conformity thereto, on the ground that
it may be considered either as a binding agreement under
international law, or a unilateral declaration of the Philippine
government to the international community that it would grant to the
Bangsamoro people all the concessions therein stated. Neither
ground finds sufficient support in international law, however.
The MOA-AD, as earlier mentioned in the overview thereof, would
have included foreign dignitaries as signatories. In addition,
representatives of other nations were invited to witness its signing
in Kuala Lumpur. These circumstances readily lead one to surmise
that the MOA-AD would have had the status of a binding
international agreement had it been signed. An examination of the
prevailing principles in international law, however, leads to the
contrary conclusion.
The Decision on Challenge to Jurisdiction: Lomé Accord
Amnesty180 (the Lomé Accord case) of the Special Court of Sierra
Leone is enlightening. The Lomé Accord was a peace agreement
signed on July 7, 1999 between the Government of Sierra Leone
and the Revolutionary United Front (RUF), a rebel group with which

the Sierra Leone Government had been in armed conflict for around
eight years at the time of signing. There were non-contracting
signatories to the agreement, among which were the Government
of the Togolese Republic, the Economic Community of West African
States, and the UN.
On January 16, 2002, after a successful negotiation between the
UN Secretary-General and the Sierra Leone Government, another
agreement was entered into by the UN and that Government
whereby the Special Court of Sierra Leone was established. The
sole purpose of the Special Court, an international court, was to try
persons who bore the greatest responsibility for serious violations
of international humanitarian law and Sierra Leonean law committed
in the territory of Sierra Leone since November 30, 1996.
Among the stipulations of the Lomé Accord was a provision for the
full pardon of the members of the RUF with respect to anything done
by them in pursuit of their objectives as members of that
organization since the conflict began.
In the Lomé Accord case, the Defence argued that the Accord
created an internationally binding obligation not to prosecute the
beneficiaries of the amnesty provided therein, citing, among other
things, the participation of foreign dignitaries and international
organizations in the finalization of that agreement. The Special
Court, however, rejected this argument, ruling that the Lome Accord
is not a treaty and that it can only create binding obligations and
rights between the parties in municipal law, not in international law.
Hence, the Special Court held, it is ineffective in depriving an
international court like it of jurisdiction.
"37. In regard to the nature of a negotiated settlement of an internal
armed conflict it is easy to assume and to argue with some degree
of plausibility, as Defence counsel for the defendants seem to have
done, that the mere fact that in addition to the parties to the conflict,
the document formalizing the settlement is signed by foreign heads
of state or their representatives and representatives of international
organizations, means the agreement of the parties is
internationalized so as to create obligations in international law.
xxxx
40. Almost every conflict resolution will involve the parties to the
conflict and the mediator or facilitator of the settlement, or persons
or bodies under whose auspices the settlement took place but who
are not at all parties to the conflict, are not contracting parties and
who do not claim any obligation from the contracting parties or incur
any obligation from the settlement.
41. In this case, the parties to the conflict are the lawful authority of
the State and the RUF which has no status of statehood and is to
all intents and purposes a faction within the state. The non-
contracting signatories of the Lomé Agreement were moral
guarantors of the principle that, in the terms of Article XXXIV of the
Agreement, "this peace agreement is implemented with integrity
and in good faith by both parties". The moral guarantors assumed
no legal obligation. It is recalled that the UN by its representative
appended, presumably for avoidance of doubt, an understanding of
the extent of the agreement to be implemented as not including
certain international crimes.
42. An international agreement in the nature of a treaty must create
rights and obligations regulated by international law so that a breach
of its terms will be a breach determined under international law
which will also provide principle means of enforcement. The Lomé
Agreement created neither rights nor obligations capable of being
regulated by international law. An agreement such as the Lomé
Agreement which brings to an end an internal armed conflict no
doubt creates a factual situation of restoration of peace that the
international community acting through the Security Council may
take note of. That, however, will not convert it to an international
CONSTI LAW II I ACJUCO 397
agreement which creates an obligation enforceable in international,
as distinguished from municipal, law. A breach of the terms of such
a peace agreement resulting in resumption of internal armed conflict
or creating a threat to peace in the determination of the Security
Council may indicate a reversal of the factual situation of peace to
be visited with possible legal consequences arising from the new
situation of conflict created. Such consequences such as action by
the Security Council pursuant to Chapter VII arise from the situation
and not from the agreement, nor from the obligation imposed by it.
Such action cannot be regarded as a remedy for the breach. A
peace agreement which settles an internal armed conflict cannot be
ascribed the same status as one which settles an international
armed conflict which, essentially, must be between two or more
warring States. The Lomé Agreement cannot be characterised as
an international instrument. x x x" (Emphasis, italics and
underscoring supplied)
Similarly, that the MOA-AD would have been signed by
representatives of States and international organizations not parties
to the Agreement would not have sufficed to vest in it a binding
character under international law.
In another vein, concern has been raised that the MOA-AD would
amount to a unilateral declaration of the Philippine State, binding
under international law, that it would comply with all the stipulations
stated therein, with the result that it would have to amend its
Constitution accordingly regardless of the true will of the people.
Cited as authority for this view is Australia v. France,181 also known
as the Nuclear Tests Case, decided by the International Court of
Justice (ICJ).
In the Nuclear Tests Case, Australia challenged before the ICJ the
legality of France's nuclear tests in the South Pacific. France
refused to appear in the case, but public statements from its
President, and similar statements from other French officials
including its Minister of Defence, that its 1974 series of atmospheric
tests would be its last, persuaded the ICJ to dismiss the case.182
Those statements, the ICJ held, amounted to a legal undertaking
addressed to the international community, which required no
acceptance from other States for it to become effective.
Essential to the ICJ ruling is its finding that the French government
intended to be bound to the international community in issuing its
public statements, viz:
43. It is well recognized that declarations made by way of unilateral
acts, concerning legal or factual situations, may have the effect of
creating legal obligations. Declarations of this kind may be, and
often are, very specific. When it is the intention of the State making
the declaration that it should become bound according to its terms,
that intention confers on the declaration the character of a legal
undertaking, the State being thenceforth legally required to follow a
course of conduct consistent with the declaration. An undertaking of
this kind, if given publicly, and with an intent to be bound, even
though not made within the context of international negotiations, is
binding. In these circumstances, nothing in the nature of a quid pro
quo nor any subsequent acceptance of the declaration, nor even
any reply or reaction from other States, is required for the
declaration to take effect, since such a requirement would be
inconsistent with the strictly unilateral nature of the juridical act by
which the pronouncement by the State was made.
44. Of course, not all unilateral acts imply obligation; but a State may
choose to take up a certain position in relation to a particular matter
with the intention of being bound-the intention is to be ascertained
by interpretation of the act. When States make statements by which
their freedom of action is to be limited, a restrictive interpretation is
called for.
xxxx

51. In announcing that the 1974 series of atmospheric tests would
be the last, the French Government conveyed to the world at large,
including the Applicant, its intention effectively to terminate these
tests. It was bound to assume that other States might take note of
these statements and rely on their being effective. The validity of
these statements and their legal consequences must be considered
within the general framework of the security of international
intercourse, and the confidence and trust which are so essential in
the relations among States. It is from the actual substance of these
statements, and from the circumstances attending their making, that
the legal implications of the unilateral act must be deduced. The
objects of these statements are clear and they were addressed to
the international community as a whole, and the Court holds that
they constitute an undertaking possessing legal effect. The Court
considers *270 that the President of the Republic, in deciding upon
the effective cessation of atmospheric tests, gave an undertaking to
the international community to which his words were addressed. x x
x (Emphasis and underscoring supplied)
As gathered from the above-quoted ruling of the ICJ, public
statements of a state representative may be construed as a
unilateral declaration only when the following conditions are
present: the statements were clearly addressed to the international
community, the state intended to be bound to that community by its
statements, and that not to give legal effect to those statements
would be detrimental to the security of international intercourse.
Plainly, unilateral declarations arise only in peculiar circumstances.
The limited applicability of the Nuclear Tests Case ruling was
recognized in a later case decided by the ICJ entitled Burkina Faso
v. Mali,183 also known as the Case Concerning the Frontier
Dispute. The public declaration subject of that case was a statement
made by the President of Mali, in an interview by a foreign press
agency, that Mali would abide by the decision to be issued by a
commission of the Organization of African Unity on a frontier dispute
then pending between Mali and Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held that the statement of
Mali's President was not a unilateral act with legal implications. It
clarified that its ruling in the Nuclear Tests case rested on the
peculiar circumstances surrounding the French declaration subject
thereof, to wit:
40. In order to assess the intentions of the author of a unilateral act,
account must be taken of all the factual circumstances in which the
act occurred. For example, in the Nuclear Tests cases, the Court
took the view that since the applicant States were not the only ones
concerned at the possible continuance of atmospheric testing by the
French Government, that Government's unilateral declarations had
‘conveyed to the world at large, including the Applicant, its intention
effectively to terminate these tests‘ (I.C.J. Reports 1974, p. 269,
para. 51; p. 474, para. 53). In the particular circumstances of those
cases, the French Government could not express an intention to be
bound otherwise than by unilateral declarations. It is difficult to see
how it could have accepted the terms of a negotiated solution with
each of the applicants without thereby jeopardizing its contention
that its conduct was lawful. The circumstances of the present case
are radically different. Here, there was nothing to hinder the Parties
from manifesting an intention to accept the binding character of the
conclusions of the Organization of African Unity Mediation
Commission by the normal method: a formal agreement on the
basis of reciprocity. Since no agreement of this kind was concluded
between the Parties, the Chamber finds that there are no grounds
to interpret the declaration made by Mali's head of State on 11 April
1975 as a unilateral act with legal implications in regard to the
present case. (Emphasis and underscoring supplied)
Assessing the MOA-AD in light of the above criteria, it would not
have amounted to a unilateral declaration on the part of the
Philippine State to the international community. The Philippine panel
did not draft the same with the clear intention of being bound thereby
CONSTI LAW II I ACJUCO 398
to the international community as a whole or to any State, but only
to the MILF. While there were States and international organizations
involved, one way or another, in the negotiation and projected
signing of the MOA-AD, they participated merely as witnesses or, in
the case of Malaysia, as facilitator. As held in the Lomé Accord case,
the mere fact that in addition to the parties to the conflict, the peace
settlement is signed by representatives of states and international
organizations does not mean that the agreement is internationalized
so as to create obligations in international law.
Since the commitments in the MOA-AD were not addressed to
States, not to give legal effect to such commitments would not be
detrimental to the security of international intercourse - to the trust
and confidence essential in the relations among States.
In one important respect, the circumstances surrounding the MOA-
AD are closer to that of Burkina Faso wherein, as already discussed,
the Mali President's statement was not held to be a binding
unilateral declaration by the ICJ. As in that case, there was also
nothing to hinder the Philippine panel, had it really been its intention
to be bound to other States, to manifest that intention by formal
agreement. Here, that formal agreement would have come about by
the inclusion in the MOA-AD of a clear commitment to be legally
bound to the international community, not just the MILF, and by an
equally clear indication that the signatures of the participating
states-representatives would constitute an acceptance of that
commitment. Entering into such a formal agreement would not have
resulted in a loss of face for the Philippine government before the
international community, which was one of the difficulties that
prevented the French Government from entering into a formal
agreement with other countries. That the Philippine panel did not
enter into such a formal agreement suggests that it had no intention
to be bound to the international community. On that ground, the
MOA-AD may not be considered a unilateral declaration under
international law.
The MOA-AD not being a document that can bind the Philippines
under international law notwithstanding, respondents' almost
consummated act of guaranteeing amendments to the legal
framework is, by itself, sufficient to constitute grave abuse of
discretion. The grave abuse lies not in the fact that they considered,
as a solution to the Moro Problem, the creation of a state within a
state, but in their brazen willingness to guarantee that Congress and
the sovereign Filipino people would give their imprimatur to their
solution. Upholding such an act would amount to authorizing a
usurpation of the constituent powers vested only in Congress, a
Constitutional Convention, or the people themselves through the
process of initiative, for the only way that the Executive can ensure
the outcome of the amendment process is through an undue
influence or interference with that process.
The sovereign people may, if it so desired, go to the extent of giving
up a portion of its own territory to the Moros for the sake of peace,
for it can change the Constitution in any it wants, so long as the
change is not inconsistent with what, in international law, is known
as Jus Cogens.184 Respondents, however, may not preempt it in
that decision.
SUMMARY
The petitions are ripe for adjudication. The failure of respondents to
consult the local government units or communities affected
constitutes a departure by respondents from their mandate under
E.O. No. 3. Moreover, respondents exceeded their authority by the
mere act of guaranteeing amendments to the Constitution. Any
alleged violation of the Constitution by any branch of government is
a proper matter for judicial review.
As the petitions involve constitutional issues which are of paramount
public interest or of transcendental importance, the Court grants the
petitioners, petitioners-in-intervention and intervening respondents

the requisite locus standi in keeping with the liberal stance adopted
in David v. Macapagal-Arroyo.
Contrary to the assertion of respondents that the non-signing of the
MOA-AD and the eventual dissolution of the GRP Peace Panel
mooted the present petitions, the Court finds that the present
petitions provide an exception to the "moot and academic" principle
in view of (a) the grave violation of the Constitution involved; (b) the
exceptional character of the situation and paramount public interest;
(c) the need to formulate controlling principles to guide the bench,
the bar, and the public; and (d) the fact that the case is capable of
repetition yet evading review.
The MOA-AD is a significant part of a series of agreements
necessary to carry out the GRP-MILF Tripoli Agreement on Peace
signed by the government and the MILF back in June 2001. Hence,
the present MOA-AD can be renegotiated or another one drawn up
that could contain similar or significantly dissimilar provisions
compared to the original.
The Court, however, finds that the prayers for mandamus have been
rendered moot in view of the respondents' action in providing the
Court and the petitioners with the official copy of the final draft of the
MOA-AD and its annexes.
The people's right to information on matters of public concern under
Sec. 7, Article III of the Constitution is in splendid symmetry with the
state policy of full public disclosure of all its transactions involving
public interest under Sec. 28, Article II of the Constitution. The right
to information guarantees the right of the people to demand
information, while Section 28 recognizes the duty of officialdom to
give information even if nobody demands. The complete and
effective exercise of the right to information necessitates that its
complementary provision on public disclosure derive the same self-
executory nature, subject only to reasonable safeguards or
limitations as may be provided by law.
The contents of the MOA-AD is a matter of paramount public
concern involving public interest in the highest order. In declaring
that the right to information contemplates steps and negotiations
leading to the consummation of the contract, jurisprudence finds no
distinction as to the executory nature or commercial character of the
agreement.
An essential element of these twin freedoms is to keep a continuing
dialogue or process of communication between the government and
the people. Corollary to these twin rights is the design for feedback
mechanisms. The right to public consultation was envisioned to be
a species of these public rights.
At least three pertinent laws animate these constitutional
imperatives and justify the exercise of the people's right to be
consulted on relevant matters relating to the peace agenda.
One, E.O. No. 3 itself is replete with mechanics for continuing
consultations on both national and local levels and for a principal
forum for consensus-building. In fact, it is the duty of the Presidential
Adviser on the Peace Process to conduct regular dialogues to seek
relevant information, comments, advice, and recommendations
from peace partners and concerned sectors of society.
Two, Republic Act No. 7160 or the Local Government Code of 1991
requires all national offices to conduct consultations before any
project or program critical to the environment and human ecology
including those that may call for the eviction of a particular group of
people residing in such locality, is implemented therein. The MOA-
AD is one peculiar program that unequivocally and unilaterally vests
ownership of a vast territory to the Bangsamoro people, which could
pervasively and drastically result to the diaspora or displacement of
a great number of inhabitants from their total environment.
CONSTI LAW II I ACJUCO 399
Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act
of 1997 provides for clear-cut procedure for the recognition and
delineation of ancestral domain, which entails, among other things,
the observance of the free and prior informed consent of the
Indigenous Cultural Communities/Indigenous Peoples. Notably, the
statute does not grant the Executive Department or any government
agency the power to delineate and recognize an ancestral domain
claim by mere agreement or compromise.
The invocation of the doctrine of executive privilege as a defense to
the general right to information or the specific right to consultation is
untenable. The various explicit legal provisions fly in the face of
executive secrecy. In any event, respondents effectively waived
such defense after it unconditionally disclosed the official copies of
the final draft of the MOA-AD, for judicial compliance and public
scrutiny.
In sum, the Presidential Adviser on the Peace Process committed
grave abuse of discretion when he failed to carry out the pertinent
consultation process, as mandated by E.O. No. 3, Republic Act No.
7160, and Republic Act No. 8371. The furtive process by which the
MOA-AD was designed and crafted runs contrary to and in excess
of the legal authority, and amounts to a whimsical, capricious,
oppressive, arbitrary and despotic exercise thereof. It illustrates a
gross evasion of positive duty and a virtual refusal to perform the
duty enjoined.
The MOA-AD cannot be reconciled with the present Constitution
and laws. Not only its specific provisions but the very concept
underlying them, namely, the associative relationship envisioned
between the GRP and the BJE, are unconstitutional, for the concept
presupposes that the associated entity is a state and implies that
the same is on its way to independence.
While there is a clause in the MOA-AD stating that the provisions
thereof inconsistent with the present legal framework will not be
effective until that framework is amended, the same does not cure
its defect. The inclusion of provisions in the MOA-AD establishing
an associative relationship between the BJE and the Central
Government is, itself, a violation of the Memorandum of Instructions
From The President dated March 1, 2001, addressed to the
government peace panel. Moreover, as the clause is worded, it
virtually guarantees that the necessary amendments to the
Constitution and the laws will eventually be put in place. Neither the
GRP Peace Panel nor the President herself is authorized to make
such a guarantee. Upholding such an act would amount to
authorizing a usurpation of the constituent powers vested only in
Congress, a Constitutional Convention, or the people themselves
through the process of initiative, for the only way that the Executive
can ensure the outcome of the amendment process is through an
undue influence or interference with that process.
While the MOA-AD would not amount to an international agreement
or unilateral declaration binding on the Philippines under
international law, respondents' act of guaranteeing amendments is,
by itself, already a constitutional violation that renders the MOA-AD
fatally defective.
WHEREFORE, respondents' motion to dismiss is DENIED. The
main and intervening petitions are GIVEN DUE COURSE and
hereby GRANTED.
The Memorandum of Agreement on the Ancestral Domain Aspect
of the GRP-MILF Tripoli Agreement on Peace of 2001 is declared
contrary to law and the Constitution.
SO ORDERED.

FREEDOM OF RELIGION
G.R. No. 95770 December 29, 1995
ROEL EBRALINAG, EMILY EBRALINAG, represented by their
parents, MR. & MRS. LEONARDO EBRALINAG, JUSTINIANA
TANTOG, represented by her father, AMOS TANTOG, JEMIL
OYAO & JOEL OYAO, represented by their parents MR. &
MRS. ELIEZER OYAO, JANETH DIAMOS & JEREMIAS
DIAMOS, represented by parents MR. & MRS. GODOFREDO
DIAMOS, SARA OSTIA & JONATHAN OSTIA, represented by
their parents MR. & MRS. FAUSTO OSTIA, IRVIN SEQUINO &
RENAN SEQUINO, represented by their parents MR. & MRS.
LYDIO SEQUINO, NAPTHALE TUNACAO represented by his
parents MR. & MRS. MANUEL TUNACAO PRECILA PINO
represented by her parents MR. & MRS. FELIPE PINO,
MARICRIS ALFAR, RUWINA ALFAR, represented by their
parents MR. & MRS. HERMINIGILDO ALFAR, FREDESMINDA
ALFAR & GUMERSINDO ALFAR, represented by their parents
ABDON ALFAR ALBERTO ALFAR & ARISTIO ALFAR,
represented by their parents MR. & MRS. GENEROSO ALFAR,
MARTINO VILLAR, represented by their parents MR. & MRS.
GENARO VILLAR, PERGEBRIEL GUINITA & CHAREN
GUINITA, represented by their parents MR. & MRS. CESAR
GUINITA, ALVIN DOOP represented by his parents MR. &
MRS. LEONIDES DOOP, RHILYN LAUDE represented by her
parents MR. & MRS. RENE LAUDE, LEOREMINDA MONARES
represented by her parents MR. & MRS. FLORENCIO
MONARES, MERCY MONTECILLO, represented by her parents
MR. & MRS. MANUEL MONTECILLO, ROBERTO TANGAHA,
represented by his parent ILUMINADA TANGAHA, EVELYN
MARIA & FLORA TANGAHA represented by their parents MR.
& MRS. ALBERTO TANGAHA, MAXIMO EBRALINAG
represented by his parents MR. & MRS. PAQUITO
EBRALINAG, JUTA CUMON, GIDEON CUMON & JONATHAN
CUMON, represented by their father RAFAEL CUMON, EVIE
LUMAKANG and JUAN LUMAKANG, represented by their
parents MR. & MRS. LUMAKANG, EMILIO SARSOZO & PAZ
AMOR SARSOZO, & IGNA MARIE SARSOZO represented by
their parents MR. & MRS. VIRGILIO SARSOZO, MICHAEL
JOSEPH & HENRY JOSEPH, represented by parent ANNIE
JOSEPH, EMERSON TABLASON & MASTERLOU TABLASON,
represented by their parents EMERLITO TABLASON,
petitioners,
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU,
and MR. MANUEL F. BIONGCOG, Cebu District Supervisor,
respondents.
G.R. No. 95887 December 29, 1995
MAY AMOLO, represented by her parents MR. & MRS. ISAIAS
AMOLO, REDFORD ALSADO, JOEBERT ALSADO, &
RUDYARD ALSADO represented by their parents MR. & MRS.
ABELARDO ALSADO, NESIA ALSADO, REU ALSADO and
LILIBETH ALSADO, represented by their parents MR. & MRS.
ROLANDO ALSADO, SUZETTE NAPOLES, represented by her
parents ISMAILITO NAPOLES and OPHELIA NAPOLES,
JESICA CARMELOTES, represented by her parents MR. &
MRS. SERGIO CARMELOTES, BABY JEAN MACAPAS,
represented by her parents MR. & MRS. TORIBIO MACAPAS,
GERALDINE ALSADO, represented by her parents MR. &
MRS. JOEL ALSADO, RAQUEL DEMOTOR, and LEAH
DEMOTOR, represented by their parents MR. & MRS.
LEONARDO DEMOTOR, JURELL VILLA and MELONY VILLA,
represented by their parents MR. & MRS. JOVENIANO VILLA,
JONELL HOPE MAHINAY, MARY GRACE MAHINAY, and
MAGDALENE MAHINAY, represented by their parents MR. &
MRS. FELIX MAHINAY, JONALYN ANTIOLA and JERWIN
ANTIOLA, represented by their parents FELIPE ANTIOLA and
ANECITA ANTIOLA, MARIA CONCEPCION CABUYAO,
CONSTI LAW II I ACJUCO 400
represented by her parents WENIFREDO CABUYAO and
ESTRELLITA CABUYAO, NOEMI TURNO represented by her
parents MANUEL TURNO and VEVENCIA TURNO, SOLOMON
PALATULON, SALMERO PALATULON and ROSALINA
PALATULON, represented by their parents MARTILLANO
PALATULON and CARMILA PALATULON, petitioners,
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU,
and ANTONIO A. SANGUTAN, respondents.
R E SO L U T I O N
KAPUNAN, J.:
The State moves for a reconsideration of our decision dated March
1, 1993 granting private respondents' petition for certiorari and
prohibition and annulling the expulsion orders issued by the public
respondents therein on the ground that the said decision created an
exemption in favor of the members of the religious sect, the
Jehovah's Witnesses, in violation of the "Establishment Clause" of
the Constitution. The Solicitor General, on behalf of the public
respondent, furthermore contends that:
The accommodation by this Honorable Court to a demand for
special treatment in favor of a minority sect even on the basis of a
claim of religious freedom may be criticized as granting preference
to the religious beliefs of said sect in violation of the "non-
establishment guarantee" provision of the Constitution. Surely, the
decision of the Court constitutes a special favor which immunizes
religious believers such as Jehovah's Witnesses to the law and the
DECS rules and regulations by interposing the claim that the
conduct required by law and the rules and regulation (sic) are
violative of their religious beliefs. The decision therefore is
susceptible to the very criticism that the grant of exemption is a
violation of the "non-establishment" provision of the Constitution.
Furthermore, to grant an exemption to a specific religious minority
poses a risk of collision course with the "equal protection of the laws"
clause in respect of the non-exempt, and, in public schools, a
collision course with the "non-establishment guarantee."
Additionally the public respondent insists that this Court adopt a
"neutral stance" by reverting to its holding in Gerona declaring the
flag as being devoid of any religious significance. He stresses that
the issue here is not curtailment of religious belief but regulation of
the exercise of religious belief. Finally, he maintains that the State's
interests in the case at bench are constitutional and legal obligations
to implement the law and the constitutional mandate to inculcate in
the youth patriotism and nationalism and to encourage their
involvement in public and civic affairs, referring to the test devised
by the United States Supreme Court in U.S. vs. O'Brien.1
II
All the petitioners in the original case2 were minor school children,
and members of the sect, Jehovah's Witnesses (assisted by their
parents) who were expelled from their classes by various public
school authorities in Cebu for refusing to salute the flag, sing the
national anthem and recite the patriotic pledge as required by
Republic Act No. 1265 of July 11, 1955 and by Department Order
No. 8, dated July 21, 1955 issued by the Department of Education.
Aimed primarily at private educational institutions which did not
observe the flag ceremony exercises, Republic Act No. 1265
penalizes all educational institutions for failure or refusal to observe
the flag ceremony with public censure on first offense and
cancellation of the recognition or permit on second offense.
The implementing regulations issued by the Department of
Education thereafter detailed the manner of observance of the
same. Immediately pursuant to these orders, school officials in

Masbate expelled children belonging to the sect of the Jehovah's
Witnesses from school for failing or refusing to comply with the flag
ceremony requirement. Sustaining these expulsion orders, this
Court in the 1959 case of Gerona vs. Secretary of Education3 held
that:
The flag is not an image but a symbol of the Republic of the
Philippines, an emblem of national sovereignty, of national unity and
cohesion and of freedom and liberty which it and the Constitution
guarantee and protect. Considering the complete separation of
church and state in our system of government, the flag is utterly
devoid of any religious significance. Saluting the flag consequently
does not involve any religious ceremony. . . .
After all, the determination of whether a certain ritual is or is not a
religious ceremony must rest with the courts. It cannot be left to a
religious group or sect, much less to a follower of said group or sect;
otherwise, there would be confusion and misunderstanding for there
might be as many interpretations and meanings to be given to a
certain ritual or ceremony as there are religious groups or sects or
followers.
Upholding religious freedom as a fundamental right deserving the
"highest priority and amplest protection among human rights," this
Court, in Ebralinag vs. Division Superintendent of Schools of Cebu4
re-examined our over two decades-old decision in Gerona and
reversed expulsion orders made by the public respondents therein
as violative of both the free exercise of religion clause and the right
of citizens to education under the 1987 Constitution.5
From our decision of March 1, 1993, the public respondents filed a
motion for reconsideration on grounds hereinabove stated. After a
careful study of the grounds adduced in the government's Motion
For Reconsideration of our original decision, however, we find no
cogent reason to disturb our earlier ruling.
The religious convictions and beliefs of the members of the religious
sect, the Jehovah's Witnesses are widely known and are equally
widely disseminated in numerous books, magazines, brochures and
leaflets distributed by their members in their house to house
distribution efforts and in many public places. Their refusal to render
obeisance to any form or symbol which smacks of idolatry is based
on their sincere belief in the biblical injunction found in Exodus
20:4,5, against worshipping forms or idols other than God himself.
The basic assumption in their universal refusal to salute the flags of
the countries in which they are found is that such a salute constitutes
an act of religious devotion forbidden by God's law. This
assumption, while "bizarre" to others is firmly anchored in several
biblical passages.6
And yet, while members of Jehovah's Witnesses, on the basis of
religious convictions, refuse to perform an act (or acts) which they
consider proscribed by the Bible, they contend that such refusal
should not be taken to indicate disrespect for the symbols of the
country or evidence that they are wanting in patriotism and
nationalism. They point out that as citizens, they have an excellent
record as law abiding members of society even if they do not
demonstrate their refusal to conform to the assailed orders by overt
acts of conformity. On the contrary, they aver that they show their
respect through less demonstrative methods manifesting their
allegiance, by their simple obedience to the country's laws,7 by not
engaging in antigovernment activities of any kind,8 and by paying
their taxes and dues to society as self-sufficient members of the
community.9 While they refuse to salute the flag, they are willing to
stand quietly and peacefully at attention, hands on their side, in
order not to disrupt the ceremony or disturb those who believe
differently.10
The religious beliefs, practices and convictions of the members of
the sect as a minority are bound to be seen by others as odd and
different and at divergence with the complex requirements of
CONSTI LAW II I ACJUCO 401
contemporary societies, particularly those societies which require
certain practices as manifestations of loyalty and patriotic behavior.
Against those who believe that coerced loyalty and unity are mere
shadows of patriotism, the tendency to exact "a hydraulic insistence
on conformity to majoritarian standards,"11 is seductive to the
bureaucratic mindset as a shortcut to patriotism.
No doubt, the State possesses what the Solicitor General describes
as the responsibility "to inculcate in the minds of the youth the
values of patriotism and nationalism and to encourage their
involvement in public and civic affairs." The teaching of these values
ranks at the very apex of education's "high responsibility" of shaping
up the minds of the youth in those principles which would mold them
into responsible and productive members of our society. However,
the government's interest in molding the young into patriotic and
civic spirited citizens is "not totally free from a balancing process"12
when it intrudes into other fundamental rights such as those
specifically protected by the Free Exercise Clause, the constitutional
right to education and the unassailable interest of parents to guide
the religious upbringing of their children in accordance with the
dictates of their conscience and their sincere religious beliefs.13
Recognizing these values, Justice Carolina Grino-Aquino, the writer
of the original opinion, underscored that a generation of Filipinos
which cuts its teeth on the Bill of Rights would find abhorrent the
idea that one may be compelled, on pain of expulsion, to salute the
flag sing the national anthem and recite the patriotic pledge during
a flag ceremony.14 "This coercion of conscience has no place in a
free society".15
The State's contentions are therefore, unacceptable, for no less
fundamental than the right to take part is the right to stand apart.16
In the context of the instant case, the freedom of religion enshrined
in the Constitution should be seen as the rule, not the exception. To
view the constitutional guarantee in the manner suggested by the
petitioners would be to denigrate the status of a preferred freedom
and to relegate it to the level of an abstract principle devoid of any
substance and meaning in the lives of those for whom the protection
is addressed. As to the contention that the exemption accorded by
our decision benefits a privileged few, it is enough to re-emphasize
that "the constitutional protection of religious freedom terminated
disabilities, it did not create new privileges. It gave religious equality,
not civil immunity."17 The essence of the free exercise clause is
freedom from conformity to religious dogma, not freedom from
conformity to law because of religious dogma.18 Moreover, the
suggestion implicit in the State's pleadings to the effect that the flag
ceremony requirement would be equally and evenly applied to all
citizens regardless of sect or religion and does not thereby
discriminate against any particular sect or denomination escapes
the fact that "[a] regulation, neutral on its face, may in its application,
nonetheless offend the constitutional requirement for governmental
neutrality if it unduly burdens the free exercise of religion."19
III
The ostensible interest shown by petitioners in preserving the flag
as the symbol of the nation appears to be integrally related to
petitioner's disagreement with the message conveyed by the refusal
of members of the Jehovah's Witness sect to salute the flag or
participate actively in flag ceremonies on religious grounds.20
Where the governmental interest clearly appears to be unrelated to
the suppression of an idea, a religious doctrine or practice or an
expression or form of expression, this Court will not find it difficult to
sustain a regulation. However, regulations involving this area are
generally held against the most exacting standards, and the zone of
protection accorded by the Constitution cannot be violated, except
upon a showing of a clear and present danger of a substantive evil
which the state has a right to protect.21 Stated differently, in the
case of a regulation which appears to abridge a right to which the
fundamental law accords high significance it is the regulation, not
the act (or refusal to act), which is the exception and which requires
the court's strictest scrutiny. In the case at bench, the government
 CONSTI LAW II I ACJUCO 402

has not shown that refusal to do the acts of conformity exacted by
the assailed orders, which respondents point out attained legislative
cachet in the Administrative Code of 1987, would pose a clear and
present danger of a danger so serious and imminent, that it would
prompt legitimate State intervention.
In a case involving the Flag Protection Act of 1989, the U.S.
Supreme Court held that the "State's asserted interest in preserving
the fag as a symbol of nationhood and national unity was an interest
related to the suppression of free expression . . . because the State's
concern with protecting the flag's symbolic meaning is implicated
only when a person's treatment of the flag communicates some
message. 22 While the very concept of ordered liberty precludes
this Court from allowing every individual to subjectively define his
own standards on matters of conformity in which society, as a whole
has important interests, the records of the case and the long history
of flag salute cases abundantly supports the religious quality of the
claims adduced by the members of the sect Jehovah's Witnesses.
Their treatment of flag as a religious symbol is well-founded and
well-documented and is based on grounds religious principle. The
message conveyed by their refusal to participate in the flag
ceremony is religious, shared by the entire community of Jehovah's
Witnesses and is intimately related to their theocratic beliefs and
convictions. The subsequent expulsion of members of the sect on
the basis of the regulations assailed in the original petitions was
therefore clearly directed against religious practice. It is obvious that
the assailed orders and memoranda would gravely endanger the
free exercise of the religious beliefs of the members of the sect and
their minor children.
Furthermore, the view that the flag is not a religious but a neutral,
secular symbol expresses a majoritarian view intended to stifle the
expression of
the belief that an act of saluting the flag might sometimes be — to
some individuals — so offensive as to be worth their giving up
another constitutional right — the right to education. Individuals or
groups of individuals get from a symbol the meaning they put to it.23
Compelling members of a religious sect to believe otherwise on the
pain of denying minor children the right to an education is a futile
and unconscionable detour towards instilling virtues of loyalty and
patriotism which are best instilled and communicated by painstaking
and non-coercive methods. Coerced loyalties, after all, only serve
to inspire the opposite. The methods utilized to impose them breed
resentment and dissent. Those who attempt to coerce uniformity of
sentiment soon find out that the only path towards achieving unity is
by way of suppressing dissent.24 In the end, such attempts only find
the "unanimity of the graveyard."25
government regulation of expressive conduct is sufficiently justified
if it is within the constitutional power of the government (and)
furthers an important and substantial government interest"27
misses the whole point of the test devised by the United States
Supreme Court in O'Brien, cited by respondent, because the Court
therein was emphatic in stating that "the government interest
(should be) unrelated to the suppression of free expression." We
have already stated that the interest in regulation in the case at
bench was clearly related to the suppression of an expression
directly connected with the freedom of religion and that respondents
have not shown to our satisfaction that the restriction was prompted
by a compelling interest in public order which the state has a right
to protect. Moreover, if we were to refer (as respondents did by
referring to the test in O'Brien) to the standards devised by the US
Supreme Court in determining the validity or extent of restrictive
regulations impinging on the freedoms of the mind, then the O'Brien
standard is hardly appropriate because the standard devised in
O'Brien only applies if the State's regulation is not related to
communicative conduct. If a relationship exists, a more demanding
standard is applied.28
The responsibility of inculcating the values of patriotism,
nationalism, good citizenship, and moral uprightness is a
responsibility shared by the State with parents and other societal
institutions such as religious sects and denominations. The manner
in which such values are demonstrated in a plural society occurs in
ways so variable that government cannot make claims to the
exclusivity of its methods of inculcating patriotism so all-
encompassing in scope as to leave no room for appropriate parental
or religious influences. Provided that those influences do not pose
a clear and present danger of a substantive evil to society and its
institutions, expressions of diverse beliefs, no matter how upsetting
they may seem to the majority, are the price we pay for the freedoms
we enjoy.
WHEREFORE, premises considered, the instant Motion is hereby
DENIED.
SO ORDERED.

To the extent to which members of the Jehovah's Witnesses sect

assiduously pursue their belief in the flag's religious symbolic
meaning, the State cannot, without thereby transgressing
constitutionally protected boundaries, impose the contrary view on
the pretext of sustaining a policy designed to foster the supposedly
far-reaching goal of instilling patriotism among the youth. While
conceding to the idea — adverted to by the Solicitor General — that
certain methods of religious expression may be prohibited26 to
serve legitimate societal purposes, refusal to participate in the flag
ceremony hardly constitutes a form of religious expression so
offensive and noxious as to prompt legitimate State intervention. It
is worth repeating that the absence of a demonstrable danger of a
kind which the State is empowered to protect militates against the
extreme disciplinary methods undertaken by school authorities in
trying to enforce regulations designed to compel attendance in flag
ceremonies. Refusal of the children to participate in the flag salute
ceremony would not interfere with or deny the rights of other school
children to do so. It bears repeating that their absence from the
ceremony hardly constitutes a danger so grave and imminent as to
warrant the state's intervention.

Finally, the respondents' insistence on the validity of the actions

taken by the government on the basis of their averment that "a

A.M. No. P-02-1651 August 4, 2003
ALEJANDRO ESTRADA, Complainant,
vs.
SOLEDAD S. ESCRITOR, Respondent.
DECISION
PUNO, J.:
The case at bar takes us to a most difficult area of constitutional law
where man stands accountable to an authority higher than the state.
To be held on balance are the state’s interest and the respondent’s
religious freedom. In this highly sensitive area of law, the task of
balancing between authority and liberty is most delicate because to
the person invoking religious freedom, the consequences of the
case are not only temporal. The task is not made easier by the
American origin of our religion clauses and the wealth of U.S.
jurisprudence on these clauses for in the United States, there is
probably no more intensely controverted area of constitutional
interpretation than the religion clauses.1 The U.S. Supreme Court
itself has acknowledged that in this constitutional area, there is
"considerable internal inconsistency in the opinions of the Court."2
As stated by a professor of law, "(i)t is by now notorious that legal
doctrines and judicial decisions in the area of religious freedom are
in serious disarray. In perhaps no other area of constitutional law
have confusion and inconsistency achieved such undisputed
sovereignty."3 Nevertheless, this thicket is the only path to take to
conquer the mountain of a legal problem the case at bar presents.
Both the penetrating and panoramic view this climb would provide
will largely chart the course of religious freedom in Philippine
jurisdiction. That the religious freedom question arose in an
administrative case involving only one person does not alter the
paramount importance of the question for the "constitution
commands the positive protection by government of religious
freedom -not only for a minority, however small- not only for a
majority, however large- but for each of us."4
I. Facts
The facts of the case will determine whether respondent will prevail
in her plea of religious freedom. It is necessary therefore to lay down
the facts in detail, careful not to omit the essentials.
In a sworn letter-complaint dated July 27, 2000, complainant
Alejandro Estrada wrote to Judge Jose F. Caoibes, Jr., presiding
judge of Branch 253, Regional Trial Court of Las Piñas City,
requesting for an investigation of rumors that respondent Soledad
Escritor, court interpreter in said court, is living with a man not her
husband. They allegedly have a child of eighteen to twenty years
old. Estrada is not personally related either to Escritor or her partner
and is a resident not of Las Piñas City but of Bacoor, Cavite.
Nevertheless, he filed the charge against Escritor as he believes
that she 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.5
Judge Caoibes referred the letter to Escritor who stated that "there
is no truth as to the veracity of the allegation" and challenged
Estrada to "appear in the open and prove his allegation in the proper
forum."6 Judge Caoibes set a preliminary conference on October
12, 2000. Escritor moved for the inhibition of Judge Caoibes from
hearing her case to avoid suspicion and bias as she previously filed
an administrative complaint against him and said case was still
pending in the Office of the Court Administrator (OCA). Escritor’s
motion was denied. The preliminary conference proceeded with
both Estrada and Escritor in attendance. Estrada confirmed that he
filed the letter-complaint for immorality against Escritor because in
his frequent visits to the Hall of Justice of Las Piñas City, he learned
from conversations therein that Escritor was living with a man not
her husband and that she had an eighteen to twenty-year old son
CONSTI LAW II I ACJUCO 403
by this man. This prompted him to write to Judge Caoibes as he
believed that employees of the judiciary should be respectable and
Escritor’s live-in arrangement did not command respect.7
Respondent Escritor testified that when she entered the judiciary in
1999,8 she was already a widow, her husband having died in 1998.9
She admitted that she has been living with Luciano Quilapio, Jr.
without the benefit of marriage for twenty years and that they have
a son. But as a member of the religious sect known as the Jehovah’s
Witnesses and the Watch Tower and Bible Tract Society, their
conjugal arrangement is in conformity with their religious beliefs. In
fact, after ten years of living together, she executed on July 28, 1991
a "Declaration of Pledging Faithfulness," viz:
DECLARATION OF PLEDGING FAITHFULNESS
I, Soledad S. Escritor, do hereby declare that I have accepted
Luciano D. Quilapio, Jr., as my mate in marital relationship; that I
have done all within my ability to obtain legal recognition of this
relationship by the proper public authorities and that it is because of
having been unable to do so that I therefore make this public
declaration pledging faithfulness in this marital relationship.
I recognize this relationship as a binding tie before ‘Jehovah’ God
and before all persons to be held to and honored in full accord with
the principles of God’s Word. I will continue to seek the means to
obtain legal recognition of this relationship by the civil authorities
and if at any future time a change in circumstances make this
possible, I promise to legalize this union.
Signed this 28th day of July 1991.10
Escritor’s partner, Quilapio, executed a similar pledge on the same
day.11 Both pledges were executed in Atimonan, Quezon and
signed by three witnesses. At the time Escritor executed her pledge,
her husband was still alive but living with another woman. Quilapio
was likewise married at that time, but had been separated in fact
from his wife. During her testimony, Escritor volunteered to present
members of her congregation to confirm the truthfulness of their
"Declarations of Pledging Faithfulness," but Judge Caoibes deemed
it unnecessary and considered her identification of her signature
and the signature of Quilapio sufficient authentication of the
documents.12
Judge Caoibes endorsed the complaint to Executive Judge Manuel
B. Fernandez, Jr., who, in turn, endorsed the same to Court
Administrator Alfredo L. Benipayo. On July 17, 2001, the Court,
upon recommendation of Acting Court Administrator Zenaida N.
Elepaño, directed Escritor to comment on the charge against her. In
her comment, Escritor reiterated her religious congregation’s
approval of her conjugal arrangement with Quilapio, viz:
Herein respondent does not ignore alleged accusation but she
reiterates to state with candor that there is no truth as to the veracity
of same allegation. Included herewith are documents denominated
as Declaration of Pledging Faithfulness (Exhibit 1 and Exhibit 2) duly
signed by both respondent and her mate in marital relationship with
the witnesses concurring their acceptance to the arrangement as
approved by the WATCH TOWER BIBLE and TRACT SOCIETY,
Philippine Branch.
Same marital arrangement is recognized as a binding tie before
"JEHOVAH" God and before all persons to be held to and honored
in full accord with the principles of God’s Word.
xxx xxx xxx
Undersigned submits to the just, humane and fair discretion of the
Court with verification from the WATCH TOWER BIBLE and TRACT
SOCIETY, Philippine Branch . . . to which undersigned believes to
be a high authority in relation to her case.13

Deputy Court Administrator Christopher O. Lock recommended that
the case be referred to Executive Judge Bonifacio Sanz Maceda,
RTC Branch 255, Las Piñas City for investigation, report and
recommendation. In the course of Judge Maceda’s investigation,
Escritor again testified that her congregation allows her conjugal
arrangement with Quilapio and it does not consider it immoral. She
offered to supply the investigating judge some clippings which
explain the basis of her congregation’s belief and practice regarding
her conjugal arrangement. Escritor started living with Quilapio
twenty years ago when her husband was still alive but living with
another woman. She met this woman who confirmed to her that she
was living with her (Escritor’s) husband.14
Gregorio Salazar, a member of the Jehovah’s Witnesses since
1985, also testified. He had been a presiding minister since 1991
and in such capacity is aware of the rules and regulations of their
congregation. He explained the import of and procedure for
executing a "Declaration of Pledging Faithfulness", viz:
Q: Now, insofar as the pre-marital relationship is concern (sic), can
you cite some particular rules and regulations in your congregation?
A: Well, we of course, talk to the persons with regards (sic) to all the
parties involved and then we request them to execute a Public
Declaration of Pledge of faithfulness.
Q: What is that document?
A: Declaration of Pledge of faithfulness.
Q: What are the relations of the document Declaration of Pledge of
faithfulness, who are suppose (sic) to execute this document?
A: This must be signed, the document must be signed by the elders
of the congregation; the couple, who is a member (sic) of the
congregation, baptized member and true member of the
congregation.
Q: What standard rules and regulations do you have in relation with
this document?
A: Actually, sir, the signing of that document, ah, with the couple has
consent to marital relationship (sic) gives the Christian
Congregation view that the couple has put themselves on record
before God and man that they are faithful to each other. As if that
relation is validated by God.
Q: From your explanation, Minister, do you consider it a pledge or a
document between the parties, who are members of the
congregation?
A: It is a pledge and a document. It is a declaration, pledge of a (sic)
pledge of faithfulness.
Q: And what does pledge mean to you?
A: It means to me that they have contracted, let us say, I am the one
who contracted with the opposite member of my congregation,
opposite sex, and that this document will give us the right to a marital
relationship.
Q: So, in short, when you execute a declaration of pledge of
faithfulness, it is a preparation for you to enter a marriage?
A: Yes, Sir.
Q: But it does not necessarily mean that the parties, cohabiting or
living under the same roof?
CONSTI LAW II I ACJUCO 404
A: Well, the Pledge of faithfulness document is (sic) already
approved as to the marital relationship.
Q: Do you mean to say, Minister, by executing this document the
contracting parties have the right to cohabit?
A: Can I sir, cite, what the Bible says, the basis of that Pledge of
Faithfulness as we Christians follow. The basis is herein stated in
the Book of Matthew, Chapter Five, Verse Twenty-two. So, in that
verse of the Bible, Jesus said "that everyone divorcing his wife,
except on account of fornication, makes her a subject for adultery,
and whoever marries a divorced woman commits adultery.15
Escritor and Quilapio transferred to Salazar’s Congregation, the
Almanza Congregation in Las Piñas, in May 2001. The declarations
having been executed in Atimonan, Quezon in 1991, Salazar had
no personal knowledge of the personal circumstances of Escritor
and Quilapio when they executed their declarations. However, when
the two transferred to Almanza, Salazar inquired about their status
from the Atimonan Congregation, gathered comments of the elders
therein, and requested a copy of their declarations. The Almanza
Congregation assumed that the personal circumstances of the
couple had been considered by the Atimonan Congregation when
they executed their declarations.
Escritor and Quilapio’s declarations are recorded in the Watch
Tower Central office. They were executed in the usual and approved
form prescribed by the Watch Tower Bible and Tract Society which
was lifted from the article, "Maintaining Marriage in Honor Before
God and Men," 16 in the March 15, 1977 issue of the Watch Tower
magazine, entitled The Watchtower.
The declaration requires the approval of the elders of the Jehovah’s
Witnesses congregation and is binding within the congregation all
over the world except in countries where divorce is allowed. 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. It
is thus standard practice of the congregation to check the couple’s
marital status before giving imprimatur to the conjugal arrangement.
The execution of the declaration finds scriptural basis in Matthew
5:32 that when the spouse commits adultery, the offended spouse
can remarry. The marital status of the declarants and their
respective spouses’ commission of adultery are investigated before
the declarations are executed. Thus, in the case of Escritor, it is
presumed that the Atimonan Congregation conducted an
investigation on her marital status before the declaration was
approved and the declaration is valid everywhere, including the
Almanza Congregation. That Escritor’s and Quilapio’s declarations
were approved are shown by the signatures of three witnesses, the
elders in the Atimonan Congregation. Salazar confirmed from the
congregation’s branch office that these three witnesses are elders
in the Atimonan Congregation. Although in 1998 Escritor was
widowed, thereby lifting the legal impediment to marry on her part,
her mate is still not capacitated to remarry. Thus, their declarations
remain valid. Once all legal impediments for both are lifted, the
couple can already register their marriage with the civil authorities
and the validity of the declarations ceases. The elders in the
congregations can then solemnize their marriage as authorized by
Philippine law. 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.17
Salvador Reyes, a minister at the General de Leon, Valenzuela City
Congregation of the Jehovah’s Witnesses since 1974 and member
of the headquarters of the Watch Tower Bible and Tract Society of
the Philippines, Inc., presented the original copy of the magazine
article entitled, "Maintaining Marriage Before God and Men" to
which Escritor and Minister Salazar referred in their testimonies.
The article appeared in the March 15, 1977 issue of the Watchtower

magazine published in Pennsylvania, U.S.A. Felix S. Fajardo,
President of the Watch Tower Bible and Tract Society of the
Philippines, Inc., authorized Reyes to represent him in
authenticating the article. The article is distributed to the Jehovah’s
Witnesses congregations which also distribute them to the public.18
The parties submitted their respective memoranda to the
investigating judge. Both stated that the issue for resolution is
whether or not the relationship between respondent Escritor and
Quilapio is valid and binding in their own religious congregation, the
Jehovah’s Witnesses. Complainant Estrada adds however, that the
effect of the relationship to Escritor’s administrative liability must
likewise be determined. Estrada argued, through counsel, that the
Declaration of Pledging Faithfulness recognizes the supremacy of
the "proper public authorities" such that she bound herself "to seek
means to . . . legalize their union." Thus, even assuming arguendo
that the declaration is valid and binding in her congregation, it is
binding only to her co-members in the congregation and serves only
the internal purpose of displaying to the rest of the congregation that
she and her mate are a respectable and morally upright couple.
Their religious belief and practice, however, cannot override the
norms of conduct required by law for government employees. To
rule otherwise would create a dangerous precedent as those who
cannot legalize their live-in relationship can simply join the
Jehovah’s Witnesses congregation and use their religion as a
defense against legal liability.19
On the other hand, respondent Escritor reiterates the validity of her
conjugal arrangement with Quilapio based on the belief and practice
of her religion, the Jehovah’s Witnesses. She quoted portions of the
magazine article entitled, "Maintaining Marriage Before God and
Men," in her memorandum signed by herself, viz:
The Declaration of Pledging of Faithfulness (Exhibits "1" and "2")
executed by the respondent and her mate greatly affect the
administrative liability of respondent. Jehovah’s Witnesses admit
and recognize (sic) the supremacy of the proper public authorities
in the marriage arrangement. However, it is helpful to understand
the relative nature of Caesar’s authority regarding marriage. From
country to country, marriage and divorce legislation presents a
multitude of different angles and aspects. Rather than becoming
entangled in a confusion of technicalities, the Christian, or the one
desiring to become a disciple of God’s Son, can be guided by basic
Scriptural principles that hold true in all cases.
God’s view is of first concern. So, first of all the person must
consider whether that one’s present relationship, or the relationship
into which he or she contemplates entering, is one that could meet
with God’s approval, or whether in itself, it violates the standards of
God’s Word. Take, for example, the situation where a man lives with
a wife but also spends time living with another woman as a
concubine. As long as such a state of concubinage prevails, the
relationship of the second woman can never be harmonized with
Christian principles, nor could any declaration on the part of the
woman or the man make it so. The only right course is cessation of
the relationship. Similarly with an incestuous relationship with a
member of one’s immediate family, or a homosexual relationship or
other such situation condemned by God’s Word. It is not the lack of
any legal validation that makes such relationships unacceptable;
they are in themselves unscriptural and hence, immoral. Hence, a
person involved in such a situation could not make any kind of
"Declaration of Faithfulness," since it would have no merit in God’s
eyes.
If the relationship is such that it can have God’s approval, then, a
second principle to consider is that one should do all one can to
establish the honorableness of one’s marital union in the eyes of all.
(Heb. 13:4). If divorce is possible, then such step should now be
taken so that, having obtained the divorce (on whatever legal
grounds may be available), the present union can receive civil
validation as a recognized marriage.
CONSTI LAW II I ACJUCO 405
Finally, if the marital relationship is not one out of harmony with the
principles of God’s Word, and if one has done all that can
reasonably be done to have it recognized by civil authorities and has
been blocked in doing so, then, a Declaration Pledging Faithfulness
can be signed. In some cases, as has been noted, the extreme
slowness of official action may make accomplishing of legal steps a
matter of many, many years of effort. Or it may be that the costs
represent a crushingly heavy burden that the individual would need
years to be able to meet. In such cases, the declaration pledging
faithfulness will provide the congregation with the basis for viewing
the existing union as honorable while the individual continues
conscientiously to work out the legal aspects to the best of his ability.
Keeping in mind the basic principles presented, the respondent as
a Minister of Jehovah God, should be able to approach the matter
in a balanced way, neither underestimating nor overestimating the
validation offered by the political state. She always gives primary
concern to God’s view of the union. Along with this, every effort
should be made to set a fine example of faithfulness and devotion
to one’s mate, thus, keeping the marriage "honorable among all."
Such course will bring God’s blessing and result to the honor and
praise of the author of marriage, Jehovah God. (1 Cor. 10:31-33)20
Respondent also brought to the attention of the investigating judge
that complainant’s Memorandum came from Judge Caoibes’
chambers21 whom she claims was merely using petitioner to malign
her.
In his Report and Recommendation, investigating judge Maceda
found Escritor’s factual allegations credible as they were supported
by testimonial and documentary evidence. He also noted that "(b)y
strict Catholic standards, the live-in relationship of respondent with
her mate should fall within the definition of immoral conduct, to wit:
‘that which is willful, flagrant, or shameless, and which shows a
moral indifference to the opinion of the good and respectable
members of the community’ (7 C.J.S. 959)’ (Delos Reyes vs. Aznar,
179 SCRA, at p. 666)." He pointed out, however, that "the more
relevant question is whether or not to exact from respondent
Escritor, a member of ‘Jehovah’s Witnesses,’ the strict moral
standards of the Catholic faith in determining her administrative
responsibility in the case at bar."22 The investigating judge
acknowledged that "religious freedom is a fundamental right which
is entitled to the highest priority and the amplest protection among
human rights, for it involves the relationship of man to his Creator
(at p. 270, EBRALINAG supra, citing Chief Justice Enrique M.
Fernando’s separate opinion in German vs. Barangan, 135 SCRA
514, 530-531)" and thereby recommended the dismissal of the
complaint against Escritor.23
After considering the Report and Recommendation of Executive
Judge Maceda, the Office of the Court Administrator, through
Deputy Court Administrator (DCA) Lock and with the approval of
Court Administrator Presbitero Velasco, concurred with the factual
findings of Judge Maceda but departed from his recommendation to
dismiss the complaint. DCA Lock stressed that although Escritor
had become capacitated to marry by the time she joined the
judiciary as her husband had died a year before, "it is due to her
relationship with a married man, voluntarily carried on, that
respondent may still be subject to disciplinary action."24
Considering the ruling of the Court in Dicdican v. Fernan, et al.25
that "court personnel have been enjoined to adhere to the exacting
standards of morality and decency in their professional and private
conduct in order to preserve the good name and integrity of the court
of justice," DCA Lock found Escritor’s defense of freedom of religion
unavailing to warrant dismissal of the charge of immorality.
Accordingly, he recommended that respondent be found guilty of
immorality and that she be penalized with suspension of six months
and one day without pay with a warning that a repetition of a similar
act will be dealt with more severely in accordance with the Civil
Service Rules.26

II. Issue
Whether or not respondent should be found guilty of the
administrative charge of "gross and immoral conduct." To resolve
this issue, it is necessary to determine the sub-issue of whether or
not respondent’s right to religious freedom should carve out an
exception from the prevailing jurisprudence on illicit relations for
which government employees are held administratively liable.
III. Applicable Laws
Respondent is charged with committing "gross and immoral
conduct" under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the
Revised Administrative Code which provides, viz:
Sec. 46. Discipline: General Provisions. - (a) No officer or employee
in the Civil Service shall be suspended or dismissed except for
cause as provided by law and after due process.
(b) The following shall be grounds for disciplinary action:
xxx xxx xxx
(5) Disgraceful and immoral conduct; xxx.
Not represented by counsel, respondent, in layman’s terms, invokes
the religious beliefs and practices and moral standards of her
religion, the Jehovah’s Witnesses, in asserting that her conjugal
arrangement with a man not her legal husband does not constitute
disgraceful and immoral conduct for which she should be held
administratively liable. While not articulated by respondent, she
invokes 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.
IV. Old World Antecedents of the American Religion Clauses
To understand the life that the religion clauses have taken, it would
be well to understand not only its birth in the United States, but its
conception in the Old World. 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.27
This fresh look at the religion clauses is proper in deciding this case
of first impression.
In primitive times, all of life may be said to have been religious.
Every significant event in the primitive man’s life, from birth to death,
was marked by religious ceremonies. Tribal society survived
because religious sanctions effectively elicited adherence to social
customs. A person who broke a custom violated a taboo which
would then bring upon him "the wrathful vengeance of a
superhuman mysterious power."28 Distinction between the religious
and non-religious would thus have been meaningless to him. He
sought protection from all kinds of evil - whether a wild beast or tribe
enemy and lightning or wind - from the same person. The head of
the clan or the Old Man of the tribe or the king protected his wards
against both human and superhuman enemies. In time, the king not
only interceded for his people with the divine powers, but he himself
was looked upon as a divine being and his laws as divine
decrees.29
Time came, however, when the function of acting as intermediary
between human and spiritual powers became sufficiently
CONSTI LAW II I ACJUCO 406
differentiated from the responsibility of leading the tribe in war and
policing it in peace as to require the full-time services of a special
priest class. This saw the birth of the social and communal problem
of the competing claims of the king and priest. Nevertheless, from
the beginning, the king and not the priest was superior. The head of
the tribe was the warrior, and although he also performed priestly
functions, he carried out these functions because he was the head
and representative of the community.30
There being no distinction between the religious and the secular, the
same authority that promulgated laws regulating relations between
man and man promulgated laws concerning man’s obligations to the
supernatural. This authority was the king who was the head of the
state and the source of all law and who only delegated performance
of rituals and sacrifice to the priests. The Code of Hammurabi, king
of Babylonia, imposed penalties for homicide, larceny, perjury, and
other crimes; regulated the fees of surgeons and the wages of
masons and tailors and prescribed rules for inheritance of
property;31 and also catalogued the gods and assigned them their
places in the divine hierarchy so as to put Hammurabi’s own god to
a position of equality with existing gods.32 In sum, the relationship
of religion to the state (king) in pre-Hebreic times may be
characterized as a union of the two forces, with the state almost
universally the dominant partner.33
With the rise of the Hebrew state, a new term had to be coined to
describe the relation of the Hebrew state with the Mosaic religion:
theocracy. The authority and power of the state was ascribed to
God.34 The Mosaic creed was not merely regarded as the religion
of the state, it was (at least until Saul) the state itself. Among the
Hebrews, patriarch, prophet, and priest preceded king and prince.
As man of God, Moses decided when the people should travel and
when to pitch camp, when they should make war and when peace.
Saul and David were made kings by the prophet Samuel, disciple of
Eli the priest. Like the Code of Hammurabi, the Mosaic code
combined civil laws with religious mandates, but unlike the
Hammurabi Code, religious laws were not of secondary importance.
On the contrary, religious motivation was primary and all-embracing:
sacrifices were made and Israel was prohibited from exacting usury,
mistreating aliens or using false weights, all because God
commanded these.
Moses of the Bible led not like the ancient kings. The latter used
religion as an engine to advance the purposes of the state.
Hammurabi unified Mesopotamia and established Babylon as its
capital by elevating its city-god to a primary position over the
previous reigning gods.35 Moses, on the other hand, capitalized on
the natural yearnings of the Hebrew slaves for freedom and
independence to further God’s purposes. Liberation and Exodus
were preludes to Sinai and the receipt of the Divine Law. The
conquest of Canaan was a preparation for the building of the temple
and the full worship of God.36
Upon the monotheism of Moses was the theocracy of Israel
founded. This monotheism, more than anything else, charted not
only the future of religion in western civilization, but equally, the
future of the relationship between religion and state in the west. This
fact is acknowledged by many writers, among whom is Northcott
who pointed out, viz:
Historically it was the Hebrew and Christian conception of a single
and universal God that introduced a religious exclusivism leading to
compulsion and persecution in the realm of religion. Ancient
religions were regarded as confined to each separate people
believing in them, and the question of change from one religious
belief to another did not arise. It was not until an exclusive
fellowship, that the questions of proselytism, change of belief and
liberty of religion arose.37 (emphasis supplied)
The Hebrew theocracy existed in its pure form from Moses to
Samuel. In this period, religion was not only superior to the state,

but it was all of the state. The Law of God as transmitted through
Moses and his successors was the whole of government.
With Saul, however, the state rose to be the rival and ultimately, the
master, of religion. Saul and David each received their kingdom
from Samuel the prophet and disciple of Eli the priest, but soon the
king dominated prophet and priest. Saul disobeyed and even sought
to slay Samuel the prophet of God.38 Under Solomon, the
subordination of religion to state became complete; he used religion
as an engine to further the state’s purposes. He reformed the order
of priesthood established by Moses because the high priest under
that order endorsed the claim of his rival to the throne.39
The subordination of religion to the state was also true in pre-
Christian Rome which engaged in emperor-worship. When
Augustus became head of the Roman state and the priestly
hierarchy, he placed religion at a high esteem as part of a political
plan to establish the real religion of pre-Christian Rome - the worship
of the head of the state. He set his great uncle Julius Caesar among
the gods, and commanded that worship of Divine Julius should not
be less than worship of Apollo, Jupiter and other gods. When
Augustus died, he also joined the ranks of the gods, as other
emperors before him.40
The onset of Christianity, however, posed a difficulty to the emperor
as the Christians’ dogmatic exclusiveness prevented them from
paying homage to publicly accepted gods. In the first two centuries
after the death of Jesus, Christians were subjected to persecution.
By the time of the emperor Trajan, Christians were considered
outlaws. Their crime was "hatred of the human race", placing them
in the same category as pirates and brigands and other "enemies of
mankind" who were subject to summary punishments.41
In 284, Diocletian became emperor and sought to reorganize the
empire and make its administration more efficient. But the closely-
knit hierarchically controlled church presented a serious problem,
being a state within a state over which he had no control. He had
two options: either to force it into submission and break its power or
enter into an alliance with it and procure political control over it. He
opted for force and revived the persecution, destroyed the churches,
confiscated sacred books, imprisoned the clergy and by torture
forced them to sacrifice.42 But his efforts proved futile.
The later emperor, Constantine, took the second option of alliance.
Constantine joined with Galerius and Licinius, his two co-rulers of
the empire, in issuing an edict of toleration to Christians "on
condition that nothing is done by them contrary to discipline."43 A
year later, after Galerius died, Constantine and Licius jointly issued
the epochal Edict of Milan (312 or 313), a document of monumental
importance in the history of religious liberty. It provided "that liberty
of worship shall not be denied to any, but that the mind and will of
every individual shall be free to manage divine affairs according to
his own choice." (emphasis supplied) Thus, all restrictive statutes
were abrogated and it was enacted "that every person who
cherishes the desire to observe the Christian religion shall freely and
unconditionally proceed to observe the same without let or
hindrance." Furthermore, it was provided that the "same free and
open power to follow their own religion or worship is granted also to
others, in accordance with the tranquillity of our times, in order that
every person may have free opportunity to worship the object of his
choice."(emphasis supplied)44
Before long, not only did Christianity achieve equal status, but
acquired privilege, then prestige, and eventually, exclusive power.
Religion became an engine of state policy as Constantine
considered Christianity a means of unifying his complex empire.
Within seven years after the Edict of Milan, under the emperor’s
command, great Christian edifices were erected, the clergy were
freed from public burdens others had to bear, and private heathen
sacrifices were forbidden.
CONSTI LAW II I ACJUCO 407
The favors granted to Christianity came at a price: state interference
in religious affairs. Constantine and his successors called and
dismissed church councils, and enforced unity of belief and practice.
Until recently the church had been the victim of persecution and
repression, but this time it welcomed the state’s persecution and
repression of the nonconformist and the orthodox on the belief that
it was better for heretics to be purged of their error than to die
unsaved.
Both in theory as in practice, the partnership between church and
state was not easy. It was a constant struggle of one claiming
dominance over the other. In time, however, after the collapse and
disintegration of the Roman Empire, and while monarchical states
were gradually being consolidated among the numerous feudal
holdings, the church stood as the one permanent, stable and
universal power. Not surprisingly, therefore, it claimed not merely
equality but superiority over the secular states. This claim,
symbolized by Pope Leo’s crowning of Charlemagne, became the
church’s accepted principle of its relationship to the state in the
Middle Ages. As viewed by the church, the union of church and state
was now a union of the state in the church. The rulers of the states
did not concede to this claim of supremacy. Thus, while
Charlemagne received his crown from the Pope, he himself
crowned his own son as successor to nullify the inference of
supremacy.45 The whole history of medieval Europe was a struggle
for supremacy between prince and Pope and the resulting religious
wars and persecution of heretics and nonconformists. At about the
second quarter of the 13th century, the Inquisition was established,
the purpose of which was the discovery and extermination of
heresy. Accused heretics were tortured with the approval of the
church in the bull Ad extirpanda issued by Pope Innocent IV in 1252.
The corruption and abuses of the Catholic Church spurred the
Reformation aimed at reforming the Catholic Church and resulting
in the establishment of Protestant churches. While Protestants are
accustomed to ascribe to the Reformation the rise of religious liberty
and its acceptance as the principle governing the relations between
a democratic state and its citizens, history shows that it is more
accurate to say that the "same causes that gave rise to the
Protestant revolution also resulted in the widespread acceptance of
the principle of religious liberty, and ultimately of the principle of
separation of church and state."46 Pleas for tolerance and freedom
of conscience can without doubt be found in the writings of leaders
of the Reformation. But just as Protestants living in the countries of
papists pleaded for toleration of religion, so did the papists that lived
where Protestants were dominant.47 Papist and Protestant
governments alike accepted the idea of cooperation between
church and state and regarded as essential to national unity the
uniformity of at least the outward manifestations of religion.48
Certainly, Luther, leader of the Reformation, stated that "neither
pope, nor bishop, nor any man whatever has the right of making one
syllable binding on a Christian man, unless it be done with his own
consent."49 But when the tables had turned and he was no longer
the hunted heretic, he likewise stated when he made an alliance
with the secular powers that "(h)eretics are not to be disputed with,
but to be condemned unheard, and whilst they perish by fire, the
faithful ought to pursue the evil to its source, and bathe their hands
in the blood of the Catholic bishops, and of the Pope, who is a devil
in disguise."50 To Luther, unity among the peoples in the interests
of the state was an important consideration. Other personalities in
the Reformation such as Melanchton, Zwingli and Calvin strongly
espoused theocracy or the use of the state as an engine to further
religion. In establishing theocracy in Geneva, Calvin made absence
from the sermon a crime, he included criticism of the clergy in the
crime of blasphemy punishable by death, and to eliminate heresy,
he cooperated in the Inquisition.51
There were, however, those who truly advocated religious liberty.
Erasmus, who belonged to the Renaissance than the Reformation,
wrote that "(t)he terrible papal edict, the more terrible imperial edict,
the imprisonments, the confiscations, the recantations, the fagots

and burnings, all these things I can see accomplish nothing except
to make the evil more widespread."52 The minority or dissident
sects also ardently advocated religious liberty. The Anabaptists,
persecuted and despised, along with the Socinians (Unitarians) and
the Friends of the Quakers founded by George Fox in the 17th
century, endorsed the supremacy and freedom of the individual
conscience. They regarded religion as outside the realm of political
governments.53 The English Baptists proclaimed that the
"magistrate is not to meddle with religion or matters of conscience,
nor compel men to this or that form of religion."54
Thus, out of the Reformation, three rationalizations of church-state
relations may be distinguished: the Erastian (after the German
doctor Erastus), the theocratic, and the separatist. The first
assumed state superiority in ecclesiastical affairs and the use of
religion as an engine of state policy as demonstrated by Luther’s
belief that civic cohesion could not exist without religious unity so
that coercion to achieve religious unity was justified. The second
was founded on ecclesiastical supremacy and the use of state
machinery to further religious interests as promoted by Calvin. The
third, which was yet to achieve ultimate and complete expression in
the New World, was discernibly in its incipient form in the arguments
of some dissident minorities that the magistrate should not
intermeddle in religious affairs.55 After the Reformation,
Erastianism pervaded all Europe except for Calvin’s theocratic
Geneva. In England, perhaps more than in any other country,
Erastianism was at its height. To illustrate, a statute was enacted by
Parliament in 1678, which, to encourage woolen trade, imposed on
all clergymen the duty of seeing to it that no person was buried in a
shroud made of any substance other than wool.56 Under Elizabeth,
supremacy of the crown over the church was complete:
ecclesiastical offices were regulated by her proclamations,
recusants were fined and imprisoned, Jesuits and proselytizing
priests were put to death for high treason, the thirty-nine Articles of
the Church of England were adopted and English Protestantism
attained its present doctrinal status.57 Elizabeth was to be
recognized as "the only Supreme Governor of this realm . . . as well
in all spiritual or ecclesiastical things or causes as temporal." She
and her successors were vested, in their dominions, with "all
manner of jurisdictions, privileges, and preeminences, in any wise
touching or concerning any spiritual or ecclesiastical jurisdiction."58
Later, however, Cromwell established the constitution in 1647 which
granted full liberty to all Protestant sects, but denied toleration to
Catholics.59 In 1689, William III issued the Act of Toleration which
established a de facto toleration for all except Catholics. The
Catholics achieved religious liberty in the 19th century when the
Roman Catholic Relief Act of 1829 was adopted. The Jews followed
suit in 1858 when they were finally permitted to sit in Parliament.60
When the representatives of the American states met in
Philadelphia in 1787 to draft the constitutional foundation of the new
republic, the theocratic state which had flourished intermittently in
Israel, Judea, the Holy Roman Empire and Geneva was completely
gone. The prevailing church-state relationship in Europe was
Erastianism embodied in the system of jurisdictionalism whereby
one faith was favored as the official state-supported religion, but
other faiths were permitted to exist with freedom in various degrees.
No nation had yet adopted as the basis of its church-state relations
the principle of the mutual independence of religion and government
and the concomitant principle that neither might be used as an
engine to further the policies of the other, although the principle was
in its seminal form in the arguments of some dissident minorities
and intellectual leaders of the Renaissance. The religious wars of
16th and 17th century Europe were a thing of the past by the time
America declared its independence from the Old World, but their
memory was still vivid in the minds of the Constitutional Fathers as
expressed by the United States Supreme Court, viz:
The centuries immediately before and contemporaneous with the
colonization of America had been filled with turmoil, civil strife, and
persecution generated in large part by established sects determined
CONSTI LAW II I ACJUCO 408
to maintain their absolute political and religious supremacy. With the
power of government supporting them, at various times and places,
Catholics had persecuted Protestants, Protestants had persecuted
Catholics, Protestant sects had persecuted other protestant sects,
Catholics of one shade of belief had persecuted Catholics of another
shade of belief, and all of these had from time to time persecuted
Jews. In efforts to force loyalty to whatever religious group
happened to be on top and in league with the government of a
particular time and place, men and women had been fined, cast in
jail, cruelly tortured, and killed. Among the offenses for which these
punishments had been inflicted were such things as speaking
disrespectfully of the views of ministers of government-established
churches, non-attendance at those churches, expressions of non-
belief in their doctrines, and failure to pay taxes and tithes to support
them.61
In 1784, James Madison captured in this statement the entire history
of church-state relations in Europe up to the time the United States
Constitution was adopted, viz:
Torrents of blood have been spilt in the world in vain attempts of the
secular arm to extinguish religious discord, by proscribing all
differences in religious opinions.62
In sum, this history shows two salient features: 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.63
V. Factors Contributing to the Adoption
of the American Religion Clauses
Settlers fleeing from religious persecution in Europe, primarily in
Anglican-dominated England, established many of the American
colonies. British thought pervaded these colonies as the immigrants
brought with them their religious and political ideas from England
and English books and pamphlets largely provided their cultural
fare.64 But although these settlers escaped from Europe to be freed
from bondage of laws which compelled them to support and attend
government favored churches, some of these settlers themselves
transplanted into American soil the oppressive practices they
escaped from. The charters granted by the English Crown to the
individuals and companies designated to make the laws which
would control the destinies of the colonials authorized them to erect
religious establishments, which all, whether believers or not, were
required to support or attend.65 At one time, six of the colonies
established a state religion. Other colonies, however, such as
Rhode Island and Delaware tolerated a high degree of religious
diversity. Still others, which originally tolerated only a single religion,
eventually extended support to several different faiths.66
This was the state of the American colonies when the unique
American experiment of separation of church and state came about.
The birth of the experiment cannot be attributed to a single cause or
event. Rather, a number of interdependent practical and ideological
factors contributed in bringing it forth. Among these were the
"English Act of Toleration of 1689, the multiplicity of sects, the lack
of church affiliation on the part of most Americans, the rise of
commercial intercourse, the exigencies of the Revolutionary War,
the Williams-Penn tradition and the success of their experiments,
the writings of Locke, the social contract theory, the Great

Awakening, and the influence of European rationalism and
deism."67 Each of these factors shall be briefly discussed.
First, the practical factors. England’s policy of opening the gates of
the American colonies to different faiths resulted in the multiplicity
of sects in the colonies. With an Erastian justification, English lords
chose to forego protecting what was considered to be the true and
eternal church of a particular time in order to encourage trade and
commerce. The colonies were large financial investments which
would be profitable only if people would settle there. It would be
difficult to engage in trade with persons one seeks to destroy for
religious belief, thus tolerance was a necessity. This tended to
distract the colonies from their preoccupations over their religion
and its exclusiveness, encouraging them "to think less of the Church
and more of the State and of commerce."68 The diversity brought
about by the colonies’ open gates encouraged religious freedom
and non-establishment in several ways. First, as there were too
many dissenting sects to abolish, there was no alternative but to
learn to live together. Secondly, because of the daily exposure to
different religions, the passionate conviction in the exclusive
rightness of one’s religion, which impels persecution for the sake of
one’s religion, waned. Finally, because of the great diversity of the
sects, religious uniformity was not possible, and without such
uniformity, establishment could not survive.69
But while there was a multiplicity of denomination, paradoxically,
there was a scarcity of adherents. Only about four percent of the
entire population of the country had a church affiliation at the time
the republic was founded.70 This might be attributed to the drifting
to the American colonies of the skepticism that characterized
European Enlightenment.71 Economic considerations might have
also been a factor. The individualism of the American colonist,
manifested in the multiplicity of sects, also resulted in much
unaffiliated religion which treated religion as a personal non-
institutional matter. The prevalence of lack of church affiliation
contributed to religious liberty and disestablishment as persons who
were not connected with any church were not likely to persecute
others for similar independence nor accede to compulsory taxation
to support a church to which they did not belong.72
However, for those who were affiliated to churches, the colonial
policy regarding their worship generally followed the tenor of the
English Act of Toleration of 1689. In England, this Act conferred on
Protestant dissenters the right to hold public services subject to
registration of their ministers and places of worship.73 Although the
toleration accorded to Protestant dissenters who qualified under its
terms was only a modest advance in religious freedom, it
nevertheless was of some influence to the American experiment.74
Even then, for practical considerations, concessions had to be made
to other dissenting churches to ensure their cooperation in the War
of Independence which thus had a unifying effect on the colonies.
Next, the ideological factors. First, the Great Awakening in mid-18th
century, an evangelical religious revival originating in New England,
caused a break with formal church religion and a resistance to
coercion by established churches. This movement emphasized an
emotional, personal religion that appealed directly to the individual,
putting emphasis on the rights and duties of the individual
conscience and its answerability exclusively to God. Thus, although
they had no quarrel with orthodox Christian theology as in fact they
were fundamentalists, this group became staunch advocates of
separation of church and state.75
Then there was the Williams-Penn tradition. Roger Williams was the
founder of the colony of Rhode Island where he established a
community of Baptists, Quakers and other nonconformists. In this
colony, religious freedom was not based on practical considerations
but on the concept of mutual independence of religion and
government. In 1663, Rhode Island obtained a charter from the
British crown which declared that settlers have it "much on their
heart to hold forth a livelie experiment that a most flourishing civil
CONSTI LAW II I ACJUCO 409
state may best be maintained . . . with full libertie in religious
concernments."76 In Williams’ pamphlet, The Bloudy Tenent of
Persecution for cause of Conscience, discussed in a Conference
between Truth and Peace,77 he articulated the philosophical basis
for his argument of religious liberty. To him, religious freedom and
separation of church and state did not constitute two but only one
principle. Religious persecution is wrong because it "confounds the
Civil and Religious" and because "States . . . are proved essentially
Civil. The "power of true discerning the true fear of God" is not one
of the powers that the people have transferred to Civil Authority.78
Williams’ Bloudy Tenet is considered an epochal milestone in the
history of religious freedom and the separation of church and
state.79
William Penn, proprietor of the land that became Pennsylvania, was
also an ardent advocate of toleration, having been imprisoned for
his religious convictions as a member of the despised Quakers. He
opposed coercion in matters of conscience because "imposition,
restraint and persecution for conscience sake, highly invade the
Divine prerogative." Aside from his idealism, proprietary interests
made toleration in Pennsylvania necessary. He attracted large
numbers of settlers by promising religious toleration, thus bringing
in immigrants both from the Continent and Britain. At the end of the
colonial period, Pennsylvania had the greatest variety of religious
groups. Penn was responsible in large part for the "Concessions
and agreements of the Proprietors, Freeholders, and inhabitants of
West Jersey, in America", a monumental document in the history of
civil liberty which provided among others, for liberty of
conscience.80 The Baptist followers of Williams and the Quakers
who came after Penn continued the tradition started by the leaders
of their denominations. Aside from the Baptists and the Quakers,
the Presbyterians likewise greatly contributed to the evolution of
separation and freedom.81 The Constitutional fathers who
convened in Philadelphia in 1787, and Congress and the states that
adopted the First Amendment in 1791 were very familiar with and
strongly influenced by the successful examples of Rhode Island and
Pennsylvania.82
Undeniably, John Locke and the social contract theory also
contributed to the American experiment. The social contract theory
popularized by Locke was so widely accepted as to be deemed self-
evident truth in America’s Declaration of Independence. With the
doctrine of natural rights and equality set forth in the Declaration of
Independence, there was no room for religious discrimination. It was
difficult to justify inequality in religious treatment by a new nation
that severed its political bonds with the English crown which violated
the self-evident truth that all men are created equal.83
The social contract theory was applied by many religious groups in
arguing against establishment, putting emphasis on religion as a
natural right that is entirely personal and not within the scope of the
powers of a political body. That Locke and the social contract theory
were influential in the development of religious freedom and
separation is evident from the memorial presented by the Baptists
to the Continental Congress in 1774, viz:
Men unite in society, according to the great Mr. Locke, with an
intention in every one the better to preserve himself, his liberty and
property. The power of the society, or Legislature constituted by
them, can never be supposed to extend any further than the
common good, but is obliged to secure every one’s property. To give
laws, to receive obedience, to compel with the sword, belong to
none but the civil magistrate; and on this ground we affirm that the
magistrate’s power extends not to establishing any articles of faith
or forms of worship, by force of laws; for laws are of no force without
penalties. The care of souls cannot belong to the civil magistrate,
because his power consists only in outward force; but pure and
saving religion consists in the inward persuasion of the mind,
without which nothing can be acceptable to God.84 (emphasis
supplied)

The idea that religion was outside the jurisdiction of civil government
was acceptable to both the religionist and rationalist. To the
religionist, God or Christ did not desire that government have that
jurisdiction ("render unto Caesar that which is Caesar’s"; "my
kingdom is not of this world") and to the rationalist, the power to act
in the realm of religion was not one of the powers conferred on
government as part of the social contract.85
Not only the social contract theory drifted to the colonies from
Europe. Many of the leaders of the Revolutionary and post-
revolutionary period were also influenced by European deism and
rationalism,86 in general, and some were apathetic if not
antagonistic to formal religious worship and institutionalized religion.
Jefferson, Paine, John Adams, Washington, Franklin, Madison,
among others were reckoned to be among the Unitarians or Deists.
Unitarianism and Deism contributed to the emphasis on secular
interests and the relegation of historic theology to the
background.87 For these men of the enlightenment, religion should
be allowed to rise and fall on its own, and the state must be
protected from the clutches of the church whose entanglements has
caused intolerance and corruption as witnessed throughout
history.88 Not only the leaders but also the masses embraced
rationalism at the end of the eighteenth century, accounting for the
popularity of Paine’s Age of Reason.89
Finally, the events leading to religious freedom and separation in
Virginia contributed significantly to the American experiment of the
First Amendment. Virginia was the "first state in the history of the
world to proclaim the decree of absolute divorce between church
and state."90 Many factors contributed to this, among which were
that half to two-thirds of the population were organized dissenting
sects, the Great Awakening had won many converts, the
established Anglican Church of Virginia found themselves on the
losing side of the Revolution and had alienated many influential
laymen with its identification with the Crown’s tyranny, and above
all, present in Virginia was a group of political leaders who were
devoted to liberty generally,91 who had accepted the social contract
as self-evident, and who had been greatly influenced by Deism and
Unitarianism. Among these leaders were Washington, Patrick
Henry, George Mason, James Madison and above the rest, Thomas
Jefferson.
The first major step towards separation in Virginia was the adoption
of the following provision in the Bill of Rights of the state’s first
constitution:
That religion, or the duty which we owe to our Creator, and the
manner of discharging it, can be directed only by reason and
conviction, not by force or violence; and therefore, all men are
equally entitled to the free exercise of religion according to the
dictates of conscience; and that it is the mutual duty of all to practice
Christian forbearance, love, and charity towards each other.92
(emphasis supplied)
The adoption of the Bill of Rights signified the beginning of the end
of establishment. Baptists, Presbyterians and Lutherans flooded the
first legislative assembly with petitions for abolition of establishment.
While the majority of the population were dissenters, a majority of
the legislature were churchmen. The legislature compromised and
enacted a bill in 1776 abolishing the more oppressive features of
establishment and granting exemptions to the dissenters, but not
guaranteeing separation. It repealed the laws punishing heresy and
absence from worship and requiring the dissenters to contribute to
the support of the establishment.93 But the dissenters were not
satisfied; they not only wanted abolition of support for the
establishment, they opposed the compulsory support of their own
religion as others. As members of the established church would not
allow that only they would pay taxes while the rest did not, the
legislature enacted in 1779 a bill making permanent the
establishment’s loss of its exclusive status and its power to tax its
members; but those who voted for it did so in the hope that a general
CONSTI LAW II I ACJUCO 410
assessment bill would be passed. Without the latter, the
establishment would not survive. Thus, a bill was introduced in 1779
requiring every person to enroll his name with the county clerk and
indicate which "society for the purpose of Religious Worship" he
wished to support. On the basis of this list, collections were to be
made by the sheriff and turned over to the clergymen and teachers
designated by the religious congregation. The assessment of any
person who failed to enroll in any society was to be divided
proportionately among the societies.94 The bill evoked strong
opposition.
In 1784, another bill, entitled "Bill Establishing a Provision for
Teachers of the Christian Religion" was introduced requiring all
persons "to pay a moderate tax or contribution annually for the
support of the Christian religion, or of some Christian church,
denomination or communion of Christians, or for some form of
Christian worship."95 This likewise aroused the same opposition to
the 1779 bill. The most telling blow against the 1784 bill was the
monumental "Memorial and Remonstrance against Religious
Assessments" written by Madison and widely distributed before the
reconvening of legislature in the fall of 1785.96 It stressed natural
rights, the government’s lack of jurisdiction over the domain of
religion, and the social contract as the ideological basis of
separation while also citing practical considerations such as loss of
population through migration. He wrote, viz:
Because we hold it for a ‘fundamental and undeniable truth,’ that
religion, or the duty which we owe to our creator, and the manner of
discharging it, can be directed only by reason and conviction, not by
force or violence. The religion, then, of every man, must be left to
the conviction and conscience of every man; and it is the right of
every man to exercise it as these may dictate. This right is, in its
nature, an unalienable right. It is unalienable, because the opinions
of men, depending only on the evidence contemplated in their own
minds, cannot follow the dictates of other men; it is unalienable,
also, because what is here a right towards men, is a duty towards
the creator. It is the duty of every man to render the creator such
homage, and such only as he believes to be acceptable to him; this
duty is precedent, both in order of time and degree of obligation, to
the claims of civil society. Before any man can be considered as a
member of civil society, he must be considered as a subject of the
governor of the universe; and if a member of civil society, who enters
into any subordinate association, must always do it with a
reservation of his duty to the general authority, much more must
every man who becomes a member of any particular civil society do
it with the saving his allegiance to the universal sovereign.97
(emphases supplied)
Madison articulated in the Memorial the widely held beliefs in 1785
as indicated by the great number of signatures appended to the
Memorial. The assessment bill was speedily defeated.
Taking advantage of the situation, Madison called up a much earlier
1779 bill of Jefferson which had not been voted on, the "Bill for
Establishing Religious Freedom", and it was finally passed in
January 1786. It provided, viz:
Well aware that Almighty God hath created the mind free; that all
attempts to influence it by temporal punishments or burdens, or by
civil incapacitations, tend not only to beget habits of hypocrisy and
meanness, and are a departure from the plan of the Holy Author of
our religion, who being Lord both of body and mind, yet chose not
to propagate it by coercions on either, as was in his Almighty power
to do;
xxx xxx xxx
Be it therefore enacted by the General Assembly. That no man shall
be compelled to frequent or support any religious worship, place or
ministry whatsoever, nor shall be enforced, restrained, molested or
burdened in his body or goods, nor shall otherwise suffer on account

of his religious opinions or beliefs, but that all men shall be free to
profess, and by argument to maintain, their opinions in matters of
religion, and that the same shall in no wise diminish, enlarge or
affect their civil capacities.98 (emphases supplied)
This statute forbade any kind of taxation in support of religion and
effectually ended any thought of a general or particular
establishment in Virginia.99 But the passage of this law was
obtained not only because of the influence of the great leaders in
Virginia but also because of substantial popular support coming
mainly from the two great dissenting sects, namely the
Presbyterians and the Baptists. The former were never established
in Virginia and an underprivileged minority of the population. This
made them anxious to pull down the existing state church as they
realized that it was impossible for them to be elevated to that
privileged position. Apart from these expediential considerations,
however, many of the Presbyterians were sincere advocates of
separation100 grounded on rational, secular arguments and to the
language of natural religion.101 Influenced by Roger Williams, the
Baptists, on the other hand, assumed that religion was essentially a
matter of concern of the individual and his God, i.e., subjective,
spiritual and supernatural, having no relation with the social
order.102 To them, the Holy Ghost was sufficient to maintain and
direct the Church without governmental assistance and state-
supported religion was contrary ti the spirit of the Gospel.103 Thus,
separation was necessary.104 Jefferson’s religious freedom statute
was a milestone in the history of religious freedom. The United
States Supreme Court has not just once acknowledged that the
provisions of the First Amendment of the U.S. Constitution had the
same objectives and intended to afford the same protection against
government interference with religious liberty as the Virginia Statute
of Religious Liberty.
Even in the absence of the religion clauses, the principle that
government had no power to legislate in the area of religion by
restricting its free exercise or establishing it was implicit in the
Constitution of 1787. This could be deduced from the prohibition of
any religious test for federal office in Article VI of the Constitution
and the assumed lack of power of Congress to act on any subject
not expressly mentioned in the Constitution.105 However, omission
of an express guaranty of religious freedom and other natural rights
nearly prevented the ratification of the Constitution.106 In the
ratifying conventions of almost every state, some objection was
expressed to the absence of a restriction on the Federal
Government as regards legislation on religion.107 Thus, in 1791,
this restriction was made explicit with the adoption of the religion
clauses in the First Amendment as they are worded to this day, 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.
VI. Religion Clauses in the United States:
Concept, Jurisprudence, Standards
With the widespread agreement regarding the value of the First
Amendment religion clauses comes 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 Congress renders it difficult to ascertain its meaning.108
Consequently, the jurisprudence in this area is volatile and fraught
with inconsistencies whether within a Court decision or across
decisions.
One source of difficulty is the difference in the context in which the
First Amendment was adopted and in which it is applied today. In
the 1780s, religion played a primary role in social life - i.e., family
responsibilities, education, health care, poor relief, and other
CONSTI LAW II I ACJUCO 411
aspects of social life with significant moral dimension - while
government played a supportive and indirect role by maintaining
conditions in which these activities may be carried out by religious
or religiously-motivated associations. Today, government plays this
primary role and religion plays the supportive role.109 Government
runs even family planning, sex education, adoption and foster care
programs.110 Stated otherwise and with some exaggeration,
"(w)hereas two centuries ago, in matters of social life which have a
significant moral dimension, government was the handmaid of
religion, today religion, in its social responsibilities, as contrasted
with personal faith and collective worship, is the handmaid of
government."111 With government regulation of individual conduct
having become more pervasive, inevitably some of those
regulations would reach conduct that for some individuals are
religious. As a result, increasingly, there may be inadvertent
collisions between purely secular government actions and religion
clause values.112
Parallel to this expansion of government has been the expansion of
religious organizations in population, physical institutions, types of
activities undertaken, and sheer variety of denominations, sects and
cults. Churches run day-care centers, retirement homes, hospitals,
schools at all levels, research centers, settlement houses, halfway
houses for prisoners, sports facilities, theme parks, publishing
houses and mass media programs. In these activities, religious
organizations complement and compete with commercial
enterprises, thus blurring the line between many types of activities
undertaken by religious groups and secular activities. Churches
have also concerned themselves with social and political issues as
a necessary outgrowth of religious faith as witnessed in pastoral
letters on war and peace, economic justice, and human life, or in
ringing affirmations for racial equality on religious foundations.
Inevitably, these developments have brought about substantial
entanglement of religion and government. Likewise, the growth in
population density, mobility and diversity has significantly changed
the environment in which religious organizations and activities exist
and the laws affecting them are made. It is no longer easy for
individuals to live solely among their own kind or to shelter their
children from exposure to competing values. The result is
disagreement over what laws should require, permit or prohibit;113
and agreement that if the rights of believers as well as non-believers
are all to be respected and given their just due, a rigid, wooden
interpretation of the religion clauses that is blind to societal and
political realities must be avoided.114
Religion cases arise from different circumstances. The more
obvious ones arise from a government action which purposely aids
or inhibits religion. These cases are easier to resolve as, in general,
these actions are plainly unconstitutional. Still, this kind of cases
poses difficulty in ascertaining proof of intent to aid or inhibit
religion.115 The more difficult religion clause cases involve
government action with a secular purpose and general applicability
which incidentally or inadvertently aids or burdens religious
exercise. In Free Exercise Clause cases, these government actions
are referred to as those with "burdensome effect" on religious
exercise even if the government action is not religiously
motivated.116 Ideally, 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 turn to the
courts for protection.117 Most of these free exercise claims brought
to the Court are for exemption, not invalidation of the facially neutral
law that has a "burdensome" effect.118
With the change in political and social context and the increasing
inadvertent collisions between law and religious exercise, the
definition of religion for purposes of interpreting the religion clauses
has also been modified to suit current realities. Defining religion is a
difficult task for even theologians, philosophers and moralists
cannot agree on a comprehensive definition. Nevertheless, courts
must define religion for constitutional and other legal purposes.119

It was in the 1890 case of Davis v. Beason120 that the United States
Supreme Court first had occasion to define religion, viz:
The term ‘religion’ has reference to one’s views of his relations to
his Creator, and to the obligations they impose of reverence for his
being and character, and of obedience to his will. It is often
confounded with the cultus or form of worship of a particular sect,
but is distinguishable from the latter. The First Amendment to the
Constitution, in declaring that Congress shall make no law
respecting the establishment of religion, or forbidding the free
exercise thereof, was intended to allow everyone under the
jurisdiction of the United States to entertain such notions respecting
his relations to his Maker and the duties they impose as may be
approved by his judgment and conscience, and to exhibit his
sentiments in such form of worship as he may think proper, not
injurious to the equal rights of others, and to prohibit legislation for
the support of any religious tenets, or the modes of worship of any
sect.121
The definition was clearly theistic which was reflective of the popular
attitudes in 1890.
In 1944, the Court stated in United States v. Ballard122 that the free
exercise of religion "embraces the right to maintain theories of life
and of death and of the hereafter which are rank heresy to followers
of the orthodox faiths."123 By the 1960s, American pluralism in
religion had flourished to include non-theistic creeds from Asia such
as Buddhism and Taoism.124 In 1961, the Court, in Torcaso v.
Watkins,125 expanded the term "religion" to non-theistic beliefs
such as Buddhism, Taoism, Ethical Culture, and Secular
Humanism. Four years later, the Court faced a definitional problem
in United States v. Seeger126 which involved four men who claimed
"conscientious objector" status in refusing to serve in the Vietnam
War. One of the four, Seeger, was not a member of any organized
religion opposed to war, but when specifically asked about his belief
in a Supreme Being, Seeger stated that "you could call (it) a belief
in a Supreme Being or God. These just do not happen to be the
words that I use." Forest Peter, another one of the four claimed that
after considerable meditation and reflection "on values derived from
the Western religious and philosophical tradition," he determined
that it would be "a violation of his moral code to take human life and
that he considered this belief superior to any obligation to the state."
The Court avoided a constitutional question by broadly interpreting
not the Free Exercise Clause, but the statutory definition of religion
in the Universal Military Training and Service Act of 1940 which
exempt from combat anyone "who, by reason of religious training
and belief, is conscientiously opposed to participation in war in any
form." Speaking for the Court, Justice Clark ruled, viz:
Congress, in using the expression ‘Supreme Being’ rather than the
designation ‘God,’ was merely clarifying the meaning of religious
tradition and belief so as to embrace all religions and to exclude
essentially political, sociological, or philosophical views (and) the
test of belief ‘in relation to a Supreme Being’ is whether a given
belief that is sincere and meaningful occupies a place in the life of
its possessor parallel to the orthodox belief in God. (emphasis
supplied)
The Court was convinced that Seeger, Peter and the others were
conscientious objectors possessed of such religious belief and
training.
Federal and state courts have expanded the definition of religion in
Seeger to include even non-theistic beliefs such as Taoism or Zen
Buddhism. It has been proposed that basically, a creed must meet
four criteria to qualify as religion under the First Amendment. First,
there must be belief in God or some parallel belief that occupies a
central place in the believer’s life. Second, the religion must involve
a moral code transcending individual belief, i.e., it cannot be purely
subjective. Third, a demonstrable sincerity in belief is necessary, but
the court must not inquire into the truth or reasonableness of the
CONSTI LAW II I ACJUCO 412
belief.127 Fourth, there must be some associational ties,128
although there is also a view that religious beliefs held by a single
person rather than being part of the teachings of any kind of group
or sect are entitled to the protection of the Free Exercise Clause.129
Defining religion is only the beginning of the difficult task of deciding
religion clause cases. Having hurdled the issue of definition, the
court then has to draw lines to determine what is or is not
permissible under the religion clauses. In this task, the purpose of
the clauses is the yardstick. Their purpose is singular; they are two
sides of the same coin.130 In devoting two clauses to religion, the
Founders were stating not two opposing thoughts that would cancel
each other out, but two complementary thoughts that apply in
different ways in different circumstances.131 The purpose of the
religion clauses - both in the restriction it imposes on the power of
the government to interfere with the free exercise of religion and the
limitation on the power of government to establish, aid, and support
religion - is the protection and promotion of religious liberty.132 The
end, the goal, and the rationale of the religion clauses is this
liberty.133 Both clauses were adopted to prevent government
imposition of religious orthodoxy; the great evil against which they
are directed is government-induced homogeneity.134 The Free
Exercise Clause directly articulates the common objective of the two
clauses and the Establishment Clause specifically addresses a form
of interference with religious liberty with which the Framers were
most familiar and for which government historically had
demonstrated a propensity.135 In other words, free exercise is the
end, proscribing establishment is a necessary means to this end to
protect the rights of those who might dissent from whatever religion
is established.136 It has even been suggested that the sense of the
First Amendment is captured if it were to read as "Congress shall
make no law respecting an establishment of religion or otherwise
prohibiting the free exercise thereof" because the fundamental and
single purpose of the two religious clauses is to "avoid any
infringement on the free exercise of religions"137 Thus, the
Establishment Clause mandates separation of church and state to
protect each from the other, in service of the larger goal of
preserving religious liberty. The effect of the separation is to limit the
opportunities for any religious group to capture the state apparatus
to the disadvantage of those of other faiths, or of no faith at all138
because history has shown that religious fervor conjoined with state
power is likely to tolerate far less religious disagreement and
disobedience from those who hold different beliefs than an
enlightened secular state.139 In the words of the U.S. Supreme
Court, the two clauses are interrelated, viz: "(t)he structure of our
government has, for the preservation of civil liberty, rescued the
temporal institutions from religious interference. On the other hand,
it has secured religious liberty from the invasion of the civil
authority."140
In upholding religious liberty as the end goal in religious clause
cases, the line the court draws to ensure that government does not
establish and instead remains neutral toward religion is not
absolutely straight. Chief Justice Burger explains, viz:
The course of constitutional neutrality in this area cannot be an
absolutely straight line; rigidity could well defeat the basic purpose
of these provisions, which is to insure that no religion be sponsored
or favored, none commanded and none inhibited.141 (emphasis
supplied)
Consequently, U.S. jurisprudence has produced two identifiably
different,142 even opposing, strains of jurisprudence on the religion
clauses: separation (in the form of strict separation or the tamer
version of strict neutrality or separation) and benevolent neutrality
or accommodation. A view of the landscape of U.S. religion clause
cases would be useful in understanding these two strains, the scope
of protection of each clause, and the tests used in religious clause
cases. Most of these cases are cited as authorities in Philippine
religion clause cases.

A. Free Exercise Clause
The Court first interpreted the Free Exercise Clause in the 1878
case of Reynolds v. United States.143 This landmark case involved
Reynolds, a Mormon who proved that it was his religious duty to
have several wives and that the failure to practice polygamy by male
members of his religion when circumstances would permit would be
punished with damnation in the life to come. Reynolds’ act of
contracting a second marriage violated Section 5352, Revised
Statutes prohibiting and penalizing bigamy, for which he was
convicted. The Court affirmed Reynolds’ conviction, using what in
jurisprudence would be called the belief-action test which allows
absolute protection to belief but not to action. It cited Jefferson’s Bill
Establishing Religious Freedom which, according to the Court,
declares "the true distinction between what properly belongs to the
Church and what to the State."144 The bill, making a distinction
between belief and action, states in relevant part, viz:
That to suffer the civil magistrate to intrude his powers into the field
of opinion, and to restrain the profession or propagation of principles
on supposition of their ill tendency, is a dangerous fallacy which at
once destroys all religious liberty;
that it is time enough for the rightful purposes of civil government for
its officers to interfere when principles break out into overt acts
against peace and good order.145 (emphasis supplied)
The Court then held, viz:
Congress was deprived of all legislative power over mere opinion,
but was left free to reach actions which were in violation of social
duties or subversive of good order. . .
Laws are made for the government of actions, and while they cannot
interfere with mere religious belief and opinions, they may with
practices. Suppose one believed that human sacrifice were a
necessary part of religious worship, would it be seriously contended
that the civil government under which he lived could not interfere to
prevent a sacrifice? Or if a wife religiously believed it was her duty
to burn herself upon the funeral pile of her dead husband, would it
be beyond the power of the civil government to prevent her carrying
her belief into practice?
So here, as a law of the organization of society under the exclusive
dominion of the United States, it is provided that plural marriages
shall not be allowed. Can a man excuse his practices to the contrary
because of his religious belief? To permit this would be to make the
professed doctrines of religious belief superior to the law of the land,
and in effect to permit every citizen to become a law unto himself.
Government could exist only in name under such
circumstances.146
The construct was thus simple: the state was absolutely prohibited
by the Free Exercise Clause from regulating individual religious
beliefs, but placed no restriction on the ability of the state to regulate
religiously motivated conduct. It was logical for belief to be accorded
absolute protection because any statute designed to prohibit a
particular religious belief unaccompanied by any conduct would
most certainly be motivated only by the legislature’s preference of a
competing religious belief. Thus, all cases of regulation of belief
would amount to regulation of religion for religious reasons violative
of the Free Exercise Clause. On the other hand, most state
regulations of conduct are for public welfare purposes and have
nothing to do with the legislature’s religious preferences. Any
burden on religion that results from state regulation of conduct
arises only when particular individuals are engaging in the generally
regulated conduct because of their particular religious beliefs.
These burdens are thus usually inadvertent and did not figure in the
belief-action test. As long as the Court found that regulation address
action rather than belief, the Free Exercise Clause did not pose any
problem.147 The Free Exercise Clause thus gave no protection
CONSTI LAW II I ACJUCO 413
against the proscription of actions even if considered central to a
religion unless the legislature formally outlawed the belief itself.148
This belief-action distinction was held by the Court for some years
as shown by cases where the Court upheld other laws which
burdened the practice of the Mormon religion by imposing various
penalties on polygamy such as the Davis case and Church of Latter
Day Saints v. United States.149 However, more than a century
since Reynolds was decided, the Court has expanded the scope of
protection from belief to speech and conduct. But while the belief-
action test has been abandoned, the rulings in the earlier Free
Exercise cases have gone unchallenged. The belief-action
distinction is still of some importance though as there remains an
absolute prohibition of governmental proscription of beliefs.150
The Free Exercise Clause accords absolute protection to individual
religious convictions and beliefs151 and proscribes government
from questioning a person’s beliefs or imposing penalties or
disabilities based solely on those beliefs. The Clause extends
protection to both beliefs and unbelief. Thus, in Torcaso v.
Watkins,152 a unanimous Court struck down a state law requiring
as a qualification for public office an oath declaring belief in the
existence of God. The protection also allows courts to look into the
good faith of a person in his belief, but prohibits inquiry into the truth
of a person’s religious beliefs. As held in United States v.
Ballard,153 "(h)eresy trials are foreign to the Constitution. Men may
believe what they cannot prove. They may not be put to the proof of
their religious doctrines or beliefs."
Next to belief which enjoys virtually absolute protection, religious
speech and expressive religious conduct are accorded the highest
degree of protection. Thus, in the 1940 case of Cantwell v.
Connecticut,154 the Court struck down a state law prohibiting door-
to-door solicitation for any religious or charitable cause without prior
approval of a state agency. The law was challenged by Cantwell, a
member of the Jehovah’s Witnesses which is committed to active
proselytizing. The Court invalidated the state statute as the prior
approval necessary was held to be a censorship of religion
prohibited by the Free Exercise Clause. The Court held, viz:
In the realm of religious faith, and in that of political belief, sharp
differences arise. In both fields the tenets of one may seem the
rankest error to his neighbor. To persuade others to his point of
view, the pleader, as we know, resorts to exaggeration, to vilification
of men who have been, or are, prominent in church or state, and
even to false statement. But the people of this nation have ordained
in the light of history, that, in spite of the probability of excesses and
abuses, these liberties are, in the long view, essential to enlightened
opinion and right conduct on the part of citizens of a democracy.155
Cantwell took a step forward from the protection afforded by the
Reynolds case in that it not only affirmed protection of belief but also
freedom to act for the propagation of that belief, viz:
Thus the Amendment embraces two concepts - freedom to believe
and freedom to act. The first is absolute but, in the nature of things,
the second cannot be. Conduct remains subject to regulation for the
protection of society. . . In every case, the power to regulate must
be so exercised as not, in attaining a permissible end, unduly to
infringe the protected freedom. (emphasis supplied)156
The Court stated, however, that government had the power to
regulate the times, places, and manner of solicitation on the streets
and assure the peace and safety of the community.
Three years after Cantwell, the Court in Douglas v. City of
Jeanette,157 ruled that police could not prohibit members of the
Jehovah’s Witnesses from peaceably and orderly proselytizing on
Sundays merely because other citizens complained. In another
case likewise involving the Jehovah’s Witnesses, Niemotko v.
Maryland,158 the Court unanimously held unconstitutional a city

council’s denial of a permit to the Jehovah’s Witnesses to use the
city park for a public meeting. The city council’s refusal was because
of the "unsatisfactory" answers of the Jehovah’s Witnesses to
questions about Catholicism, military service, and other issues. The
denial of the public forum was considered blatant censorship. While
protected, religious speech in the public forum is still subject to
reasonable time, place and manner regulations similar to non-
religious speech. Religious proselytizing in congested areas, for
example, may be limited to certain areas to maintain the safe and
orderly flow of pedestrians and vehicular traffic as held in the case
of Heffron v. International Society for Krishna Consciousness.159
The least protected under the Free Exercise Clause is religious
conduct, usually in the form of unconventional religious practices.
Protection in this realm depends on the character of the action and
the government rationale for regulating the action.160 The
Mormons’ religious conduct of polygamy is an example of
unconventional religious practice. As discussed in the Reynolds
case above, the Court did not afford protection to the practice.
Reynolds was reiterated in the 1890 case of Davis again involving
Mormons, where the Court held, viz: "(c)rime is not the less odious
because sanctioned by what any particular sect may designate as
religion."161
The belief-action test in Reynolds and Davis proved unsatisfactory.
Under this test, regulation of religiously dictated conduct would be
upheld no matter how central the conduct was to the exercise of
religion and no matter how insignificant was the government’s non-
religious regulatory interest so long as the government is proscribing
action and not belief. Thus, the Court abandoned the simplistic
belief-action distinction and instead recognized the deliberate-
inadvertent distinction, i.e., the distinction between deliberate state
interference of religious exercise for religious reasons which was
plainly unconstitutional and government’s inadvertent interference
with religion in pursuing some secular objective.162 In the 1940
case of Minersville School District v. Gobitis,163 the Court upheld a
local school board requirement that all public school students
participate in a daily flag salute program, including the Jehovah’s
Witnesses who were forced to salute the American flag in violation
of their religious training, which considered flag salute to be worship
of a "graven image." The Court recognized that the general
requirement of compulsory flag salute inadvertently burdened the
Jehovah Witnesses’ practice of their religion, but justified the
government regulation as an appropriate means of attaining
national unity, which was the "basis of national security." Thus,
although the Court was already aware of the deliberate-inadvertent
distinction in government interference with religion, it continued to
hold that the Free Exercise Clause presented no problem to
interference with religion that was inadvertent no matter how serious
the interference, no matter how trivial the state’s non-religious
objectives, and no matter how many alternative approaches were
available to the state to pursue its objectives with less impact on
religion, so long as government was acting in pursuit of a secular
objective.
Three years later, the Gobitis decision was overturned in West
Virginia v. Barnette164 which involved a similar set of facts and
issue. The Court recognized that saluting the flag, in connection with
the pledges, was a form of utterance and the flag salute program
was a compulsion of students to declare a belief. The Court ruled
that "compulsory unification of opinions leads only to the unanimity
of the graveyard" and exempt the students who were members of
the Jehovah’s Witnesses from saluting the flag. A close scrutiny of
the case, however, would show that it was decided not on the issue
of religious conduct as the Court said, "(n)or does the issue as we
see it turn on one’s possession of particular religious views or the
sincerity with which they are held. While religion supplies appellees’
motive for enduring the discomforts of making the issue in this case,
many citizens who do not share these religious views hold such a
compulsory rite to infringe constitutional liberty of the individual."
(emphasis supplied)165 The Court pronounced, however, that,
CONSTI LAW II I ACJUCO 414
"freedoms of speech and of press, of assembly, and of worship . . .
are susceptible only of restriction only to prevent grave and
immediate danger to interests which the state may lawfully
protect."166 The Court seemed to recognize the extent to which its
approach in Gobitis subordinated the religious liberty of political
minorities - a specially protected constitutional value - to the
common everyday economic and public welfare objectives of the
majority in the legislature. This time, even inadvertent interference
with religion must pass judicial scrutiny under the Free Exercise
Clause with only grave and immediate danger sufficing to override
religious liberty. But the seeds of this heightened scrutiny would only
grow to a full flower in the 1960s.167
Nearly a century after Reynolds employed the belief-action test, the
Warren Court began the modern free exercise jurisprudence.168 A
two-part balancing test was established in Braunfeld v. Brown169
where the Court considered the constitutionality of applying Sunday
closing laws to Orthodox Jews whose beliefs required them to
observe another day as the Sabbath and abstain from commercial
activity on Saturday. Chief Justice Warren, writing for the Court,
found that the law placed a severe burden on Sabattarian retailers.
He noted, however, that since the burden was the indirect effect of
a law with a secular purpose, it would violate the Free Exercise
Clause only if there were alternative ways of achieving the state’s
interest. He employed a two-part balancing test of validity where the
first step was for plaintiff to show that the regulation placed a real
burden on his religious exercise. Next, the burden would be upheld
only if the state showed that it was pursuing an overriding secular
goal by the means which imposed the least burden on religious
practices.170 The Court found that the state had an overriding
secular interest in setting aside a single day for rest, recreation and
tranquility and there was no alternative means of pursuing this
interest but to require Sunday as a uniform rest day.
Two years after came the stricter compelling state interest test in the
1963 case of Sherbert v. Verner.171 This test was similar to the two-
part balancing test in Braunfeld,172 but this latter test stressed that
the state interest was not merely any colorable state interest, but
must be paramount and compelling to override the free exercise
claim. 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 rights 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. . .’ NAACP v.
Button, 371 US 415, 438 9 L ed 2d 405, 421, 83 S Ct 328.173
(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.’ Thomas v. Collins, 323 US 516, 530, 89 L ed
430, 440, 65 S Ct 315."174 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, 175 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, in a short period of twenty-three years from Gobitis to
Sherbert (or even as early as Braunfeld), the Court moved from the
doctrine that inadvertent or incidental interferences with religion
raise no problem under the Free Exercise Clause to the doctrine
that such interferences violate the Free Exercise Clause in the
absence of a compelling state interest - the highest level of
constitutional scrutiny short of a holding of a per se violation. Thus,
the problem posed by the belief-action test and the deliberate-
inadvertent distinction was addressed.176
Throughout the 1970s and 1980s under the Warren, and afterwards,
the Burger Court, the rationale in Sherbert continued to be applied.
In Thomas v. Review Board177 and Hobbie v. Unemployment
Appeals Division,178 for example, the Court reiterated the
exemption doctrine and held that in the absence of a compelling
justification, a state could not withhold unemployment compensation
from an employee who resigned or was discharged due to
unwillingness to depart from religious practices and beliefs that
conflicted with job requirements. But not every governmental refusal
to allow an exemption from a regulation which burdens a sincerely
held religious belief has been invalidated, even though strict or
heightened scrutiny is applied. In United States v. Lee,179 for
instance, the Court using strict scrutiny and referring to Thomas,
upheld the federal government’s refusal to exempt Amish employers
who requested for exemption from paying social security taxes on
wages on the ground of religious beliefs. The Court held that
"(b)ecause the broad public interest in maintaining a sound tax
system is of such a high order, religious belief in conflict with the
payment of taxes affords no basis for resisting the tax."180 It
reasoned that unlike in Sherbert, an exemption would significantly
impair government’s achievement of its objective - "the fiscal vitality
of the social security system;" mandatory participation is
indispensable to attain this objective. The Court noted that if an
exemption were made, it would be hard to justify not allowing a
similar exemption from general federal taxes where the taxpayer
argues that his religious beliefs require him to reduce or eliminate
his payments so that he will not contribute to the government’s war-
related activities, for example.
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 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.181
Heightened scrutiny was also used in the 1972 case of Wisconsin
v. Yoder182 where the Court upheld the religious practice of the Old
Order Amish faith over the state’s compulsory high school
attendance law. The Amish parents in this case did not permit
CONSTI LAW II I ACJUCO 415
secular education of their children beyond the eighth grade. 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 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. .
. 183
The onset of the 1990s, however, saw a major setback in the
protection afforded by the Free Exercise Clause. In Employment
Division, Oregon Department of Human Resources v. Smith,184 the
sharply divided Rehnquist Court dramatically departed from the
heightened scrutiny and compelling justification approach and
imposed serious limits on the scope of protection of religious
freedom afforded by the First Amendment. In this case, the well-
established practice of the Native American Church, a sect outside
the Judeo-Christian mainstream of American religion, came in
conflict with the state’s interest in prohibiting the use of illicit drugs.
Oregon’s controlled substances statute made the possession of
peyote a criminal offense. Two members of the church, Smith and
Black, worked as drug rehabilitation counselors for a private social
service agency in Oregon. Along with other church members, Smith
and Black ingested peyote, a hallucinogenic drug, at a sacramental
ceremony practiced by Native Americans for hundreds of years. The
social service agency fired Smith and Black citing their use of peyote
as "job-related misconduct". They applied for unemployment
compensation, but the Oregon Employment Appeals Board denied
their application as they were discharged for job-related misconduct.
Justice Scalia, writing for the majority, ruled that "if prohibiting the
exercise of religion . . . is . . . merely the incidental effect of a
generally applicable and otherwise valid law, the First Amendment
has not been offended." In other words, the Free Exercise Clause
would be offended only if a particular religious practice were singled
out for proscription. The majority opinion relied heavily on the
Reynolds case and in effect, equated Oregon’s drug prohibition law
with the anti-polygamy statute in Reynolds. The relevant portion of
the majority opinion held, viz:

We have never invalidated any governmental action on the basis of
the Sherbert test except the denial of unemployment compensation.
Even 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. . .
We conclude today that the sounder approach, and the approach in
accord with the vast majority of our precedents, is to hold the test
inapplicable to such challenges. The government’s ability to enforce
generally applicable prohibitions of socially harmful conduct, like its
ability to carry out other aspects of public policy, "cannot depend on
measuring the effects of a governmental action on a religious
objector’s spiritual development." . . .To make an individual’s
obligation to obey such a law contingent upon the law’s coincidence
with his religious beliefs except where the State’s interest is
"compelling" - permitting him, by virtue of his beliefs, "to become a
law unto himself," . . . - contradicts both constitutional tradition and
common sense.
Justice O’Connor wrote a concurring opinion pointing out that the
majority’s rejection of the compelling governmental interest test was
the most controversial part of the decision. Although she concurred
in the result that the Free Exercise Clause had not been offended,
she sharply criticized the majority opinion as a dramatic departure
"from well-settled First Amendment jurisprudence. . . and . . . (as)
incompatible with our Nation’s fundamental commitment to religious
liberty." This portion of her concurring opinion was supported by
Justices Brennan, Marshall and Blackmun who dissented from the
Court’s decision. Justice O’Connor asserted 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’." Justice
Blackmun registered a separate dissenting opinion, joined by
Justices Brennan and Marshall. He charged the majority with
"mischaracterizing" precedents and "overturning. . . settled law
concerning the Religion Clauses of our Constitution." He pointed out
that the Native American Church restricted and supervised the
sacramental use of peyote. Thus, the state had no significant health
or safety justification for regulating the sacramental drug use. He
also observed that Oregon had not attempted to prosecute Smith or
Black, or any Native Americans, for that matter, for the sacramental
use of peyote. In conclusion, he said that "Oregon’s interest in
enforcing its drug laws against religious use of peyote (was) not
sufficiently compelling to outweigh respondents’ right to the free
exercise of their religion."
The Court went back to the Reynolds and Gobitis doctrine in Smith.
The Court’s standard in Smith virtually eliminated the requirement
that the government justify with a compelling state interest the
burdens on religious exercise imposed by laws neutral toward
religion. The Smith doctrine is highly unsatisfactory in several
respects and has been criticized as exhibiting a shallow
understanding of free exercise jurisprudence.185 First, the First
amendment was intended to protect minority religions from the
tyranny of the religious and political majority. A deliberate regulatory
interference with minority religious freedom is the worst form of this
tyranny. But regulatory interference with a minority religion as a
result of ignorance or sensitivity of the religious and political majority
is no less an interference with the minority’s religious freedom. If the
regulation had instead restricted the majority’s religious practice, the
majoritarian legislative process would in all probability have
modified or rejected the regulation. Thus, the imposition of the
political majority’s non-religious objectives at the expense of the
minority’s religious interests implements the majority’s religious
viewpoint at the expense of the minority’s. Second, 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
CONSTI LAW II I ACJUCO 416
inconceivable. If the Free Exercise Clause could not afford
protection to inadvertent interference, it would be left almost
meaningless. Third, the Reynolds-Gobitis-Smith 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.186
Thus, the Smith decision has been criticized not only for increasing
the power of the state over religion but as discriminating in favor of
mainstream religious groups against smaller, more peripheral
groups who lack legislative clout,187 contrary to the original theory
of the First Amendment.188 Undeniably, claims for judicial
exemption emanate almost invariably from relatively politically
powerless minority religions and Smith virtually wiped out their
judicial recourse for exemption.189 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.190 So much was the uproar
that a majority in Congress was convinced to enact the Religious
Freedom Restoration Act (RFRA) of 1993. The RFRA prohibited
government at all levels from substantially burdening a person’s free
exercise of religion, even if such burden resulted from a generally
applicable rule, unless the government could demonstrate a
compelling state interest and the rule constituted the least restrictive
means of furthering that interest.191 RFRA, in effect, sought to
overturn the substance of the Smith ruling and restore the status
quo prior to Smith. Three years after the RFRA was enacted,
however, the Court, dividing 6 to 3, declared the RFRA
unconstitutional in City of Boerne v. Flores.192 The Court ruled that
"RFRA contradicts vital principles necessary to maintain separation
of powers and the federal balance." It emphasized the primacy of its
role as interpreter of the Constitution and unequivocally rejected, on
broad institutional grounds, a direct congressional challenge of final
judicial authority on a question of constitutional interpretation.
After Smith came Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah193 which was ruled consistent with the Smith doctrine. This
case involved animal sacrifice of the Santeria, a blend of Roman
Catholicism and West African religions brought to the Carribean by
East African slaves. An ordinance made it a crime to "unnecessarily
kill, torment, torture, or mutilate an animal in public or private ritual
or ceremony not for the primary purpose of food consumption." The
ordinance came as a response to the local concern over the
sacrificial practices of the Santeria. Justice Kennedy, writing for the
majority, carefully pointed out that the questioned ordinance was not
a generally applicable criminal prohibition, but instead singled out
practitioners of the Santeria in that it forbade animal slaughter only
insofar as it took place within the context of religious rituals.
It may be seen from the foregoing cases that under the Free
Exercise Clause, religious belief is absolutely protected, religious
speech and proselytizing are highly protected but subject to
restraints applicable to non-religious speech, and unconventional
religious practice receives less protection; nevertheless conduct,
even if its violates a law, could be accorded protection as shown in
Wisconsin.194
B. Establishment Clause
The Court’s first encounter with the Establishment Clause was in the
1947 case of Everson v. Board of Education.195 Prior cases had
made passing reference to the Establishment Clause196 and raised
establishment questions but were decided on other grounds.197 It
was in the Everson case that the U.S. Supreme Court adopted
Jefferson’s metaphor of "a wall of separation between church and
state" as encapsulating the meaning of the Establishment Clause.
The often and loosely used phrase "separation of church and state"
does not appear in the U.S. Constitution. It became part of U.S.

jurisprudence when the Court in the 1878 case of Reynolds v.
United States198 quoted Jefferson’s famous letter of 1802 to the
Danbury Baptist Association in narrating the history of the religion
clauses, viz:
Believing with you that religion is a matter which lies solely between
man and his God; that he owes account to none other for his faith
or his worship; that the legislative powers of the Government reach
actions only, and not opinions, I contemplate with sovereign
reverence that act of the whole American people which declared
that their Legislature should ‘make no law respecting an
establishment of religion or prohibiting the free exercise thereof,’
thus building a wall of separation between Church and State.199
(emphasis supplied)
Chief Justice Waite, speaking for the majority, then added,
"(c)oming as this does from an acknowledged leader of the
advocates of the measure, it may be accepted almost as an
authoritative declaration of the scope and effect of the amendment
thus secured."200
The interpretation of the Establishment Clause has in large part
been in cases involving education, notably state aid to private
religious schools and prayer in public schools.201 In Everson v.
Board of Education, for example, the issue was whether a New
Jersey local school board could reimburse parents for expenses
incurred in transporting their children to and from Catholic schools.
The reimbursement was part of a general program under which all
parents of children in public schools and nonprofit private schools,
regardless of religion, were entitled to reimbursement for
transportation costs. Justice Hugo Black, writing for a sharply
divided Court, justified the reimbursements on the child benefit
theory, i.e., that the school board was merely furthering the state’s
legitimate interest in getting children "regardless of their religion,
safely and expeditiously to and from accredited schools." The Court,
after narrating the history of the First Amendment in Virginia,
interpreted the Establishment Clause, viz:
The ‘establishment of religion’ clause of the First Amendment
means at least this: Neither a state nor the Federal Government can
set up a church. Neither can pass laws which aid one religion, aid
all religions, or prefer one religion over another. Neither can force
nor influence a person to go to or remain away from church against
his will or force him to profess a belief or disbelief in any religion. No
person can be punished for entertaining or professing religious
beliefs or disbeliefs, for church attendance or non-attendance. No
tax in any amount, large or small, can be levied to support any
religious activities or institutions, whatever they may be called, or
whatever form they may adopt to teach or practice religion. Neither
a state nor the Federal Government can, openly or secretly
participate in the affairs of any religious organizations or groups and
vice versa. In the words of Jefferson, the clause against
establishment of religion by law was intended to erect "a wall of
separation between Church and State."202
The Court then ended the opinion, viz:
The First Amendment has erected a wall between church and state.
That wall must be kept high and impregnable. We could not approve
the slightest breach. New Jersey has not breached it here.203
By 1971, the Court integrated the different elements of the Court’s
Establishment Clause jurisprudence that evolved in the 1950s and
1960s and laid down a three-pronged test in Lemon v. Kurtzman204
in determining the constitutionality of policies challenged under the
Establishment Clause. This case involved a Pennsylvania statutory
program providing publicly funded reimbursement for the cost of
teachers’ salaries, textbooks, and instructional materials in secular
subjects and a Rhode Island statute providing salary supplements
to teachers in parochial schools. The Lemon test requires a
challenged policy to meet the following criteria to pass scrutiny
CONSTI LAW II I ACJUCO 417
under the Establishment Clause. "First, the statute must have a
secular legislative purpose; second, its primary or principal effect
must be one that neither advances nor inhibits religion (Board of
Education v. Allen, 392 US 236, 243, 20 L Ed 2d 1060, 1065, 88 S
Ct 1923 [1968]); finally, the statute must not foster ‘an excessive
entanglement with religion.’ (Walz v.Tax Commission, 397 US 664,
668, 25 L Ed 2d 697, 701, 90 S Ct 1409 [1970])" (emphasis
supplied)205 Using this test, the Court held that the Pennsylvania
statutory program and Rhode Island statute were unconstitutional
as fostering excessive entanglement between government and
religion.
The most controversial of the education cases involving the
Establishment Clause are the school prayer decisions. "Few
decisions of the modern Supreme Court have been criticized more
intensely than the school prayer decisions of the early 1960s."206
In the 1962 case of Engel v. Vitale,207 the Court invalidated a New
York Board of Regents policy that established the voluntary
recitation of a brief generic prayer by children in the public schools
at the start of each school day. The majority opinion written by
Justice Black stated that "in this country it is no part of the business
of government to compose official prayers for any group of the
American people to recite as part of a religious program carried on
by government." In fact, history shows that this very practice of
establishing governmentally composed prayers for religious
services was one of the reasons that caused many of the early
colonists to leave England and seek religious freedom in America.
The Court called to mind that the first and most immediate purpose
of the Establishment Clause rested on the belief that a union of
government and religion tends to destroy government and to
degrade religion. The following year, the Engel decision was
reinforced in Abington School District v. Schempp208 and Murray v.
Curlett209 where the Court struck down the practice of Bible reading
and the recitation of the Lord’s prayer in the Pennsylvania and
Maryland schools. The Court held that to withstand the strictures of
the Establishment Clause, a statute must have a secular legislative
purpose and a primary effect that neither advances nor inhibits
religion. It reiterated, viz:
The wholesome ‘neutrality’ of which this Court’s cases speak thus
stems from a recognition of the teachings of history that powerful
sects or groups might bring about a fusion of governmental and
religious functions or a concert or dependency of one upon the other
to the end that official support of the State of Federal Government
would be placed behind the tenets of one or of all orthodoxies. This
the Establishment Clause prohibits. And a further reason for
neutrality is found in the Free Exercise Clause, which recognizes
the value of religious training, teaching and observance and, more
particularly, the right of every person to freely choose his own
course with reference thereto, free of any compulsion from the
state.210
The school prayer decisions drew furious reactions. Religious
leaders and conservative members of Congress and resolutions
passed by several state legislatures condemned these
decisions.211 On several occasions, constitutional amendments
have been introduced in Congress to overturn the school prayer
decisions. Still, the Court has maintained its position and has in fact
reinforced it in the 1985 case of Wallace v. Jaffree212 where the
Court struck down an Alabama law that required public school
students to observe a moment of silence "for the purpose of
meditation or voluntary prayer" at the start of each school day.
Religious instruction in public schools has also pressed the Court to
interpret the Establishment Clause. Optional religious instruction
within public school premises and instructional time were declared
offensive of the Establishment Clause in the 1948 case of McCollum
v. Board of Education,213 decided just a year after the seminal
Everson case. In this case, interested members of the Jewish,
Roman Catholic and a few Protestant faiths obtained permission
from the Board of Education to offer classes in religious instruction

to public school students in grades four to nine. Religion classes
were attended by pupils whose parents signed printed cards
requesting that their children be permitted to attend. The classes
were taught in three separate groups by Protestant teachers,
Catholic priests and a Jewish rabbi and were held weekly from thirty
to forty minutes during regular class hours in the regular classrooms
of the school building. The religious teachers were employed at no
expense to the school authorities but they were subject to the
approval and supervision of the superintendent of schools. Students
who did not choose to take religious instruction were required to
leave their classrooms and go to some other place in the school
building for their secular studies while those who were released from
their secular study for religious instruction were required to attend
the religious classes. The Court held that the use of tax-supported
property for religious instruction and the close cooperation between
the school authorities and the religious council in promoting religious
education amounted to a prohibited use of tax-established and tax-
supported public school system to aid religious groups spread their
faith. The Court rejected the claim that the Establishment Clause
only prohibited government preference of one religion over another
and not an impartial governmental assistance of all religions. In
Zorach v. Clauson,214 however, the Court upheld released time
programs allowing students in public schools to leave campus upon
parental permission to attend religious services while other students
attended study hall. Justice Douglas, the writer of the opinion,
stressed that "(t)he First Amendment does not require that in every
and all respects there shall be a separation of Church and State."
The Court distinguished Zorach from McCollum, viz:
In the McCollum case the classrooms were used for religious
instruction and the force of the public school was used to promote
that instruction. . . We follow the McCollum case. But we cannot
expand it to cover the present released time program unless
separation of Church and State means that public institutions can
make no adjustments of their schedules to accommodate the
religious needs of the people. We cannot read into the Bill of Rights
such a philosophy of hostility to religion.215
In the area of government displays or affirmations of belief, the Court
has given leeway to religious beliefs and practices which have
acquired a secular meaning and have become deeply entrenched
in history. For instance, in McGowan v. Maryland,216 the Court
upheld laws that prohibited certain businesses from operating on
Sunday despite the obvious religious underpinnings of the
restrictions. Citing the secular purpose of the Sunday closing laws
and treating as incidental the fact that this day of rest happened to
be the day of worship for most Christians, the Court held, viz:
It is common knowledge that the first day of the week has come to
have special significance as a rest day in this country. People of all
religions and people with no religion regard Sunday as a time for
family activity, for visiting friends and relatives, for later sleeping, for
passive and active entertainments, for dining out, and the like.217
In the 1983 case of Marsh v. Chambers,218 the Court refused to
invalidate Nebraska’s policy of beginning legislative sessions with
prayers offered by a Protestant chaplain retained at the taxpayers’
expense. The majority opinion did not rely on the Lemon test and
instead drew heavily from history and the need for accommodation
of popular religious beliefs, viz:
In light of the unambiguous and unbroken history of more than 200
years, there can be no doubt that the practice of opening legislative
sessions with prayer has become the fabric of our society. To invoke
Divine guidance on a public body entrusted with making the laws is
not, in these circumstances, an "establishment" of religion or a step
toward establishment; it is simply a tolerable acknowledgement of
beliefs widely held among the people of this country. As Justice
Douglas observed, "(w)e are a religious people whose institutions
presuppose a Supreme Being." (Zorach c. Clauson, 343 US 306,
313 [1952])219 (emphasis supplied)
CONSTI LAW II I ACJUCO 418
Some view the Marsh ruling as a mere aberration as the Court would
"inevitably be embarrassed if it were to attempt to strike down a
practice that occurs in nearly every legislature in the United States,
including the U.S. Congress."220 That Marsh was not an aberration
is suggested by subsequent cases. In the 1984 case of Lynch v.
Donnelly,221 the Court upheld a city-sponsored nativity scene in
Rhode Island. By a 5-4 decision, the majority opinion hardly
employed the Lemon test and again relied on history and the fact
that the creche had become a "neutral harbinger of the holiday
season" for many, rather than a symbol of Christianity.
The Establishment Clause has also been interpreted in the area of
tax exemption. By tradition, church and charitable institutions have
been exempt from local property taxes and their income exempt
from federal and state income taxes. In the 1970 case of Walz v.
Tax Commission,222 the New York City Tax Commission’s grant of
property tax exemptions to churches as allowed by state law was
challenged by Walz on the theory that this required him to subsidize
those churches indirectly. The Court upheld the law stressing its
neutrality, viz:
It has not singled out one particular church or religious group or even
churches as such; rather, it has granted exemptions to all houses of
religious worship within a broad class of property owned by non-
profit, quasi-public corporations . . . The State has an affirmative
policy that considers these groups as beneficial and stabilizing
influences in community life and finds this classification useful,
desirable, and in the public interest.223
The Court added that the exemption was not establishing religion
but "sparing the exercise of religion from the burden of property
taxation levied on private profit institutions"224 and preventing
excessive entanglement between state and religion. At the same
time, the Court acknowledged the long-standing practice of religious
tax exemption and the Court’s traditional deference to legislative
bodies with respect to the taxing power, viz:
(f)ew concepts are more deeply embedded in the fabric of our
national life, beginning with pre-Revolutionary colonial times, than
for the government to exercise . . . this kind of benevolent neutrality
toward churches and religious exercise generally so long as none
was favored over others and none suffered interference.225
(emphasis supplied)
C. Strict Neutrality v. Benevolent Neutrality
To be sure, the cases discussed above, while citing many landmark
decisions in the religious clauses area, are but a small fraction of
the hundreds of religion clauses cases that the U.S. Supreme Court
has passed upon. Court rulings contrary to or making nuances of
the above cases may be cited. Professor McConnell poignantly
recognizes this, viz:
Thus, as of today, it is constitutional for a state to hire a Presbyterian
minister to lead the legislature in daily prayers (Marsh v. Chambers,
463 US783, 792-93[1983]), but unconstitutional for a state to set
aside a moment of silence in the schools for children to pray if they
want to (Wallace v. Jaffree, 472 US 38, 56 [1985]). It is
unconstitutional for a state to require employers to accommodate
their employees’ work schedules to their sabbath observances
(Estate of Thornton v. Caldor, Inc., 472 US 703, 709-10 [1985]) but
constitutionally mandatory for a state to require employers to pay
workers compensation when the resulting inconsistency between
work and sabbath leads to discharge (. . .Sherbert v. Verner, 374
US 398, 403-4 [1963]). It is constitutional for the government to give
money to religiously-affiliated organizations to teach adolescents
about proper sexual behavior (Bowen v. Kendrick, 487 US 589, 611
[1988]), but not to teach them science or history (Lemon v.
Kurtzman, 403 US 602, 618-619 [1971]). It is constitutional for the
government to provide religious school pupils with books (Board of

Education v. Allen, 392 US 236, 238 [1968]), but not with maps
(Wolman v. Walter, 433 US 229, 249-51 [1977]); with bus rides to
religious schools (Everson v. Board of Education, 330 US 1, 17
[1947]), but not from school to a museum on a field trip (Wolman v.
Walter, 433 US 229, 252-55 [1977]); with cash to pay for state-
mandated standardized tests (Committee for Pub. Educ. and
Religious Liberty v. Regan, 444 US 646, 653-54 [1980]), but not to
pay for safety-related maintenance (Committee for Pub. Educ v.
Nyquist, 413 US 756, 774-80 [1973]). It is a mess.226
But the purpose of the overview is not to review the entirety of the
U.S. religion clause jurisprudence nor to extract the prevailing case
law regarding particular religious beliefs or conduct colliding with
particular government regulations. Rather, the cases discussed
above suffice to show that, as legal scholars observe, this area of
jurisprudence has demonstrated two main standards used by the
Court in deciding religion clause cases: separation (in the form of
strict separation or the tamer version of strict neutrality or
separation) and benevolent neutrality or accommodation. The
weight of current authority, judicial and in terms of sheer volume,
appears to lie with the separationists, strict or tame.227 But the
accommodationists have also attracted a number of influential
scholars and jurists.228 The two standards producing two streams
of jurisprudence branch out respectively from the history of the First
Amendment in England and the American colonies and climaxing in
Virginia as narrated in this opinion and officially acknowledged by
the Court in Everson, and from American societal life which reveres
religion and practices age-old religious traditions. Stated otherwise,
separation - strict or tame - protects the principle of church-state
separation with a rigid reading of the principle while benevolent
neutrality protects religious realities, tradition and established
practice with a flexible reading of the principle.229 The latter also
appeals to history in support of its position, viz:
The opposing school of thought argues that the First Congress
intended to allow government support of religion, at least as long as
that support did not discriminate in favor of one particular religion. .
. the Supreme Court has overlooked many important pieces of
history. Madison, for example, was on the congressional committee
that appointed a chaplain, he declared several national days of
prayer and fasting during his presidency, and he sponsored
Jefferson’s bill for punishing Sabbath breakers; moreover, while
president, Jefferson allowed federal support of religious missions to
the Indians. . . And so, concludes one recent book, ‘there is no
support in the Congressional records that either the First Congress,
which framed the First Amendment, or its principal author and
sponsor, James Madison, intended that Amendment to create a
state of complete independence between religion and government.
In fact, the evidence in the public documents goes the other way.230
(emphasis supplied)
To succinctly and poignantly illustrate the historical basis of
benevolent neutrality that gives room for accommodation, 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. Only two members of Congress opposed the resolution,
one on the ground that the move was a "mimicking of European
customs, where they made a mere mockery of thanksgivings", the
other on establishment clause concerns. Nevertheless, the salutary
effect of thanksgivings throughout Western history was
acknowledged and the motion was passed without further recorded
discussion.231 Thus, accommodationists also go back to the
framers to ascertain the meaning of the First Amendment, but prefer
to focus on acts rather than words. Contrary to the claim of
separationists that rationalism pervaded America in the late 19th
century and that America was less specifically Christian during
those years than at any other time before or since,232
accommodationaists claim that American citizens at the time of the
CONSTI LAW II I ACJUCO 419
Constitution’s origins were a remarkably religious people in
particularly Christian terms.233
The two streams of jurisprudence - separationist or
accommodationist - are anchored on a different reading of the "wall
of separation." The strict separtionist view holds that Jefferson
meant the "wall of separation" to protect the state from the church.
Jefferson was a man of the Enlightenment Era of the eighteenth
century, characterized by the rationalism and anticlericalism of that
philosophic bent.234 He has often been regarded as espousing
Deism or the rationalistic belief in a natural religion and natural law
divorced from its medieval connection with divine law, and instead
adhering to a secular belief in a universal harmony.235 Thus,
according to this Jeffersonian view, the Establishment Clause being
meant to protect the state from the church, the state’s hostility
towards religion allows no interaction between the two.236 In fact,
when Jefferson became President, he refused to proclaim fast or
thanksgiving days on the ground that these are religious exercises
and the Constitution prohibited the government from intermeddling
with religion.237 This approach erects an absolute barrier to formal
interdependence of religion and state. 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.238 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.239 Strict separation faces
difficulties, however, as it is deeply embedded in 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. Thus, strict
separationists are caught in an awkward position of claiming a
constitutional principle that has never existed and is never likely
to.240
A tamer version of the strict separationist view, the strict neutrality
or separationist view is largely used by the Court, showing the
Court’s tendency to press relentlessly towards a more secular
society.241 It finds basis in the Everson case where the Court
declared that Jefferson’s "wall of separation" encapsulated the
meaning of the First Amendment but at the same time held that the
First Amendment "requires the state to be neutral in its relations with
groups of religious believers and non-believers; it does not require
the state to be their adversary. State power is no more to be used
so as to handicap religions than it is to favor them." (emphasis
supplied)242 While the strict neutrality approach is not hostile to
religion, 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.243 Professor Kurland wrote, viz:
The thesis proposed here as the proper construction of the religion
clauses of the first amendment is that the freedom and separation
clauses should be read as a single precept that government cannot
utilize religion as a standard for action or inaction because these
clauses prohibit classification in terms of religion either to confer a
benefit or to impose a burden.244
The Court has repeatedly declared that religious freedom means
government neutrality in religious matters and the Court has also
repeatedly interpreted this policy of neutrality to prohibit government
from acting except for secular purposes and in ways that have
primarily secular effects.245
Prayer in public schools is an area where the Court has applied strict
neutrality and refused to allow any form of prayer, spoken or silent,
in the public schools as in Engel and Schempp.246 The McCollum
case prohibiting optional religious instruction within public school
premises during regular class hours also demonstrates strict

neutrality. In these education cases, the Court refused to uphold the
government action as they were based not on a secular but on a
religious purpose. Strict neutrality was also used in Reynolds and
Smith which both held that if government acts in pursuit of a
generally applicable law with a secular purpose that merely
incidentally burdens religious exercise, the First Amendment has
not been offended. However, if the strict neutrality standard is
applied in interpreting the Establishment Clause, it could de facto
void religious expression in the Free Exercise Clause. As pointed
out by Justice Goldberg in his concurring opinion in Schempp, 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.247 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 Supreme Court has
rejected strict neutrality, permitting and sometimes mandating
religious classifications.248
The separationist approach, whether strict or tame, is caught in a
dilemma because 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.249 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.250
Consequently, the Court has also decided cases employing
benevolent neutrality. Benevolent neutrality which gives room for
accommodation is buttressed by a different view of the "wall of
separation" associated with Williams, founder of the Rhode Island
colony. In Mark DeWolfe Howe’s classic, The Garden and the
Wilderness, he asserts that to the extent the Founders had a wall of
separation in mind, it was unlike the Jeffersonian wall that is meant
to protect the state from the church; instead, the wall is meant to
protect the church from the state,251 i.e., the "garden" of the church
must be walled in for its own protection from the "wilderness" of the
world252 with its potential for corrupting those values so necessary
to religious commitment.253 Howe called this the "theological" or
"evangelical" rationale for church-state separation while the wall
espoused by "enlightened" statesmen such as Jefferson and
Madison, was a "political" rationale seeking to protect politics from
intrusions by the church.254 But it has been asserted that this
contrast between the Williams and Jeffersonian positions is more
accurately described as a difference in kinds or styles of religious
thinking, not as a conflict between "religious" and "secular
(political)"; the religious style was biblical and evangelical in
character while the secular style was grounded in natural religion,
more generic and philosophical in its religious orientation.255
The Williams wall is, however, breached for the church is in the state
and so the remaining purpose of the wall is to safeguard religious
liberty. Williams’ view would therefore allow for interaction between
church and state, but is strict with regard to state action which would
threaten the integrity of religious commitment.256 His conception of
separation is not total such that it provides basis for certain
interactions between church and state dictated by apparent
necessity or practicality.257 This "theological" view of separation is
found in Williams’ writings, viz:
. . . when they have opened a gap in the hedge or wall of separation
between the garden of the church and the wilderness of the world,
God hath ever broke down the wall itself, removed the candlestick,
and made his garden a wilderness, as this day. And that therefore if
CONSTI LAW II I ACJUCO 420
He will eer please to restore His garden and paradise again, it must
of necessity be walled in peculiarly unto Himself from the world. .
.258
Chief Justice Burger spoke of benevolent neutrality in Walz, viz:
The general principle deducible from the First Amendment and all
that has been said by the Court is this: that we will not tolerate either
governmentally established religion or governmental interference
with religion. Short of those expressly proscribed governmental acts
there is room for play in the joints productive of a benevolent
neutrality which will permit religious exercise to exist without
sponsorship and without interference.259 (emphasis supplied)
The Zorach case expressed the doctrine of accommodation,260 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.261 (emphases supplied)
Benevolent neutrality is congruent with the sociological proposition
that religion serves a function essential to the survival of society
itself, thus there is no human society without one or more ways of
performing the essential function of religion. Although for some
individuals there may be no felt need for religion and thus it is
optional or even dispensable, for society it is not, which is why there
is no human society without one or more ways of performing the
essential function of religion. Even in ostensibly atheistic societies,
there are vigorous underground religion(s) and surrogate religion(s)
in their ideology.262 As one sociologist wrote:
It is widely held by students of society that there are certain
functional prerequisites without which society would not continue to
exist. At first glance, this seems to be obvious - scarcely more than
to say that an automobile could not exist, as a going system, without
a carburetor. . . Most writers list religion among the functional
prerequisites.263
Another noted sociologist, Talcott Parsons, wrote: "There is no
known human society without something which modern social

scientists would classify as a religion…Religion is as much a human
universal as language."264
Benevolent neutrality thus 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.265 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 treatment of
alcoholism and drug addiction, in foreign aid and other government
activities with strong moral dimension.266 The persistence of these
de facto establishments are in large part explained by the fact that
throughout history, the evangelical theory of separation, i.e.,
Williams’ wall, has demanded respect for these de facto
establishments.267 But the separationists have a different
explanation. To characterize these as de jure establishments
according to the principle of the Jeffersonian wall, the U.S. Supreme
Court, the many dissenting and concurring opinions explain some
of these practices as "‘de minimis’ instances of government
endorsement or as historic governmental practices that have largely
lost their religious significance or at least have proven not to lead
the government into further involvement with religion.268
With religion looked upon with benevolence and not hostility,
benevolent neutrality allows accommodation of religion under
certain circumstances. Accommodations are government policies
that take religion specifically into account not to promote the
government’s favored form of religion, but to allow individuals and
groups to exercise their religion without hindrance. Their purpose or
effect therefore 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."269
(emphasis supplied) Accommodation is forbearance and not
alliance. it does not reflect agreement with the minority, but respect
for the conflict between the temporal and spiritual authority in which
the minority finds itself.270
Accommodation is distinguished from strict neutrality in that the
latter holds that government should base public policy solely on
secular considerations, without regard to the religious
consequences of its actions. The debate between accommodation
and strict neutrality is at base a question of means: "Is the freedom
of religion best achieved when the government is conscious of the
effects of its action on the various religious practices of its people,
and seeks to minimize interferences with those practices? Or is it
best advanced through a policy of ‘religious blindness’ - keeping
government aloof from religious practices and issues?" An
accommodationist holds that it is good public policy, and sometimes
constitutionally required, for the state to make conscious and
deliberate efforts to avoid interference with religious freedom. On
the other hand, the strict neutrality adherent believes that it is good
public policy, and also constitutionally required, for the government
to avoid religion-specific policy even at the cost of inhibiting religious
exercise.271
There are strong and compelling reasons, however, to take the
accommodationist position rather than the strict neutrality position.
CONSTI LAW II I ACJUCO 421
First, the accommodationist interpretation is most consistent with
the language of the First Amendment. The religion clauses contain
two parallel provisions, both specifically directed at "religion." The
government may not "establish" religion and neither may
government "prohibit" it. Taken together, the religion clauses can be
read most plausibly as warding off two equal and opposite threats
to religious freedom - government action that promotes the (political)
majority’s favored brand of religion and government action that
impedes religious practices not favored by the majority. The
substantive end in view is the preservation of the autonomy of
religious life and not just the formal process value of ensuring that
government does not act on the basis of religious bias. On the other
hand, strict neutrality interprets the religion clauses as allowing
government to do whatever it desires to or for religion, as long as it
does the same to or for comparable secular entities. Thus, for
example, if government prohibits all alcoholic consumption by
minors, it can prohibit minors from taking part in communion.
Paradoxically, this view would make the religion clauses violate the
religion clauses, so to speak, since the religion clauses single out
religion by name for special protection. Second, the
accommodationist position best achieves the purposes of the First
Amendment. 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.
Although inalienable, it is necessarily limited by the rights of others,
including the public right of peace and good order. Nevertheless it
is a substantive right and not merely a privilege against
discriminatory legislation. The accomplishment of the purpose of the
First Amendment requires more than the "religion blindness" of strict
neutrality. With the pervasiveness of government regulation,
conflicts with religious practices become frequent and intense. Laws
that are suitable for secular entities are sometimes inappropriate for
religious entities, thus the government must make special provisions
to preserve a degree of independence for religious entities for them
to carry out their religious missions according to their religious
beliefs. Otherwise, religion will become just like other secular
entities subject to pervasive regulation by majoritarian institutions.
Third, the accommodationist interpretation is 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. 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, the accommodationist position is practical as it is a
commonsensical way to deal with the various needs and beliefs of
different faiths in a pluralistic nation. Without accommodation, many
otherwise beneficial laws would interfere severely with religious
freedom. Aside from laws against serving alcoholic beverages to
minors conflicting with celebration of communion, regulations
requiring hard hats in construction areas can effectively exclude
Amish and Sikhs from the workplace, or employment anti-
discrimination laws can conflict with the Roman Catholic male
priesthood, among others. Exemptions from such laws are easy to
craft and administer and contribute much to promoting religious

freedom at little cost to public policy. Without exemptions, legislature
would be frequently forced to choose between violating religious
conscience of a segment of the population or dispensing with
legislation it considers beneficial to society as a whole. Exemption
seems manifestly more reasonable than either of the alternative: no
exemption or no law.272
Benevolent neutrality gives room for different kinds of
accommodation: those which are constitutionally compelled, i.e.,
required by the Free Exercise Clause; and those which are
discretionary or legislative, i.e., and those not required by the Free
Exercise Clause but nonetheless permitted by the Establishment
Clause.273 Some Justices of the Supreme Court have also used
the term accommodation to describe government actions that
acknowledge or express prevailing religious sentiments of the
community such as display of a religious symbol on public property
or the delivery of a prayer at public ceremonial events.274 Stated
otherwise, using benevolent neutrality as a standard could result to
three situations of accommodation: those where accommodation is
required, those where it is permissible, and those where it is
prohibited. In the first situation, accommodation is required to
preserve free exercise protections and not unconstitutionally
infringe on religious liberty or create penalties for religious freedom.
Contrary to the Smith declaration that free exercise exemptions are
"intentional government advancement", these exemptions merely
relieve the prohibition on the free exercise thus allowing the
burdened religious adherent to be left alone. The state must create
exceptions to laws of general applicability when these laws threaten
religious convictions or practices in the absence of a compelling
state interest.275 By allowing such exemptions, the Free Exercise
Clause does not give believers the right or privilege to choose for
themselves to override socially-prescribed decision; it allows them
to obey spiritual rather than temporal authority276 for those who
seriously invoke the Free Exercise Clause claim to be fulfilling a
solemn duty. Religious freedom is a matter less of rights than duties;
more precisely, it is a matter of rights derived from duties. To deny
a person or a community the right to act upon such a duty can be
justified only by appeal to a yet more compelling duty. Of course,
those denied will usually not find the reason for the denial
compelling. "Because they may turn out to be right about the duty in
question, and because, even if they are wrong, religion bears
witness to that which transcends the political order, such denials
should be rare and painfully reluctant."277
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.278 In these cases of "burdensome
effect", the modern approach of the Court has been to apply strict
scrutiny, i.e., to declare the burden as permissible, the Court
requires the state to demonstrate that the regulation which burdens
the religious exercise pursues a particularly important or compelling
government goal through the least restrictive means. 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, such an exemption must be given.279 This approach of
the Court on "burdensome effect" was only applied since the 1960s.
Prior to this time, the Court took the separationist view that as long
as the state was acting in pursuit of non-religious ends and
regulating conduct rather than pure religious beliefs, the Free
Exercise Clause did not pose a hindrance such as in Reynolds.280
In the second situation where accommodation is permissible, the
state may, but is not required to, accommodate religious interests.
The Walz case illustrates this situation where the 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."281
CONSTI LAW II I ACJUCO 422
The Court held that New York could have an interest in encouraging
religious values and avoiding threats to those values through the
burden of property taxes. Other examples are the Zorach case
allowing released time in public schools and Marsh allowing
payment of legislative chaplains from public funds. Finally, in the
situation where accommodation is prohibited, 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.282 An example where accommodation was prohibited is
McCollum where the Court ruled against optional religious
instruction in the public school premises.283 In effect, the last
situation would arrive at a strict neutrality conclusion.
In the first situation where accommodation is required, the approach
follows this basic framework:
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.284
In other words, a three-step process (also referred to as the "two-
step balancing process" supra when the second and third steps are
combined) as in Sherbert is followed in weighing the state’s interest
and religious freedom when these collide. Three questions are
answered in this process. 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. As evidence of sincerity, the U.S. Supreme Court has
considered historical evidence as in Wisconsin where the Amish
people had held a long-standing objection to enrolling their children
in ninth and tenth grades in public high schools. In another case,
Dobkin v. District of Columbia,285 the Court denied the claim of a
party who refused to appear in court on Saturday alleging he was a
Sabbatarian, but the Court noted that he regularly conducted
business on Saturday. Although it is true that the Court might
erroneously deny some claims because of a misjudgment of
sincerity, this is not as argument to reject all claims by not allowing
accommodation as a rule. There might be injury to the particular
claimant or to his religious community, but for the most part, the
injustice is done only in the particular case.286 Aside from the
sincerity, the court may look into the centrality of those beliefs,
assessing them not on an objective basis but in terms of the opinion
and belief of the person seeking exemption. In Wisconsin, for
example, the Court noted that the Amish people’s convictions
against becoming involved in public high schools were central to
their way of life and faith. Similarly, in Sherbert, the Court concluded
that the prohibition against Saturday work was a "cardinal
principle."287 Professor Lupu puts to task the person claiming
exemption, viz:
On the claimant’s side, the meaning and significance of the relevant
religious practice must be demonstrated. Religious command
should outweigh custom, individual conscience should count for
more than personal convenience, and theological principle should
be of greater significance than institutional ease. Sincerity matters,
(footnote omitted) and longevity of practice - both by the individual

and within the individual’s religious tradition - reinforces sincerity.
Most importantly, the law of free exercise must be inclusive and
expansive, recognizing non-Christian religions - eastern, Western,
aboriginal and otherwise - as constitutionally equal to their Christian
counterparts, and accepting of the intensity and scope of
fundamentalist creed.288
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.289 The person claiming
religious freedom, on the other hand, will endeavor to show that the
interest is not legitimate or that the purpose, although legitimate, is
not compelling compared to infringement of religious liberty. This
step involves balancing, i.e., weighing the interest of the state
against religious liberty to determine which is more compelling
under the particular set of facts. The greater the state’s interests,
the more central the religious belief would have to be to overcome
it. In assessing the state interest, the court will have to determine
the importance of the secular interest and the extent to which that
interest will be impaired by an exemption for the religious practice.
Should the court find the interest truly compelling, there will be no
requirement that the state diminish the effectiveness of its regulation
by granting the exemption.290
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?"291 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. In Cantwell, for example, the Court invalidated the
license requirement for the door-to-door solicitation as it was a
forbidden burden on religious liberty, noting that less drastic means
of insuring peace and tranquility existed. As a whole, in carrying out
the compelling state interest test, the Court should give careful
attention to context, both religious and regulatory, to achieve refined
judgment.292
In sum, as shown by U.S. jurisprudence on religion clause cases,
the competing values of secular government and religious freedom
create tensions that make constitutional law on the subject of
religious liberty unsettled, mirroring the evolving views of a dynamic
society.293
VII. Religion Clauses in the Philippines
A. History
Before our country fell under American rule, the blanket of
Catholicism covered the archipelago. There was a union of church
and state and Catholicism was the state religion under the Spanish
Constitution of 1876. Civil authorities exercised religious functions
and the friars exercised civil powers.294 Catholics alone enjoyed
the right of engaging in public ceremonies of worship.295 Although
the Spanish Constitution itself was not extended to the Philippines,
Catholicism was also the established church in our country under
the Spanish rule. Catholicism was in fact protected by the Spanish
Penal Code of 1884 which was in effect in the Philippines. Some of
the offenses in chapter six of the Penal Code entitled "Crimes
against Religion and Worship" referred to crimes against the state
religion.296 The coming of the Americans to our country, however,
changed this state-church scheme for with the advent of this regime,
the unique American experiment of "separation of church and state"
was transported to Philippine soil.
CONSTI LAW II I ACJUCO 423
Even as early as the conclusion of the Treaty of Paris between the
United States and Spain on December 10, 1898, the American
guarantee of religious freedom had been extended to the
Philippines. The Treaty provided that "the inhabitants of the
territories over which Spain relinquishes or cedes her sovereignty
shall be secured in the free exercise of religion."297 Even the
Filipinos themselves guaranteed religious freedom a month later or
on January 22, 1899 upon the adoption of the Malolos Constitution
of the Philippine Republic under General Emilio Aguinaldo. It
provided that "the State recognizes the liberty and equality of all
religion (de todos los cultos) in the same manner as the separation
of the Church and State." But the Malolos Constitution and
government was short-lived as the Americans took over the reigns
of government.298
With the Philippines under the American regime, President
McKinley issued Instructions to the Second Philippine Commission,
the body created to take over the civil government in the Philippines
in 1900. The Instructions guaranteed religious freedom, viz:
That no law shall be made respecting the establishment of religion
or prohibiting the free exercise thereof, and that the free exercise
and enjoyment of religious profession and worship without
discrimination or preference shall forever be allowed ... that no form
of religion and no minister of religion shall be forced upon the
community or upon any citizen of the Islands, that, on the other
hand, no minister of religion shall be interfered with or molested in
following his calling.299
This provision was based on the First Amendment of the United
States Constitution. Likewise, the Instructions declared that "(t)he
separation between State and Church shall be real, entire and
absolute."300
Thereafter, every organic act of the Philippines contained a
provision on freedom of religion. Similar to the religious freedom
clause in the Instructions, the Philippine Bill of 1902 provided that:
No law shall be made respecting an establishment of religion or
prohibiting the free exercise thereof, and that free exercise and
enjoyment of religious worship, without discrimination or preference,
shall forever be allowed.
In U.S. v. Balcorta,301 the Court stated that the Philippine Bill of
1902 "caused the complete separation of church and state, and the
abolition of all special privileges and all restrictions theretofor
conferred or imposed upon any particular religious sect."302
The Jones Law of 1916 carried the same provision, but expanded it
with a restriction against using public money or property for religious
purposes, viz:
That no law shall be made respecting an establishment of religion
or prohibiting the free exercise thereof, and that the free exercise
and enjoyment of religious profession and worship without
discrimination or preference, shall forever be allowed; and no
religious test shall be required for the exercise of civil or political
rights. No public money or property shall ever be appropriated,
applied, donated, or used, directly or indirectly, for the use, benefit,
or support of any sect, church, denomination, sectarian institution,
or system of religion, or for the use, benefit or support of any priest,
preacher, minister, or other religious teachers or dignitary as such.
This was followed by the Philippine Independence Law or Tydings-
McDuffie Law of 1934 which guaranteed independence to the
Philippines and authorized the drafting of a Philippine constitution.
It enjoined Filipinos to include freedom of religion in drafting their
constitution preparatory to the grant of independence. The law
prescribed that "(a)bsolute toleration of religious sentiment shall be
secured and no inhabitant or religious organization shall be

molested in person or property on account of religious belief or
mode of worship."303
The Constitutional Convention then began working on the 1935
Constitution. In their proceedings, Delegate Jose P. Laurel as
Chairman of the Committee on Bill of Rights acknowledged that "(i)t
was the Treaty of Paris of December 10, 1898, which first introduced
religious toleration in our country. President McKinley’s Instructions
to the Second Philippine Commission reasserted this right which
later was incorporated into the Philippine Bill of 1902 and in the
Jones Law."304 In accordance with the Tydings-McDuffie Law, the
1935 Constitution provided in the Bill of Rights, Article IV, Section 7,
viz:
Sec. 7. No law shall be made respecting an establishment of
religion, or prohibiting the free exercise thereof, and 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.
This provision, borrowed from the Jones Law, was readily approved
by the Convention.305 In his speech as Chairman of the Committee
on Bill of Rights, Delegate Laurel said that modifications in
phraseology of the Bill of Rights in the Jones Law were avoided
whenever possible because "the principles must remain couched in
a language expressive of their historical background, nature, extent
and limitations as construed and interpreted by the great statesmen
and jurists that vitalized them."306
The 1973 Constitution which superseded the 1935 Constitution
contained an almost identical provision on religious freedom in the
Bill of Rights in Article IV, Section 8, viz:
Sec. 8. 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.
This time, however, the General Provisions in Article XV added in
Section 15 that "(t)he separation of church and state shall be
inviolable."
Without discussion by the 1986 Constitutional Commission, the
1973 religious clauses were reproduced in the 1987 Constitution
under the Bill of Rights in Article III, Section 5.307 Likewise, the
provision on separation of church and state was included verbatim
in the 1987 Constitution, but this time as a principle in Section 6,
Article II entitled Declaration of Principles and State Policies.
Considering the American origin of the Philippine religion clauses
and the intent to adopt the historical background, nature, extent and
limitations of the First Amendment of the U.S. Constitution when it
was included in the 1935 Bill of Rights, it is not surprising that nearly
all the major Philippine cases involving the religion clauses turn to
U.S. jurisprudence in explaining the nature, extent and limitations of
these clauses. However, a close scrutiny of these cases would also
reveal that while U.S. jurisprudence on religion clauses flows into
two main streams of interpretation - separation and benevolent
neutrality - the well-spring of Philippine jurisprudence on this subject
is for the most part, benevolent neutrality which gives room for
accommodation.
B. Jurisprudence
In revisiting the landscape of Philippine jurisprudence on the religion
clauses, we begin with the definition of "religion". "Religion" is
derived from the Middle English religioun, from Old French religion,
from Latin religio, vaguely referring to a "bond between man and the
gods."308 This pre-Christian term for the cult and rituals of pagan
Rome was first Christianized in the Latin translation of the Bible.309
CONSTI LAW II I ACJUCO 424
While the U.S. Supreme Court has had to take up the challenge of
defining the parameters and contours of "religion" to determine
whether a non-theistic belief or act is covered by the religion
clauses, this Court has not been confronted with the same issue. In
Philippine jurisprudence, religion, for purposes of the religion
clauses, has thus far been interpreted as theistic. In 1937, the
Philippine case of Aglipay v. Ruiz310 involving the Establishment
Clause, defined "religion" as a "profession of faith to an active power
that binds and elevates man to his Creator." Twenty years later, the
Court cited the Aglipay definition in American Bible Society v. City
of Manila,311 a case involving the Free Exercise clause. The latter
also cited the American case of Davis in defining religion, viz: "(i)t
has reference to one’s views of his relations to His Creator and to
the obligations they impose of reverence to His being and character
and obedience to His Will." The Beason definition, however, has
been expanded in U.S. jurisprudence to include non-theistic beliefs.
1. Free Exercise Clause
Freedom of choice guarantees the liberty of the religious conscience
and prohibits any degree of compulsion or burden, whether direct or
indirect, in the practice of one’s religion. The Free Exercise Clause
principally guarantees voluntarism, although the Establishment
Clause also assures voluntarism by placing the burden of the
advancement of religious groups on their intrinsic merits and not on
the support of the state.312
In interpreting the Free Exercise Clause, the realm of belief poses
no difficulty. The early case of Gerona v. Secretary of Education313
is instructive on the matter, viz:
The realm of belief and creed is infinite and limitless bounded only
by one’s imagination and thought. So is the freedom of belief,
including religious belief, limitless and without bounds. One may
believe in most anything, however strange, bizarre and
unreasonable the same may appear to others, even heretical when
weighed in the scales of orthodoxy or doctrinal standards. But
between the freedom of belief and the exercise of said belief, there
is quite a stretch of road to travel.314
The difficulty in interpretation sets in when belief is externalized into
speech and action.
Religious speech comes within the pale of the Free Exercise Clause
as illustrated in the American Bible Society case. In that case,
plaintiff American Bible Society was a foreign, non-stock, non-profit,
religious missionary corporation which sold bibles and gospel
portions of the bible in the course of its ministry. The defendant City
of Manila required plaintiff 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."
After defining religion, the Court, citing Tanada and Fernando, made
this statement, 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. (Tanada and Fernando
on the Constitution of the Philippines, vol. 1, 4th ed., p. 297)
(emphasis supplied)
This was the Court’s maiden unequivocal affirmation of the "clear
and present danger" rule in the religious freedom area, and in
Philippine jurisprudence, for that matter.315 The case did not clearly

show, however, whether the Court proceeded to apply the test to
the facts and issues of the case, i.e., it did not identify the secular
value the government regulation sought to protect, whether the
religious speech posed a clear and present danger to this or other
secular value protected by government, or whether there was
danger but it could not be characterized as clear and present. It is
one thing to apply the test and find that there is no clear and present
danger, and quite another not to apply the test altogether.
Instead, 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. To add, the
Court, citing Murdock v. Pennsylvania,316 ruled that applying the
ordinance 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." Thus, in American Bible Society, the "clear and present
danger" rule was laid down but it was not clearly applied.
In the much later case of Tolentino v. Secretary of Finance,317 also
involving the sale of religious books, the Court distinguished the
American Bible Society case from the facts and issues in Tolentino
and did not apply the American Bible Society ruling. In Tolentino,
the Philippine Bible Society challenged the validity of the registration
provisions of the Value Added Tax (VAT) Law as a prior restraint.
The Court held, however, that the fixed amount of registration fee
was not imposed for the exercise of a privilege like a license tax
which American Bible Society ruled was violative of religious
freedom. Rather, the registration fee was merely an administrative
fee to defray part of the cost of registration which was a central
feature of the VAT system. Citing Jimmy Swaggart Ministries v.
Board of Equalization,318 the Court also declared prefatorily that
"the Free Exercise of Religion Clause does not prohibit imposing a
generally applicable sales and use tax on the sale of religious
materials by a religious organization." In the Court’s resolution of the
motion for reconsideration of the Tolentino decision, the Court noted
that the burden on religious freedom caused by the tax was just
similar to any other economic imposition that might make the right
to disseminate religious doctrines costly.
Two years after American Bible Society came the 1959 case of
Gerona v. Secretary of Education,319 this time involving conduct
expressive of religious belief colliding with a rule prescribed in
accordance with law. In this case, petitioners were members of the
Jehovah’s Witnesses. They challenged a Department Order issued
by the Secretary of Education implementing Republic Act No. 1265
which prescribed compulsory flag ceremonies in all public schools.
In violation of the Order, petitioner’s children refused to salute the
Philippine flag, sing the national anthem, or recite the patriotic
pledge, hence they were expelled from school. Seeking protection
under the Free Exercise Clause, petitioners claimed that their
refusal was on account of their religious belief that the Philippine
flag is an image and saluting the same is contrary to their religious
belief. The Court stated, viz:
. . . If the exercise of religious belief clashes with the established
institutions of society and with the law, then the former must yield to
the latter. The Government steps in and either restrains said
exercise or even prosecutes the one exercising it. (emphasis
supplied)320
The Court then proceeded to determine if the acts involved
constituted a religious ceremony in conflict with the beliefs of the
petitioners with the following justification:
After all, the determination of whether a certain ritual is or is not a
religious ceremony must rest with the courts. It cannot be left to a
religious group or sect, much less to a follower of said group or sect;
otherwise, there would be confusion and misunderstanding for there
might be as many interpretations and meaning to be given to a
CONSTI LAW II I ACJUCO 425
certain ritual or ceremony as there are religious groups or sects or
followers, all depending upon the meaning which they, though in all
sincerity and good faith, may want to give to such ritual or
ceremony.321
It was held that the flag was not an image, the flag salute was not a
religious ceremony, and there was nothing objectionable about the
singing of the national anthem as it speaks only of love of country,
patriotism, liberty and the glory of suffering and dying for it. The
Court upheld the questioned Order and the expulsion of petitioner’s
children, stressing that:
Men may differ and do differ on religious beliefs and creeds,
government policies, the wisdom and legality of laws, even the
correctness of judicial decisions and decrees; but in the field of love
of country, reverence for the flag, national unity and patriotism, they
can hardly afford to differ, for these are matters in which they are
mutually and vitally interested, for to them, they mean national
existence and survival as a nation or national extinction.322
In support of its ruling, the Court cited Justice Frankfurter’s dissent
in the Barnette case, viz:
The constitutional protection of religious freedom x x x gave
religious equality, not civil immunity. Its essence is freedom from
conformity to religious dogma, not freedom from conformity to law
because of religious dogma.323
It stated in categorical terms, viz:
The freedom of religious belief guaranteed by the Constitution does
not and cannot mean exemption from or non-compliance with
reasonable and non-discriminatory laws, rules and regulations
promulgated by competent authority.324
Thus, the religious freedom doctrines one can derive from Gerona
are: (1) it is incumbent upon the Court to determine whether a
certain ritual is religious or not; (2) religious freedom will not be
upheld if it clashes with the established institutions of society and
with the law such that when a law of general applicability (in this
case the Department Order) incidentally burdens the exercise of
one’s religion, one’s right to religious freedom cannot justify
exemption from compliance with the law. The Gerona ruling was
reiterated in Balbuna, et al. v. Secretary of Education, et al.325
Fifteen years after Gerona came the 1974 case of Victoriano v.
Elizalde Rope Workers Union.326 In this unanimously decided en
banc case, Victoriano was a member of the Iglesia ni Cristo which
prohibits the affiliation of its members with any labor organization.
He worked in the Elizalde Rope Factory, Inc. and was a member of
the Elizalde Rope Workers Union which had with the company a
closed shop provision pursuant to Republic Act No. 875 allowing
closed shop arrangements. Subsequently, Republic Act No. 3350
was enacted exempting from the application and coverage of a
closed shop agreement employees belonging to any religious sect
which prohibits affiliation of their members with any labor
organization. Victoriano resigned from the union after Republic Act
No. 3350 took effect. The union notified the company of Victoriano’s
resignation, which in turn notified Victoriano that unless he could
make a satisfactory arrangement with the union, the company would
be constrained to dismiss him from the service. Victoriano sought to
enjoin the company and the union from dismissing him. The court
having granted the injunction, the union came to this Court on
questions of law, among which was whether Republic Act No. 3350
was unconstitutional for impairing the obligation of contracts and for
granting an exemption offensive of the Establishment Clause. With
respect to the first issue, the Court ruled, viz:
Religious freedom, although not unlimited, is a fundamental
personal right and liberty (Schneider v. Irgington, 308 U.S. 147, 161,
84 L.ed.155, 164, 60 S.Ct. 146) and has a preferred position in the

hierarchy of values. Contractual rights, therefore, must yield to
freedom of religion. It is only where unavoidably necessary to
prevent an immediate and grave danger to the security and welfare
of the community that infringement of religious freedom may be
justified, and only to the smallest extent necessary.327 (emphasis
supplied)
As regards the Establishment Clause issue, the Court after citing
the constitutional provision on establishment and free exercise of
religion, declared, viz:
The constitutional provisions not only prohibits legislation for the
support of any religious tenets or the modes of worship of any sect,
thus forestalling compulsion by law of the acceptance of any creed
or the practice of any form of worship (U.S. Ballard, 322 U.S. 78, 88
L. ed. 1148, 1153), but also assures the free exercise of one’s
chosen form of religion within limits of utmost amplitude. It has been
said that the religion clauses of the Constitution are all designed to
protect the broadest possible liberty of conscience, to allow each
man to believe as his conscience directs, to profess his beliefs, and
to live as he believes he ought to live, consistent with the liberty of
others and with the common good. (footnote omitted). Any
legislation whose effect or purpose is to impede the observance of
one or all religions, or to discriminate invidiously between the
religions, is invalid, even though the burden may be characterized
as being only indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d
965, 83 S. Ct. 1970) But if the state regulates conduct by enacting,
within its power, a general law which has for its purpose and effect
to advance the state’s secular goals, the statute is valid despite its
indirect burden on religious observance, unless the state can
accomplish its purpose without imposing such burden. (Braunfeld v.
Brown, 366 U.S. 599, 6 L ed. 2d. 563, 81 S. Ct. 144; McGowan v.
Maryland, 366 U.S. 420, 444-5 and 449)328 (emphasis supplied)
Quoting Aglipay v. Ruiz,329 the Court held 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." It also
cited Board of Education v. Allen,330 which held that in order to
withstand the strictures of constitutional prohibition, a statute must
have a secular legislative purpose and a primary effect that neither
advances nor inhibits religion. Using these criteria in upholding
Republic Act No. 3350, the Court pointed out, viz:
(Republic Act No. 3350) was intended to serve the secular purpose
of advancing the constitutional right to the free exercise of religion,
by averting that certain persons be refused work, or be dismissed
from work, or be dispossessed of their right to work and of being
impeded to pursue a modest means of livelihood, by reason of union
security agreements. . . . The primary effects of the exemption from
closed shop agreements in favor of members of religious sects that
prohibit their members from affiliating with a labor organization, is
the protection of said employees against the aggregate force of the
collective bargaining agreement, and relieving certain citizens of a
burden on their religious beliefs, and . . . eliminating to a certain
extent economic insecurity due to unemployment.331
The Court stressed that "(a)lthough the exemption may benefit
those who are members of religious sects that prohibit their
members from joining labor unions, the benefit upon the religious
sects is merely incidental and indirect."332 In enacting Republic Act
No. 3350, Congress merely relieved the exercise of religion by
certain persons of a burden imposed by union security agreements
which Congress itself also imposed through the Industrial Peace
Act. The Court concluded the issue of exemption by citing Sherbert
which laid down the rule that when general laws conflict with
scruples of conscience, exemptions ought to be granted unless
some "compelling state interest" intervenes. The Court then abruptly
added that "(i)n the instant case, We see no compelling state
interest to withhold exemption."333
CONSTI LAW II I ACJUCO 426
A close look at Victoriano would show that the Court mentioned
several tests in determining when religious freedom may be validly
limited. First, the Court mentioned the test of "immediate and grave
danger to the security and welfare of the community" and
"infringement of religious freedom only to the smallest extent
necessary" to justify limitation of religious freedom. Second,
religious exercise may be indirectly burdened by a general law
which has for its purpose and effect the advancement of the state’s
secular goals, provided that there is no other means by which the
state can accomplish this purpose without imposing such burden.
Third, the Court referred to the "compelling state interest" test which
grants exemptions when general laws conflict with religious
exercise, unless a compelling state interest intervenes.
It is worth noting, however, that the first two tests were mentioned
only for the purpose of highlighting the importance of the protection
of religious freedom as the secular purpose of Republic Act No.
3350. Upholding religious freedom was a secular purpose insofar
as it relieved the burden on religious freedom caused by another
law, i.e, the Industrial Peace Act providing for union shop
agreements. The first two tests were only mentioned in Victoriano
but were not applied by the Court to the facts and issues of the case.
The third, the "compelling state interest" test was employed by the
Court to determine whether the exemption provided by Republic Act
No. 3350 was not unconstitutional. It upheld the exemption, stating
that there was no "compelling state interest" to strike it down.
However, after careful consideration of the Sherbert case from
which Victoriano borrowed this test, the inevitable conclusion is that
the "compelling state interest" test was not appropriate and could
not find application in the Victoriano case. In Sherbert, appellant
Sherbert invoked religious freedom in seeking exemption from the
provisions of the South Carolina Unemployment Compensation Act
which disqualified her from claiming unemployment benefits. It was
the appellees, members of the South Carolina Employment
Commission, a government agency, who propounded the state
interest to justify overriding Sherbert’s claim of religious freedom.
The U.S. Supreme Court, considering Sherbert’s and the
Commission’s arguments, found that the state interest was not
sufficiently compelling to prevail over Sherbert’s free exercise claim.
This situation did not obtain in the Victoriano case where it was the
government itself, through Congress, which provided the exemption
in Republic Act No. 3350 to allow Victoriano’s exercise of religion.
Thus, the government could not argue against the exemption on the
basis of a compelling state interest as it would be arguing against
itself; while Victoriano would not seek exemption from the
questioned law to allow the free exercose of religion as the law in
fact provides such an exemption. In sum, although Victoriano
involved a religious belief and conduct, it did not involve a free
exercise issue where the Free Exercise Clause is invoked to exempt
him from the burden imposed by a law on his religious freedom.
Victoriano was reiterated in several cases involving the Iglesia ni
Cristo, namely Basa, et al. v. Federacion Obrera de la Industria
Tabaquera y Otros Trabajadores de Filipinas,334 Anucension v.
National Labor Union, et al.,335 and Gonzales, et al. v. Central
Azucarera de Tarlac Labor Union.336
Then came German v. Barangan in 1985 at the height of the anti-
administration rallies. Petitioners were walking to St. Jude Church
within the Malacanang security area to pray for "an end to violence"
when they were barred by the police. Invoking their constitutional
freedom of religious worship and locomotion, they came to the Court
on a petition for mandamus to allow them to enter and pray inside
the St. Jude Chapel. The Court was divided on the issue. The slim
majority of six recognized their freedom of religion but noted their
absence of good faith and concluded that they were using their
religious liberty to express their opposition to the government. Citing
Cantwell, the Court distinguished between freedom to believe and
freedom to act on matters of religion, viz:

. . . Thus the (First) amendment embraces two concepts - freedom
to believe and freedom to act. The first is absolute, but in the nature
of things, the second cannot be.337
The Court reiterated the Gerona ruling, viz:
In the case at bar, petitioners are not denied or restrained of their
freedom of belief or choice of their religion, but only in the manner
by which they had attempted to translate the same to action. This
curtailment is in accord with the pronouncement of this Court in
Gerona v. Secretary of Education (106 Phil. 2), thus:
. . . But between the freedom of belief and the exercise of said belief,
there is quite a stretch of road to travel. If the exercise of said
religious belief clashes with the established institutions of society
and with the law, then the former must yield and give way to the
latter. The government steps in and either restrains said exercise or
even prosecutes the one exercising it. (italics supplied)
The majority found that the restriction imposed upon petitioners was
"necessary to maintain the smooth functioning of the executive
branch of the government, which petitioners’ mass action would
certainly disrupt"338 and denied the petition. Thus, without
considering the tests mentioned in Victoriano, German went back to
the Gerona rule that religious freedom will not be upheld if it clashes
with the established institutions of society and the law.
Then Associate Justice Teehankee registered a dissent which in
subsequent jurisprudence would be cited as a test in religious
freedom cases. His dissent stated in relevant part, viz:
A brief restatement of the applicable constitutional principles as set
forth in the landmark case of J.B.L. Reyes v. Bagatsing (125 SCRA
553[1983]) should guide us in resolving the issues.
1. The right to freely exercise one’s religion is guaranteed in Section
8 of our Bill of Rights. (footnote omitted) Freedom of worship,
alongside with freedom of expression and speech and peaceable
assembly "along with the other intellectual freedoms, are highly
ranked in our scheme of constitutional values. It cannot be too
strongly stressed that on the judiciary - even more so than on the
other departments - rests the grave and delicate responsibility of
assuring respect for and deference to such preferred rights. No
verbal formula, no sanctifying phrase can, of course, dispense with
what has been so felicitously termed by Justice Holmes ‘as the
sovereign prerogative of judgment.’ Nonetheless, the presumption
must be to incline the weight of the scales of justice on the side of
such rights, enjoying as they do precedence and primacy.’ (J.B.L.
Reyes, 125 SCRA at pp. 569-570)
2. In the free exercise of such preferred rights, there is to be no prior
restraint although there may be subsequent punishment of any
illegal acts committed during the exercise of such basic rights. The
sole justification for a prior restraint or limitation on the exercise of
these basic rights 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 (Idem, at pp.
560-561).339 (emphasis supplied)
The J.B.L. Reyes v. Bagatsing case from which this portion of
Justice Teehankee’s dissent was taken involved the rights to free
speech and assembly, and not the exercise of religious freedom. At
issue in that case was a permit sought by retired Justice J.B.L.
Reyes, on behalf of the Anti-Bases Coalition, from the City of Manila
to hold a peaceful march and rally from the Luneta to the gates of
the U.S. Embassy. Nevertheless Bagatsing was used by Justice
Teehankee in his dissent which had overtones of petitioner German
and his companions’ right to assemble and petition the government
for redress of grievances.340
CONSTI LAW II I ACJUCO 427
In 1993, the issue on the Jehovah’s Witnesses’ participation in the
flag ceremony again came before the Court in Ebralinag v. The
Division Superintendent of Schools.341 A unanimous Court
overturned the Gerona ruling after three decades. Similar to
Gerona, this 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 same religious
freedom issue as in Gerona, the Court this time transported the
"grave and imminent danger" test laid down in Justice Teehankee’s
dissent in German, 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.342 (emphasis supplied)
The Court added, viz:
We are not persuaded that by exempting the Jehovah’s Witnesses
from saluting the flag, singing the national anthem and reciting the
patriotic pledge, this religious group which admittedly comprises a
‘small portion of the school population’ will shake up our part of the
globe and suddenly produce a nation ‘untaught and uninculcated in
and unimbued with reverence for the flag, patriotism, love of country
and admiration for national heroes’ (Gerona v. Secretary of
Education, 106 Phil. 224). After all, what the petitioners seek only is
exemption from the flag ceremony, not exclusion from the public
schools where they may study the Constitution, the democratic way
of life and form of government, and learn not only the arts, sciences,
Philippine history and culture but also receive training for a vocation
or profession and be taught the virtues of ‘patriotism, respect for
human rights, appreciation of national heroes, the rights and duties
of citizenship, and moral and spiritual values’ (Sec. 3[2], Art. XIV,
1987 Constitution) as part of the curricula. Expelling or banning the
petitioners from Philippine schools will bring about the very situation
that this Court has feared in Gerona. Forcing a small religious group,
through the iron hand of the law, to participate in a ceremony that
violates their religious beliefs, will hardly be conducive to love of
country or respect for duly constituted authorities.343
Barnette also found its way to the opinion, viz:
Furthermore, let it be noted that coerced unity and loyalty even to
the country, x x x- assuming that such unity and loyalty can be
attained through coercion- is not a goal that is constitutionally
obtainable at the expense of religious liberty. A desirable end cannot
be promoted by prohibited means. (Meyer vs. Nebraska, 262 U.S.
390, 67 L. ed. 1042, 1046).344
Towards the end of the decision, the Court also cited the Victoriano
case and its use of the "compelling state interest" test in according
exemption to the Jehovah’s Witnesses, viz:
In Victoriano vs. Elizalde Rope Workers’ Union, 59 SCRA 54, 72-
75, we upheld the exemption of members of the Iglesia ni Cristo,
from the coverage of a closed shop agreement between their
employer and a union because it would violate the teaching of their
church not to join any group:
‘x x x 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.’ (Sherbert vs. Verner,
374 U.S. 398, 10 L. Ed. 2d 965, 970, 83 S.Ct. 1790)’

We hold that a similar exemption may be accorded to the Jehovah’s
Witnesses with regard to the observance of the flag ceremony out
of respect for their religious beliefs, however ‘bizarre’ those beliefs
may seem to others.345
The Court annulled the orders expelling petitioners from school.
Thus, the "grave and imminent danger" test laid down in a dissenting
opinion in German which involved prior restraint of religious worship
with overtones of the right to free speech and assembly, was
transported to Ebralinag which did not involve prior restraint of
religious worship, speech or assembly. Although, it might be
observed that the Court faintly implied that Ebralinag also involved
the right to free speech when in its preliminary remarks, the Court
stated that compelling petitioners to participate in the flag ceremony
"is alien to the conscience of the present generation of Filipinos who
cut their teeth on the Bill of Rights which guarantees their rights to
free speech and the free exercise of religious profession and
worship;" the Court then stated in a footnote that the "flag salute,
singing the national anthem and reciting the patriotic pledge are all
forms of utterances."346
The "compelling state interest" test was not fully applied by the Court
in Ebralinag. In the Solicitor General’s consolidated comment, one
of the grounds cited to defend the expulsion orders issued by the
public respondents was that "(t)he State’s compelling interests
being pursued by the DEC’s lawful regulations in question do not
warrant exemption of the school children of the Jehovah’s
Witnesses from the flag salute ceremonies on the basis of their own
self-perceived religious convictions."347 The Court, however,
referred to the test only towards the end of the decision and did not
even mention what the Solicitor General argued as the compelling
state interest, much less did the Court explain why the interest was
not sufficiently compelling to override petitioners’ religious freedom.
Three years after Ebralinag, the Court decided the 1996 case of
Iglesia ni Cristo v. Court of Appeals, et al.348 Although there was a
dissent with respect to the applicability of the "clear and present
danger" test in this case, the majority opinion in unequivocal terms
applied the "clear and present danger" test to religious speech. This
case involved the television program, "Ang Iglesia ni Cristo,"
regularly aired over the television. Upon petitioner Iglesia ni Cristo’s
submission of the VTR tapes of some of its episodes, respondent
Board of Review for Motion Pictures and Television classified these
as "X" or not for public viewing on the ground that they "offend and
constitute an attack against other religions which is expressly
prohibited by law." Invoking religious freedom, petitioner alleged
that the Board acted without jurisdiction or with grave abuse of
discretion in requiring it to submit the VTR tapes of its television
program and x-rating them. While upholding the Board’s power to
review the Iglesia television show, the Court was emphatic about
the preferred status of religious freedom. Quoting Justice Cruz’
commentary on the constitution, the Court held that freedom to
believe is absolute but freedom to act on one’s belief, where it
affects the public, is subject to the authority of the state. The
commentary quoted Justice Frankfurter’s dissent in Barnette which
was quoted in Gerona, viz: "(t)he constitutional provision on
religious freedom terminated disabilities, it did not create new
privileges. It gave religious liberty, not civil immunity. Its essence is
freedom from conformity to religious dogma, not freedom from
conformity to law because of religious dogma."349 Nevertheless,
the Court was quick to add the criteria by which the state can
regulate the exercise of religious freedom, that is, when the exercise
will bring about the "clear and present danger of some substantive
evil which the State is duty bound to prevent, i.e., serious detriment
to the more overriding interest of public health, public morals, or
public welfare."350
In annulling the x-rating of the shows, the Court stressed that the
Constitution is hostile to all prior restraints on speech, including
religious speech and the x-rating was a suppression of petitioner’s
CONSTI LAW II I ACJUCO 428
freedom of speech as much as it was an interference with its right
to free exercise of religion. Citing Cantwell, the Court recognized
that the different religions may criticize one another and their tenets
may collide, but the Establishment Clause prohibits the state from
protecting any religion from this kind of attack.
The Court then called to mind the "clear and present danger" test
first laid down in the American Bible Society case and the test of
"immediate and grave danger" with "infringement only to the
smallest extent necessary to avoid danger" in Victoriano and
pointed out that the reviewing board failed to apply the "clear and
present danger" test. Applying the test, the Court noted, viz:
The records show that the decision of the respondent Board,
affirmed by the respondent appellate court, is completely bereft of
findings of facts to justify the conclusion that the subject video tapes
constitute impermissible attacks against another religion. There is
no showing whatsoever of the type of harm the tapes will bring about
especially the gravity and imminence of the threatened harm. Prior
restraint on speech, including religious speech, cannot be justified
by hypothetical fears but only by the showing of a substantive and
imminent evil which has taken the life of a reality already on ground.
Replying to the challenge on the applicability of the "clear and
present danger" test to the case, the Court acknowledged the
permutations that the test has undergone, but stressed that the test
is still applied to four types of speech: "speech that advocates
dangerous ideas, speech that provokes a hostile audience reaction,
out of court contempt and release of information that endangers a
fair trial"351 and ruled, viz:
. . . even allowing the drift of American jurisprudence, there is reason
to apply the clear and present danger test to the case at bar which
concerns speech that attacks other religions and could readily
provoke hostile audience reaction. It cannot be doubted that
religious truths disturb and disturb terribly.352
In Iglesia therefore, the Court went back to Gerona insofar as
holding that religious freedom cannot be invoked to seek exemption
from compliance with a law that burdens one’s religious exercise. It
also reiterated the "clear and present danger" test in American Bible
Society and the "grave and imminent danger" in Victoriano, but this
time clearly justifying its applicability and showing how the test was
applied to the case.
In sum, the Philippine Supreme Court has adopted a posture of not
invalidating a law offensive to religious freedom, but carving out an
exception or upholding an exception to accommodate religious
exercise where it is justified.353
2. Establishment Clause
In Philippine jurisdiction, there is substantial agreement on the
values sought to be protected by the Establishment Clause, namely,
voluntarism and insulation of the political process from interfaith
dissension. The first, voluntarism, has both a personal and a social
dimension. As a personal value, it refers to the inviolability of the
human conscience which, as discussed above, is also protected by
the free exercise clause. From the religious perspective, religion
requires voluntarism because compulsory faith lacks religious
efficacy. Compelled religion is a contradiction in terms.354 As a
social value, it means that the "growth of a religious sect as a social
force must come from the voluntary support of its members because
of the belief that both spiritual and secular society will benefit if
religions are allowed to compete on their own intrinsic merit without
benefit of official patronage. Such voluntarism cannot be achieved
unless the political process is insulated from religion and unless
religion is insulated from politics."355 Non-establishment thus calls
for government neutrality in religious matters to uphold voluntarism
and avoid breeding interfaith dissension.356

The neutrality principle was applied in the first significant non-
establishment case under the 1935 Constitution. In the 1937 case
of Aglipay v. Ruiz,357 the Philippine Independent Church
challenged the issuance and sale of postage stamps
commemorating the Thirty-Third International Eucharistic Congress
of the Catholic Church on the ground that the constitutional
prohibition against the use of public money for religious purposes
has been violated. It appears that the Director of Posts issued the
questioned stamps under the provisions of Act No. 4052358 which
appropriated a sum for the cost of plates and printing of postage
stamps with new designs and authorized the Director of Posts to
dispose of the sum in a manner and frequency "advantageous to
the Government." The printing and issuance of the postage stamps
in question appears to have been approved by authority of the
President. Justice Laurel, speaking for the Court, took pains
explaining religious freedom and the role of religion in society, and
in conclusion, found no constitutional infirmity in the issuance and
sale of the stamps, viz:
The prohibition herein expressed is a direct corollary of the principle
of separation of church and state. Without the necessity of adverting
to the historical background of this principle in our country, it is
sufficient to say that our history, not to speak of the history of
mankind, has taught us that the union of church and state is
prejudicial to both, for occasions might arise when the state will use
the church, and the church the state, as a weapon in the furtherance
of their respective ends and aims . . . It is almost trite to say now
that in this country we enjoy both religious and civil freedom. All the
officers of the Government, from the highest to the lowest, in taking
their oath to support and defend the Constitution, bind themselves
to recognize and respect the constitutional guarantee of religious
freedom, with its inherent limitations and recognized implications. It
should be stated that what is guaranteed by our Constitution is
religious liberty, not mere toleration.
Religious freedom, however, as a constitutional mandate is not an
inhibition of profound reverence for religion and is not a denial of its
influence in human affairs. Religion as a profession of faith to an
active power that binds and elevates man to his Creator is
recognized. And, in so far as it instills into the minds the purest
principles of morality, its influence is deeply felt and highly
appreciated. When the Filipino people, in the preamble of their
Constitution, implored "the aid of Divine Providence, in order to
establish a government that shall embody their ideals, conserve and
develop the patrimony of the nation, promote the general welfare,
and secure to themselves and their posterity the blessings of
independence under a regime of justice, liberty and democracy,"
they thereby manifested their intense religious nature and placed
unfaltering reliance upon Him who guides the destinies of men and
nations. The elevating influence of religion in human society is
recognized here as elsewhere. In fact, certain general concessions
are indiscriminately accorded to religious sects and denominations.
. .359
xxx xxx xxx
It is obvious that while the issuance and sale of the stamps in
question may be said to be inseparably linked with an event of a
religious character, the resulting propaganda, if any, received by the
Roman Catholic Church, was not the aim and purpose of the
Government. We are of the opinion that the Government should not
be embarrassed in its activities simply because of incidental results,
more or less religious in character, if the purpose had in view is one
which could legitimately be undertaken by appropriate legislation.
The main purpose should not be frustrated by its subordination to
mere incidental results not contemplated. (Vide Bradfield vs.
Roberts, 175 U.S. 295; 20 Sup. Ct. Rep., 121; 44 Law. ed., 168)360
(emphases supplied)
In so deciding the case, the Court, citing U.S. jurisprudence, laid
down the doctrine that a law or government action with a legitimate
CONSTI LAW II I ACJUCO 429
secular purpose does not offend the Establishment Clause even if it
incidentally aids a particular religion.
Almost forty-five years after Aglipay came Garces v. Estenzo.361
Although the Court found that the separation of church and state
was not at issue as the controversy was over who should have
custody of a saint’s image, it nevertheless made pronouncements
on the separation of church and state along the same line as the
Aglipay ruling. The Court held that there was nothing
unconstitutional or illegal in holding a fiesta and having a patron
saint for the barrio. It adhered to the barrio resolutions of the
barangay involved in the case stating that the barrio fiesta is a socio-
religious affair, the celebration of which is an "ingrained tradition in
rural communities" that "relieves the monotony and drudgery of the
lives of the masses." Corollarily, the Court found nothing illegal
about any activity intended to facilitate the worship of the patron
saint such as the acquisition and display of his image bought with
funds obtained through solicitation from the barrio residents. The
Court pointed out that the image of the patron saint was "purchased
in connection with the celebration of the barrio fiesta honoring the
patron saint, San Vicente Ferrer, and not for the purpose of favoring
any religion nor interfering with religious matters or the religious
beliefs of the barrio residents." Citing the Aglipay ruling, the Court
declared, viz:
Not every governmental activity which involves the expenditure of
public funds and which has some religious tint is violative of the
constitutional provisions regarding separation of church and state,
freedom of worship and banning the use of public money or
property.
Then came the 1978 case of Pamil v. Teleron, et al.362 which
presented a novel issue involving the religion clauses. In this case,
Section 2175 of the Revised Administrative Code of 1917
disqualifying ecclesiastics from appointment or election as
municipal officer was challenged. After protracted deliberation, the
Court was sharply divided on the issue. Seven members of the
Court, one short of the number necessary to declare a law
unconstitutional, approached the problem from a free exercise
perspective and considered the law a religious test offensive of the
constitution. They were Justices Fernando, Teehankee, Muñoz-
Palma, Concepcion, Jr., Santos, Fernandez, and Guerrero. Then
Associate Justice Fernando, the ponente, stated, viz: "The
challenged Administrative Code provision, certainly insofar as it
declares ineligible ecclesiastics to any elective or appointive office,
is, on its face, inconsistent with the religious freedom guaranteed by
the Constitution." Citing Torcaso v. Watkins,363 the ponencia held,
viz:
Torcaso v. Watkins, an American Supreme Court decision, has
persuasive weight. What was there involved was the validity of a
provision in the Maryland Constitution prescribing that ‘no religious
test ought ever to be required as a disqualification for any office or
profit or trust in this State, other than a declaration of belief in the
existence of God ***.’ Such a constitutional requirement was
assailed as contrary to the First Amendment of the United States
Constitution by an appointee to the office of notary public in
Maryland, who was refused a commission as he would not declare
a belief in God. He failed in the Maryland Court of Appeals but
prevailed in the United States Supreme Court, which reversed the
state court decision. It could not have been otherwise. As
emphatically declared by Justice Black: ‘this Maryland religious test
for public office unconstitutionally invades the appellant’s freedom
of belief and religion and therefore cannot be enforced against him.
The analogy appears to be obvious. In that case, it was lack of belief
in God that was a disqualification. Here being an ecclesiastic and
therefore professing a religious faith suffices to disqualify for a public
office. There is thus an incompatibility between the Administrative
Code provision relied upon by petitioner and an express
constitutional mandate.364

On the other hand, the prevailing five other members of the Court -
Chief Justice Castro, Justices Barredo, Makasiar, Antonio and
Aquino - approached the case from a non-establishment
perspective and upheld the law as a safeguard against the constant
threat of union of church and state that has marked Philippine
history. Justice Makasiar stated: "To allow an ecclesiastic to head
the executive department of a municipality is to permit the erosion
of the principle of separation of Church and State and thus open the
floodgates for the violation of the cherished liberty of religion which
the constitutional provision seeks to enforce and protect."
Consequently, the Court upheld the validity of Section 2175 of the
Revised Administrative Code and declared respondent priest
ineligible for the office of municipal mayor.
Another type of cases interpreting the establishment clause deals
with intramural religious disputes. Fonacier v. Court of Appeals365
is the leading case. The issue therein was the right of control over
certain properties of the Philippine Independent Church, the
resolution of which necessitated the determination of who was the
legitimate bishop of the church. The Court cited American
Jurisprudence,366 viz:
Where, however, a decision of an ecclesiastical court plainly
violates the law it professes to administer, or is in conflict with the
law of the land, it will not be followed by the civil courts. . . In some
instances, not only have the civil courts the right to inquire into the
jurisdiction of the religious tribunals and the regularity of their
procedure, but they have subjected their decisions to the test of
fairness or to the test furnished by the constitution and the law of
the church. . .367
The Court then ruled that petitioner Fonacier was legitimately
ousted and respondent de los Reyes was the duly elected head of
the Church, based on their internal laws. To finally dispose of the
property issue, the Court, citing Watson v. Jones,368 declared that
the rule in property controversies within religious congregations
strictly independent of any other superior ecclesiastical association
(such as the Philippine Independent Church) is that the rules for
resolving such controversies should be those of any voluntary
association. If the congregation adopts the majority rule then the
majority should prevail; if it adopts adherence to duly constituted
authorities within the congregation, then that should be followed.
Applying these rules, Fonacier lost the case. While the Court
exercised jurisdiction over the case, it nevertheless refused to touch
doctrinal and disciplinary differences raised, viz:
The amendments of the constitution, restatement of articles of
religion and abandonment of faith or abjuration alleged by appellant,
having to do with faith, practice, doctrine, form of worship,
ecclesiastical law, custom and rule of a church and having reference
to the power of excluding from the church those allegedly unworthy
of membership, are unquestionably ecclesiastical matters which are
outside the province of the civil courts.369
VIII. Free Exercise Clause vis-à-vis Establishment Clause
In both Philippine and U.S. jurisdiction, it is recognized that there is
a tension between the Free Exercise Clause and the Establishment
Clause in their application. There is a natural antagonism between
a command not to establish religion and a command not to inhibit
its practice; this tension between the religion clauses often leaves
the courts with a choice between competing values in religion
cases.370
One set of facts, for instance, can be differently viewed from the
Establishment Clause perspective and the Free Exercise Clause
point of view, and decided in opposite directions. In Pamil, the
majority gave more weight to the religious liberty of the priest in
holding that the prohibition of ecclesiastics to assume elective or
appointive government positions was violative of the Free Exercise
CONSTI LAW II I ACJUCO 430
Clause. On the other hand, the prevailing five justices gave
importance to the Establishment Clause in stating that the principle
of separation of church and state justified the prohibition.
Tension is also apparent when a case is decided to uphold the Free
Exercise Clause and consequently exemptions from a law of
general applicability are afforded by the Court to the person claiming
religious freedom; the question arises whether the exemption does
not amount to support of the religion in violation of the Establishment
Clause. This was the case in the Free Exercise Clause case of
Sherbert where the U.S. Supreme Court ruled, viz:
In holding as we do, plainly we are not fostering the "establishment"
of the Seventh-day Adventist religion in South Carolina, for the
extension of unemployment benefits to Sabbatarians in common
with Sunday worshippers reflects nothing more than the
governmental obligation of neutrality in the face of religious
differences, and does not represent that involvement of religious
with secular institutions which it is the object of the Establishment
Clause to forestall.371 (emphasis supplied)
Tension also exists when a law of general application provides
exemption in order to uphold free exercise as in the Walz case
where the appellant argued that the exemption granted to religious
organizations, in effect, required him to contribute to religious bodies
in violation of the Establishment Clause. But the Court held that the
exemption was not a case of establishing religion but merely
upholding the Free Exercise Clause by "sparing the exercise of
religion from the burden of property taxation levied on private profit
institutions." Justice Burger wrote, viz:
(t)he Court has struggled to find a neutral course between the two
religion clauses, both of which are cast in absolute terms, and either
of which, if expanded to a logical extreme, would tend to clash with
the other.372
Similarly, the Philippine Supreme Court in the Victoriano case held
that the exemption afforded by law to religious sects who prohibit
their members from joining unions did not offend the Establishment
Clause. We ruled, viz:
We believe that in enacting Republic Act No. 3350, Congress acted
consistently with the spirit of the constitutional provision. It acted
merely to relieve the exercise of religion, by certain persons, of a
burden that is imposed by union security agreements.373
(emphasis supplied)
Finally, in some cases, a practice is obviously violative of the
Establishment Clause but the Court nevertheless upholds it. In
Schempp, Justice Brennan stated: "(t)here are certain practices,
conceivably violative of the Establishment Clause, the striking down
of which might seriously interfere with certain religious liberties also
protected by the First Amendment."
How the tension between the Establishment Clause and the Free
Exercise Clause will be resolved is a question for determination in
the actual cases that come to the Court. In cases involving both the
Establishment Clause and the Free Exercise Clause, the two
clauses should be balanced against each other. The courts must
review all the relevant facts and determine whether there is a
sufficiently strong free exercise right that should prevail over the
Establishment Clause problem. In the United States, it has been
proposed that in balancing, the free exercise claim must be given
an edge not only because of abundant historical evidence in the
colonial and early national period of the United States that the free
exercise principle long antedated any broad-based support of
disestablishment, but also because an Establishment Clause
concern raised by merely accommodating a citizen’s free exercise
of religion seems far less dangerous to the republic than pure
establishment cases. Each time the courts side with the
Establishment Clause in cases involving tension between the two

religion clauses, the courts convey a message of hostility to the
religion that in that case cannot be freely exercised.374 American
professor of constitutional law, Laurence Tribe, similarly suggests
that the free exercise principle "should be dominant in any conflict
with the anti-establishment principle." This dominance would be the
result of commitment to religious tolerance instead of "thwarting at
all costs even the faintest appearance of establishment."375 In our
jurisdiction, Fr. Joaquin Bernas, S.J. asserts that a literal
interpretation of the religion clauses does not suffice. Modern
society is characterized by the expanding regulatory arm of
government that reaches a variety of areas of human conduct and
an expanding concept of religion. To adequately meet the demands
of this modern society, the societal values the religion clauses are
intended to protect must be considered in their interpretation and
resolution of the tension. This, in fact, has been the approach
followed by the Philippine Court.376
IX. Philippine Religion Clauses: Nature, Purpose, Tests
Based on Philippine and American Religion Clause History,
Law and Jurisprudence
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. The religion clauses in the First
Amendment were contained in every organic Act of the Philippines
under the American regime. When the delegates of the 1934
Constitutional Convention adopted a Bill of Rights in the 1935
Constitution, they purposely retained the phraseology of the religion
clauses in the First Amendment as contained in the Jones Law in
order to adopt its historical background, nature, extent and
limitations. At that time, there were not too many religion clause
cases in the United States as the U.S. Supreme Court decided an
Establishment Clause issue only in the 1947 Everson case. The
Free Exercise Clause cases were also scarce then. Over the years,
however, with the expanding reach of government regulation to a
whole gamut of human actions and the growing plurality and
activities of religions, the number of religion clause cases in the U.S.
exponentially increased. With this increase came an expansion of
the interpretation of the religion clauses, at times reinforcing
prevailing case law, at other times modifying it, and still at other
times creating contradictions so that two main streams of
jurisprudence had become identifiable. The first stream employs
separation while the second employs benevolent neutrality in
interpreting the religious clauses. Alongside this change in the
landscape of U.S. religion clause jurisprudence, the Philippines
continued to adopt the 1935 Constitution religion clauses in the
1973 Constitution and later, the 1987 Constitution. 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. 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.1âwphi1 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.377 From this construction, it will be
CONSTI LAW II I ACJUCO 431
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.378
We first apply the hermeneutical scalpel to dissect the 1935
Constitution. At the same time that the 1935 Constitution provided
for an Establishment Clause, it also provided for tax exemption of
church property in Article VI, Section 22, par. 3(b), viz:
(3) Cemeteries, churches, and parsonages or convents,
appurtenant thereto, and all lands, buildings, and improvements
used exclusively for religious, charitable, or educational purposes
shall be exempt from taxation.
Before the advent of the 1935 Constitution, Section 344 of the
Administrative Code provided for a similar exemption. To the same
effect, the Tydings-McDuffie Law contained a limitation on the taxing
power of the Philippine government during the Commonwealth
period.379 The original draft of the Constitution placed this provision
in an ordinance to be appended to the Constitution because this was
among the provisions prescribed by the Tydings-McDuffie Law.
However, in order to have a constitutional guarantee for such an
exemption even beyond the Commonwealth period, the provision
was introduced in the body of the Constitution on the rationale that
"if churches, convents [rectories or parsonages] and their
accessories are always necessary for facilitating the exercise of
such [religious] freedom, it would also be natural that their existence
be also guaranteed by exempting them from taxation."380 The
amendment was readily approved with 83 affirmative votes against
15 negative votes.381
The Philippine constitutional provision on tax exemption is not found
in the U.S. Constitution. In the U.S. case of Walz, the Court
struggled to justify this kind of exemption to withstand Establishment
Clause scrutiny by stating that church property was not singled out
but was exempt along with property owned by non-profit, quasi-
public corporations because the state upheld the secular policy "that
considers these groups as beneficial and stabilizing influences in
community life and finds this classification useful, desirable, and in
the public interest." The Court also stated that the exemption was
meant to relieve the burden on free exercise imposed by property
taxation. At the same time, however, the Court acknowledged that
the exemption was an exercise of benevolent neutrality to
accommodate a long-standing tradition of exemption. With the
inclusion of the church property tax exemption in the body of the
1935 Constitution and not merely as an ordinance appended to the
Constitution, the benevolent neutrality referred to in the Walz case
was given constitutional imprimatur under the regime of the 1935
Constitution. The provision, as stated in the deliberations, was an
acknowledgment of the necessity of the exempt institutions to the
exercise of religious liberty, thereby evincing benevolence towards
religious exercise.
Similarly, the 1935 Constitution provides in Article VI, Section 23(3),
viz:
(3) No public money, or property shall ever be appropriated, applied,
or used, directly or indirectly, for the use, benefit, or support of any
sect, church, denomination, sectarian institution or system of
religion, for the use, benefit or support of any priest, preacher,
ministers or other religious teacher or dignitary as such, except
when such priest, preacher, minister, or dignitary is assigned to the
armed forces or to any penal institution, orphanage, or leprosarium.
(emphasis supplied)
The original draft of this provision was a reproduction of a portion of
section 3 of the Jones Law which did not contain the above
exception, viz:

No public money or property shall ever be appropriated, applied, or
used, directly or indirectly, for the use, benefit, or support of any
sect, church denomination, sectarian institution, or system of
religion, or for the use, benefit or support of any priest, preacher,
minister, or dignitary as such…382
In the deliberations of this draft provision, an amendment was
proposed to strike down everything after "church denomination."383
The proposal intended to imitate the silence of the U.S. Constitution
on the subject of support for priests and ministers. It was also an
imitation of the silence of the Malolos Constitution to restore the
situation under the Malolos Constitution and prior to the Jones Law,
when chaplains of the revolutionary army received pay from public
funds with no doubt about its legality. It was pointed out, however,
that even with the prohibition under the Jones Law, appropriations
were made to chaplains of the national penitentiary and the Auditor
General upheld its validity on the basis of a similar United States
practice. But it was also pointed out that the U.S. Constitution did
not contain a prohibition on appropriations similar to the Jones
Law.384 To settle the question on the constitutionality of payment
of salaries of religious officers in certain government institutions and
to avoid the feared situation where the enumerated government
institutions could not employ religious officials with compensation,
the exception in the 1935 provision was introduced and approved.
The provision garnered 74 affirmative votes against 34 negative
votes.385 As pointed out in the deliberations, the U.S. Constitution
does not provide for this exemption. However, the U.S. Supreme
Court in Cruz v. Beto, apparently taking a benevolent neutrality
approach, implicitly approved the state of Texas’ payment of prison
chaplains’ salaries as reasonably necessary to permit inmates to
practice their religion. Also, in the Marsh case, the U.S. Supreme
Court upheld the long-standing tradition of beginning legislative
sessions with prayers offered by legislative chaplains retained at
taxpayers’ expense. The constitutional provision exempting
religious officers in government institutions affirms the departure of
the Philippine Constitution from the U.S. Constitution in its adoption
of benevolent neutrality in Philippine jurisdiction. While the provision
prohibiting aid to religion protects the wall of separation between
church and state, the provision at the same time gives constitutional
sanction to a breach in the wall.
To further buttress the thesis that benevolent neutrality is
contemplated in the Philippine Establishment Clause, the 1935
Constitution provides for optional religious instruction in public
schools in Article XIII, Section 5, viz:
. . . Optional religious instruction shall be maintained in the public
schools as now authorized by law. . .
The law then applicable was Section 928 of the Administrative
Code, viz:
It shall be lawful, however, for the priest or minister of any church
established in the town where a public school is situated, either in
person or by a designated teacher of religion, to teach religion for
one-half hour three times a week, in the school building, to those
public-school pupils whose parents or guardians desire it and
express their desire therefor in writing filed with the principal of the
school . . .
During the debates of the Constitutional Convention, there were
three positions on the issue of religious instruction in public schools.
The first held that the teaching of religion in public schools should
be prohibited as this was a violation of the principle of separation of
church and state and the prohibition against the use of public funds
for religious purposes. The second favored the proposed optional
religious instruction as authorized by the Administrative Code and
recognized that the actual practice of allowing religious instruction
in the public schools was sufficient proof that religious instruction
was not and would not be a source of religious discord in the
schools.386 The third wanted religion to be included as a course in
CONSTI LAW II I ACJUCO 432
the curriculum of the public schools but would only be taken by
pupils at the option of their parents or guardians. After several
rounds of debate, the second camp prevailed, thus raising to
constitutional stature the optional teaching of religion in public
schools, despite the opposition to the provision on the ground of
separation of church and state.387 As in the provisions on church
property tax exemption and compensation of religious officers in
government institutions, the U.S. Constitution does not provide for
optional religious instruction in public schools. In fact, in the
McCollum case, the Court, using strict neutrality, prohibited this kind
of religious instruction where the religion teachers would conduct
class within the school premises. The constitutional provision on
optional religious instruction shows that Philippine jurisdiction
rejects the strict neutrality approach which does not allow such
accommodation of religion.
Finally, to make certain the Constitution’s benevolence to religion,
the Filipino people "implored (ing) the aid of Divine Providence (,) in
order to establish a government that shall embody their ideals,
conserve and develop the patrimony of the nation, promote the
general welfare, and secure to themselves and their posterity the
blessings of independence under a regime of justice, liberty, and
democracy, (in) ordain(ing) and promulgat(ing) this Constitution." A
preamble is a "key to open the mind of the authors of the constitution
as to the evil sought to be prevented and the objects sought to be
accomplished by the provisions thereof."388 There was no debate
on the inclusion of a "Divine Providence" in the preamble. In Aglipay,
Justice Laurel noted that when the Filipino people implored the aid
of Divine Providence, "(t)hey thereby manifested their intense
religious nature and placed unfaltering reliance upon Him who
guides the destinies of men and nations."389 The 1935
Constitution’s religion clauses, understood alongside the other
provisions on religion in the Constitution, indubitably shows not
hostility, but benevolence, to religion.390
The 1973 Constitution contained in Article VI, Section 22(3) a
provision similar to Article VI, Section 22, par. 3(b) of the 1935
Constitution on exemption of church property from taxation, with the
modification that the property should not only be used directly, but
also actually and exclusively for religious or charitable purposes.
Parallel to Article VI, Section 23(3) of the 1935 Constitution, the
1973 Constitution also contained a similar provision on salaries of
religious officials employed in the enumerated government
institutions. Article XIII, Section 5 of the 1935 Constitution on
optional religious instruction was also carried to the 1973
Constitution in Article XV, Section 8(8) with the modification that
optional religious instruction shall be conducted "as may be
provided by law" and not "as now authorized by law" as stated in the
1935 Constitution. The 1973 counterpart, however, made explicit in
the constitution that the religious instruction in public elementary
and high schools shall be done "(a)t the option expressed in writing
by the parents or guardians, and without cost to them and the
government." With the adoption of these provisions in the 1973
Constitution, the benevolent neutrality approach continued to enjoy
constitutional sanction. In Article XV, Section 15 of the General
Provisions of the 1973 Constitution this provision made its maiden
appearance: "(t)he separation of church and state shall be
inviolable." The 1973 Constitution retained the portion of the
preamble "imploring the aid of Divine Providence."
In the Report of the Ad Hoc Sub-Committee on Goals, Principles
and Problems of the Committee on Church and State of the 1971
Constitutional Convention, the question arose as to whether the
"absolute" separation of Church and State as enunciated in the
Everson case and reiterated in Schempp - i.e., neutrality not only as
between one religion and another but even as between religion and
non-religion - is embodied in the Philippine Constitution. The sub-
committee’s answer was that it did not seem so. Citing the Aglipay
case where Justice Laurel recognized the "elevating influence of
religion in human society" and the Filipinos’ imploring of Divine
Providence in the 1935 Constitution, the sub-committee asserted

that the state may not prefer or aid one religion over another, but
may aid all religions equally or the cause of religion in general.391
Among the position papers submitted to the Committee on Church
on State was a background paper for reconsideration of the religion
provisions of the constitution by Fr. Bernas, S.J. He stated therein
that the Philippine Constitution is not hostile to religion and in fact
recognizes the value of religion and accommodates religious
values.392 Stated otherwise, the Establishment Clause
contemplates not a strict neutrality but benevolent neutrality. While
the Committee introduced the provision on separation of church and
state in the General Provisions of the 1973 Constitution, this was
nothing new as according to it, this principle was implied in the 1935
Constitution even in the absence of a similar provision.393
Then came the 1987 Constitution. The 1973 Constitutional provision
on tax exemption of church property was retained with minor
modification in Article VI, Section 28(3) of the 1987 Constitution. The
same is true with respect to the prohibition on the use of public
money and property for religious purposes and the salaries of
religious officers serving in the enumerated government institutions,
now contained in Article VI, Section 29(2). Commissioner Bacani,
however, probed into the possibility of allowing the government to
spend public money for purposes which might have religious
connections but which would benefit the public generally. Citing the
Aglipay case, Commissioner Rodrigo explained that if a public
expenditure would benefit the government directly, such expense
would be constitutional even if it results to an incidental benefit to
religion. With that explanation, Commissioner Bacani no longer
pursued his proposal.394
The provision on optional religious instruction was also adopted in
the 1987 Constitution in Article XIV, Section 3(3) with the
modification that it was expressly provided that optional instruction
shall be conducted "within the regular class hours" and "without
additional cost to the government". There were protracted debates
on what additional cost meant, i.e., cost over and above what is
needed for normal operations such as wear and tear, electricity,
janitorial services,395 and when during the day instruction would be
conducted.396 In deliberating on the phrase "within the regular
class hours," Commissioner Aquino expressed her reservations to
this proposal as this would violate the time-honored principle of
separation of church and state. She cited the McCullom case where
religious instruction during regular school hours was stricken down
as unconstitutional and also cited what she considered the most
liberal interpretation of separation of church and state in Surach v.
Clauson where the U.S. Supreme Court allowed only release time
for religious instruction. Fr. Bernas replied, viz:
. . . the whole purpose of the provision was to provide for an
exception to the rule on non-establishment of religion, because if it
were not necessary to make this exception for purposes of allowing
religious instruction, then we could just drop the amendment. But,
as a matter of fact, this is necessary because we are trying to
introduce something here which is contrary to American
practices.397 (emphasis supplied)
"(W)ithin regular class hours" was approved.
The provision on the separation of church and state was retained
but placed under the Principles in the Declaration of Principles and
State Policies in Article II, Section 6. In opting to retain the wording
of the provision, Fr. Bernas stated, viz:
. . . It is true, I maintain, that as a legal statement the sentence ‘The
separation of Church and State is inviolable,’ is almost a useless
statement; but at the same time it is a harmless statement. Hence,
I am willing to tolerate it there, because, in the end, if we look at the
jurisprudence on Church and State, arguments are based not on the
statement of separation of church and state but on the non-
establishment clause in the Bill of Rights.398
CONSTI LAW II I ACJUCO 433
The preamble changed "Divine Providence" in the 1935 and 1973
Constitutions to "Almighty God." There was considerable debate on
whether to use "Almighty God" which Commissioner Bacani said
was more reflective of Filipino religiosity, but Commissioner Rodrigo
recalled that a number of atheistic delegates in the 1971
Constitutional Convention objected to reference to a personal
God.399 "God of History", "Lord of History" and "God" were also
proposed, but the phrase "Almighty God" prevailed. Similar to the
1935 and 1971 Constitutions, it is obvious that the 1987 Constitution
is not hostile nor indifferent to religion;400 its wall of separation is
not a wall of hostility or indifference.401
The provisions of the 1935, 1973 and 1987 constitutions on tax
exemption of church property, salary of religious officers in
government institutions, optional religious instruction and the
preamble all reveal without doubt that the Filipino people, in
adopting these constitutions, did not intend to erect a high and
impregnable wall of separation between the church and state.402
The strict neutrality approach which examines only whether
government action is for a secular purpose and does not consider
inadvertent burden on religious exercise protects such a rigid
barrier. By adopting the above constitutional provisions on religion,
the Filipinos manifested their adherence to the benevolent neutrality
approach in interpreting the religion clauses, an approach that looks
further than the secular purposes of government action and
examines the effect of these actions on religious exercise.
Benevolent neutrality recognizes the religious nature of the Filipino
people and the elevating influence of religion in society; at the same
time, it acknowledges that government must pursue its secular
goals. In pursuing these goals, however, government might adopt
laws or actions of general applicability which inadvertently burden
religious exercise. Benevolent neutrality gives room for
accommodation of these religious exercises as required by the Free
Exercise Clause. It allows these breaches in the wall of separation
to uphold religious liberty, which after all is the integral purpose of
the religion clauses. The case at bar involves this first type of
accommodation where an exemption is sought from a law of general
applicability that inadvertently burdens religious exercise.
Although our constitutional history and interpretation mandate
benevolent neutrality, benevolent neutrality does not mean that the
Court ought to grant exemptions every time a free exercise claim
comes before it. But it does mean that the Court will not look with
hostility or act indifferently towards religious beliefs and practices
and that it will strive to accommodate them when it can within flexible
constitutional limits; it does mean that the Court will not simply
dismiss a claim under the Free Exercise Clause because the
conduct in question offends a law or the orthodox view for this
precisely is the protection afforded by the religion clauses of the
Constitution, i.e., that in the absence of legislation granting
exemption from a law of general applicability, the Court can carve
out an exception when the religion clauses justify it. 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.403 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.
Benevolent neutrality is manifest not only in the Constitution but has
also been recognized in Philippine jurisprudence, albeit not

expressly called "benevolent neutrality" or "accommodation". In
Aglipay, the Court not only stressed the "elevating influence of
religion in human society" but acknowledged the Constitutional
provisions on exemption from tax of church property, salary of
religious officers in government institutions, and optional religious
instruction as well as the provisions of the Administrative Code
making Thursday and Friday of the Holy Week, Christmas Day and
Sundays legal holidays. In Garces, the Court not only recognized
the Constitutional provisions indiscriminately granting concessions
to religious sects and denominations, but also acknowledged that
government participation in long-standing traditions which have
acquired a social character - "the barrio fiesta is a socio-religious
affair" - does not offend the Establishment Clause. In Victoriano, the
Court upheld the exemption from closed shop provisions of
members of religious sects who prohibited their members from
joining unions upon the justification that the exemption was not a
violation of the Establishment Clause but was only meant to relieve
the burden on free exercise of religion. In Ebralinag, members of the
Jehovah’s Witnesses were exempt from saluting the flag as required
by law, on the basis not of a statute granting exemption but of the
Free Exercise Clause without offending the Establishment Clause.
While the U.S. and Philippine religion clauses are similar in form and
origin, Philippine constitutional law has departed from the U.S.
jurisprudence of employing a separationist or strict neutrality
approach. The Philippine religion clauses have taken a life of their
own, breathing the air of benevolent neutrality and accommodation.
Thus, the wall of separation in Philippine jurisdiction is not as high
and impregnable as the wall created by the U.S. Supreme Court in
Everson.404 While the religion clauses are a unique American
experiment which understandably came about as a result of
America’s English background and colonization, the life that these
clauses have taken in this jurisdiction is the Philippines’ own
experiment, reflective of the Filipinos’ own national soul, history and
tradition. After all, "the life of the law. . . has been experience."
But while history, constitutional construction, and earlier
jurisprudence unmistakably show that benevolent neutrality is the
lens with which the Court ought to view religion clause cases, it must
be stressed that the interest of the state should also be afforded
utmost protection. To do this, a test must be applied to draw the line
between permissible and forbidden religious exercise. It is quite
paradoxical that in order for the members of a society to exercise
their freedoms, including their religious liberty, the law must set a
limit when their exercise offends the higher interest of the state. To
do otherwise is self-defeating for unlimited freedom would erode
order in the state and foment anarchy, eventually destroying the
very state its members established to protect their freedoms. The
very purpose of the social contract by which people establish the
state is for the state to protect their liberties; for this purpose, they
give up a portion of these freedoms - including the natural right to
free exercise - to the state. It was certainly not the intention of the
authors of the constitution that free exercise could be used to
countenance actions that would undo the constitutional order that
guarantees free exercise.405
The all important question then is the test that should be used in
ascertaining the limits of the exercise of religious freedom.
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
CONSTI LAW II I ACJUCO 434
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.406 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,407 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.408 In determining which shall prevail between the
state’s interest and religious liberty, reasonableness shall be the
guide.409 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.
X. Application of the Religion Clauses to the Case at Bar
A. The Religion Clauses and Morality
In a catena of cases, the Court has ruled that government
employees engaged in illicit relations are guilty of "disgraceful and
immoral conduct" for which he/she may be held administratively
liable.410 In these cases, there was not one dissent to the majority’s
ruling that their conduct was immoral. The respondents themselves
did not foist the defense that their conduct was not immoral, but
instead sought to prove that they did not commit the alleged act or
have abated from committing the act. The facts of the 1975 case of
De Dios v. Alejo411 and the 1999 case of Maguad v. De
Guzman,412 are similar to the case at bar - i.e., the complainant is
a mere stranger and the legal wife has not registered any objection

to the illicit relation, there is no proof of scandal or offense to the
moral sensibilities of the community in which the respondent and the
partner live and work, and the government employee is capacitated
to marry while the partner is not capacitated but has long been
separated in fact. Still, the Court found the government employees
administratively liable for "disgraceful and immoral conduct" and
only considered the foregoing circumstances to mitigate the penalty.
Respondent Escritor does not claim that there is error in the settled
jurisprudence that an illicit relation constitutes disgraceful and
immoral conduct for which a government employee is held liable.
Nor is there an allegation that the norms of morality with respect to
illicit relations have shifted towards leniency from the time these
precedent cases were decided. The Court finds that there is no such
error or shift, thus we find no reason to deviate from these rulings
that such illicit relationship constitutes "disgraceful and immoral
conduct" punishable under the Civil Service Law. Respondent
having admitted the alleged immoral conduct, she, like the
respondents in the above-cited cases, could be held
administratively liable. However, there is a distinguishing factor that
sets the case at bar apart from the cited precedents, i.e., as a
defense, respondent invokes religious freedom since her religion,
the Jehovah’s Witnesses, has, after thorough investigation, allowed
her conjugal arrangement with Quilapio based on the church’s
religious beliefs and practices. This distinguishing factor compels
the Court to apply the religious clauses to the case at bar.
Without holding that religious freedom is not in issue in the case at
bar, both the dissenting opinion of Mme. Justice Ynares-Santiago
and the separate opinion of Mr. Justice Vitug dwell more on the
standards of morality than on the religion clauses in deciding the
instant case. A discussion on morality is in order.
At base, morality refers to, in Socrates’ words, "how we ought to
live" and why. Any definition of morality beyond Socrates’ simple
formulation is bound to offend one or another of the many rival
theories regarding what it means to live morally.413 The answer to
the question of how we ought to live necessarily considers that man
does not live in isolation, but in society. Devlin posits that a society
is held together by a community of ideas, made up not only of
political ideas but also of ideas about the manner its members
should behave and govern their lives. The latter are their morals;
they constitute the public morality. Each member of society has
ideas about what is good and what is evil. If people try to create a
society wherein there is no fundamental agreement about good and
evil, they will fail; if having established the society on common
agreement, the agreement collapses, the society will disintegrate.
Society is kept together by the invisible bonds of common thought
so that if the bonds are too loose, the members would drift apart. A
common morality is part of the bondage and the bondage is part of
the price of society; and mankind, which needs society, must pay its
price.414 This design is parallel with the social contract in the realm
of politics: people give up a portion of their liberties to the state to
allow the state to protect their liberties. In a constitutional order,
people make a fundamental agreement about the powers of
government and their liberties and embody this agreement in a
constitution, hence referred to as the fundamental law of the land. A
complete break of this fundamental agreement such as by
revolution destroys the old order and creates a new one.415
Similarly, in the realm of morality, the breakdown of the fundamental
agreement about the manner a society’s members should behave
and govern their lives would disintegrate society. Thus, society is
justified in taking steps to preserve its moral code by law as it does
to preserve its government and other essential institutions.416 From
these propositions of Devlin, one cannot conclude that Devlin
negates diversity in society for he is merely saying that in the midst
of this diversity, there should nevertheless be a "fundamental
agreement about good and evil" that will govern how people in a
society ought to live. His propositions, in fact, presuppose diversity
hence the need to come to an agreement; his position also allows
for change of morality from time to time which may be brought about
by this diversity. In the same vein, a pluralistic society lays down
CONSTI LAW II I ACJUCO 435
fundamental rights and principles in their constitution in establishing
and maintaining their society, and these fundamental values and
principles are translated into legislation that governs the order of
society, laws that may be amended from time to time. Hart’s
argument propounded in Mr. Justice Vitug’s separate opinion that,
"Devlin’s view of people living in a single society as having common
moral foundation (is) overly simplistic" because "societies have
always been diverse" fails to recognize the necessity of Devlin’s
proposition in a democracy. Without fundamental agreement on
political and moral ideas, society will fall into anarchy; the
agreement is necessary to the existence and progress of society.
In a democracy, this common agreement on political and moral
ideas is distilled in the public square. Where citizens are free, every
opinion, every prejudice, every aspiration, and every moral
discernment has access to the public square where people
deliberate the order of their life together. Citizens are the bearers of
opinion, including opinion shaped by, or espousing religious belief,
and these citizens have equal access to the public square. In this
representative democracy, the state is prohibited from determining
which convictions and moral judgments may be proposed for public
deliberation. Through a constitutionally designed process, the
people deliberate and decide. Majority rule is a necessary principle
in this democratic governance.417 Thus, when public deliberation
on moral judgments is finally crystallized into law, the laws will
largely reflect the beliefs and preferences of the majority, i.e., the
mainstream or median groups.418 Nevertheless, in the very act of
adopting and accepting a constitution and the limits it specifies --
including protection of religious freedom "not only for a minority,
however small- not only for a majority, however large- but for each
of us" -- the majority imposes upon itself a self-denying ordinance.
It promises not to do what it otherwise could do: to ride roughshod
over the dissenting minorities.419 In the realm of religious exercise,
benevolent neutrality that gives room for accommodation carries out
this promise, provided the compelling interests of the state are not
eroded for the preservation of the state is necessary to the
preservation of religious liberty. That is why benevolent neutrality is
necessary in a pluralistic society such as the United States and the
Philippines to accommodate those minority religions which are
politically powerless. It is not surprising that Smith is much criticized
for it blocks the judicial recourse of the minority for religious
accommodations.
The laws enacted become expressions of public morality. As Justice
Holmes put it, "(t)he law is the witness and deposit of our moral
life."420 "In a liberal democracy, the law reflects social morality over
a period of time."421 Occasionally though, a disproportionate
political influence might cause a law to be enacted at odds with
public morality or legislature might fail to repeal laws embodying
outdated traditional moral views.422 Law has also been defined as
"something men create in their best moments to protect themselves
in their worst moments."423 Even then, laws are subject to
amendment or repeal just as judicial pronouncements are subject to
modification and reversal to better reflect the public morals of a
society at a given time. After all, "the life of the law...has been
experience," in the words of Justice Holmes. This is not to say
though that law is all of morality. Law deals with the minimum
standards of human conduct while morality is concerned with the
maximum. A person who regulates his conduct with the sole object
of avoiding punishment under the law does not meet the higher
moral standards set by society for him to be called a morally upright
person.424 Law also serves as "a helpful starting point for thinking
about a proper or ideal public morality for a society"425 in pursuit of
moral progress.
In Magno v. Court of Appeals, et al.,426 we articulated the
relationship between law and public morality. We held that under the
utilitarian theory, the "protective theory" in criminal law, "criminal law
is founded upon the moral disapprobation x x x of actions which are
immoral, i.e., which are detrimental (or dangerous) to those
conditions upon which depend the existence and progress of human

society. This disapprobation is inevitable to the extent that morality
is generally founded and built upon a certain concurrence in the
moral opinions of all. x x x That which we call punishment is only an
external means of emphasizing moral disapprobation: the method
of punishment is in reality the amount of punishment."427 Stated
otherwise, there are certain standards of behavior or moral
principles which society requires to be observed and these form the
bases of criminal law. Their breach is an offense not only against
the person injured but against society as a whole.428 Thus, even if
all involved in the misdeed are consenting parties, such as in the
case at bar, the injury done is to the public morals and the public
interest in the moral order.429 Mr. Justice Vitug expresses concern
on this point in his separate opinion. He observes that certain
immoral acts which appear private and not harmful to society such
as sexual congress "between a man and a prostitute, though
consensual and private, and with no injured third party, remains
illegal in this country." His opinion asks whether these laws on
private morality are justified or they constitute impingement on one’s
freedom of belief. Discussion on private morality, however, is not
material to the case at bar for whether respondent’s conduct, which
constitutes concubinage,430 is private in the sense that there is no
injured party or the offended spouse consents to the concubinage,
the inescapable fact is that the legislature has taken concubinage
out of the sphere of private morals. The legislature included
concubinage as a crime under the Revised Penal Code and the
constitutionality of this law is not being raised in the case at bar. In
the definition of the crime of concubinage, consent of the injured
party, i.e., the legal spouse, does not alter or negate the crime unlike
in rape431 where consent of the supposed victim negates the crime.
If at all, the consent or pardon of the offended spouse in
concubinage negates the prosecution of the action,432 but does not
alter the legislature’s characterization of the act as a moral
disapprobation punishable by law. The separate opinion states that,
"(t)he ponencia has taken pains to distinguish between secular and
private morality, and reached the conclusion that the law, as an
instrument of the secular State should only concern itself with
secular morality." The Court does not draw this distinction in the
case at bar. The distinction relevant to the case is not, as averred
and discussed by the separate opinion, "between secular and
private morality," but between public and secular morality on the one
hand, and religious morality on the other, which will be subsequently
discussed.
Not every moral wrong is foreseen and punished by law, criminal or
otherwise. We recognized this reality in Velayo, et al. v. Shell Co. of
the Philippine Islands, et al., where we explained that for those
wrongs which are not punishable by law, Articles 19 and 21 in
Chapter 2 of the Preliminary Title of the New Civil Code, dealing with
Human Relations, provide for the recognition of the wrong and the
concomitant punishment in the form of damages. Articles 19 and 21
provide, viz:
Art. 19. Any person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due
and observe honesty and good faith.
xxx xxx xxx
Art. 21. Any person who willfully causes loss or injury to another in
a manner that is contrary to morals, good customs or public policy
shall compensate the latter for the damage. (emphasis supplied)
We then cited in Velayo the Code Commission’s comment on Article
21:
Thus at one stroke, the legislator, if the foregoing rule is approved
(as it was approved), would vouchsafe adequate legal remedy for
that untold numbers of moral wrongs which is impossible for human
foresight to provide for specifically in the statutes.
CONSTI LAW II I ACJUCO 436
But, it may be asked, would this proposed article obliterate the
boundary line between morality and law? The answer is that, in the
last analysis, every good law draws its breath of life from morals,
from those principles which are written with words of fire in the
conscience of man. If this premise is admitted, then the proposed
rule is a prudent earnest of justice in the face of the impossibility of
enumerating, one by one, all wrongs which cause damages. When
it is reflected that while codes of law and statutes have changed
from age to age, the conscience of man has remained fixed to its
ancient moorings, one can not but feel that it is safe and salutary to
transmute, as far as may be, moral norms into legal rules, thus
imparting to every legal system that enduring quality which ought to
be one of its superlative attributes.
Furthermore, there is no belief of more baneful consequence upon
the social order than that a person may with impunity cause damage
to his fellow-men so long as he does not break any law of the State,
though he may be defying the most sacred postulates of morality.
What is more, the victim loses faith in the ability of the government
to afford him protection or relief.
A provision similar to the one under consideration is embodied in
article 826 of the German Civil Code.433 (emphases supplied)
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. Religious
morality proceeds from a person’s "views of his relations to His
Creator and to the obligations they impose of reverence to His being
and character and obedience to His Will," in accordance with this
Court’s definition of religion in American Bible Society citing Davis.
Religion also dictates "how we ought to live" for the nature of religion
is not just to know, but often, to act in accordance with man’s "views
of his relations to His Creator."434 But the Establishment Clause
puts a negative bar against establishment of this morality arising
from one religion or the other, and implies the affirmative
"establishment" of a civil order for the resolution of public moral
disputes. This agreement on a secular mechanism is the price of
ending the "war of all sects against all"; the establishment of a
secular public moral order is the social contract produced by
religious truce.435
Thus, when the law speaks of "immorality" in the Civil Service Law
or "immoral" in the Code of Professional Responsibility for
lawyers436 , or "public morals" in the Revised Penal Code,437 or
"morals" in the New Civil Code,438 or "moral character" in the
Constitution,439 the distinction between public and secular morality
on the one hand, and religious morality, on the other, should be kept
in mind.440 The morality referred to in the law is public and
necessarily secular, not religious as the dissent of Mr. Justice
Carpio holds. "Religious teachings as expressed in public debate
may influence the civil public order but public moral disputes may
be resolved only on grounds articulable in secular terms."441
Otherwise, if government relies upon religious beliefs in formulating
public policies and morals, the resulting policies and morals would
require conformity to what some might regard as religious programs
or agenda. The non-believers would therefore be compelled to
conform to a standard of conduct buttressed by a religious belief,
i.e., to a "compelled religion," anathema to religious freedom.
Likewise, if government based its actions upon religious beliefs, it
would tacitly approve or endorse that belief and thereby also tacitly
disapprove contrary religious or non-religious views that would not
support the policy. As a result, government will not provide full
religious freedom for all its citizens, or even make it appear that
those whose beliefs are disapproved are second-class citizens.
Expansive religious freedom therefore requires that government be
neutral in matters of religion; governmental reliance upon religious
justification is inconsistent with this policy of neutrality.442
In other words, government action, including its proscription of
immorality as expressed in criminal law like concubinage, must have

a secular purpose. That is, the government proscribes this conduct
because it is "detrimental (or dangerous) to those conditions upon
which depend the existence and progress of human society" and
not because the conduct is proscribed by the beliefs of one religion
or the other. Although admittedly, moral judgments based on
religion might have a compelling influence on those engaged in
public deliberations over what actions would be considered a moral
disapprobation punishable by law. After all, they might also be
adherents of a religion and thus have religious opinions and moral
codes with a compelling influence on them; the human mind
endeavors to regulate the temporal and spiritual institutions of
society in a uniform manner, harmonizing earth with heaven.443
Succinctly put, a law could be religious or Kantian or Aquinian or
utilitarian in its deepest roots, but it must have an articulable and
discernible secular purpose and justification to pass scrutiny of the
religion clauses. Otherwise, if a law has an apparent secular
purpose but upon closer examination shows a discriminatory and
prohibitory religious purpose, the law will be struck down for being
offensive of the religion clauses as in Church of the Lukumi Babalu
Aye, Inc. where the U.S. Supreme Court invalidated an ordinance
prohibiting animal sacrifice of the Santeria. Recognizing the
religious nature of the Filipinos and the elevating influence of
religion in society, however, the Philippine constitution’s religion
clauses prescribe not a strict but a benevolent neutrality. Benevolent
neutrality recognizes that government must pursue its secular goals
and interests but at the same time strives to uphold religious liberty
to the greatest extent possible within flexible constitutional limits.
Thus, although the morality contemplated by laws is secular,
benevolent neutrality could allow for accommodation of morality
based on religion, provided it does not offend compelling state
interests.
Mr. Justice Vitug’s separate opinion embraces the benevolent
neutrality approach when it states that in deciding the case at bar,
the approach should consider that, "(a)s a rule . . . moral laws are
justified only to the extent that they directly or indirectly serve to
protect the interests of the larger society. It is only where their rigid
application would serve to obliterate the value which society seeks
to uphold, or defeat the purpose for which they are enacted would,
a departure be justified." In religion clause parlance, the separate
opinion holds that laws of general applicability governing morals
should have a secular purpose of directly or indirectly protecting the
interests of the state. If the strict application of these laws (which are
the Civil Service Law and the laws on marriage) would erode the
secular purposes of the law (which the separate opinion identifies
as upholding the sanctity of marriage and the family), then in a
benevolent neutrality framework, an accommodation of the
unconventional religious belief and practice (which the separate
opinion holds should be respected on the ground of freedom of
belief) that would promote the very same secular purpose of
upholding the sanctity of marriage and family through the
Declaration Pledging Faithfulness that makes the union binding and
honorable before God and men, is required by the Free Exercise
Clause. The separate opinion then makes a preliminary discussion
of the values society seeks to protect in adhering to monogamous
marriage, but concludes that these values and the purposes of the
applicable laws should be thoroughly examined and evidence in
relation thereto presented in the OCA. The accommodation
approach in the case at bar would also require a similar discussion
of these values and presentation of evidence before the OCA by the
state that seeks to protect its interest on marriage and opposes the
accommodation of the unconventional religious belief and practice
regarding marriage.
The distinction between public and secular morality as expressed -
albeit not exclusively - in the law, on the one hand, and religious
morality, on the other, is important because 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. More
concretely, should the Court declare respondent’s conduct as
CONSTI LAW II I ACJUCO 437
immoral and hold her administratively liable, the Court will be
holding that in the realm of public morality, her conduct is
reprehensible or there are state interests overriding her religious
freedom. For as long as her conduct is being judged within this
realm, she will be accountable to the state. But in so ruling, the Court
does not and cannot say that her conduct should be made
reprehensible in the realm of her church where it is presently
sanctioned and that she is answerable for her immorality to her
Jehovah God nor that other religions prohibiting her conduct are
correct. On the other hand, should the Court declare her conduct
permissible, the Court will be holding that under her unique
circumstances, public morality is not offended or that upholding her
religious freedom is an interest higher than upholding public morality
thus her conduct should not be penalized. But the Court is not ruling
that the tenets and practice of her religion are correct nor that other
churches which do not allow respondent’s conjugal arrangement
should likewise allow such conjugal arrangement or should not find
anything immoral about it and therefore members of these churches
are not answerable for immorality to their Supreme Being. The Court
cannot speak more than what it has authority to say. In Ballard, the
U.S. Supreme Court held that courts cannot inquire about the truth
of religious beliefs. Similarly, in Fonacier, this Court declared that
matters dealing with "faith, practice, doctrine, form of worship,
ecclesiastical law, custom and rule of a church…are unquestionably
ecclesiastical matters which are outside the province of the civil
courts."444 But while the state, including the Court, accords such
deference to religious belief and exercise which enjoy protection
under the religious clauses, the social contract and the constitutional
order are designed in such a way that when religious belief flows
into speech and conduct that step out of the religious sphere and
overlap with the secular and public realm, the state has the power
to regulate, prohibit and penalize these expressions and
embodiments of belief insofar as they affect the interests of the
state. The state’s inroad on religion exercise in excess of this
constitutional design is prohibited by the religion clauses; the Old
World, European and American history narrated above bears out
the wisdom of this proscription.
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. The line is not easy
to draw for it is like "a line that divides land and sea, a coastline of
irregularities and indentations."445 But the case at bar does not
require us to comprehensively delineate between those immoral
acts for which one may be held administratively liable and those to
which administrative liability does not attach. We need not concern
ourselves in this case therefore whether "laziness, gluttony, vanity,
selfishness, avarice and cowardice" are immoral acts which
constitute grounds for administrative liability. Nor need we expend
too much energy grappling with the propositions that not all immoral
acts are illegal or not all illegal acts are immoral, or different
jurisdictions have different standards of morality as discussed by the
dissents and separate opinions, although these observations and
propositions are true and correct. It is certainly a fallacious argument
that because there are exceptions to the general rule that the "law
is the witness and deposit of our moral life," then the rule is not true;
in fact, that there are exceptions only affirms the truth of the rule.
Likewise, the observation that morality is relative in different
jurisdictions only affirms the truth that there is morality in a particular
jurisdiction; without, however, discounting the truth that underneath
the moral relativism are certain moral absolutes such as respect for
life and truth-telling, without which no society will survive. 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. Lest the Court inappropriately engage in
the impossible task of prescribing comprehensively how one ought
to live, the Court must focus its attention upon the sole conduct in
question before us.

In interpreting "disgraceful and immoral conduct," the dissenting
opinion of Mme. Justice Ynares-Santiago groped for standards of
morality and stated that the "ascertainment of what is moral or
immoral calls for the discovery of contemporary community
standards" but did not articulate how these standards are to be
ascertained. Instead, it held that, "(f)or those in the service of the
Government, provisions of law and court precedents . . . have to be
considered." It identified the Civil Service Law and the laws on
adultery and concubinage as laws which respondent’s conduct has
offended and cited a string of precedents where a government
employee was found guilty of committing a "disgraceful and immoral
conduct" for maintaining illicit relations and was thereby penalized.
As stated above, there is no dispute that under settled
jurisprudence, respondent’s conduct constitutes "disgraceful and
immoral conduct." However, the cases cited by the dissent do not
involve the defense of religious freedom which respondent in the
case at bar invokes. Those cited cases cannot therefore serve as
precedents in settling the issue in the case at bar.
Mme. Justice Ynares-Santiago’s dissent also cites Cleveland v.
United States446 in laying down the standard of morality, viz:
"(w)hether an act is immoral within the meaning of the statute is not
to be determined by respondent’s concept of morality. The law
provides the standard; the offense is complete if respondent
intended to perform, and did in fact perform, the act which it
condemns." The Mann Act under consideration in the Cleveland
case declares as an offense the transportation in interstate
commerce of "any woman or girl for the purpose of prostitution or
debauchery, or for any other immoral purpose."447 The resolution
of that case hinged on the interpretation of the phrase "immoral
purpose." The U.S. Supreme Court held that the petitioner
Mormons’ act of transporting at least one plural wife whether for the
purpose of cohabiting with her, or for the purpose of aiding another
member of their Mormon church in such a project, was covered by
the phrase "immoral purpose." In so ruling, the Court relied on
Reynolds which held that the Mormons’ practice of polygamy, in
spite of their defense of religious freedom, was "odious among the
northern and western nations of Europe,"448 "a return to
barbarism,"449 "contrary to the spirit of Christianity and of the
civilization which Christianity has produced in the Western
world,"450 and thus punishable by law.
The Cleveland standard, however, does not throw light to the issue
in the case at bar. The pronouncements of the U.S. Supreme Court
that polygamy is intrinsically "odious" or "barbaric" do not apply in
the Philippines where Muslims, by law, are allowed to practice
polygamy. Unlike in Cleveland, 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.
While positing the view that the resolution of the case at bar lies
more on determining the applicable moral standards and less on
religious freedom, Mme. Justice Ynares-Santiago’s dissent
nevertheless discussed respondent’s plea of religious freedom and
disposed of this defense by stating that "(a) clear and present
danger of a substantive evil, destructive to public morals, is a ground
for the reasonable regulation of the free exercise and enjoyment of
religious profession. (American Bible Society v. City of Manila, 101
Phil. 386 [1957]). In addition to the destruction of public morals, the
substantive evil in this case is the tearing down of morality, good
order, and discipline in the judiciary." However, the foregoing
discussion has shown that the "clear and present danger" test that
is usually employed in cases involving freedom of expression is not
appropriate to the case at bar which involves purely religious
conduct. The dissent also cites Reynolds in supporting its
conclusion that respondent is guilty of "disgraceful and immoral
CONSTI LAW II I ACJUCO 438
conduct." The Reynolds ruling, however, was reached with a strict
neutrality approach, which is not the approach contemplated by the
Philippine constitution. As discussed above, Philippine jurisdiction
adopts benevolent neutrality in interpreting the religion clauses.
In the same vein, Mr. Justice Carpio’s dissent which employs strict
neutrality does not reflect the constitutional intent of employing
benevolent neutrality in interpreting the Philippine religion clauses.
His dissent avers that respondent should be held administratively
liable not for "disgraceful and immoral conduct" but "conduct
prejudicial to the best interest of the service" as she is a necessary
co-accused of her partner in concubinage. The dissent stresses that
being a court employee, her open violation of the law is prejudicial
to the administration of justice. Firstly, 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." In addition, there is no evidence of the alleged
prejudice to the best interest of the service. Most importantly, the
dissent concludes that respondent’s plea of religious freedom
cannot prevail without so much as employing a test that would
balance respondent’s religious freedom and the state’s interest at
stake in the case at bar. The foregoing discussion on the doctrine of
religious freedom, however, shows that with benevolent neutrality
as a framework, the Court cannot simply reject respondent’s plea of
religious freedom without even subjecting it to the "compelling state
interest" test that would balance her freedom with the paramount
interests of the state. The strict neutrality employed in the cases the
dissent cites -Reynolds, Smith and People v. Bitdu decided before
the 1935 Constitution which unmistakably shows adherence to
benevolent neutrality - is not contemplated by our constitution.
Neither is Sulu Islamic Association of Masjid Lambayong v. Judge
Nabdar J. Malik451 cited in Mr. Justice Carpio’s dissent decisive of
the immorality issue in the case at bar. In that case, the Court
dismissed the charge of immorality against a Tausug judge for
engaging in an adulterous relationship with another woman with
whom he had three children because "it (was) not ‘immoral’ by
Muslim standards for Judge Malik to marry a second time while his
first marriage (existed)." Putting the quoted portion in its proper
context would readily show that the Sulu Islamic case does not
provide a precedent to the case at bar. Immediately prior to the
portion quoted by the dissent, the Court stressed, viz: "(s)ince Art.
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
x x x under Muslim Law,’ it is not ‘immoral’ by Muslim standards for
Judge Malik to marry a second time while his first marriage
exists."452 It was by law, therefore, that the Muslim conduct in
question was classified as an exception to the crime of bigamy and
thus an exception to the general standards of morality. The
constitutionality of P.D. No. 1083 when measured against the
Establishment Clause was not raised as an issue in the Sulu Islamic
case. Thus, the Court did not determine whether P.D. No. 1083
suffered from a constitutional infirmity and instead relied on the
provision excepting the challenged Muslim conduct from the crime
of bigamy in holding that the challenged act is not immoral by
Muslim standards. In contradistinction, in the case at bar, there is
no similar law which the Court can apply as basis for treating
respondent’s conduct as an exception to the prevailing
jurisprudence on illicit relations of civil servants. Instead, the Free
Exercise Clause is being invoked to justify exemption.
B. Application of Benevolent Neutrality and the
Compelling State Interest Test to the Case at Bar
The case at bar being one of first impression, we now subject the
respondent’s claim of religious freedom to the "compelling state
interest" test from a benevolent neutrality stance - i.e. entertaining
the possibility that respondent’s claim to religious freedom would
warrant carving out an exception from the Civil Service Law;
necessarily, her defense of religious freedom will be unavailing

should the government succeed in demonstrating a more
compelling state interest.
In applying the test, the first inquiry is whether respondent’s right to
religious freedom has been burdened. There is no doubt that
choosing between keeping her employment and abandoning her
religious belief and practice and family on the one hand, and giving
up her employment and keeping her religious practice and family on
the other hand, puts a burden on her free exercise of religion. In
Sherbert, the Court found that Sherbert’s religious exercise was
burdened as the denial of unemployment benefits "forces her to
choose between following the precepts of her religion and forfeiting
benefits, on the one hand, and abandoning one of the precepts of
her religion in order to accept work, on the other hand." The burden
on respondent in the case at bar is even greater as the price she
has to pay for her employment is not only her religious precept but
also her family which, by the Declaration Pledging Faithfulness,
stands "honorable before God and men."
The second step is to ascertain respondent’s sincerity in her
religious belief. Respondent appears to be sincere in her religious
belief and practice and is not merely using the "Declaration of
Pledging Faithfulness" to avoid punishment for immorality. She did
not secure the Declaration only after entering the judiciary where the
moral standards are strict and defined, much less only after an
administrative case for immorality was filed against her. The
Declaration was issued to her by her congregation after ten years of
living together with her partner, Quilapio, and ten years before she
entered the judiciary. Ministers from her congregation testified on
the authenticity of the Jehovah’s Witnesses’ practice of securing a
Declaration and their doctrinal or scriptural basis for such a practice.
As the ministers testified, the Declaration is not whimsically issued
to avoid legal punishment for illicit conduct but to make the "union"
of their members under respondent’s circumstances "honorable
before God and men." It is also worthy of notice that the Report and
Recommendation of the investigating judge annexed letters453 of
the OCA to the respondent regarding her request to be exempt from
attending the flag ceremony after Circular No. 62-2001 was issued
requiring attendance in the flag ceremony. The OCA’s letters were
not submitted by respondent as evidence but annexed by the
investigating judge in explaining that he was caught in a dilemma
whether to find respondent guilty of immorality because the Court
Administrator and Deputy Court Administrator had different
positions regarding respondent’s request for exemption from the
flag ceremony on the ground of the Jehovah’s Witnesses’ contrary
belief and practice. Respondent’s request for exemption from the
flag ceremony shows her sincerity in practicing the Jehovah’s
Witnesses’ beliefs and not using them merely to escape
punishment. She is a practicing member of the Jehovah’s
Witnesses and the Jehovah ministers testified that she is a member
in good standing. Nevertheless, should the government, thru the
Solicitor General, want to further question the respondent’s sincerity
and the centrality of her practice in her faith, it should be given the
opportunity to do so. The government has not been represented in
the case at bar from its incipience until this point.
In any event, even if the Court deems sufficient respondent’s
evidence on the sincerity of her religious belief and its centrality in
her faith, the case at bar cannot still be decided using the
"compelling state interest" test. The case at bar is one of first
impression, thus the parties were not aware of the burdens of proof
they should discharge in the Court’s use of the "compelling state
interest" test. We note that the OCA found respondent’s defense of
religious freedom unavailing in the face of the Court’s ruling in
Dicdican v. Fernan, et al., viz:
It bears emphasis that the image of a court of justice is mirrored in
the conduct, official and otherwise, of the personnel who work
thereat, from the judge to the lowest of its personnel. Court
personnel have been enjoined to adhere to the exacting standards
of morality and decency in their professional and private conduct in
CONSTI LAW II I ACJUCO 439
order to preserve the good name and integrity of the courts of
justice.
It is apparent from the OCA’s reliance upon this ruling that the state
interest it upholds is the preservation of the integrity of the judiciary
by maintaining among its ranks a high standard of morality and
decency. However, there is nothing in the OCA’s memorandum to
the Court that demonstrates how this interest is so compelling that
it should override respondent’s plea of religious freedom nor is it
shown that the means employed by the government in pursuing its
interest is the least restrictive to respondent’s religious exercise.
Indeed, it is inappropriate for the complainant, a private person, to
present evidence on the compelling interest of the state. The burden
of evidence should be discharged by the proper agency of the
government which is the Office of the Solicitor General. To properly
settle the issue in the case at bar, the government should be given
the opportunity to demonstrate the compelling state interest it seeks
to uphold in opposing the respondent’s stance that her conjugal
arrangement is not immoral and punishable as it comes within the
scope of free exercise protection. Should the Court prohibit and
punish her conduct where it is protected by the Free Exercise
Clause, the Court’s action would be an unconstitutional
encroachment of her right to religious freedom.454 We cannot
therefore simply take a passing look at respondent’s claim of
religious freedom, but must instead apply the "compelling state
interest" test. The government must be heard on the issue as it has
not been given an opportunity to discharge its burden of
demonstrating the state’s compelling interest which can override
respondent’s religious belief and practice. To repeat, this is a case
of first impression where we are applying the "compelling state
interest" test in a case involving purely religious conduct. The careful
application of the test is indispensable as how we will decide the
case will make a decisive difference in the life of the respondent who
stands not only before the Court but before her Jehovah God.
IN VIEW WHEREOF, the case is REMANDED to the Office of the
Court Administrator. The Solicitor General is ordered to intervene in
the case where it will be given the opportunity (a) to examine the
sincerity and centrality of respondent’s claimed religious belief and
practice; (b) to present evidence on the state’s "compelling interest"
to override respondent’s religious belief and practice; and (c) to
show that the means the state adopts in pursuing its interest is the
least restrictive to respondent’s religious freedom. The rehearing
should be concluded thirty (30) days from the Office of the Court
Administrator’s receipt of this Decision.
SO ORDERED.

[G.R. No. 153888. July 9, 2003]
ISLAMIC DAWAH COUNCIL OF THE PHILIPPINES, INC., herein
represented by PROF. ABDULRAFIH H. SAYEDY, petitioner,
vs. OFFICE OF THE EXECUTIVE SECRETARY of the Office of
the President of the Philippines, herein represented by HON.
ALBERTO G. ROMULO, Executive Secretary, and the OFFICE
ON MUSLIM AFFAIRS, herein represented by its Executive
Director, HABIB MUJAHAB HASHIM, respondents.
DECISION
CORONA, J.:
Before us is a petition for prohibition filed by petitioner Islamic
Dawah Council of the Philippines, Inc. (IDCP) praying for the
declaration of nullity of Executive Order (EO) 46, s. 2001 and the
prohibition of herein respondents Office of the Executive Secretary
and Office of Muslim Affairs (OMA) from implementing the subject
EO.
Petitioner IDCP, a corporation that operates under Department of
Social Welfare and Development License No. SB-01-085, is a non-
governmental organization that extends voluntary services to the
Filipino people, especially to Muslim communities. It claims to be a
federation of national Islamic organizations and an active member
of international organizations such as the Regional Islamic Dawah
Council of Southeast Asia and the Pacific (RISEAP)[1] and The
World Assembly of Muslim Youth. The RISEAP accredited petitioner
to issue halal[2] certifications in the Philippines. Thus, among the
functions petitioner carries out is to conduct seminars, orient
manufacturers on halal food and issue halal certifications to
qualified products and manufacturers.
Petitioner alleges that, on account of the actual need to certify food
products as halal and also due to halal food producers request,
petitioner formulated in 1995 internal rules and procedures based
on the Quran[3] and the Sunnah[4] for the analysis of food,
inspection thereof and issuance of halal certifications. In that same
year, petitioner began to issue, for a fee, certifications to qualified
products and food manufacturers. Petitioner even adopted for use
on its halal certificates a distinct sign or logo registered in the
Philippine Patent Office under Patent No. 4-2000-03664.
On October 26, 2001, respondent Office of the Executive Secretary
issued EO 46[5] creating the Philippine Halal Certification Scheme
and designating respondent OMA to oversee its implementation.
Under the EO, respondent OMA has the exclusive authority to issue
halal certificates and perform other related regulatory activities.
On May 8, 2002, a news article entitled OMA Warns NGOs Issuing
Illegal Halal Certification was published in the Manila Bulletin, a
newspaper of general circulation. In said article, OMA warned
Muslim consumers to buy only products with its official halal
certification since those without said certification had not been
subjected to careful analysis and therefore could contain pork or its
derivatives. Respondent OMA also sent letters to food
manufacturers asking them to secure the halal certification only from
OMA lest they violate EO 46 and RA 4109.[6] As a result, petitioner
lost revenues after food manufacturers stopped securing
certifications from it.
Hence, this petition for prohibition.
Petitioner contends that the subject EO violates the constitutional
provision on the separation of Church and State.[7] It is
unconstitutional for the government to formulate policies and
guidelines on the halal certification scheme because said scheme
is a function only religious organizations, entity or scholars can
lawfully and validly perform for the Muslims. According to petitioner,
a food product becomes halal only after the performance of Islamic
CONSTI LAW II I ACJUCO 440
religious ritual and prayer. Thus, only practicing Muslims are
qualified to slaughter animals for food. A government agency like
herein respondent OMA cannot therefore perform a religious
function like certifying qualified food products as halal.
Petitioner also maintains that the respondents violated Section 10,
Article III of the 1987 Constitution which provides that (n)o law
impairing the obligation of contracts, shall be passed. After the
subject EO was implemented, food manufacturers with existing
contracts with petitioner ceased to obtain certifications from the
latter.
Moreover, petitioner argues that the subject EO violates Sections
15 and 16 of Article XIII of the 1987 Constitution which respectively
provide:
ROLE AND RIGHTS OF PEOPLES ORGANIZATIONS
Sec. 15. The State shall respect the role of independent peoples
organizations to enable the people to pursue and protect, within the
democratic framework, their legitimate and collective interests and
aspirations through peaceful and lawful means.
Peoples organizations are bona fide associations of citizens with
demonstrated capacity to promote the public interest and with
identifiable leadership, membership, and structure.
Sec. 16. The rights of the people and their organizations to effective
and reasonable participation at all levels of social, political, and
economic decision-making shall not be abridged. The State shall,
by law, facilitate, the establishment of adequate consultation
mechanisms.
According to petitioner, the subject EO was issued with utter haste
and without even consulting Muslim peoples organizations like
petitioner before it became effective.
We grant the petition.
OMA was created in 1981 through Executive Order No. 697 (EO
697) to ensure the integration of Muslim Filipinos into the
mainstream of Filipino society with due regard to their beliefs,
customs, traditions, and institutions.[8] OMA deals with the societal,
legal, political and economic concerns of the Muslim community as
a national cultural community and not as a religious group. Thus,
bearing in mind the constitutional barrier between the Church and
State, the latter must make sure that OMA does not intrude into
purely religious matters lest it violate the non-establishment clause
and the free exercise of religion provision found in Article III, Section
5 of the 1987 Constitution.[9]
Freedom of religion was accorded preferred status by the framers
of our fundamental law. And this Court has consistently affirmed this
preferred status, well aware that it is "designed to protect the
broadest possible liberty of conscience, to allow each man to
believe as his conscience directs, to profess his beliefs, and to live
as he believes he ought to live, consistent with the liberty of others
and with the common good.[10]
Without doubt, classifying a food product as halal is a religious
function because the standards used are drawn from the Quran and
Islamic beliefs. By giving OMA the exclusive power to classify food
products as halal, EO 46 encroached on the religious freedom of
Muslim organizations like herein petitioner to interpret for Filipino
Muslims what food products are fit for Muslim consumption. Also, by
arrogating to itself the task of issuing halal certifications, the State
has in effect forced Muslims to accept its own interpretation of the
Quran and Sunnah on halal food.
To justify EO 46s intrusion into the subject religious activity, the
Solicitor General argues that the freedom of religion is subservient
 CONSTI LAW II I ACJUCO 441

to the police power of the State. By delegating to OMA the authority
to issue halal certifications, the government allegedly seeks to
protect and promote the muslim Filipinos right to health, and to instill
health consciousness in them.
We disagree.
Only the prevention of an immediate and grave danger to the
security and welfare of the community can justify the infringement
of religious freedom.[11] If the government fails to show the
seriousness and immediacy of the threat, State intrusion is
constitutionally unacceptable. In a society with a democratic
framework like ours, the State must minimize its interference with
the affairs of its citizens and instead allow them to exercise
reasonable freedom of personal and religious activity.
In the case at bar, we find no compelling justification for the
government to deprive Muslim organizations, like herein petitioner,
of their religious right to classify a product as halal, even on the
premise that the health of Muslim Filipinos can be effectively
protected by assigning to OMA the exclusive power to issue halal
certifications. The protection and promotion of the Muslim Filipinos
right to health are already provided for in existing laws and
ministered to by government agencies charged with ensuring that
food products released in the market are fit for human consumption,
properly labeled and safe. Unlike EO 46, these laws do not encroach
on the religious freedom of Muslims.
food products. The NMIC guarantees that the meat sold in the
market has been thoroughly inspected and fit for consumption.
Meanwhile, BFD ensures that food products are properly
categorized and have passed safety and quality standards. Then,
through the labeling provisions enforced by the DTI, Muslim
consumers are adequately apprised of the products that contain
substances or ingredients that, according to their Islamic beliefs, are
not fit for human intake. These are the non-secular steps put in place
by the State to ensure that the Muslim consumers right to health is
protected. The halal certifications issued by petitioner and similar
organizations come forward as the official religious approval of a
food product fit for Muslim consumption.
We do not share respondents apprehension that the absence of a
central administrative body to regulate halal certifications might give
rise to schemers who, for profit, will issue certifications for products
that are not actually halal. Aside from the fact that Muslim
consumers can actually verify through the labels whether a product
contains non-food substances, we believe that they are discerning
enough to know who the reliable and competent certifying
organizations in their community are. Before purchasing a product,
they can easily avert this perceived evil by a diligent inquiry on the
reliability of the concerned certifying organization.
WHEREFORE, the petition is GRANTED. Executive Order 46, s.
2001, is hereby declared NULL AND VOID. Consequently,
respondents are prohibited from enforcing the same.

Section 48(4) of the Administrative Code of 1987 gives to the SO ORDERED.

National Meat Inspection Commission (NMIC) of the Department of
Agriculture (DOA) the power to inspect slaughtered animals
intended for human consumption to ensure the safety of the meat
released in the market. Another law, RA 7394, otherwise known as
The Consumer Act of 1992, gives to certain government
departments the duty to protect the interests of the consumer,
promote his general welfare and to establish standards of conduct
for business and industry.[12] To this end, a food product, before its
distribution to the market, is required to secure the Philippine
Standard Certification Mark after the concerned department
inspects and certifies its compliance with quality and safety
standards.[13]

One such government agency designated by RA 7394 is the Bureau

of Food and Drugs (BFD) of the Department of Health (DOH). Under
Article 22 of said law, BFD has the duty to promulgate and enforce
rules and regulations fixing and establishing a reasonable definition
and standard of identity, a standard of quality and a standard of fill
of containers for food. The BFD also ensures that food products
released in the market are not adulterated.[14]

Furthermore, under Article 48 of RA 7394, the Department of Trade

and Industry (DTI) is tasked to protect the consumer against
deceptive, unfair and unconscionable sales acts or practices as
defined in Article 50.[15] DTI also enforces compulsory labeling and
fair packaging to enable the consumer to obtain accurate
information as to the nature, quality and quantity of the contents of
consumer products and to facilitate his comparison of the value of
such products.[16]

With these regulatory bodies given detailed functions on how to

screen and check the quality and safety of food products, the
perceived danger against the health of Muslim and non-Muslim
Filipinos alike is totally avoided. Of great help are the provisions on
labeling of food products (Articles 74 to 85)[17] of RA 7394. In fact,
through these labeling provisions, the State ably informs the
consuming public of the contents of food products released in the
market. Stiff sanctions are imposed on violators of said labeling
requirements.

Through the laws on food safety and quality, therefore, the State
indirectly aids Muslim consumers in differentiating food from non-

G.R. No. L-45459 March 13, 1937
GREGORIO AGLIPAY, petitioner,
vs.
JUAN RUIZ, respondent.
Vicente Sotto for petitioner.
Office of the Solicitor-General Tuason for respondent.
LAUREL, J.:
The petitioner, Mons. Gregorio Aglipay, Supreme Head of the
Philippine Independent Church, seeks the issuance from this court
of a writ of prohibition to prevent the respondent Director of Posts
from issuing and selling postage stamps commemorative of the
Thirty-third International Eucharistic Congress.
In May, 1936, the Director of Posts announced in the dailies of
Manila that he would order the issues of postage stamps
commemorating the celebration in the City of Manila of the Thirty-
third international Eucharistic Congress, organized by the Roman
Catholic Church. The petitioner, in the fulfillment of what he
considers to be a civic duty, requested Vicente Sotto, Esq., member
of the Philippine Bar, to denounce the matter to the President of the
Philippines. In spite of the protest of the petitioner's attorney, the
respondent publicly announced having sent to the United States the
designs of the postage stamps for printing as follows:
"In the center is chalice, with grape vine and stalks of wheat as
border design. The stamps are blue, green, brown, cardinal red,
violet and orange, 1 inch by 1,094 inches. The denominations are
for 2, 6, 16, 20, 36 and 50 centavos." The said stamps were actually
issued and sold though the greater part thereof, to this day, remains
unsold. The further sale of the stamps is sought to be prevented by
the petitioner herein.
The Solicitor-General contends that the writ of prohibition is not the
proper legal remedy in the instant case, although he admits that the
writ may properly restrain ministerial functions. While, generally,
prohibition as an extraordinary legal writ will not issue to restrain or
control the performance of other than judicial or quasi-judicial
functions (50 C. J., 6580, its issuance and enforcement are
regulated by statute and in this jurisdiction may issue to . . . inferior
tribunals, corporations, boards, or persons, whether excercising
functions judicial or ministerial, which are without or in excess of the
jurisdiction of such tribunal, corporation, board, or person, . . . ."
(Secs. 516 and 226, Code of Civil Procedure.) The terms "judicial"
and "ministerial" used with reference to "functions" in the statute are
undoubtedly comprehensive and include the challenged act of the
respondent Director of Posts in the present case, which act because
alleged to be violative of the Constitution is a fortiorari "without or in
excess of . . . jurisdiction." The statutory rule, therefore, in the
jurisdiction is that the writ of prohibition is not confined exclusively
to courts or tribunals to keep them within the limits of their own
jurisdiction and to prevent them from encroaching upon the
jurisdiction of other tribunals, but will issue, in appropriate cases, to
an officer or person whose acts are without or in excess of his
authority. Not infrequently, "the writ is granted, where it is necessary
for the orderly administration of justice, or to prevent the use of the
strong arm of the law in an oppressive or vindictive manner, or a
multiplicity of actions." (Dimayuga and Fajardo vs. Fernandez
[1923], 43 Phil., 304, 307.)
The more important question raised refers to the alleged violation of
the Constitution by the respondent in issuing and selling postage
stamps commemorative of the Thirty-third International Eucharistic
Congress. It is alleged that this action of the respondent is violative
of the provisions of section 23, subsection 3, Article VI, of the
Constitution of the Philippines, which provides as follows:
CONSTI LAW II I ACJUCO 442
No public money or property shall ever be appropriated, applied, or
used, directly or indirectly, for the use, benefit, or support of any
sect, church, denomination, secretarian, institution, or system of
religion, or for the use, benefit, or support of any priest, preacher,
minister, or other religious teacher or dignitary as such, except when
such priest, preacher, minister, or dignitary is assigned to the armed
forces or to any penal institution, orphanage, or leprosarium.
The prohibition herein expressed is a direct corollary of the principle
of separation of church and state. Without the necessity of adverting
to the historical background of this principle in our country, it is
sufficient to say that our history, not to speak of the history of
mankind, has taught us that the union of church and state is
prejudicial to both, for ocassions might arise when the estate will
use the church, and the church the state, as a weapon in the
furtherance of their recognized this principle of separation of church
and state in the early stages of our constitutional development; it
was inserted in the Treaty of Paris between the United States and
Spain of December 10, 1898, reiterated in President McKinley's
Instructions of the Philippine Commission, reaffirmed in the
Philippine Bill of 1902 and in the autonomy Act of August 29, 1916,
and finally embodied in the constitution of the Philippines as the
supreme expression of the Filipino people. It is almost trite to say
now that in this country we enjoy both religious and civil freedom.
All the officers of the Government, from the highest to the lowest, in
taking their oath to support and defend the constitution, bind
themselves to recognize and respect the constitutional guarantee of
religious freedom, with its inherent limitations and recognized
implications. It should be stated that what is guaranteed by our
Constitution is religious liberty, not mere religious toleration.
Religious freedom, however, as a constitutional mandate is not
inhibition of profound reverence for religion and is not denial of its
influence in human affairs. Religion as a profession of faith to an
active power that binds and elevates man to his Creator is
recognized. And, in so far as it instills into the minds the purest
principles of morality, its influence is deeply felt and highly
appreciated. When the Filipino people, in the preamble of their
Constitution, implored "the aid of Divine Providence, in order to
establish a government that shall embody their ideals, conserve and
develop the patrimony of the nation, promote the general welfare,
and secure to themselves and their posterity the blessings of
independence under a regime of justice, liberty and democracy,"
they thereby manifested reliance upon Him who guides the destinies
of men and nations. The elevating influence of religion in human
society is recognized here as elsewhere. In fact, certain general
concessions are indiscriminately accorded to religious sects and
denominations. Our Constitution and laws exempt from taxation
properties devoted exclusively to religious purposes (sec. 14,
subsec. 3, Art. VI, Constitution of the Philippines and sec. 1, subsec.
4, Ordinance appended thereto; Assessment Law, sec. 344, par. [c].
Adm. Code). Sectarian aid is not prohibited when a priest, preacher,
minister or other religious teacher or dignitary as such is assigned
to the armed forces or to any penal institution, orphanage or
leprosarium 9 sec. 13, subsec. 3, Art. VI, Constitution of the
Philippines). Optional religious instruction in the public schools is by
constitutional mandate allowed (sec. 5, Art. XIII, Constitution of the
Philippines, in relation to sec. 928, Adm. Code). Thursday and
Friday of Holy Week, Thanksgiving Day, Christmas Day, and
Sundays and made legal holidays (sec. 29, Adm. Code) because of
the secular idea that their observance is conclusive to beneficial
moral results. The law allows divorce but punishes polygamy and
bigamy; and certain crimes against religious worship are considered
crimes against the fundamental laws of the state (see arts. 132 and
133, Revised Penal Code).
In the case at bar, it appears that the respondent Director of Posts
issued the postage stamps in question under the provisions of Act
No. 4052 of the Philippine Legislature. This Act is as follows:
 CONSTI LAW II I ACJUCO 443

No. 4052. — AN ACT APPROPRIATING THE SUM OF SIXTY
THOUSAND PESOS AND MAKING THE SAME AVAILABLE OUT
OF ANY FUNDS IN THE INSULAR TREASURY NOT OTHERWISE
APPROPRIATED FOR THE COST OF PLATES AND PRINTING
OF POSTAGE STAMPS WITH NEW DESIGNS, AND FOR OTHER
PURPOSES.
Be it enacted by the Senate and House of Representatives of the
Philippines in Legislature assembled and by the authority of the
same:
SECTION 1. The sum of sixty thousand pesos is hereby
appropriated and made immediately available out of any funds in
the Insular Treasury not otherwise appropriated, for the costs of
plates and printing of postage stamps with new designs, and other
expenses incident thereto.
SEC. 2. The Director of Posts, with the approval of the Secretary of
Public Works and Communications, is hereby authorized to dispose
of the whole or any portion of the amount herein appropriated in the
manner indicated and as often as may be deemed advantageous to
the Government.
SEC. 3. This amount or any portion thereof not otherwise expended
shall not revert to the Treasury.
SEC. 4. This act shall take effect on its approval.
Approved, February 21, 1933.
It will be seen that the Act appropriates the sum of sixty thousand
pesos for the costs of plates and printing of postage stamps with
new designs and other expenses incident thereto, and authorizes
the Director of Posts, with the approval of the Secretary of Public
Works and Communications, to dispose of the amount appropriated
in the manner indicated and "as often as may be deemed
advantageous to the Government". The printing and issuance of the
postage stamps in question appears to have been approved by
authority of the President of the Philippines in a letter dated
September 1, 1936, made part of the respondent's memorandum as
Exhibit A. The respondent alleges that the Government of the
Philippines would suffer losses if the writ prayed for is granted. He
estimates the revenue to be derived from the sale of the postage
stamps in question at P1,618,17.10 and states that there still remain
to be sold stamps worth P1,402,279.02.
an inscription as follows: "Seat XXXIII International Eucharistic
Congress, Feb. 3-7,1937." What is emphasized is not the
Eucharistic Congress itself but Manila, the capital of the Philippines,
as the seat of that congress. It is obvious that while the issuance
and sale of the stamps in question may be said to be inseparably
linked with an event of a religious character, the resulting
propaganda, if any, received by the Roman Catholic Church, was
not the aim and purpose of the Government. We are of the opinion
that the Government should not be embarassed in its activities
simply because of incidental results, more or less religious in
character, if the purpose had in view is one which could legitimately
be undertaken by appropriate legislation. The main purpose should
not be frustrated by its subordinate to mere incidental results not
contemplated. (Vide Bradfield vs. Roberts, 175 U. S., 295; 20 Sup.
Ct. Rep., 121; 44 Law. ed., 168.)
We are much impressed with the vehement appeal of counsel for
the petitioner to maintain inviolate the complete separation of church
and state and curb any attempt to infringe by indirection a
constitutional inhibition. Indeed, in the Philippines, once the scene
of religious intolerance and prescription, care should be taken that
at this stage of our political development nothing is done by the
Government or its officials that may lead to the belief that the
Government is taking sides or favoring a particular religious sect or
institution. But, upon very serious reflection, examination of Act No.
4052, and scrutiny of the attending circumstances, we have come
to the conclusion that there has been no constitutional infraction in
the case at bar, Act No. 4052 grants the Director of Posts, with the
approval of the Secretary of Public Works and Communications,
discretion to misuse postage stamps with new designs "as often as
may be deemed advantageous to the Government." Even if we were
to assume that these officials made use of a poor judgment in
issuing and selling the postage stamps in question still, the case of
the petitioner would fail to take in weight. Between the exercise of a
poor judgment and the unconstitutionality of the step taken, a gap
exists which is yet to be filled to justify the court in setting aside the
official act assailed as coming within a constitutional inhibition.
The petition for a writ of prohibition is hereby denied, without
pronouncement as to costs. So ordered.

Act No. 4052 contemplates no religious purpose in view. What it

gives the Director of Posts is the discretionary power to determine
when the issuance of special postage stamps would be
"advantageous to the Government." Of course, the phrase
"advantageous to the Government" does not authorize the violation
of the Constitution. It does not authorize the appropriation, use or
application of public money or property for the use, benefit or
support of a particular sect or church. In the present case, however,
the issuance of the postage stamps in question by the Director of
Posts and the Secretary of Public Works and Communications was
not inspired by any sectarian denomination. The stamps were not
issue and sold for the benefit of the Roman Catholic Church. Nor
were money derived from the sale of the stamps given to that
church. On the contrary, it appears from the latter of the Director of
Posts of June 5, 1936, incorporated on page 2 of the petitioner's
complaint, that the only purpose in issuing and selling the stamps
was "to advertise the Philippines and attract more tourist to this
country." The officials concerned merely, took advantage of an
event considered of international importance "to give publicity to the
Philippines and its people" (Letter of the Undersecretary of Public
Works and Communications to the President of the Philippines,
June 9, 1936; p. 3, petitioner's complaint). It is significant to note
that the stamps as actually designed and printed (Exhibit 2), instead
of showing a Catholic Church chalice as originally planned, contains
a map of the Philippines and the location of the City of Manila, and

A.M. No. 10-4-19-SC
RE: LETTER OF TONY Q. V ALENCIANO, HOLDING OF
RELIGIOUS RITUALS AT THE HALL OF JUSTICE BUILDING IN
QUEZON CITY
RESOLUTION
MENDOZA, J.:
One of our fundamental differences lies in our chosen religion.
Some put their faith in a god different from ours, while some may
not believe in a god at all. Nevertheless, despite the inconveniences
this difference may cause us, we must accept it unconditionally for
only upon acceptance of the fact that we are different from each
other will we learn to respect one another.
This controversy originated from a series of letters, written by Tony
Q. Valenciano (Valenciano) and addressed to then Chief Justice
Reynato S.
Puno (Chief Justice Puno).
In his first Letter,1 dated January 6, 2009, Valenciano reported that
the basement of the Hall of Justice of Quezon City (QC) had been
converted into a Roman Catholic Chapel, complete with offertory
table, images of Catholic religious icons, a canopy, an electric
organ, and a projector. He believed that such practice violated the
constitutional provision on the separation of Church and State and
the constitutional prohibition against the appropriation of public
money or property for the benefit of a sect, church, denomination,
or any other system of religion.
Valenciano further averred that the holding of masses at the
basement of the QC Hall of Justice showed that it tended to favor
Catholic litigants; that the rehearsals of the choir caused great
disturbance to other employees; that the public could no longer use
the basement as resting place; that the employees and litigants of
the Public Attorney's Office (PAO), Branches 82 and 83 of the
Regional Trial Court (RTC), Legal Library, Philippine Mediation
Center, and Records Section of the Office of the Clerk of Court
(OCC) could not attend to their personal necessities such as going
to the lavatories because they could not traverse the basement
between 12:00 o'clock noontime and 1: 15 o'clock in the afternoon;
that the court employees became hostile toward each other as they
vied for the right to read the epistle; and that the water supply in the
entire building was cut off during the mass because the generator
was turned off to ensure silence.
In his 1st Indorsement,2 dated February 6, 2009, Chief Justice Puno
referred Valenciano 's letter to then Deputy Court Administrator
(DCA) and Officer-in-Charge of the Office on Halls of Justice,
Antonio H. Dujua (DCA Dujua).
In turn, DCA Dujua, in his 1st Indorsement,3 dated February 11,
2009, referred the letter to Executive Judge Teodoro A. Bay (Judge
Bay) of the RTC and to Executive Judge Luis Zenon Q. Maceren
(Judge Maceren) of the Metropolitan Trial Court (MeTC) for their
respective comments.
In his March 6, 2009 Letter,4 addressed to DCA Dujua, Judge
Maceren clarified that the basement of the QC Hall of Justice was
known as the prayer corner. He opined that the use of the said area
for holding masses did not violate the constitutional prohibition
against the use of public property for religious purposes because
the religious character of such use was merely incidental to a
temporary use.
In his Memorandum,5 dated March 10, 2009, Judge Bay manifested
that he was due to compulsorily retire on April 29, 2009, and he was
taking a leave of absence prior to such date to concentrate in
CONSTI LAW II I ACJUCO 444
resolving cases submitted for decision before his sala and
requested that then Vice-Executive Judge Jaime N. Salazar (Judge
Salazar) be assigned to further investigate, study, and make
recommendations on the matter raised by Valenciana.
In the meantime, Judge Bay recommended that, pending the final
resolution of the case, daily masses be permitted to continue,
provided that: (1) the mass be limited to thirty (30) minutes; (2) no
loud singing be allowed so as not to disturb others; and (3) the
inconveniences caused by the mass be addressed.
In his 1st Indorsement,6 dated May 27, 2009, Chief Justice Puno
referred another letter of Valenciano, dated May 13, 2009, to DCA
Dujua for appropriate action, as he complained that masses
continued to be held at the basement of the QC Hall of Justice.
On March 23, 2010, Valenciano wrote another letter,7 praying that
rules be promulgated by the Court to put a stop to the holding of
Catholic masses, or any other religious rituals, at the QC Hall of
Justice and in all other halls of justice in the country.
In its June 22, 2010 Resolution,8 the Court noted the March 23,
2010 letter of Valenciano and referred the matter to the Office of the
Court Administrator (OCA) for evaluation, report and
recommendation.
Thus, in its 1st Indorsement,9 dated September 6, 2010, the OCA,
through then Assistant Court Administrator (ACA) Jenny Lind R.
AldecoaDelorino (now Deputy Court Administrator), referred the
letters of Valenciano to the incumbent RTC Executive Judge
Fernando T. Sagun, Jr. (Judge Sagun, Jr.) and incumbent MeTC
Executive Judge Caridad M. WalseLutero (Judge Lutero).
In his Letter-Comment,10 dated September 9, 2010, Judge Sagun,
Jr. informed the Court that his office had already implemented
measures to address Valenciano's complaints. He reported that
masses were shortened to a little over thirty (30) minutes; that it was
only during special holy days of obligation when the celebration of
mass went beyond one (1) o'clock in the afternoon; that the
pathways leading to the lavatories were open and could be used
without obstruction; that there was never an instance where the
actions of court personnel, who were vying to read the epistle during
mass, caused back-biting and irritation among themselves; that the
water generator had been broken beyond repair and
decommissioned since December 2009; and that the court
employees prepared for the mass before the day officially started,
so that the performance of their official duties in court was not
hampered.
In her letter,11 Judge Lutero reported that Catholic masses were
being held only during lunch breaks and did not disturb court
proceedings; that the basement of the QC Hall of Justice could still
be used as waiting area for the public; that court personnel and the
public were never physically prevented from reaching the lavatories
during mass as there was a clear path from the public offices leading
to the comfort rooms; that water service interruptions were caused
by maintenance problems and not because the water pump was
being shut off during mass; and that the elevators could not be used
during mass because elevator attendants took their lunch break
from twelve (12) o'clock to one (1) o'clock in the afternoon.
Judge Lutero opined that it is not the conduct of masses in public
places which the Constitution prohibited, but the passage of laws or
the use of public funds for the purpose of establishing a religion or
prohibiting the free exercise thereof. She conveyed the fact that no
law or rule had been passed and that no public funds had been
appropriated or used to support the celebration of masses. She
added that the holding of Catholic masses did not mean that
Catholics had better chances of obtaining favorable resolutions from
the court.

Accordingly, Judge Lutero recommended that the holding of masses
at the basement of the QC Hall of Justice be allowed to continue
considering that it was not inimical to the interests of the court
employees and the public.
The OCA Report
and Recommendation
In its Memorandum,12 dated August 7, 2014, the OCA believed that
the practical inconveniences cited by Valenciano were unfounded.
It, thus, recommended that his letter-complaints, dated January 6,
2009, May 13, 2009 and March 23, 2010, be dismissed for lack of
merit and that the RTC and MeTC Executive Judges of QC be
directed to closely regulate and monitor the holding of masses and
other religious practices within the premises of the QC Hall of
Justice.1âwphi1
The OCA opined that the principle of separation of Church and
State, particularly with reference to the Establishment Clause, ought
not to be interpreted according to the rigid standards of separation;
that the neutrality of the State on religion should be benevolent
because religion was an ingrained part of society and played an
important role in it; and that the State, therefore, instead of being
belligerent (in the case of Strict Separation) or being aloof (in the
case of Strict Neutrality) towards religion should instead interact and
forbear.13
The OCA advanced the view that the standard of Benevolent
Neutrality/Accommodation was espoused because the principal
religion clauses in our Constitution were not limited to the
Establishment Clause, which created a wall between the Church
and the State, but was quickly followed by the declaration of the
Free Exercise Clause, which protected the right of the people to
practice their religion. In effect, the standard of Benevolent
Neutrality/Accommodation balanced the interest of the State
through the Establishment Clause, and the interest and right of the
individual to freely exercise his religion as guaranteed by the Free
Exercise Clause.14
The OCA observed that the present controversy did not involve a
national or local law or regulation in conflict with the Free Exercise
Clause. On the contrary, Valenciano was merely questioning the
propriety of holding religious masses at the basement of the QC Hall
of Justice, which was nothing more than an issue of whether the
said religious practice could be accommodated or not. It ended up
concluding that based on prevailing jurisprudence, as well as the
interpretations given to the religion clauses of the 1987 Constitution,
there was nothing constitutionally abhorrent in allowing the
continuation of the masses.15
The OCA added that by allowing or accommodating the celebration
of Catholic masses within the premises of the QC Hall of Justice,
the Court could not be said to have established Roman Catholicism
as an official religion or to have endorsed the said religion, for the
reason that it also allowed other religious denominations to practice
their religion within the courthouses.16
ISSUE
WHETHER THE HOLDING OF MASSES AT THE BASEMENT OF
THE QUEZON CITY HALL OF JUSTICE VIOLATES THE
CONSTITUTIONAL PRINCIPLE OF SEPARATION OF CHURCH
AND STATE AS WELL AS THE CONSTITUTIONAL PROHIBITION
AGAINST APPROPRIATION OF PUBLIC MONEY OR PROPERTY
FOR THE BENEFIT OF ANY SECT, CHURCH, DENOMINATION,
SECTARIAN INSTITUTION, OR SYSTEM OF RELIGION.
The Court's Ruling
The Court agrees with the findings and recommendation of the OCA
and denies the prayer of Valenciano that the holding of religious
CONSTI LAW II I ACJUCO 445
rituals of any of the world's religions in the QC Hall of Justice or any
halls of justice all over the country be prohibited.
The Holding of Religious
Rituals in the Halls of Justice
does not Amount to a Union of
Church and State
As earlier stated, Valenciano is against the holding of religious
rituals in the halls of justice on the ground that it violates the
constitutional provision on the separation of Church and State and
the constitutional prohibition against the appropriation of public
money or property for the benefit of a sect, church, denomination,
or any other system of religion. Indeed, Section 6, Article II of the
1987 Constitution provides:
The separation of Church and State shall be inviolable.17
The Court once pronounced that "our history, not to speak of the
history of mankind, has taught us that the union of church and state
is prejudicial to both, for occasions might arise when the state will
use the church, and the church the state, as a weapon in the
furtherance of their respective ends and aims."18
Justice Isagani Cruz expounded on this doctrine, viz.:
The rationale of the rule is summed up in the familiar saying, "Strong
fences make good neighbors." The idea is to delineate the
boundaries between the two institutions and, thus, avoid
encroachments by one against the other because of a
misunderstanding of the limits of their respective exclusive
jurisdictions. The demarcation line calls on the entities to "render
therefore unto Caesar the things that are Caesar's and unto God the
things that are God's."19
This, notwithstanding, the State still recognizes the inherent right of
the people to have some form of belief system, whether such may
be belief in a Supreme Being, a certain way of life, or even an
outright rejection of religion. Our very own Constitution recognizes
the heterogeneity and religiosity of our people as reflected in lmbong
v. Ochoa,20 as follows:
At the outset, it cannot be denied that we all live in a heterogeneous
society. It is made up of people of diverse ethnic, cultural and
religious beliefs and backgrounds. History has shown us that our
government, in law and in practice, has allowed these various
religious, cultural, social and racial groups to thrive in a single
society together. It has embraced minority groups and is tolerant
towards all - the religious people of different sects and the non-
believers. The undisputed fact is that our people generally believe
in a deity, whatever they conceived Him to be, and to Whom they
called for guidance and enlightenment in crafting our fundamental
law. Thus, the preamble of the present Constitution reads:
We, the sovereign Filipino people, imploring the aid of Almighty
God, in order to build a just and humane society, and establish a
Government that shall embody our ideals and aspirations, promote
the common good, conserve and develop our patrimony, and secure
to ourselves and our posterity, the blessings of independence and
democracy under the rule of law and a regime of truth, justice,
freedom, love, equality, and peace, do ordain and promulgate this
Constitution.
The Filipino people in "imploring the aid of Almighty God"
manifested their spirituality innate in our nature and consciousness
as a people, shaped by tradition and historical experience. As this
is embodied in the preamble, it means that the State recognizes with
respect the influence of religion in so far as it instills into the mind
the purest principles of morality. Moreover, in recognition of the
contributions of religion to society, the 1935, 1973 and 1987
Constitutions contain benevolent and accommodating provisions

towards religions such as tax exemption of church property, salary
of religious officers in government institutions, and optional religious
instructions in public schools. [Emphases supplied]
In Aglipay v. Ruiz21 (Aglipay), the Court acknowledged how religion
could serve as a motivating force behind each person's actions:
Religious freedom, however, as a constitutional mandate is not
inhibition of profound reverence for religion and is not a denial of its
influence in human affairs. Religion as a profession of faith to an
active power that binds and elevates man to his Creator is
recognized. And, in so far as it instills into the minds the purest
principles of morality, its influence is deeply felt and highly
appreciated. When the Filipino people, in the preamble of their
Constitution, implored "the aid of Divine Providence, in order to
establish a government that shall embody their ideals, conserve and
develop the patrimony of the nation, promote the general welfare,
and secure to themselves and their posterity the blessings of
independence under a regime of justice, liberty and democracy,"
they thereby manifested their intense religious nature and placed
unfaltering reliance upon Him who guides the destinies of men and
nations. The elevating influence of religion in human society is
recognized here as elsewhere. In fact, certain general concessions
are indiscriminately accorded to religious sects and denominations.
Our Constitution and laws exempt from taxation properties devoted
exclusively to religious purposes (sec. 14, subsec. 3, Art. VI,
Constitution of the Philippines and sec. 1, subsec. Ordinance
appended thereto; Assessment Law, sec. 344, par [c], Adm. Code)
sectarian aid is not prohibited when a priest, preacher, minister or
other religious teacher or dignitary as such is assigned to the armed
forces or to any penal institution, orphanage or leprosarium xxx.
Optional religious instruction in the public schools is by
constitutional mandate allowed xxx. Thursday and Friday of Holy
Week, Thanksgiving Day, Christmas Day, and Sundays are made
legal holidays (sec. 29, Adm. Code) because of the secular idea that
their observance is conducive to beneficial moral results. The law
allows divorce but punishes polygamy and bigamy; and certain
crimes against religious worship are considered crimes against the
fundamental laws of the state xxx.22 [Emphasis supplied]
Thus, the right to believe or not to believe has again been enshrined
in Section 5, Article III of the 1987 Constitution:
Section 5. xxx. The free exercise and enjoyment of religious
profession and worship, without discrimination or preference, shall
forever be allowed. xxx.
Free Exercise Clause
Freedom of religion was accorded preferred status by the framers
of our fundamental law. And this Court has consistently affirmed this
preferred status, well aware that it is "designed to protect the
broadest possible liberty of conscience, to allow each man to
believe as his conscience directs, to profess his beliefs, and to live
as he believes he ought to live, consistent with the liberty of others
and with the common good."23
"The right to religious profession and worship has a two-fold aspect
- freedom to believe and freedom to act on one's beliefs. The first is
absolute as long as the belief is confined within the realm of thought.
The second is subject to regulation where the belief is translated
into external acts that affect the public welfare."24 Justice Isagani
A. Cruz explained these two (2) concepts in this wise:
(1) Freedom to Believe
The individual is free to believe (or disbelieve) as he pleases
concerning the hereafter. He may indulge his own theories about life
and death; worship any god he chooses, or none at all; embrace or
reject any religion; acknowledge the divinity of God or of any being
that appeals to his reverence; recognize or deny the immortality of
CONSTI LAW II I ACJUCO 446
his soul - in fact, cherish any religious conviction as he and he alone
sees fit. However absurd his beliefs may be to others, even if they
be hostile and heretical to the majority, he has full freedom to believe
as he pleases. He may not be required to prove his beliefs. He may
not be punished for his inability to do so. Religion, after all, is a
matter of faith. "Men may believe what they cannot prove." Every
one has a right to his beliefs and he may not be called to account
because he cannot prove what he believes.
(2) Freedom to Act on One's Beliefs
But where the individual externalizes his beliefs in acts or omissions
that affect the public, his freedom to do so becomes subject to the
authority of the State. As great as this liberty may be, religious
freedom, like all other rights guaranteed in the Constitution, can be
enjoyed only with a proper regard for the rights of others.
It is error to think that the mere invocation of religious freedom will
stalemate the State and render it impotent in protecting the general
welfare. The inherent police power can be exercised to prevent
religious practices inimical to society. And this is true even if such
practices are pursued out of sincere religious conviction and not
merely for the purpose of evading the reasonable requirements or
prohibitions of the law.
Justice Frankfurter put it succinctly: "The constitutional provision on
religious freedom terminated disabilities, it did not create new
privileges. It gave religious liberty, not civil immunity. Its essence is
freedom from conformity to religious dogma, not freedom from
conformity to law because of religious dogma."25
Allowing religion to flourish is not contrary to the principle of
separation of Church and State. In fact, these two principles are in
perfect harmony with each other.
The State is aware of the existence of religious movements whose
members believe in the divinity of Jose Rizal. Yet, it does not
implement measures to suppress the said religious sects. Such
inaction or indifference on the part of the State gives meaning to the
separation of Church and State, and at the same time, recognizes
the religious freedom of the members of these sects to worship their
own Supreme Being.
As pointed out by Judge Lutero, "the Roman Catholics express their
worship through the holy mass and to stop these would be
tantamount to repressing the right to the free exercise of their
religion. Our Muslim brethren, who are government employees, are
allowed to worship their Allah even during office hours inside their
own offices. The Seventh Day Adventists are exempted from
rendering Saturday duty because their religion prohibits them from
working on a Saturday. Even Christians have been allowed to
conduct their own bible studies in their own offices. All these have
been allowed in respect of the workers' right to the free exercise of
their religion. xxx"26
Clearly, allowing the citizens to practice their religion is not
equivalent to a fusion of Church and State.
No Compelling State Interest
Religious freedom, however, is not absolute. It cannot have its way
if there is a compelling state interest. To successfully invoke
compelling state interest, it must be demonstrated that the masses
in the QC Hall of Justice unduly disrupt the delivery of public
services or affect the judges and employees in the performance of
their official functions. In Estrada v. Escritor,27 the Court expounded
on the test as follows:
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]
[Emphases supplied]
As reported by the Executive Judges of Quezon City, the masses
were being conducted only during noon breaks and were not
disruptive of public services. The court proceedings were not being
distracted or interrupted and that the performance of the judiciary
employees were not being adversely affected. Moreover, no Civil
Service rules were being violated. As there has been no detrimental
effect on the public service or prejudice to the State, there is simply
no state interest compelling enough to prohibit the exercise of
religious freedom in the halls of justice.
In fact, the Civil Service Commission (CSC) was more lenient or
tolerant. On November 13, 1981, the CSC came out with Resolution
No. 81-1277, which provided, among others, that "during Friday, the
Muslim pray day, Muslims are excused from work from 10:00 o'clock
in the morning to 2:00 o'clock in the afternoon." The Court struck
this down28 as not sanctioned by the law. It wrote:
To allow the Muslim employees in the Judiciary to be excused from
work from 10:00 a.m. to 2:00 p.m. every Friday (Muslim Prayer Day)
during the entire calendar year would mean a diminution of the
prescribed government working hours. For then, they would be
rendering service twelve (12) hours less than that required by the
civil service rules for each month. Further, this would encourage
other religious denominations to request for similar treatment.
The performance of religious practices, whether by the Muslim
employees or those belonging to other religious denominations,
should not prejudice the courts and the public. Indeed, the exercise
of religious freedom does not exempt anyone from compliance with
reasonable requirements of the law, including civil service laws.
Accommodation, Not Establishment of Religion
In order to give life to the constitutional right of freedom of religion,
the State adopts a policy of accommodation. Accommodation is a
recognition of the reality that some governmental measures may not
be imposed on a certain portion of the population for the reason that
these measures are contrary to their religious beliefs. As long as it
can be shown that the exercise of the right does not impair the public
CONSTI LAW II I ACJUCO 447
welfare, the attempt of the State to regulate or prohibit such right
would be an unconstitutional encroachment.29
In Estrada v. Escritor,30 the Court adopted a policy of benevolent
neutrality:
With religion looked upon with benevolence and not hostility,
benevolent neutrality allows accommodation of religion under
certain circumstances. Accommodations are government policies
that take religion specifically into account not to promote the
government's favored form of religion, but to allow individuals and
groups to exercise their religion without hindrance. Their purpose or
effect therefore 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."
[Emphases supplied]
In Victoriano v. Elizalde Rope Workers Union,31 the Court upheld
the exemption of members of Iglesia ni Cristo from the coverage of
a closed shop agreement between their employer and a union,
because it would violate the teaching of their church not to affiliate
with a labor organization.
In Ebralinag v. Division Superintendent of Schools of Cebu,32 the
petitioners, who were members of the Jehovah 's Witnesses,
refused to salute the flag, sing the national anthem, and recite the
patriotic pledge for it is their belief that those were acts of worship
or religious devotion, which they could not conscientiously give to
anyone or anything except God. The Court accommodated them
and granted them an exemption from observing the flag ceremony
out of respect for their religious beliefs.
Further, several laws have been enacted to accommodate religion.
The Revised Administrative Code of 1987 has declared Maundy
Thursday, Good Friday, and Christmas Day as regular holidays.
Republic Act (R.A.) No. 9177 proclaimed the FIRST Day of
Shawwal, the tenth month of the Islamic Calendar, a national
holiday for the observance of Eidul Fitr (the end of Ramadan). R.A.
No. 9849 declared the tenth day of Zhu/ Hijja, the twelfth month of
the Islamic Calendar, a national holiday for the observance of Eidul
Adha. Presidential Decree (P.D.) No. 1083, otherwise known as the
Code of Muslim Personal Laws of the Philippines, expressly allows
a Filipino Muslim to have more than one (1) wife and exempts him
from the crime of bigamy punishable under Revised Penal Code
(RPC). The same Code allows Muslims to have divorce.33
As to Muslims in government offices, Section 3 of P.D. No. 291, as
amended by P.D. No. 322, provides:
Sec. 3. (a) During the fasting season on the month of Ramadan, all
Muslim employees in the national government, government-owned
or controlled corporations, provinces, cities, municipalities and other
instrumentalities shall observe office hours from seven-thirty in the
morning (7:30 a.m.) to three-thirty in the afternoon (3:30 p.m.)
without lunch break or coffee breaks, and that there shall be no
diminution of salary or wages, provided, that the employee who is
not fasting is not entitled to the benefit of this provision.
Pursuant thereto, the CSC promulgated Resolution No. 81-1277,
dated November 13, 1981, which reads in part:
2. During "Ramadan" the Fasting month (30 days) of the Muslims,
the Civil Service official time of 8 o'clock to 12 o'clock and 1 o'clock
to 5 o'clock is hereby modified to 7:30 AM. to 3:30 P.M. without noon
break and the difference of 2 hours is not counted as undertime.

Following the decree, in Re: Request of Muslim Employees in the
Different Courts in Iligan City (Re: Office Hours),34 the Court
recognized that the observance of Ramadan as integral to the
Islamic faith and allowed Muslim employees in the Judiciary to hold
flexible office hours from 7:30 o'clock in the morning to 3:30 o'clock
in the afternoon without any break during the period. This is a clear
case of accommodation because Section 5, Rule XVII of the
Omnibus Rules Implementing Book V of E.0. No. 292, enjoins all
civil servants, of whatever religious denomination, to render public
service of no less than eight (8) hours a day or forty (40) hours a
week.
Non-Establishment Clause
On the opposite side of the spectrum is the constitutional mandate
that "no law shall be made respecting an establishment of
religion,"35 otherwise known as the non-establishment clause.
Indeed, there is a thin line between accommodation and
establishment, which makes it even more imperative to understand
each of these concepts by placing them in the Filipino society's
perspective.
The non-establishment clause reinforces the wall of separation
between Church and State. It simply means that the State cannot
set up a Church; nor pass laws which aid one religion, aid all
religion, or prefer one religion over another nor force nor influence
a person to go to or remain away from church against his will or
force him to profess a belief or disbelief in any religion; that the state
cannot punish a person for entertaining or professing religious
beliefs or disbeliefs, for church attendance or nonattendance; that
no tax in any amount, large or small, can be levied to support any
religious activity or institution whatever they may be called or
whatever form they may adopt or teach or practice religion; that the
state cannot openly or secretly participate in the affairs of any
religious organization or group and vice versa.36 Its minimal sense
is that the state cannot establish or sponsor an official religion.37
In the same breath that the establishment clause restricts what the
government can do with religion, it also limits what religious sects
can or cannot do. They can neither cause the government to adopt
their particular doctrines as policy for everyone, nor can they cause
the government to restrict other groups. To do so, in simple terms,
would cause the State to adhere to a particular religion and, thus,
establish a state religion.38
Father Bernas further elaborated on this matter, as follows:
"In effect, what non-establishment calls for is government neutrality
in religious matters. Such government neutrality may be
summarized in four general propositions: (1) Government must not
prefer one religion over another or religion over irreligion because
such preference would violate voluntarism and breed dissension; (2)
Government funds must not be applied to religious purposes
because this too would violate voluntarism and breed interfaith
dissension; (3) Government action must not aid religion because
this too can violate voluntarism and breed interfaith dissension;
[and] (4) Government action must not result in excessive
entanglement with religion because this too can violate voluntarism
and breed interfaith dissension."39
Establishment entails a positive action on the part of the State.
Accommodation, on the other hand, is passive. In the former, the
State becomes involved through the use of government resources
with the primary intention of setting up a state religion. In the latter,
the State, without being entangled, merely gives consideration to its
citizens who want to freely exercise their religion.
In a September 12, 2003 Memorandum for Chief Justice Hilario G.
Davide, Jr., the Office of the Chief Attorney recommended to deny,
on constitutional grounds, the request of Rev. Fr. Carlo M. Ilagan to
hold a oneday vigil in honor of the Our Lady of Caysasay within the
CONSTI LAW II I ACJUCO 448
premises of the Court. Such controversy must be distinguished from
the present issue in that with respect to the former, a Catholic priest
was the one who requested for the vigil. Moreover, in that case, the
vigil would take one (1) whole working day; whereas in this case,
the masses are held at the initiative of Catholic employees and only
during the thirty-minute lunch break.
Guided by the foregoing, it is our considered view that the holding
of Catholic masses at the basement of the QC Hall of Justice is not
a case of establishment, but merely accommodation. First, there is
no law, ordinance or circular issued by any duly constitutive
authorities expressly mandating that judiciary employees attend the
Catholic masses at the basement. Second, when judiciary
employees attend the masses to profess their faith, it is at their own
initiative as they are there on their own free will and volition, without
any coercion from the judges or administrative officers. Third, no
government funds are being spent because the lightings and
airconditioning continue to be operational even if there are no
religious rituals there. Fourth, the basement has neither been
converted into a Roman Catholic chapel nor has it been
permanently appropriated for the exclusive use of its faithful. Fifth,
the allowance of the masses has not prejudiced other religions.
No Appropriation of Public
Money or Property for the
Benefit of any Church
Section 29 (2), Article VI of the 1987 Constitution provides, "No
public money or property shall be appropriated, applied, paid, or
employed, directly or indirectly, for the use, benefit, or support of
any sect, church, denomination, sectarian institution, or system of
religion, or of any priest, preacher, minister, or other religious
teacher, or dignitary as such, except when such priest, preacher,
minister, or dignitary is assigned to the armed forces, or to any penal
institution, or government orphanage or leprosarium."
The word "apply" means "to use or employ for a particular
purpose."40 "Appropriate" means "to prescribe a particular use for
particular moneys or to designate or destine a fund or property for a
distinct use, or for the payment of a particular demand."41
Under the principle of noscitur a sociis, where a particular word or
phrase is ambiguous in itself or is equally susceptible of various
meanings, its correct construction may be made clear and specific
by considering the company of words in which it is found or with
which it is associated. This is because a word or phrase in a statute
is always used in association with other words or phrases, and its
meaning may, thus, be modified or restricted by the latter. The
particular words, clauses and phrases should not be studied as
detached and isolated expressions, but the whole and every part of
the statute must be considered in fixing the meaning of any of its
parts and in order to produce a harmonious whole. A statute must
be so construed as to harmonize and give effect to all its provisions
whenever possible.42
Thus, the words "pay" and "employ" should be understood to mean
that what is prohibited is the use of public money or property for the
sole purpose of benefiting or supporting any church. The prohibition
contemplates a scenario where the appropriation is primarily
intended for the furtherance of a particular church.
It has also been held that the aforecited constitutional provision
"does not inhibit the use of public property for religious purposes
when the religious character of such use is merely incidental to a
temporary use which is available indiscriminately to the public in
general." Hence, a public street may be used for a religious
procession even as it is available for a civic parade, in the same way
that a public plaza is not barred to a religious rally if it may also be
used for a political assemblage.43

In relation thereto, the phrase "directly or indirectly" refers to the
manner of appropriation of public money or property, not as to
whether a particular act involves a direct or a mere incidental benefit
to any church. Otherwise, the framers of the Constitution would
have placed it before "use, benefit or support" to describe the same.
Even the exception to the same provision bolsters this
interpretation. The exception contemplates a situation wherein
public funds are paid to a priest, preacher, minister, or other
religious teacher, or dignitary because they rendered service in the
armed forces, or to any penal institution, or government orphanage
or leprosarium. That a priest belongs to a particular church and the
latter may have benefited from the money he received is of no
moment, for the purpose of the payment of public funds is merely to
compensate the priest for services rendered and for which other
persons, who will perform the same services will also be
compensated in the same manner.
Ut magis valeat quam pereat. The Constitution is to be interpreted
as a whole.44 As such, the foregoing interpretation finds support in
the
Establishment Clause, which is as clear as daylight in stating that
what is proscribed is the passage of any law which tends to establish
a religion, not merely to accommodate the free exercise thereof.
The Constitution even grants tax exemption to properties actually,
directly and exclusively devoted to religious purposes.45 Certainly,
this benefits the religious sects for a portion of what could have been
collected for the benefit of the public is surrendered in their favor.
In Manosca v. CA,46 a parcel of land located in Taguig was
determined by the National Historical Institute to be the birthsite of
Felix Y. Manalo, the founder of Iglesia ni Cristo. The Republic then
sought to expropriate the said property. The exercise of the power
of eminent domain was questioned on the ground that it would only
benefit members of Iglesia ni Cristo. The Court upheld the legality
of the expropriation, viz.:
The practical reality that greater benefit may be derived by members
of the Iglesia ni Cristo than by most others could well be true but
such a peculiar advantage still remains to be merely incidental and
secondary in nature.47 [Emphasis supplied]
Again, in Aglipay, the issuing and selling of postage stamps
commemorative of the Thirty-third International Eucharistic
Congress was assailed on the ground that it violated the
constitutional prohibition against the appropriation of public money
or property for the benefit of any church. In ruling that there was no
such violation, the Court held:
It is obvious that while the issuance and sale of the stamps in
question may be said to be inseparably linked with an event of a
religious character, the resulting propaganda, if any, received by the
Roman Catholic Church, was not the aim and purpose of the
Government. We are of the opinion that the Government should not
be embarrassed in its activities simply because of incidental results,
more or less religious in character, if the purpose had in view is one
which could legitimately be undertaken by appropriate legislation.
The main purpose should not be frustrated by its subordination to
mere incidental results not contemplated.48 [Emphasis supplied]
Here, the basement of the QC Hall of Justice is not appropriated,
applied or employed for the sole purpose of supporting the Roman
Catholics.
Further, it has not been converted into a Roman Catholic chapel for
the exclusive use of its faithful contrary to the claim of Valenciana.
Judge
Maceren reported that the basement is also being used as a public
waiting area for most of the day and a meeting place for different
CONSTI LAW II I ACJUCO 449
employee organizations. The use of the area for holding masses is
limited to lunch break period from twelve (12) o'clock to one (1)
o'clock in the afternoon. Further, Judge Sagun, Jr. related that
masses run for just a little over thirty (30) minutes. It is, therefore,
clear that no undue religious bias is being committed when the
subject basement is allowed to be temporarily used by the Catholics
to celebrate mass, as the same area can be used by other groups
of people and for other purposes.49 Thus, the basement of the QC
Hall of Justice has remained to be a public property devoted for
public use because the holding of Catholic masses therein is a mere
incidental consequence of its primary purpose.
Conclusion
Directing the Executive Judges of the RTC and MeTC to regulate
and closely monitor the holding of masses and other religious
practices within the courts does not promote excessive collaboration
between courts and various religions. On the contrary, this is
necessary to ensure that there would be no excessive
entanglement.
To disallow the holding of religious rituals within halls of justice
would set a dangerous precedent and commence a domino effect.
Strict separation, rather than benevolent neutrality/accommodation,
would be the norm. Thus, the establishment of Shari'a courts, the
National Commission for Muslim Filipinos, and the exception of
Muslims from the provisions of the RPC relative to the crime of
bigamy would all be rendered nugatory because of strict separation.
The exception of members of Iglesia ni Cristo from joining a union
or the non-compulsion recognized in favor of members of the
Jehovah's Witnesses from doing certain gestures during the flag
ceremony, will all go down the drain simply because we insist on
strict separation.
That the holding of masses at the basement of the QC Hall of Justice
may offend non-Catholics is no reason to proscribe it. Our
Constitution ensures and mandates an unconditional tolerance,
without regard to whether those who seek to profess their faith
belong to the majority or to the minority. It is emphatic in saying that
"the free exercise and enjoyment of religious profession and worship
shall be without discrimination or preference." Otherwise,
accommodation or tolerance would just be mere lip service.
One cannot espouse that the constitutional freedom of religion
ensures tolerance, but, in reality, refuses to practice what he
preaches. One cannot ask for tolerance when he refuses to do the
same for others.
In fine, the Court denies the plea that the holding of Catholic masses
at the basement of the QC Hall of Justice be prohibited because the
said practice does not violate the constitutional principle of
separation of Church and State and the constitutional prohibition
against appropriation of public money or property for the benefit of
a sect, church, denomination, or any other system of religion.
WHEREFORE, the Court resolves to:
1. NOTE the letter-complaints of Mr. Tony Q. Valenciano, dated
January 6, 2009, May 13, 2009, and March 23, 2010;
2. NOTE the 1st Indorsement, dated September 21, 2010, by the
Office on Halls of Justice, containing photocopies and certified
photocopies of previous actions made relative to the complaint;
3. NOTE the Letter-Comment, dated September 9, 2010, of Quezon
City Regional Trial Court Executive Judge Fernando T. Sagun, Jr.;
4. NOTE the undated Letter-Comment of Quezon City Metropolitan
Trial Court Executive Judge Caridad M. Walse-Lutero;
 CONSTI LAW II I ACJUCO 450

5. DENY the prayer of Tony Q. Valenciano to prohibit the holding of

religious rituals in the QC Hall of Justice and in all halls of justice in
the country; and

6. DIRECT the Executive Judges of Quezon City to REGULATE and

CLOSELY MONITOR the holding of masses and other religious
practices within the Quezon City Hall of Justice by ensuring, among
others, that:

(a) it does not disturb or interrupt court proceedings;

(b) it does not adversely affect and interrupt the delivery of public
service; and

(c) it does not unduly inconvenience the public.

In no case shall a particular part of a public building be a permanent

place for worship for the benefit of any and all religious groups.
There shall also be no permanent display of religious icons in all
halls of justice in the country. In case of religious rituals, religious
icons and images may be displayed but their presentation is limited
only during the celebration of such activities so as not to offend the
sensibilities of members of other religious denominations or the non-
religious public. After any religious affair, the icons and images shall
be hidden or concealed from public view.

The disposition in this administrative matter shall apply to all halls of

justice in the country. Other churches, religious denominations or
sects are entitled to the same rights, privileges, and practices in
every hall of justice. In other buildings not owned or controlled by
the Judiciary, the Executive Judges should coordinate and seek
approval of the building owners/administrators accommodating their
courts.

SO ORDERED.

G.R. No. 204819 April 8, 2014
JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for
themselves and in behalf of their minor children, LUCIA
CARLOS IMBONG and BERNADETTE CARLOS IMBONG and
MAGNIFICAT CHILD DEVELOPMENT CENTER, INC.,
Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON.
FLORENCIO B. ABAD, Secretary, Department of Budget and
Management, HON. ENRIQUE T. ONA, Secretary, Department
of Health, HON. ARMIN A. LUISTRO, Secretary, Department of
Education, Culture and Sports and HON. MANUELA. ROXAS II,
Secretary, Department of Interior and Local Government,
Respondents.
x---------------------------------x
G.R. No. 204934
ALLIANCE FOR THE FAMILY FOUNDATION PHILIPPINES, INC.
[ALFI], represented by its President, Maria Concepcion S. Noche,
Spouses Reynaldo S. Luistro & Rosie B . Luistro, Jose S. Sandejas
& Elenita S.A. Sandejas, Arturo M. Gorrez & Marietta C. Gorrez,
Salvador S. Mante, Jr. & Hazeleen L. Mante, Rolando M. Bautista
& Maria Felisa S. Bautista, Desiderio Racho & Traquilina Racho, F
emand Antonio A. Tansingco & Carol Anne C. Tansingco for
themselves and on behalf of their minor children, Therese Antonette
C. Tansingco, Lorenzo Jose C. Tansingco, Miguel F emando C.
Tangsingco, Carlo Josemaria C. Tansingco & Juan Paolo C.
Tansingco, Spouses Mariano V. Araneta & Eileen Z. Araneta for
themselves and on behalf of their minor children, Ramon Carlos Z.
Araneta & Maya Angelica Z. Araneta, Spouses Renato C. Castor &
Mildred C. Castor for themselves and on behalf of their minor
children, Renz Jeffrey C. Castor, Joseph Ramil C. Castor, John Paul
C. Castor & Raphael C. Castor, Spouses Alexander R. Racho &
Zara Z. Racho for themselves and on behalf of their minor children
Margarita Racho, Mikaela Racho, Martin Racho, Mari Racho &
Manolo Racho, Spouses Alfred R. Racho & Francine V. Racho for
themselves and on behalf of their minor children Michael Racho,
Mariana Racho, Rafael Racho, Maxi Racho, Chessie Racho &
Laura Racho, Spouses David R. Racho & Armilyn A. Racho for
themselves and on behalf of their minor child Gabriel Racho, Mindy
M. Juatas and on behalf of her minor children Elijah Gerald Juatas
and Elian Gabriel Juatas, Salvacion M. Monteiro, Emily R. Laws,
Joseph R . Laws & Katrina R. Laws, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON.
ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN
A. LUISTRO, Secretary, Department of Education, Culture and
Sports, HON. CORAZON SOLIMAN, Secretary, Department of
Social Welfare and Development, HON. MANUELA. ROXAS II,
Secretary, Department of Interior and Local Government, HON.
FLORENCIO B. ABAD, Secretary, Department of Budget and
Management, HON. ARSENIO M. BALISACAN, Socio-Economic
Planning Secretary and NEDA Director-General, THE PHILIPPINE
COMMISSION ON WOMEN, represented by its Chairperson,
Remedios lgnacio-Rikken, THE PHILIPPINE HEALTH
INSURANCE CORPORATION, represented by its President
Eduardo Banzon, THE LEAGUE OF PROVINCES OF THE
PHILIPPINES, represented by its President Alfonso Umali, THE
LEAGUE OF CITIES OF THE PHILIPPINES, represented by its
President Oscar Rodriguez, and THE LEAGUE OF
MUNICIPALITIES OF THE PHILIPPINES, represented by its
President Donato Marcos, Respondents.
x---------------------------------x
G.R. No. 204957
CONSTI LAW II I ACJUCO 451
TASK FORCE FOR FAMILY AND LIFE VISAYAS, INC. and
VALERIANO S. AVILA, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON.
FLORENCIO B. ABAD, Secretary, Department of Budget and
Management; HON. ENRIQUE T. ONA, Secretary, Department of
Education; and HON. MANUELA. ROXAS II, Secretary, Department
of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 204988
SERVE LIFE CAGAYAN DE ORO CITY, INC., represented by Dr.
Nestor B. Lumicao, M.D., as President and in his personal capacity,
ROSEVALE FOUNDATION INC., represented by Dr. Rodrigo M.
Alenton, M.D., as member of the school board and in his personal
capacity, ROSEMARIE R. ALENTON, IMELDA G. IBARRA, CPA,
LOVENIAP. NACES, Phd., ANTHONY G. NAGAC, EARL
ANTHONY C. GAMBE and MARLON I. YAP, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES,
HOUSE OF REPRESENTATIVES, HON. PAQUITO N. OCHOA,
JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management; HON. ENRIQUE T. ONA,
Secretary, Department of Health; HON. ARMIN A. LUISTRO,
Secretary, Department of Education and HON. MANUELA. ROXAS
II, Secretary, Department of Interior and Local Government,
Respondents.
x---------------------------------x
G.R. No. 205003
EXPEDITO A. BUGARIN, JR., Petitioner,
vs.
OFFICE OF THE PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES, HON. SENATE PRESIDENT, HON. SPEAKER OF
THE HOUSE OF REPRESENTATIVES and HON. SOLICITOR
GENERAL, Respondents.
x---------------------------------x
G.R. No. 205043
EDUARDO B. OLAGUER and THE CATHOLIC XYBRSPACE
APOSTOLATE OF THE PHILIPPINES, Petitioners,
vs.
DOH SECRETARY ENRIQUE T. ONA, FDA DIRECTOR SUZETTE
H. LAZO, DBM SECRETARY FLORENCIO B. ABAD, DILG
SECRETARY MANUELA. ROXAS II, DECS SECRETARY ARMIN
A. LUISTRO, Respondents.
x---------------------------------x
G.R. No. 205138
PHILIPPINE ALLIANCE OF XSEMINARIANS, INC. (PAX), herein
represented by its National President, Atty. Ricardo M . Ribo, and in
his own behalf, Atty. Lino E.A. Dumas, Romeo B. Almonte,
Osmundo C. Orlanes, Arsenio Z. Menor, Samuel J. Yap, Jaime F.
Mateo, Rolly Siguan, Dante E. Magdangal, Michael Eugenio O.
Plana, Bienvenido C. Miguel, Jr., Landrito M. Diokno and Baldomero
Falcone, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON.
FLORENCIO B. ABAD, Secretary, Department of Budget and
Management, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of
Education, HON. MANUELA. ROXAS II, Secretary, Department of
Interior and Local Government, HON. CORAZON J. SOLIMAN,

Secretary, Department of Social Welfare and Development, HON.
ARSENIO BALISACAN, Director-General, National Economic and
Development Authority, HON. SUZETTE H. LAZO, Director-
General, Food and Drugs Administration, THE BOARD OF
DIRECTORS, Philippine Health Insurance Corporation, and THE
BOARD OF COMMISSIONERS, Philippine Commission on
Women, Respondents.
x---------------------------------x
G.R. No. 205478
REYNALDO J. ECHAVEZ, M.D., JACQUELINE H. KING, M.D.,
CYNTHIA T. DOMINGO, M.D., AND JOSEPHINE MILLADO-
LUMITAO, M.D., collectively known as Doctors For Life, and
ANTHONY PEREZ, MICHAEL ANTHONY G. MAPA, CARLOS
ANTONIO PALAD, WILFREDO JOSE, CLAIRE NAVARRO, ANNA
COSIO, and GABRIEL DY LIACCO collectively known as Filipinos
For Life, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON.
FLORENCIO B. ABAD, Secretary of the Department of Budget and
Management; HON. ENRIQUE T. ONA, Secretary of the
Department of Health; HON. ARMIN A. LUISTRO, Secretary of the
Department of Education; and HON. MANUELA. ROXAS II,
Secretary of the Department of Interior and Local Government,
Respondents.
x---------------------------------x
G.R. No. 205491
SPOUSES FRANCISCO S. TATAD AND MARIA FENNY C. TATAD
& ALA F. PAGUIA, for themselves, their Posterity, and the rest of
Filipino posterity, Petitioners,
vs.
OFFICE OF THE PRESIDENT of the Republic of the Philippines,
Respondent.
x---------------------------------x
G.R. No. 205720
PRO-LIFE PHILIPPINES FOUNDATION, Inc., represented by
Loma Melegrito, as Executive Director, and in her personal capacity,
JOSELYN B. BASILIO, ROBERT Z. CORTES, ARIEL A.
CRISOSTOMO, JEREMY I. GATDULA, CRISTINA A. MONTES,
RAUL ANTONIO A. NIDOY, WINSTON CONRAD B. PADOJINOG,
RUFINO L. POLICARPIO III, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES,
HOUSE OF REPRESENTATIVES, HON. PAQUITO N. OCHOA,
JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON. ENRIQUE T. ONA,
Secretary, Department of Health, HON. ARMIN A. LUISTRO,
Secretary, Department of Education and HON. MANUEL A. ROXAS
II, Secretary, Department of Interior and Local Government,
Respondents.
x---------------------------------x
G.R. No. 206355
MILLENNIUM SAINT FOUNDATION, INC., ATTY. RAMON
PEDROSA, ATTY. CITA BORROMEO-GARCIA,
STELLAACEDERA, ATTY. BERTENI CATALUNA CAUSING,
Petitioners,
vs.
OFFICE OF THE PRESIDENT, OFFICE OF THE EXECUTIVE
SECRETARY, DEPARTMENT OF HEALTH, DEPARTMENT OF
EDUCATION, Respondents.
CONSTI LAW II I ACJUCO 452
x---------------------------------x
G.R. No. 207111
JOHN WALTER B. JUAT, MARY M. IMBONG, ANTHONY
VICTORIO B. LUMICAO, JOSEPH MARTIN Q. VERDEJO,
ANTONIA EMMA R. ROXAS and LOTA LAT-GUERRERO,
Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON.
FLORENCIO ABAD, Secretary, Department of Budget and
Management, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of
Education, Culture and Sports and HON. MANUEL A. ROXAS II,
Secretary, Department of Interior and Local Government,
Respondents.
x---------------------------------x
G.R. No. 207172
COUPLES FOR CHRIST FOUNDATION, INC., SPOUSES JUAN
CARLOS ARTADI SARMIENTO AND FRANCESCA ISABELLE
BESINGA-SARMIENTO, AND SPOUSES LUIS FRANCIS A.
RODRIGO, JR. and DEBORAH MARIE VERONICA N. RODRIGO,
Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON.
FLORENCIO B. ABAD, Secretary, Department of Budget and
Management, HON. ENRIQUE T. ONA, Secretary, Department of
Health, HON. ARMIN A. LUISTRO, Secretary, Department of
Education, Culture and Sports and HON. MANUELA. ROXAS II,
Secretary, Department of Interior and Local Government,
Respondents.
x---------------------------------x
G.R. No. 207563
ALMARIM CENTI TILLAH and ABDULHUSSEIN M. KASHIM,
Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON.
ENRIQUE T. ONA, Secretary of the Department of Health, and
HON. ARMIN A. LUISTRO,Secretary of the Department of Budget
and Management, Respondents.
DECISION
MENDOZA, J.:
Freedom of religion was accorded preferred status by the framers
of our fundamental law. And this Court has consistently affirmed this
preferred status, well aware that it is "designed to protect the
broadest possible liberty of conscience, to allow each man to
believe as his conscience directs, to profess his beliefs , and to live
as he believes he ought to live, consistent with the liberty of others
and with the common good."1
To this day, poverty is still a major stumbling block to the nation's
emergence as a developed country, leaving our people beleaguered
in a state of hunger, illiteracy and unemployment. While
governmental policies have been geared towards the revitalization
of the economy, the bludgeoning dearth in social services remains
to be a problem that concerns not only the poor, but every member
of society. The government continues to tread on a trying path to
the realization of its very purpose, that is, the general welfare of the
Filipino people and the development of the country as a whole. The
legislative branch, as the main facet of a representative
government, endeavors to enact laws and policies that aim to

remedy looming societal woes, while the executive is closed set to
fully implement these measures and bring concrete and substantial
solutions within the reach of Juan dela Cruz. Seemingly distant is
the judicial branch, oftentimes regarded as an inert governmental
body that merely casts its watchful eyes on clashing stakeholders
until it is called upon to adjudicate. Passive, yet reflexive when
called into action, the Judiciary then willingly embarks on its solemn
duty to interpret legislation vis-a-vis the most vital and enduring
principle that holds Philippine society together - the supremacy of
the Philippine Constitution.
Nothing has polarized the nation more in recent years than the
issues of population growth control, abortion and contraception. As
in every democratic society, diametrically opposed views on the
subjects and their perceived consequences freely circulate in
various media. From television debates2 to sticker campaigns,3
from rallies by socio-political activists to mass gatherings organized
by members of the clergy4 - the clash between the seemingly
antithetical ideologies of the religious conservatives and progressive
liberals has caused a deep division in every level of the society.
Despite calls to withhold support thereto, however, Republic Act
(R.A.) No. 10354, otherwise known as the Responsible Parenthood
and Reproductive Health Act of 2012 (RH Law), was enacted by
Congress on December 21, 2012.
Shortly after the President placed his imprimatur on the said law,
challengers from various sectors of society came knocking on the
doors of the Court, beckoning it to wield the sword that strikes down
constitutional disobedience. Aware of the profound and lasting
impact that its decision may produce, the Court now faces the iuris
controversy, as presented in fourteen (14) petitions and two (2)
petitions- in-intervention, to wit:
(1) Petition for Certiorari and Prohibition,5 filed by spouses Attys.
James M. Imbong and Lovely Ann C. Imbong, in their personal
capacities as citizens, lawyers and taxpayers and on behalf of their
minor children; and the Magnificat Child Leaming Center, Inc., a
domestic, privately-owned educational institution (Jmbong);
(2) Petition for Prohibition,6 filed by the Alliance for the Family
Foundation Philippines, Inc., through its president, Atty. Maria
Concepcion S. Noche7 and several others8 in their personal
capacities as citizens and on behalf of the generations unborn
(ALFI);
(3) Petition for Certiorari,9 filed by the Task Force for Family and
Life Visayas, Inc., and Valeriano S. Avila, in their capacities as
citizens and taxpayers (Task Force Family);
(4) Petition for Certiorari and Prohibition,10 filed by Serve Life
Cagayan De Oro City, Inc.,11 Rosevale Foundation, Inc.,12 a
domestic, privately-owned educational institution, and several
others,13 in their capacities as citizens (Serve Life);
(5) Petition,14 filed by Expedito A. Bugarin, Jr. in his capacity as a
citizen (Bugarin);
(6) Petition for Certiorari and Prohibition,15 filed by Eduardo
Olaguer and the Catholic Xybrspace Apostolate of the
Philippines,16 in their capacities as a citizens and taxpayers
(Olaguer);
(7) Petition for Certiorari and Prohibition,17 filed by the Philippine
Alliance of Xseminarians Inc.,18 and several others19 in their
capacities as citizens and taxpayers (PAX);
(8) Petition,20 filed by Reynaldo J. Echavez, M.D. and several
others,21 in their capacities as citizens and taxpayers (Echavez);
(9) Petition for Certiorari and Prohibition,22 filed by spouses
Francisco and Maria Fenny C. Tatad and Atty. Alan F. Paguia, in
CONSTI LAW II I ACJUCO 453
their capacities as citizens, taxpayers and on behalf of those yet
unborn. Atty. Alan F. Paguia is also proceeding in his capacity as a
member of the Bar (Tatad);
(10) Petition for Certiorari and Prohibition,23 filed by Pro-Life
Philippines Foundation Inc.24 and several others,25 in their
capacities as citizens and taxpayers and on behalf of its associates
who are members of the Bar (Pro-Life);
(11) Petition for Prohibition,26 filed by Millennium Saint Foundation,
Inc.,27 Attys. Ramon Pedrosa, Cita Borromeo-Garcia, Stella
Acedera, and Berteni Catalufia Causing, in their capacities as
citizens, taxpayers and members of the Bar (MSF);
(12) Petition for Certiorari and Prohibition,28 filed by John Walter B.
Juat and several others,29 in their capacities as citizens (Juat) ;
(13) Petition for Certiorari and Prohibition,30 filed by Couples for
Christ Foundation, Inc. and several others,31 in their capacities as
citizens (CFC);
(14) Petition for Prohibition32 filed by Almarim Centi Tillah and
Abdulhussein M. Kashim in their capacities as citizens and
taxpayers (Tillah); and
(15) Petition-In-Intervention,33 filed by Atty. Samson S. Alcantara in
his capacity as a citizen and a taxpayer (Alcantara); and
(16) Petition-In-Intervention,34 filed by Buhay Hayaang Yumabong
(B UHAY) , an accredited political party.
A perusal of the foregoing petitions shows that the petitioners are
assailing the constitutionality of RH Law on the following
GROUNDS:
• The RH Law violates the right to life of the unborn. According to
the petitioners, notwithstanding its declared policy against abortion,
the implementation of the RH Law would authorize the purchase of
hormonal contraceptives, intra-uterine devices and injectables
which are abortives, in violation of Section 12, Article II of the
Constitution which guarantees protection of both the life of the
mother and the life of the unborn from conception.35
• The RH Law violates the right to health and the right to protection
against hazardous products. The petitioners posit that the RH Law
provides universal access to contraceptives which are hazardous to
one's health, as it causes cancer and other health problems.36
• The RH Law violates the right to religious freedom. The petitioners
contend that the RH Law violates the constitutional guarantee
respecting religion as it authorizes the use of public funds for the
procurement of contraceptives. For the petitioners, the use of public
funds for purposes that are believed to be contrary to their beliefs is
included in the constitutional mandate ensuring religious
freedom.37
It is also contended that the RH Law threatens conscientious
objectors of criminal prosecution, imprisonment and other forms of
punishment, as it compels medical practitioners 1] to refer patients
who seek advice on reproductive health programs to other doctors;
and 2] to provide full and correct information on reproductive health
programs and service, although it is against their religious beliefs
and convictions.38
In this connection, Section 5 .23 of the Implementing Rules and
Regulations of the RH Law (RH-IRR),39 provides that skilled health
professionals who are public officers such as, but not limited to,
Provincial, City, or Municipal Health Officers, medical officers,
medical specialists, rural health physicians, hospital staff nurses,
public health nurses, or rural health midwives, who are specifically

charged with the duty to implement these Rules, cannot be
considered as conscientious objectors.40
It is also argued that the RH Law providing for the formulation of
mandatory sex education in schools should not be allowed as it is
an affront to their religious beliefs.41
While the petit10ners recognize that the guarantee of religious
freedom is not absolute, they argue that the RH Law fails to satisfy
the "clear and present danger test" and the "compelling state
interest test" to justify the regulation of the right to free exercise of
religion and the right to free speech.42
• The RH Law violates the constitutional provision on involuntary
servitude. According to the petitioners, the RH Law subjects medical
practitioners to involuntary servitude because, to be accredited
under the PhilHealth program, they are compelled to provide forty-
eight (48) hours of pro bona services for indigent women, under
threat of criminal prosecution, imprisonment and other forms of
punishment.43
The petitioners explain that since a majority of patients are covered
by PhilHealth, a medical practitioner would effectively be forced to
render reproductive health services since the lack of PhilHealth
accreditation would mean that the majority of the public would no
longer be able to avail of the practitioners services.44
• The RH Law violates the right to equal protection of the law. It is
claimed that the RH Law discriminates against the poor as it makes
them the primary target of the government program that promotes
contraceptive use. The petitioners argue that, rather than promoting
reproductive health among the poor, the RH Law seeks to introduce
contraceptives that would effectively reduce the number of the
poor.45
• The RH Law is "void-for-vagueness" in violation of the due process
clause of the Constitution. In imposing the penalty of imprisonment
and/or fine for "any violation," it is vague because it does not define
the type of conduct to be treated as "violation" of the RH Law.46
In this connection, it is claimed that "Section 7 of the RH Law
violates the right to due process by removing from them (the people)
the right to manage their own affairs and to decide what kind of
health facility they shall be and what kind of services they shall
offer."47 It ignores the management prerogative inherent in
corporations for employers to conduct their affairs in accordance
with their own discretion and judgment.
• The RH Law violates the right to free speech. To compel a person
to explain a full range of family planning methods is plainly to curtail
his right to expound only his own preferred way of family planning.
The petitioners note that although exemption is granted to
institutions owned and operated by religious groups, they are still
forced to refer their patients to another healthcare facility willing to
perform the service or procedure.48
• The RH Law intrudes into the zone of privacy of one's family
protected by the Constitution. It is contended that the RH Law
providing for mandatory reproductive health education intrudes
upon their constitutional right to raise their children in accordance
with their beliefs.49
It is claimed that, by giving absolute authority to the person who will
undergo reproductive health procedure, the RH Law forsakes any
real dialogue between the spouses and impedes the right of
spouses to mutually decide on matters pertaining to the overall well-
being of their family. In the same breath, it is also claimed that the
parents of a child who has suffered a miscarriage are deprived of
parental authority to determine whether their child should use
contraceptives.50
CONSTI LAW II I ACJUCO 454
• The RH Law violates the constitutional principle of non-delegation
of legislative authority. The petitioners question the delegation by
Congress to the FDA of the power to determine whether a product
is non-abortifacient and to be included in the Emergency Drugs List
(EDL).51
• The RH Law violates the one subject/one bill rule provision under
Section 26( 1 ), Article VI of the Constitution.52
• The RH Law violates Natural Law.53
• The RH Law violates the principle of Autonomy of Local
Government Units (LGUs) and the Autonomous Region of Muslim
Mindanao {ARMM). It is contended that the RH Law, providing for
reproductive health measures at the local government level and the
ARMM, infringes upon the powers devolved to LGUs and the ARMM
under the Local Government Code and R.A . No. 9054.54
Various parties also sought and were granted leave to file their
respective comments-in-intervention in defense of the
constitutionality of the RH Law. Aside from the Office of the Solicitor
General (OSG) which commented on the petitions in behalf of the
respondents,55 Congressman Edcel C. Lagman,56 former officials
of the Department of Health Dr. Esperanza I. Cabral, Jamie Galvez-
Tan, and Dr. Alberto G. Romualdez,57 the Filipino Catholic Voices
for Reproductive Health (C4RH),58 Ana Theresa "Risa"
Hontiveros,59 and Atty. Joan De Venecia60 also filed their
respective Comments-in-Intervention in conjunction with several
others. On June 4, 2013, Senator Pia Juliana S. Cayetano was also
granted leave to intervene.61
The respondents, aside from traversing the substantive arguments
of the petitioners, pray for the dismissal of the petitions for the
principal reasons that 1] there is no actual case or controversy and,
therefore, the issues are not yet ripe for judicial determination.; 2]
some petitioners lack standing to question the RH Law; and 3] the
petitions are essentially petitions for declaratory relief over which the
Court has no original jurisdiction.
Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of
the assailed legislation took effect.
On March 19, 2013, after considering the issues and arguments
raised, the Court issued the Status Quo Ante Order (SQAO),
enjoining the effects and implementation of the assailed legislation
for a period of one hundred and twenty (120) days, or until July 17,
2013.62
On May 30, 2013, the Court held a preliminary conference with the
counsels of the parties to determine and/or identify the pertinent
issues raised by the parties and the sequence by which these issues
were to be discussed in the oral arguments. On July 9 and 23, 2013,
and on August 6, 13, and 27, 2013, the cases were heard on oral
argument. On July 16, 2013, the SQAO was ordered extended until
further orders of the Court.63
Thereafter, the Court directed the parties to submit their respective
memoranda within sixty (60) days and, at the same time posed
several questions for their clarification on some contentions of the
parties.64
The Status Quo Ante
(Population, Contraceptive and Reproductive Health Laws
Prior to the RH Law
Long before the incipience of the RH Law, the country has allowed
the sale, dispensation and distribution of contraceptive drugs and
devices. As far back as June 18, 1966, the country enacted R.A.
No. 4729 entitled "An Act to Regu,late the Sale, Dispensation,

and/or Distribution of Contraceptive Drugs and Devices." Although
contraceptive drugs and devices were allowed, they could not be
sold, dispensed or distributed "unless such sale, dispensation and
distribution is by a duly licensed drug store or pharmaceutical
company and with the prescription of a qualified medical
practitioner."65
In addition, R.A. No. 5921,66 approved on June 21, 1969, contained
provisions relative to "dispensing of abortifacients or anti-
conceptional substances and devices." Under Section 37 thereof, it
was provided that "no drug or chemical product or device capable
of provoking abortion or preventing conception as classified by the
Food and Drug Administration shall be delivered or sold to any
person without a proper prescription by a duly licensed physician."
On December 11, 1967, the Philippines, adhering to the UN
Declaration on Population, which recognized that the population
problem should be considered as the principal element for long-term
economic development, enacted measures that promoted male
vasectomy and tubal ligation to mitigate population growth.67
Among these measures included R.A. No. 6365, approved on
August 16, 1971, entitled "An Act Establishing a National Policy on
Population, Creating the Commission on Population and for Other
Purposes. " The law envisioned that "family planning will be made
part of a broad educational program; safe and effective means will
be provided to couples desiring to space or limit family size; mortality
and morbidity rates will be further reduced."
To further strengthen R.A. No. 6365, then President Ferdinand E .
Marcos issued Presidential Decree. (P.D.) No. 79,68 dated
December 8, 1972, which, among others, made "family planning a
part of a broad educational program," provided "family planning
services as a part of over-all health care," and made "available all
acceptable methods of contraception, except abortion, to all Filipino
citizens desirous of spacing, limiting or preventing pregnancies."
Through the years, however, the use of contraceptives and family
planning methods evolved from being a component of demographic
management, to one centered on the promotion of public health,
particularly, reproductive health.69 Under that policy, the country
gave priority to one's right to freely choose the method of family
planning to be adopted, in conformity with its adherence to the
commitments made in the International Conference on Population
and Development.70 Thus, on August 14, 2009, the country
enacted R.A. No. 9710 or "The Magna Carta for Women, " which,
among others, mandated the State to provide for comprehensive
health services and programs for women, including family planning
and sex education.71
The RH Law
Despite the foregoing legislative measures, the population of the
country kept on galloping at an uncontrollable pace. From a paltry
number of just over 27 million Filipinos in 1960, the population of the
country reached over 76 million in the year 2000 and over 92 million
in 2010.72 The executive and the legislative, thus, felt that the
measures were still not adequate. To rein in the problem, the RH
Law was enacted to provide Filipinos, especially the poor and the
marginalized, access and information to the full range of modem
family planning methods, and to ensure that its objective to provide
for the peoples' right to reproductive health be achieved. To make it
more effective, the RH Law made it mandatory for health providers
to provide information on the full range of modem family planning
methods, supplies and services, and for schools to provide
reproductive health education. To put teeth to it, the RH Law
criminalizes certain acts of refusals to carry out its mandates.
Stated differently, the RH Law is an enhancement measure to fortify
and make effective the current laws on contraception, women's
health and population control.
CONSTI LAW II I ACJUCO 455
Prayer of the Petitioners - Maintain the Status Quo
The petitioners are one in praying that the entire RH Law be
declared unconstitutional. Petitioner ALFI, in particular, argues that
the government sponsored contraception program, the very
essence of the RH Law, violates the right to health of women and
the sanctity of life, which the State is mandated to protect and
promote. Thus, ALFI prays that "the status quo ante - the situation
prior to the passage of the RH Law - must be maintained."73 It
explains:
x x x. The instant Petition does not question contraception and
contraceptives per se. As provided under Republic Act No. 5921
and Republic Act No. 4729, the sale and distribution of
contraceptives are prohibited unless dispensed by a prescription
duly licensed by a physician. What the Petitioners find deplorable
and repugnant under the RH Law is the role that the State and its
agencies - the entire bureaucracy, from the cabinet secretaries
down to the barangay officials in the remotest areas of the country -
is made to play in the implementation of the contraception program
to the fullest extent possible using taxpayers' money. The State then
will be the funder and provider of all forms of family planning
methods and the implementer of the program by ensuring the
widespread dissemination of, and universal access to, a full range
of family planning methods, devices and supplies.74
ISSUES
After a scrutiny of the various arguments and contentions of the
parties, the Court has synthesized and refined them to the following
principal issues:
I. PROCEDURAL: Whether the Court may exercise its power of
judicial review over the controversy.
1] Power of Judicial Review
2] Actual Case or Controversy
3] Facial Challenge
4] Locus Standi
5] Declaratory Relief
6] One Subject/One Title Rule
II. SUBSTANTIVE: Whether the RH law is unconstitutional:
1] Right to Life
2] Right to Health
3] Freedom of Religion and the Right to Free Speech
4] The Family
5] Freedom of Expression and Academic Freedom
6] Due Process
7] Equal Protection
8] Involuntary Servitude
9] Delegation of Authority to the FDA
10] Autonomy of Local Govemments/ARMM
DISCUSSION

Before delving into the constitutionality of the RH Law and its
implementing rules, it behooves the Court to resolve some
procedural impediments.
I. PROCEDURAL ISSUE: Whether the Court can exercise its power
of judicial review over the controversy.
The Power of Judicial Review
In its attempt to persuade the Court to stay its judicial hand, the OSG
asserts that it should submit to the legislative and political wisdom
of Congress and respect the compromises made in the crafting of
the RH Law, it being "a product of a majoritarian democratic
process"75 and "characterized by an inordinate amount of
transparency."76 The OSG posits that the authority of the Court to
review social legislation like the RH Law by certiorari is "weak,"
since the Constitution vests the discretion to implement the
constitutional policies and positive norms with the political
departments, in particular, with Congress.77 It further asserts that
in view of the Court's ruling in Southern Hemisphere v. Anti-
Terrorism Council,78 the remedies of certiorari and prohibition
utilized by the petitioners are improper to assail the validity of the
acts of the legislature.79
Moreover, the OSG submits that as an "as applied challenge," it
cannot prosper considering that the assailed law has yet to be
enforced and applied to the petitioners, and that the government has
yet to distribute reproductive health devices that are abortive. It
claims that the RH Law cannot be challenged "on its face" as it is
not a speech-regulating measure.80
In many cases involving the determination of the constitutionality of
the actions of the Executive and the Legislature, it is often sought
that the Court temper its exercise of judicial power and accord due
respect to the wisdom of its co-equal branch on the basis of the
principle of separation of powers. To be clear, the separation of
powers is a fundamental principle in our system of government,
which obtains not through express provision but by actual division
in our Constitution. Each department of the government has
exclusive cognizance of matters within its jurisdiction and is
supreme within its own sphere.81
Thus, the 1987 Constitution provides that: (a) the legislative power
shall be vested in the Congress of the Philippines;82 (b) the
executive power shall be vested in the President of the
Philippines;83 and (c) the judicial power shall be vested in one
Supreme Court and in such lower courts as may be established by
law.84 The Constitution has truly blocked out with deft strokes and
in bold lines, the allotment of powers among the three branches of
government.85
In its relationship with its co-equals, the Judiciary recognizes the
doctrine of separation of powers which imposes upon the courts
proper restraint, born of the nature of their functions and of their
respect for the other branches of government, in striking down the
acts of the Executive or the Legislature as unconstitutional. Verily,
the policy is a harmonious blend of courtesy and caution.86
It has also long been observed, however, that in times of social
disquietude or political instability, the great landmarks of the
Constitution are apt to be forgotten or marred, if not entirely
obliterated.87 In order to address this, the Constitution impresses
upon the Court to respect the acts performed by a co-equal branch
done within its sphere of competence and authority, but at the same
time, allows it to cross the line of separation - but only at a very
limited and specific point - to determine whether the acts of the
executive and the legislative branches are null because they were
undertaken with grave abuse of discretion.88 Thus, while the Court
may not pass upon questions of wisdom, justice or expediency of
the RH Law, it may do so where an attendant unconstitutionality or
grave abuse of discretion results.89 The Court must demonstrate its
CONSTI LAW II I ACJUCO 456
unflinching commitment to protect those cherished rights and
principles embodied in the Constitution.
In this connection, it bears adding that while the scope of judicial
power of review may be limited, the Constitution makes no
distinction as to the kind of legislation that may be subject to judicial
scrutiny, be it in the form of social legislation or otherwise. The
reason is simple and goes back to the earlier point. The Court may
pass upon the constitutionality of acts of the legislative and the
executive branches, since its duty is not to review their collective
wisdom but, rather, to make sure that they have acted in
consonance with their respective authorities and rights as mandated
of them by the Constitution. If after said review, the Court finds no
constitutional violations of any sort, then, it has no more authority of
proscribing the actions under review.90 This is in line with Article
VIII, Section 1 of the Constitution which expressly provides:
Section 1. The judicial power shall be vested in one Supreme Court
and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the Government.
[Emphases supplied]
As far back as Tanada v. Angara,91 the Court has unequivocally
declared that certiorari, prohibition and mandamus are appropriate
remedies to raise constitutional issues and to review and/or
prohibit/nullify, when proper, acts of legislative and executive
officials, as there is no other plain, speedy or adequate remedy in
the ordinary course of law. This ruling was later on applied in
Macalintal v. COMELEC,92 Aldaba v. COMELEC,93 Magallona v.
Ermita,94 and countless others. In Tanada, the Court wrote:
In seeking to nullify an act of the Philippine Senate on the ground
that it contravenes the Constitution, the petition no doubt raises a
justiciable controversy. Where an action of the legislative branch is
seriously alleged to have infringed the Constitution, it becomes not
only the right but in fact the duty of the judiciary to settle the dispute.
"The question thus posed is judicial rather than political. The duty
(to adjudicate) remains to assure that the supremacy of the
Constitution is upheld. " Once a "controversy as to the application
or interpretation of constitutional provision is raised before this Court
(as in the instant case), it becomes a legal issue which the Court is
bound by constitutional mandate to decide. [Emphasis supplied]
In the scholarly estimation of former Supreme Court Justice
Florentino Feliciano, "judicial review is essential for the
maintenance and enforcement of the separation of powers and the
balancing of powers among the three great departments of
government through the definition and maintenance of the
boundaries of authority and control between them. To him, judicial
review is the chief, indeed the only, medium of participation - or
instrument of intervention - of the judiciary in that balancing
operation.95
Lest it be misunderstood, it bears emphasizing that the Court does
not have the unbridled authority to rule on just any and every claim
of constitutional violation. Jurisprudence is replete with the rule that
the power of judicial review is limited by four exacting requisites, viz
: (a) there must be an actual case or controversy; (b) the petitioners
must possess locus standi; (c) the question of constitutionality must
be raised at the earliest opportunity; and (d) the issue of
constitutionality must be the lis mota of the case.96
Actual Case or Controversy
Proponents of the RH Law submit that the subj ect petitions do not
present any actual case or controversy because the RH Law has

yet to be implemented.97 They claim that the questions raised by
the petitions are not yet concrete and ripe for adjudication since no
one has been charged with violating any of its provisions and that
there is no showing that any of the petitioners' rights has been
adversely affected by its operation.98 In short, it is contended that
judicial review of the RH Law is premature.
An actual case or controversy means an existing case or
controversy that is appropriate or ripe for determination, not
conjectural or anticipatory, lest the decision of the court would
amount to an advisory opinion.99 The rule is that courts do not sit
to adjudicate mere academic questions to satisfy scholarly interest,
however intellectually challenging. The controversy must be
justiciable-definite and concrete, touching on the legal relations of
parties having adverse legal interests. In other words, the pleadings
must show an active antagonistic assertion of a legal right, on the
one hand, and a denial thereof, on the other; that is, it must concern
a real, tangible and not merely a theoretical question or issue. There
ought to be an actual and substantial controversy admitting of
specific relief through a decree conclusive in nature, as
distinguished from an opinion advising what the law would be upon
a hypothetical state of facts.100
Corollary to the requirement of an actual case or controversy is the
requirement of ripeness.101 A question is ripe for adjudication when
the act being challenged has had a direct adverse effect on the
individual challenging it. For a case to be considered ripe for
adjudication, it is a prerequisite that something has then been
accomplished or performed by either branch before a court may
come into the picture, and the petitioner must allege the existence
of an immediate or threatened injury to himself as a result of the
challenged action. He must show that he has sustained or is
immediately in danger of sustaining some direct injury as a result of
the act complained of102
In The Province of North Cotabato v. The Government of the
Republic of the Philippines,103 where the constitutionality of an
unimplemented Memorandum of Agreement on the Ancestral
Domain (MOA-AD) was put in question, it was argued that the Court
has no authority to pass upon the issues raised as there was yet no
concrete act performed that could possibly violate the petitioners'
and the intervenors' rights. Citing precedents, the Court ruled that
the fact of the law or act in question being not yet effective does not
negate ripeness. Concrete acts under a law are not necessary to
render the controversy ripe. Even a singular violation of the
Constitution and/or the law is enough to awaken judicial duty.
In this case, the Court is of the view that an actual case or
controversy exists and that the same is ripe for judicial
determination. Considering that the RH Law and its implementing
rules have already taken effect and that budgetary measures to
carry out the law have already been passed, it is evident that the
subject petitions present a justiciable controversy. As stated earlier,
when an action of the legislative branch is seriously alleged to have
infringed the Constitution, it not only becomes a right, but also a duty
of the Judiciary to settle the dispute.104
Moreover, the petitioners have shown that the case is so because
medical practitioners or medical providers are in danger of being
criminally prosecuted under the RH Law for vague violations
thereof, particularly public health officers who are threatened to be
dismissed from the service with forfeiture of retirement and other
benefits. They must, at least, be heard on the matter NOW.
Facial Challenge
The OSG also assails the propriety of the facial challenge lodged by
the subject petitions, contending that the RH Law cannot be
challenged "on its face" as it is not a speech regulating measure.105
The Court is not persuaded.
CONSTI LAW II I ACJUCO 457
In United States (US) constitutional law, a facial challenge, also
known as a First Amendment Challenge, is one that is launched to
assail the validity of statutes concerning not only protected speech,
but also all other rights in the First Amendment.106 These include
religious freedom, freedom of the press, and the right of the people
to peaceably assemble, and to petition the Government for a
redress of grievances.107 After all, the fundamental right to religious
freedom, freedom of the press and peaceful assembly are but
component rights of the right to one's freedom of expression, as they
are modes which one's thoughts are externalized.
In this jurisdiction, the application of doctrines originating from the
U.S. has been generally maintained, albeit with some modifications.
While this Court has withheld the application of facial challenges to
strictly penal statues,108 it has expanded its scope to cover statutes
not only regulating free speech, but also those involving religious
freedom, and other fundamental rights.109 The underlying reason
for this modification is simple. For unlike its counterpart in the U.S.,
this Court, under its expanded jurisdiction, is mandated by the
Fundamental Law not only to settle actual controversies involving
rights which are legally demandable and enforceable, but also 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.110 Verily, the framers of Our
Constitution envisioned a proactive Judiciary, ever vigilant with its
duty to maintain the supremacy of the Constitution.
Consequently, considering that the foregoing petitions have
seriously alleged that the constitutional human rights to life, speech
and religion and other fundamental rights mentioned above have
been violated by the assailed legislation, the Court has authority to
take cognizance of these kindred petitions and to determine if the
RH Law can indeed pass constitutional scrutiny. To dismiss these
petitions on the simple expedient that there exist no actual case or
controversy, would diminish this Court as a reactive branch of
government, acting only when the Fundamental Law has been
transgressed, to the detriment of the Filipino people.
Locus Standi
The OSG also attacks the legal personality of the petitioners to file
their respective petitions. It contends that the "as applied challenge"
lodged by the petitioners cannot prosper as the assailed law has yet
to be enforced and applied against them,111 and the government
has yet to distribute reproductive health devices that are
abortive.112
The petitioners, for their part, invariably invoke the "transcendental
importance" doctrine and their status as citizens and taxpayers in
establishing the requisite locus standi.
Locus standi or legal standing is defined as a personal and
substantial interest in a case such that the party has sustained or
will sustain direct injury as a result of the challenged governmental
act.113 It requires a personal stake in the outcome of the
controversy as to assure the concrete adverseness which sharpens
the presentation of issues upon which the court so largely depends
for illumination of difficult constitutional questions.114
In relation to locus standi, the "as applied challenge" embodies the
rule that one can challenge the constitutionality of a statute only if
he asserts a violation of his own rights. The rule prohibits one from
challenging the constitutionality of the statute grounded on a
violation of the rights of third persons not before the court. This rule
is also known as the prohibition against third-party standing.115
Transcendental Importance
Notwithstanding, the Court leans on the doctrine that "the rule on
standing is a matter of procedure, hence, can be relaxed for non-

traditional plaintiffs like ordinary citizens, taxpayers, and legislators
when the public interest so requires, such as when the matter is of
transcendental importance, of overreaching significance to society,
or of paramount public interest."116
In Coconut Oil Refiners Association, Inc. v. Torres,117 the Court
held that in cases of paramount importance where serious
constitutional questions are involved, the standing requirement may
be relaxed and a suit may be allowed to prosper even where there
is no direct injury to the party claiming the right of judicial review. In
the first Emergency Powers Cases,118 ordinary citizens and
taxpayers were allowed to question the constitutionality of several
executive orders although they had only an indirect and general
interest shared in common with the public.
With these said, even if the constitutionality of the RH Law may not
be assailed through an "as-applied challenge, still, the Court has
time and again acted liberally on the locus s tandi requirement. It
has accorded certain individuals standing to sue, not otherwise
directly injured or with material interest affected by a Government
act, provided a constitutional issue of transcendental importance is
invoked. The rule on locus standi is, after all, a procedural
technicality which the Court has, on more than one occasion,
waived or relaxed, thus allowing non-traditional plaintiffs, such as
concerned citizens, taxpayers, voters or legislators, to sue in the
public interest, albeit they may not have been directly injured by the
operation of a law or any other government act. As held in Jaworski
v. PAGCOR:119
Granting arguendo that the present action cannot be properly
treated as a petition for prohibition, the transcendental importance
of the issues involved in this case warrants that we set aside the
technical defects and take primary jurisdiction over the petition at
bar. One cannot deny that the issues raised herein have potentially
pervasive influence on the social and moral well being of this nation,
specially the youth; hence, their proper and just determination is an
imperative need. This is in accordance with the well-entrenched
principle that rules of procedure are not inflexible tools designed to
hinder or delay, but to facilitate and promote the administration of
justice. Their strict and rigid application, which would result in
technicalities that tend to frustrate, rather than promote substantial
justice, must always be eschewed. (Emphasis supplied)
In view of the seriousness, novelty and weight as precedents, not
only to the public, but also to the bench and bar, the issues raised
must be resolved for the guidance of all. After all, the RH Law
drastically affects the constitutional provisions on the right to life and
health, the freedom of religion and expression and other
constitutional rights. Mindful of all these and the fact that the issues
of contraception and reproductive health have already caused deep
division among a broad spectrum of society, the Court entertains no
doubt that the petitions raise issues of transcendental importance
warranting immediate court adjudication. More importantly,
considering that it is the right to life of the mother and the unborn
which is primarily at issue, the Court need not wait for a life to be
taken away before taking action.
The Court cannot, and should not, exercise judicial restraint at this
time when rights enshrined in the Constitution are being imperilled
to be violated. To do so, when the life of either the mother or her
child is at stake, would lead to irreparable consequences.
Declaratory Relief
The respondents also assail the petitions because they are
essentially petitions for declaratory relief over which the Court has
no original jurisdiction.120 Suffice it to state that most of the petitions
are praying for injunctive reliefs and so the Court would just consider
them as petitions for prohibition under Rule 65, over which it has
original jurisdiction. Where the case has far-reaching implications
CONSTI LAW II I ACJUCO 458
and prays for injunctive reliefs, the Court may consider them as
petitions for prohibition under Rule 65.121
One Subject-One Title
The petitioners also question the constitutionality of the RH Law,
claiming that it violates Section 26(1 ), Article VI of the
Constitution,122 prescribing the one subject-one title rule.
According to them, being one for reproductive health with
responsible parenthood, the assailed legislation violates the
constitutional standards of due process by concealing its true intent
- to act as a population control measure.123
To belittle the challenge, the respondents insist that the RH Law is
not a birth or population control measure,124 and that the concepts
of "responsible parenthood" and "reproductive health" are both
interrelated as they are inseparable.125
Despite efforts to push the RH Law as a reproductive health law, the
Court sees it as principally a population control measure. The
corpus of the RH Law is geared towards the reduction of the
country's population. While it claims to save lives and keep our
women and children healthy, it also promotes pregnancy-preventing
products. As stated earlier, the RH Law emphasizes the need to
provide Filipinos, especially the poor and the marginalized, with
access to information on the full range of modem family planning
products and methods. These family planning methods, natural or
modem, however, are clearly geared towards the prevention of
pregnancy.
For said reason, the manifest underlying objective of the RH Law is
to reduce the number of births in the country.
It cannot be denied that the measure also seeks to provide pre-natal
and post-natal care as well. A large portion of the law, however,
covers the dissemination of information and provisions on access to
medically-safe, non-abortifacient, effective, legal, affordable, and
quality reproductive health care services, methods, devices, and
supplies, which are all intended to prevent pregnancy.
The Court, thus, agrees with the petitioners' contention that the
whole idea of contraception pervades the entire RH Law. It is, in
fact, the central idea of the RH Law.126 Indeed, remove the
provisions that refer to contraception or are related to it and the RH
Law loses its very foundation.127 As earlier explained, "the other
positive provisions such as skilled birth attendance, maternal care
including pre-and post-natal services, prevention and management
of reproductive tract infections including HIV/AIDS are already
provided for in the Magna Carta for Women."128
Be that as it may, the RH Law does not violate the one subject/one
bill rule. In Benjamin E. Cawaling, Jr. v. The Commission on
Elections and Rep. Francis Joseph G Escudero, it was written:
It is well-settled that the "one title-one subject" rule does not require
the Congress to employ in the title of the enactment language of
such precision as to mirror, fully index or catalogue all the contents
and the minute details therein. The rule is sufficiently complied with
if the title is comprehensive enough as to include the general object
which the statute seeks to effect, and where, as here, the persons
interested are informed of the nature, scope and consequences of
the proposed law and its operation. Moreover, this Court has
invariably adopted a liberal rather than technical construction of the
rule "so as not to cripple or impede legislation." [Emphases supplied]
In this case, a textual analysis of the various provisions of the law
shows that both "reproductive health" and "responsible parenthood"
are interrelated and germane to the overriding objective to control
the population growth. As expressed in the first paragraph of
Section 2 of the RH Law:

SEC. 2. Declaration of Policy. - The State recognizes and
guarantees the human rights of all persons including their right to
equality and nondiscrimination of these rights, the right to
sustainable human development, the right to health which includes
reproductive health, the right to education and information, and the
right to choose and make decisions for themselves in accordance
with their religious convictions, ethics, cultural beliefs, and the
demands of responsible parenthood.
The one subject/one title rule expresses the principle that the title of
a law must not be "so uncertain that the average person reading it
would not be informed of the purpose of the enactment or put on
inquiry as to its contents, or which is misleading, either in referring
to or indicating one subject where another or different one is really
embraced in the act, or in omitting any expression or indication of
the real subject or scope of the act."129
Considering the close intimacy between "reproductive health" and
"responsible parenthood" which bears to the attainment of the goal
of achieving "sustainable human development" as stated under its
terms, the Court finds no reason to believe that Congress
intentionally sought to deceive the public as to the contents of the
assailed legislation.
II - SUBSTANTIVE ISSUES:
1-The Right to Life
Position of the Petitioners
The petitioners assail the RH Law because it violates the right to life
and health of the unborn child under Section 12, Article II of the
Constitution. The assailed legislation allowing access to
abortifacients/abortives effectively sanctions abortion.130
According to the petitioners, despite its express terms prohibiting
abortion, Section 4(a) of the RH Law considers contraceptives that
prevent the fertilized ovum to reach and be implanted in the mother's
womb as an abortifacient; thus, sanctioning contraceptives that take
effect after fertilization and prior to implantation, contrary to the
intent of the Framers of the Constitution to afford protection to the
fertilized ovum which already has life.
They argue that even if Section 9 of the RH Law allows only "non-
abortifacient" hormonal contraceptives, intrauterine devices,
injectables and other safe, legal, non-abortifacient and effective
family planning products and supplies, medical research shows that
contraceptives use results in abortion as they operate to kill the
fertilized ovum which already has life.131
As it opposes the initiation of life, which is a fundamental human
good, the petitioners assert that the State sanction of contraceptive
use contravenes natural law and is an affront to the dignity of
man.132
Finally, it is contended that since Section 9 of the RH Law requires
the Food and Drug Administration (FDA) to certify that the product
or supply is not to be used as an abortifacient, the assailed
legislation effectively confirms that abortifacients are not prohibited.
Also considering that the FDA is not the agency that will actually
supervise or administer the use of these products and supplies to
prospective patients, there is no way it can truthfully make a
certification that it shall not be used for abortifacient purposes.133
Position of the Respondents
For their part, the defenders of the RH Law point out that the intent
of the Framers of the Constitution was simply the prohibition of
abortion. They contend that the RH Law does not violate the
Constitution since the said law emphasizes that only "non-
abortifacient" reproductive health care services, methods, devices
products and supplies shall be made accessible to the public.134
CONSTI LAW II I ACJUCO 459
According to the OSG, Congress has made a legislative
determination that contraceptives are not abortifacients by enacting
the RH Law. As the RH Law was enacted with due consideration to
various studies and consultations with the World Health
Organization (WHO) and other experts in the medical field, it is
asserted that the Court afford deference and respect to such a
determination and pass judgment only when a particular drug or
device is later on determined as an abortive.135
For his part, respondent Lagman argues that the constitutional
protection of one's right to life is not violated considering that various
studies of the WHO show that life begins from the implantation of
the fertilized ovum. Consequently, he argues that the RH Law is
constitutional since the law specifically provides that only
contraceptives that do not prevent the implantation of the fertilized
ovum are allowed.136
The Court's Position
It is a universally accepted principle that every human being enjoys
the right to life.137
Even if not formally established, the right to life, being grounded on
natural law, is inherent and, therefore, not a creation of, or
dependent upon a particular law, custom, or belief. It precedes and
transcends any authority or the laws of men.
In this jurisdiction, the right to life is given more than ample
protection. Section 1, Article III of the Constitution provides:
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.
As expounded earlier, the use of contraceptives and family planning
methods in the Philippines is not of recent vintage. From the
enactment of R.A. No. 4729, entitled "An Act To Regulate The Sale,
Dispensation, and/or Distribution of Contraceptive Drugs and
Devices "on June 18, 1966, prescribing rules on contraceptive drugs
and devices which prevent fertilization,138 to the promotion of male
vasectomy and tubal ligation,139 and the ratification of numerous
international agreements, the country has long recognized the need
to promote population control through the use of contraceptives in
order to achieve long-term economic development. Through the
years, however, the use of contraceptives and other family planning
methods evolved from being a component of demographic
management, to one centered on the promotion of public health,
particularly, reproductive health.140
This has resulted in the enactment of various measures promoting
women's rights and health and the overall promotion of the family's
well-being. Thus, aside from R.A. No. 4729, R.A. No. 6365 or "The
Population Act of the Philippines" and R.A. No. 9710, otherwise
known as the "The Magna Carta of Women" were legislated.
Notwithstanding this paradigm shift, the Philippine national
population program has always been grounded two cornerstone
principles: "principle of no-abortion" and the "principle of non-
coercion."141 As will be discussed later, these principles are not
merely grounded on administrative policy, but rather, originates from
the constitutional protection expressly provided to afford protection
to life and guarantee religious freedom.
When Life Begins*
Majority of the Members of the Court are of the position that the
question of when life begins is a scientific and medical issue that
should not be decided, at this stage, without proper hearing and
evidence. During the deliberation, however, it was agreed upon that
the individual members of the Court could express their own views
on this matter.

In this regard, the ponente, is of the strong view that life begins at
fertilization.
In answering the question of when life begins, focus should be made
on the particular phrase of Section 12 which reads:
Section 12. The State recognizes the sanctity of family life and shall
protect and strengthen the family as a basic autonomous social
institution. It shall equally protect the life of the mother and the life
of the unborn from conception. The natural and primary right and
duty of parents in the rearing of the youth for civic efficiency and the
development of moral character shall receive the support of the
Government.
Textually, the Constitution affords protection to the unborn from
conception. This is undisputable because before conception, there
is no unborn to speak of. For said reason, it is no surprise that the
Constitution is mute as to any proscription prior to conception or
when life begins. The problem has arisen because, amazingly, there
are quarters who have conveniently disregarded the scientific fact
that conception is reckoned from fertilization. They are waving the
view that life begins at implantation. Hence, the issue of when life
begins.
In a nutshell, those opposing the RH Law contend that conception
is synonymous with "fertilization" of the female ovum by the male
sperm.142 On the other side of the spectrum are those who assert
that conception refers to the "implantation" of the fertilized ovum in
the uterus.143
Plain and Legal Meaning
It is a canon in statutory construction that the words of the
Constitution should be interpreted in their plain and ordinary
meaning. As held in the recent case of Chavez v. Judicial Bar
Council:144
One of the primary and basic rules in statutory construction is that
where the words of a statute are clear, plain, and free from
ambiguity, it must be given its literal meaning and applied without
attempted interpretation. It is a well-settled principle of constitutional
construction that the language employed in the Constitution must be
given their ordinary meaning except where technical terms are
employed. As much as possible, the words of the Constitution
should be understood in the sense they have in common use. What
it says according to the text of the provision to be construed compels
acceptance and negates the power of the courts to alter it, based on
the postulate that the framers and the people mean what they say.
Verba legis non est recedendum - from the words of a statute there
should be no departure.
The raison d' etre for the rule is essentially two-fold: First, because
it is assumed that the words in which constitutional provisions are
couched express the objective sought to be attained; and second,
because the Constitution is not primarily a lawyer's document but
essentially that of the people, in whose consciousness it should ever
be present as an important condition for the rule of law to prevail.
In conformity with the above principle, the traditional meaning of the
word "conception" which, as described and defined by all reliable
and reputable sources, means that life begins at fertilization.
Webster's Third New International Dictionary describes it as the act
of becoming pregnant, formation of a viable zygote; the fertilization
that results in a new entity capable of developing into a being like its
parents.145
Black's Law Dictionary gives legal meaning to the term "conception"
as the fecundation of the female ovum by the male spermatozoon
CONSTI LAW II I ACJUCO 460
resulting in human life capable of survival and maturation under
normal conditions.146
Even in jurisprudence, an unborn child has already a legal
personality. In Continental Steel Manufacturing Corporation v. Hon.
Accredited Voluntary Arbitrator Allan S. Montano,147 it was written:
Life is not synonymous with civil personality. One need not acquire
civil personality first before he/she could die. Even a child inside the
womb already has life. No less than the Constitution recognizes the
life of the unborn from conception, that the State must protect
equally with the life of the mother. If the unborn already has life, then
the cessation thereof even prior to the child being delivered,
qualifies as death. [Emphases in the original]
In Gonzales v. Carhart,148 Justice Anthony Kennedy, writing for the
US Supreme Court, said that the State "has respect for human life
at all stages in the pregnancy" and "a legitimate and substantial
interest in preserving and promoting fetal life." Invariably, in the
decision, the fetus was referred to, or cited, as a baby or a child.149
Intent of the Framers
Records of the Constitutional Convention also shed light on the
intention of the Framers regarding the term "conception" used in
Section 12, Article II of the Constitution. From their deliberations, it
clearly refers to the moment of "fertilization." The records reflect the
following:
Rev. Rigos: In Section 9, page 3, there is a sentence which reads:
"The State shall equally protect the life of the mother and the life of
the unborn from the moment of conception."
When is the moment of conception?
xxx
Mr. Villegas: As I explained in the sponsorship speech, it is when
the ovum is fertilized by the sperm that there is human life. x x x.150
xxx
As to why conception is reckoned from fertilization and, as such, the
beginning of human life, it was explained:
Mr. Villegas: I propose to review this issue in a biological manner.
The first question that needs to be answered is: Is the fertilized ovum
alive? Biologically categorically says yes, the fertilized ovum is alive.
First of all, like all living organisms, it takes in nutrients which it
processes by itself. It begins doing this upon fertilization. Secondly,
as it takes in these nutrients, it grows from within. Thirdly, it
multiplies itself at a geometric rate in the continuous process of cell
division. All these processes are vital signs of life. Therefore, there
is no question that biologically the fertilized ovum has life.
The second question: Is it human? Genetics gives an equally
categorical "yes." At the moment of conception, the nuclei of the
ovum and the sperm rupture. As this happens 23 chromosomes
from the ovum combine with 23 chromosomes of the sperm to form
a total of 46 chromosomes. A chromosome count of 46 is found only
- and I repeat, only in human cells. Therefore, the fertilized ovum is
human.
Since these questions have been answered affirmatively, we must
conclude that if the fertilized ovum is both alive and human, then, as
night follows day, it must be human life. Its nature is human.151
Why the Constitution used the phrase "from the moment of
conception" and not "from the moment of fertilization" was not
because of doubt when human life begins, but rather, because:

Mr. Tingson: x x x x the phrase from the moment of conception" was
described by us here before with the scientific phrase "fertilized
ovum" may be beyond the comprehension of some people; we want
to use the simpler phrase "from the moment of conception."152
Thus, in order to ensure that the fertilized ovum is given ample
protection under the Constitution, it was discussed:
Rev. Rigos: Yes, we think that the word "unborn" is sufficient for the
purpose of writing a Constitution, without specifying "from the
moment of conception."
Mr. Davide: I would not subscribe to that particular view because
according to the Commissioner's own admission, he would leave it
to Congress to define when life begins. So, Congress can define life
to begin from six months after fertilization; and that would really be
very, very, dangerous. It is now determined by science that life
begins from the moment of conception. There can be no doubt about
it. So we should not give any doubt to Congress, too.153
Upon further inquiry, it was asked:
Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on
that point. Actually, that is one of the questions I was going to raise
during the period of interpellations but it has been expressed
already. The provision, as proposed right now states:
The State shall equally protect the life of the mother and the life of
the unborn from the moment of conception.
When it speaks of "from the moment of conception," does this mean
when the egg meets the sperm?
Mr. Villegas: Yes, the ovum is fertilized by the sperm.
Mr. Gascon: Therefore that does not leave to Congress the right to
determine whether certain contraceptives that we know today are
abortifacient or not because it is a fact that some of the so-called
contraceptives deter the rooting of the ovum in the uterus. If
fertilization has already occurred, the next process is for the
fertilized ovum to travel towards the uterus and to take root. What
happens with some contraceptives is that they stop the opportunity
for the fertilized ovum to reach the uterus. Therefore, if we take the
provision as it is proposed, these so called contraceptives should be
banned.
Mr. Villegas: Yes, if that physical fact is established, then that is what
is called abortifacient and, therefore, would be unconstitutional and
should be banned under this provision.
Mr. Gascon: Yes. So my point is that I do not think it is up to
Congress to state whether or not these certain contraceptives are
abortifacient. Scientifically and based on the provision as it is now
proposed, they are already considered abortifacient.154
From the deliberations above-quoted, it is apparent that the Framers
of the Constitution emphasized that the State shall provide equal
protection to both the mother and the unborn child from the earliest
opportunity of life, that is, upon fertilization or upon the union of the
male sperm and the female ovum. It is also apparent is that the
Framers of the Constitution intended that to prohibit Congress from
enacting measures that would allow it determine when life begins.
Equally apparent, however, is that the Framers of the Constitution
did not intend to ban all contraceptives for being unconstitutional. In
fact, Commissioner Bernardo Villegas, spearheading the need to
have a constitutional provision on the right to life, recognized that
the determination of whether a contraceptive device is an
abortifacient is a question of fact which should be left to the courts
to decide on based on established evidence.155
CONSTI LAW II I ACJUCO 461
From the discussions above, contraceptives that kill or destroy the
fertilized ovum should be deemed an abortive and thus prohibited.
Conversely, contraceptives that actually prevent the union of the
male sperm and the female ovum, and those that similarly take
action prior to fertilization should be deemed non-abortive, and thus,
constitutionally permissible.
As emphasized by the Framers of the Constitution:
xxx xxx xxx
Mr. Gascon: xx xx. As I mentioned in my speech on the US bases,
I am pro-life, to the point that I would like not only to protect the life
of the unborn, but also the lives of the millions of people in the world
by fighting for a nuclear-free world. I would just like to be assured of
the legal and pragmatic implications of the term "protection of the
life of the unborn from the moment of conception." I raised some of
these implications this afternoon when I interjected in the
interpellation of Commissioner Regalado. I would like to ask that
question again for a categorical answer.
I mentioned that if we institutionalize the term "the life of the unborn
from the moment of conception" we are also actually saying "no,"
not "maybe," to certain contraceptives which are already being
encouraged at this point in time. Is that the sense of the committee
or does it disagree with me?
Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives
would be preventive. There is no unborn yet. That is yet unshaped.
Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more
about some contraceptives, such as the intra-uterine device which
actually stops the egg which has already been fertilized from taking
route to the uterus. So if we say "from the moment of conception,"
what really occurs is that some of these contraceptives will have to
be unconstitutionalized.
Mr. Azcuna: Yes, to the extent that it is after the fertilization.
Mr. Gascon: Thank you, Mr. Presiding Officer.156
The fact that not all contraceptives are prohibited by the 1987
Constitution is even admitted by petitioners during the oral
arguments. There it was conceded that tubal ligation, vasectomy,
even condoms are not classified as abortifacients.157
Atty. Noche:
Before the union of the eggs, egg and the sperm, there is no life yet.
Justice Bersamin:
There is no life.
Atty. Noche:
So, there is no life to be protected.
Justice Bersamin:
To be protected.
Atty. Noche:
Under Section 12, yes.
Justice Bersamin:
So you have no objection to condoms?

Atty. Noche:
Not under Section 12, Article II.
Justice Bersamin:
Even if there is already information that condoms sometimes have
porosity?
Atty. Noche:
Well, yes, Your Honor, there are scientific findings to that effect,
Your Honor, but I am discussing here Section 12, Article II, Your
Honor, yes.
Justice Bersamin:
Alright.
Atty. Noche:
And it's not, I have to admit it's not an abortifacient, Your Honor.158
Medical Meaning
That conception begins at fertilization is not bereft of medical
foundation. Mosby s Medical, Nursing, and Allied Health Dictionary
defines conception as "the beginning of pregnancy usually taken to
be the instant a spermatozoon enters an ovum and forms a viable
zygote."159
It describes fertilization as "the union of male and female gametes
to form a zygote from which the embryo develops."160
The Textbook of Obstetrics (Physiological & Pathological
Obstetrics),161 used by medical schools in the Philippines, also
concludes that human life (human person) begins at the moment of
fertilization with the union of the egg and the sperm resulting in the
formation of a new individual, with a unique genetic composition that
dictates all developmental stages that ensue.
Similarly, recent medical research on the matter also reveals that:
"Human development begins after the union of male and female
gametes or germ cells during a process known as fertilization
(conception). Fertilization is a sequence of events that begins with
the contact of a sperm (spermatozoon) with a secondary oocyte
(ovum) and ends with the fusion of their pronuclei (the haploid nuclei
of the sperm and ovum) and the mingling of their chromosomes to
form a new cell. This fertilized ovum, known as a zygote, is a large
diploid cell that is the beginning, or primordium, of a human
being."162
The authors of Human Embryology & Teratology163 mirror the
same position. They wrote: "Although life is a continuous process,
fertilization is a critical landmark because, under ordinary
circumstances, a new, genetically distinct human organism is
thereby formed.... The combination of 23 chromosomes present in
each pronucleus results in 46 chromosomes in the zygote. Thus the
diploid number is restored and the embryonic genome is formed.
The embryo now exists as a genetic unity."
In support of the RH Bill, The Philippine Medical Association came
out with a "Paper on the Reproductive Health Bill (Responsible
Parenthood Bill)" and therein concluded that:
CONCLUSION
The PMA throws its full weight in supporting the RH Bill at the same
time that PMA maintains its strong position that fertilization is sacred
because it is at this stage that conception, and thus human life,
begins. Human lives are sacred from the moment of conception, and
CONSTI LAW II I ACJUCO 462
that destroying those new lives is never licit, no matter what the
purported good outcome would be. In terms of biology and human
embryology, a human being begins immediately at fertilization and
after that, there is no point along the continuous line of human
embryogenesis where only a "potential" human being can be
posited. Any philosophical, legal, or political conclusion cannot
escape this objective scientific fact.
The scientific evidence supports the conclusion that a zygote is a
human organism and that the life of a new human being commences
at a scientifically well defined "moment of conception." This
conclusion is objective, consistent with the factual evidence, and
independent of any specific ethical, moral, political, or religious view
of human life or of human embryos.164
Conclusion: The Moment of Conception is Reckoned from
Fertilization
In all, whether it be taken from a plain meaning, or understood under
medical parlance, and more importantly, following the intention of
the Framers of the Constitution, the undeniable conclusion is that a
zygote is a human organism and that the life of a new human being
commences at a scientifically well-defined moment of conception,
that is, upon fertilization.
For the above reasons, the Court cannot subscribe to the theory
advocated by Hon. Lagman that life begins at implantation.165
According to him, "fertilization and conception are two distinct and
successive stages in the reproductive process. They are not
identical and synonymous."166 Citing a letter of the WHO, he wrote
that "medical authorities confirm that the implantation of the fertilized
ovum is the commencement of conception and it is only after
implantation that pregnancy can be medically detected."167
This theory of implantation as the beginning of life is devoid of any
legal or scientific mooring. It does not pertain to the beginning of life
but to the viability of the fetus. The fertilized ovum/zygote is not an
inanimate object - it is a living human being complete with DNA and
46 chromosomes.168 Implantation has been conceptualized only
for convenience by those who had population control in mind. To
adopt it would constitute textual infidelity not only to the RH Law but
also to the Constitution.
Not surprisingly, even the OSG does not support this position.
If such theory would be accepted, it would unnervingly legitimize the
utilization of any drug or device that would prevent the implantation
of the fetus at the uterine wall. It would be provocative and further
aggravate religious-based divisiveness.
It would legally permit what the Constitution proscribes - abortion
and abortifacients.
The RH Law and Abortion
The clear and unequivocal intent of the Framers of the 1987
Constitution in protecting the life of the unborn from conception was
to prevent the Legislature from enacting a measure legalizing
abortion. It was so clear that even the Court cannot interpret it
otherwise. This intent of the Framers was captured in the record of
the proceedings of the 1986 Constitutional Commission.
Commissioner Bernardo Villegas, the principal proponent of the
protection of the unborn from conception, explained:
The intention .. .is to make sure that there would be no pro-abortion
laws ever passed by Congress or any pro-abortion decision passed
by the Supreme Court.169
A reading of the RH Law would show that it is in line with this intent
and actually proscribes abortion. While the Court has opted not to
make any determination, at this stage, when life begins, it finds that

the RH Law itself clearly mandates that protection be afforded from
the moment of fertilization. As pointed out by Justice Carpio, the RH
Law is replete with provisions that embody the policy of the law to
protect to the fertilized ovum and that it should be afforded safe
travel to the uterus for implantation.170
Moreover, the RH Law recognizes that abortion is a crime under
Article 256 of the Revised Penal Code, which penalizes the
destruction or expulsion of the fertilized ovum. Thus:
1] xx x.
Section 4. Definition of Terms. - For the purpose of this Act, the
following terms shall be defined as follows:
xxx.
(q) Reproductive health care refers to the access to a full range of
methods, facilities, services and supplies that contribute to
reproductive health and well-being by addressing reproductive
health-related problems. It also includes sexual health, the purpose
of which is the enhancement of life and personal relations. The
elements of reproductive health care include the following:
xxx.
(3) Proscription of abortion and management of abortion
complications;
xxx.
2] xx x.
Section 4. x x x.
(s) Reproductive health rights refers to the rights of individuals and
couples, to decide freely and responsibly whether or not to have
children; the number, spacing and timing of their children; to make
other decisions concerning reproduction, free of discrimination,
coercion and violence; to have the information and means to do so;
and to attain the highest standard of sexual health and reproductive
health: Provided, however, That reproductive health rights do not
include abortion, and access to abortifacients.
3] xx x.
SEC. 29. Repealing Clause. - Except for prevailing laws against
abortion, any law, presidential decree or issuance, executive order,
letter of instruction, administrative order, rule or regulation contrary
to or is inconsistent with the provisions of this Act including Republic
Act No. 7392, otherwise known as the Midwifery Act, is hereby
repealed, modified or amended accordingly.
The RH Law and Abortifacients
In carrying out its declared policy, the RH Law is consistent in
prohibiting abortifacients. To be clear, Section 4(a) of the RH Law
defines an abortifacient as:
Section 4. Definition of Terms - x x x x
(a) Abortifacient refers to any drug or device that induces abortion
or the destruction of a fetus inside the mother's womb or the
prevention of the fertilized ovum to reach and be implanted in the
mother's womb upon determination of the FDA.
As stated above, the RH Law mandates that protection must be
afforded from the moment of fertilization. By using the word " or,"
the RH Law prohibits not only drugs or devices that prevent
implantation, but also those that induce abortion and those that
CONSTI LAW II I ACJUCO 463
induce the destruction of a fetus inside the mother's womb. Thus,
an abortifacient is any drug or device that either:
(a) Induces abortion; or
(b) Induces the destruction of a fetus inside the mother's womb; or
(c) Prevents the fertilized ovum to reach and be implanted in the
mother's womb, upon determination of the FDA.
Contrary to the assertions made by the petitioners, the Court finds
that the RH Law, consistent with the Constitution, recognizes that
the fertilized ovum already has life and that the State has a bounden
duty to protect it. The conclusion becomes clear because the RH
Law, first, prohibits any drug or device that induces abortion (first
kind), which, as discussed exhaustively above, refers to that which
induces the killing or the destruction of the fertilized ovum, and,
second, prohibits any drug or device the fertilized ovum to reach and
be implanted in the mother's womb (third kind).
By expressly declaring that any drug or device that prevents the
fertilized ovum to reach and be implanted in the mother's womb is
an abortifacient (third kind), the RH Law does not intend to mean at
all that life only begins only at implantation, as Hon. Lagman
suggests. It also does not declare either that protection will only be
given upon implantation, as the petitioners likewise suggest. Rather,
it recognizes that: one, there is a need to protect the fertilized ovum
which already has life, and two, the fertilized ovum must be
protected the moment it becomes existent - all the way until it
reaches and implants in the mother's womb. After all, if life is only
recognized and afforded protection from the moment the fertilized
ovum implants - there is nothing to prevent any drug or device from
killing or destroying the fertilized ovum prior to implantation.
From the foregoing, the Court finds that inasmuch as it affords
protection to the fertilized ovum, the RH Law does not sanction
abortion. To repeat, it is the Court's position that life begins at
fertilization, not at implantation. When a fertilized ovum is implanted
in the uterine wall , its viability is sustained but that instance of
implantation is not the point of beginning of life. It started earlier.
And as defined by the RH Law, any drug or device that induces
abortion, that is, which kills or destroys the fertilized ovum or
prevents the fertilized ovum to reach and be implanted in the
mother's womb, is an abortifacient.
Proviso Under Section 9 of the RH Law
This notwithstanding, the Court finds that the proviso under Section
9 of the law that "any product or supply included or to be included in
the EDL must have a certification from the FDA that said product
and supply is made available on the condition that it is not to be
used as an abortifacient" as empty as it is absurd. The FDA, with all
its expertise, cannot fully attest that a drug or device will not all be
used as an abortifacient, since the agency cannot be present in
every instance when the contraceptive product or supply will be
used.171
Pursuant to its declared policy of providing access only to safe, legal
and non-abortifacient contraceptives, however, the Court finds that
the proviso of Section 9, as worded, should bend to the legislative
intent and mean that "any product or supply included or to be
included in the EDL must have a certification from the FDA that said
product and supply is made available on the condition that it cannot
be used as abortifacient." Such a construction is consistent with the
proviso under the second paragraph of the same section that
provides:
Provided, further, That the foregoing offices shall not purchase or
acquire by any means emergency contraceptive pills, postcoital
pills, abortifacients that will be used for such purpose and their other
forms or equivalent.

Abortifacients under the RH-IRR
At this juncture, the Court agrees with ALFI that the authors of the
RH-IRR gravely abused their office when they redefined the
meaning of abortifacient. The RH Law defines "abortifacient" as
follows:
SEC. 4. Definition of Terms. - For the purpose of this Act, the
following terms shall be defined as follows:
(a) Abortifacient refers to any drug or device that induces abortion
or the destruction of a fetus inside the mother's womb or the
prevention of the fertilized ovum to reach and be implanted in the
mother's womb upon determination of the FDA.
Section 3.0l (a) of the IRR, however, redefines "abortifacient" as:
Section 3.01 For purposes of these Rules, the terms shall be defined
as follows:
a) Abortifacient refers to any drug or device that primarily induces
abortion or the destruction of a fetus inside the mother's womb or
the prevention of the fertilized ovum to reach and be implanted in
the mother's womb upon determination of the Food and Drug
Administration (FDA). [Emphasis supplied]
Again in Section 3.0lG) of the RH-IRR, "contraceptive," is redefined,
viz:
j) Contraceptive refers to any safe, legal, effective and scientifically
proven modern family planning method, device, or health product,
whether natural or artificial, that prevents pregnancy but does not
primarily destroy a fertilized ovum or prevent a fertilized ovum from
being implanted in the mother's womb in doses of its approved
indication as determined by the Food and Drug Administration
(FDA).
The above-mentioned section of the RH-IRR allows
"contraceptives" and recognizes as "abortifacient" only those that
primarily induce abortion or the destruction of a fetus inside the
mother's womb or the prevention of the fertilized ovum to reach and
be implanted in the mother's womb.172
This cannot be done.
In this regard, the observations of Justice Brion and Justice Del
Castillo are well taken. As they pointed out, with the insertion of the
word "primarily," Section 3.0l(a) and G) of the RH-IRR173 must be
struck down for being ultra vires.
Evidently, with the addition of the word "primarily," in Section 3.0l(a)
and G) of the RH-IRR is indeed ultra vires. It contravenes Section
4(a) of the RH Law and should, therefore, be declared invalid. There
is danger that the insertion of the qualifier "primarily" will pave the
way for the approval of contraceptives which may harm or destroy
the life of the unborn from conception/fertilization in violation of
Article II, Section 12 of the Constitution. With such qualification in
the RH-IRR, it appears to insinuate that a contraceptive will only be
considered as an "abortifacient" if its sole known effect is abortion
or, as pertinent here, the prevention of the implantation of the
fertilized ovum.
For the same reason, this definition of "contraceptive" would permit
the approval of contraceptives which are actually abortifacients
because of their fail-safe mechanism.174
Also, as discussed earlier, Section 9 calls for the certification by the
FDA that these contraceptives cannot act as abortive. With this,
together with the definition of an abortifacient under Section 4 (a) of
the RH Law and its declared policy against abortion, the undeniable
CONSTI LAW II I ACJUCO 464
conclusion is that contraceptives to be included in the PNDFS and
the EDL will not only be those contraceptives that do not have the
primary action of causing abortion or the destruction of a fetus inside
the mother's womb or the prevention of the fertilized ovum to reach
and be implanted in the mother's womb, but also those that do not
have the secondary action of acting the same way.
Indeed, consistent with the constitutional policy prohibiting abortion,
and in line with the principle that laws should be construed in a
manner that its constitutionality is sustained, the RH Law and its
implementing rules must be consistent with each other in prohibiting
abortion. Thus, the word " primarily" in Section 3.0l(a) and G) of the
RH-IRR should be declared void. To uphold the validity of Section
3.0l(a) and G) of the RH-IRR and prohibit only those contraceptives
that have the primary effect of being an abortive would effectively
"open the floodgates to the approval of contraceptives which may
harm or destroy the life of the unborn from conception/fertilization in
violation of Article II, Section 12 of the Constitution."175
To repeat and emphasize, in all cases, the "principle of no abortion"
embodied in the constitutional protection of life must be upheld.
2-The Right to Health
The petitioners claim that the RH Law violates the right to health
because it requires the inclusion of hormonal contraceptives,
intrauterine devices, injectables and family products and supplies in
the National Drug Formulary and the inclusion of the same in the
regular purchase of essential medicines and supplies of all national
hospitals.176 Citing various studies on the matter, the petitioners
posit that the risk of developing breast and cervical cancer is greatly
increased in women who use oral contraceptives as compared to
women who never use them. They point out that the risk is
decreased when the use of contraceptives is discontinued. Further,
it is contended that the use of combined oral contraceptive pills is
associated with a threefold increased risk of venous
thromboembolism, a twofold increased risk of ischematic stroke,
and an indeterminate effect on risk of myocardial infarction.177
Given the definition of "reproductive health" and "sexual health"
under Sections 4(p)178 and (w)179 of the RH Law, the petitioners
assert that the assailed legislation only seeks to ensure that women
have pleasurable and satisfying sex lives.180
The OSG, however, points out that Section 15, Article II of the
Constitution is not self-executory, it being a mere statement of the
administration's principle and policy. Even if it were self-executory,
the OSG posits that medical authorities refute the claim that
contraceptive pose a danger to the health of women.181
The Court's Position
A component to the right to life is the constitutional right to health.
In this regard, the Constitution is replete with provisions protecting
and promoting the right to health. Section 15, Article II of the
Constitution provides:
Section 15. The State shall protect and promote the right to health
of the people and instill health consciousness among them.
A portion of Article XIII also specifically provides for the States' duty
to provide for the health of the people, viz:
HEALTH
Section 11. The State shall adopt an integrated and comprehensive
approach to health development which shall endeavor to make
essential goods, health and other social services available to all the
people at affordable cost. There shall be priority for the needs of the
underprivileged, sick, elderly, disabled, women, and children. The
State shall endeavor to provide free medical care to paupers.

Section 12. The State shall establish and maintain an effective food
and drug regulatory system and undertake appropriate health,
manpower development, and research, responsive to the country's
health needs and problems.
Section 13. The State shall establish a special agency for disabled
person for their rehabilitation, self-development, and self-reliance,
and their integration into the mainstream of society.
Finally, Section 9, Article XVI provides:
Section 9. The State shall protect consumers from trade
malpractices and from substandard or hazardous products.
Contrary to the respondent's notion, however, these provisions are
self-executing. Unless the provisions clearly express the contrary,
the provisions of the Constitution should be considered self-
executory. There is no need for legislation to implement these self-
executing provisions.182 In Manila Prince Hotel v. GSIS,183 it was
stated:
x x x Hence, unless it is expressly provided that a legislative act is
necessary to enforce a constitutional mandate, the presumption
now is that all provisions of the constitution are self-executing. If the
constitutional provisions are treated as requiring legislation instead
of self-executing, the legislature would have the power to ignore and
practically nullify the mandate of the fundamental law. This can be
cataclysmic. That is why the prevailing view is, as it has always
been, that –
... in case of doubt, the Constitution should be considered self-
executing rather than non-self-executing. . . . Unless the contrary is
clearly intended, the provisions of the Constitution should be
considered self-executing, as a contrary rule would give the
legislature discretion to determine when, or whether, they shall be
effective. These provisions would be subordinated to the will of the
lawmaking body, which could make them entirely meaningless by
simply refusing to pass the needed implementing statute.
(Emphases supplied)
This notwithstanding, it bears mentioning that the petitioners,
particularly ALFI, do not question contraception and contraceptives
per se.184 In fact, ALFI prays that the status quo - under R.A. No.
5921 and R.A. No. 4729, the sale and distribution of contraceptives
are not prohibited when they are dispensed by a prescription of a
duly licensed by a physician - be maintained.185
The legislative intent in the enactment of the RH Law in this regard
is to leave intact the provisions of R.A. No. 4729. There is no
intention at all to do away with it. It is still a good law and its
requirements are still in to be complied with. Thus, the Court agrees
with the observation of respondent Lagman that the effectivity of the
RH Law will not lead to the unmitigated proliferation of
contraceptives since the sale, distribution and dispensation of
contraceptive drugs and devices will still require the prescription of
a licensed physician. With R.A. No. 4729 in place, there exists
adequate safeguards to ensure the public that only contraceptives
that are safe are made available to the public. As aptly explained by
respondent Lagman:
D. Contraceptives cannot be
dispensed and used without
prescription
108. As an added protection to voluntary users of contraceptives,
the same cannot be dispensed and used without prescription.
109. Republic Act No. 4729 or "An Act to Regulate the Sale,
Dispensation, and/ or Distribution of Contraceptive Drugs and
Devices" and Republic Act No. 5921 or "An Act Regulating the
Practice of Pharmacy and Setting Standards of Pharmaceutical
CONSTI LAW II I ACJUCO 465
Education in the Philippines and for Other Purposes" are not
repealed by the RH Law and the provisions of said Acts are not
inconsistent with the RH Law.
110. Consequently, the sale, distribution and dispensation of
contraceptive drugs and devices are particularly governed by RA
No. 4729 which provides in full:
"Section 1. It shall be unlawful for any person, partnership, or
corporation, to sell, dispense or otherwise distribute whether for or
without consideration, any contraceptive drug or device, unless
such sale, dispensation or distribution is by a duly licensed drug
store or pharmaceutical company and with the prescription of a
qualified medical practitioner.
"Sec. 2 . For the purpose of this Act:
"(a) "Contraceptive drug" is any medicine, drug, chemical, or portion
which is used exclusively for the purpose of preventing fertilization
of the female ovum: and
"(b) "Contraceptive device" is any instrument, device, material, or
agent introduced into the female reproductive system for the primary
purpose of preventing conception.
"Sec. 3 Any person, partnership, or corporation, violating the
provisions of this Act shall be punished with a fine of not more than
five hundred pesos or an imprisonment of not less than six months
or more than one year or both in the discretion of the Court.
"This Act shall take effect upon its approval.
"Approved: June 18, 1966"
111. Of the same import, but in a general manner, Section 25 of RA
No. 5921 provides:
"Section 25. Sale of medicine, pharmaceuticals, drugs and devices.
No medicine, pharmaceutical, or drug of whatever nature and kind
or device shall be compounded, dispensed, sold or resold, or
otherwise be made available to the consuming public except
through a prescription drugstore or hospital pharmacy, duly
established in accordance with the provisions of this Act.
112. With all of the foregoing safeguards, as provided for in the RH
Law and other relevant statutes, the pretension of the petitioners
that the RH Law will lead to the unmitigated proliferation of
contraceptives, whether harmful or not, is completely unwarranted
and baseless.186 [Emphases in the Original. Underlining supplied.]
In Re: Section 10 of the RH Law:
The foregoing safeguards should be read in connection with Section
10 of the RH Law which provides:
SEC. 10. Procurement and Distribution of Family Planning Supplies.
- The DOH shall procure, distribute to LGUs and monitor the usage
of family planning supplies for the whole country. The DOH shall
coordinate with all appropriate local government bodies to plan and
implement this procurement and distribution program. The supply
and budget allotments shall be based on, among others, the current
levels and projections of the following:
(a) Number of women of reproductive age and couples who want to
space or limit their children;
(b) Contraceptive prevalence rate, by type of method used; and
(c) Cost of family planning supplies.

Provided, That LGUs may implement its own procurement,
distribution and monitoring program consistent with the overall
provisions of this Act and the guidelines of the DOH.
Thus, in the distribution by the DOH of contraceptive drugs and
devices, it must consider the provisions of R.A. No. 4729, which is
still in effect, and ensure that the contraceptives that it will procure
shall be from a duly licensed drug store or pharmaceutical company
and that the actual dispensation of these contraceptive drugs and
devices will done following a prescription of a qualified medical
practitioner. The distribution of contraceptive drugs and devices
must not be indiscriminately done. The public health must be
protected by all possible means. As pointed out by Justice De
Castro, a heavy responsibility and burden are assumed by the
government in supplying contraceptive drugs and devices, for it may
be held accountable for any injury, illness or loss of life resulting
from or incidental to their use.187
At any rate, it bears pointing out that not a single contraceptive has
yet been submitted to the FDA pursuant to the RH Law. It behooves
the Court to await its determination which drugs or devices are
declared by the FDA as safe, it being the agency tasked to ensure
that food and medicines available to the public are safe for public
consumption. Consequently, the Court finds that, at this point, the
attack on the RH Law on this ground is premature. Indeed, the
various kinds of contraceptives must first be measured up to the
constitutional yardstick as expounded herein, to be determined as
the case presents itself.
At this point, the Court is of the strong view that Congress cannot
legislate that hormonal contraceptives and intra-uterine devices are
safe and non-abortifacient. The first sentence of Section 9 that
ordains their inclusion by the National Drug Formulary in the EDL
by using the mandatory "shall" is to be construed as operative only
after they have been tested, evaluated, and approved by the FDA.
The FDA, not Congress, has the expertise to determine whether a
particular hormonal contraceptive or intrauterine device is safe and
non-abortifacient. The provision of the third sentence concerning the
requirements for the inclusion or removal of a particular family
planning supply from the EDL supports this construction.
Stated differently, the provision in Section 9 covering the inclusion
of hormonal contraceptives, intra-uterine devices, injectables, and
other safe, legal, non-abortifacient and effective family planning
products and supplies by the National Drug Formulary in the EDL is
not mandatory. There must first be a determination by the FDA that
they are in fact safe, legal, non-abortifacient and effective family
planning products and supplies. There can be no predetermination
by Congress that the gamut of contraceptives are "safe, legal, non-
abortifacient and effective" without the proper scientific examination.
3 -Freedom of Religion
and the Right to Free Speech
Position of the Petitioners:
1. On Contraception
While contraceptives and procedures like vasectomy and tubal
ligation are not covered by the constitutional proscription, there are
those who, because of their religious education and background,
sincerely believe that contraceptives, whether abortifacient or not,
are evil. Some of these are medical practitioners who essentially
claim that their beliefs prohibit not only the use of contraceptives but
also the willing participation and cooperation in all things dealing
with contraceptive use. Petitioner PAX explained that "contraception
is gravely opposed to marital chastity, it is contrary to the good of
the transmission of life, and to the reciprocal self-giving of the
spouses; it harms true love and denies the sovereign rule of God in
the transmission of Human life."188
CONSTI LAW II I ACJUCO 466
The petitioners question the State-sponsored procurement of
contraceptives, arguing that the expenditure of their taxes on
contraceptives violates the guarantee of religious freedom since
contraceptives contravene their religious beliefs.189
2. On Religious Accommodation and
The Duty to Refer
Petitioners Imbong and Luat note that while the RH Law attempts to
address religious sentiments by making provisions for a
conscientious objector, the constitutional guarantee is nonetheless
violated because the law also imposes upon the conscientious
objector the duty to refer the patient seeking reproductive health
services to another medical practitioner who would be able to
provide for the patient's needs. For the petitioners, this amounts to
requiring the conscientious objector to cooperate with the very thing
he refuses to do without violating his/her religious beliefs.190
They further argue that even if the conscientious objector's duty to
refer is recognized, the recognition is unduly limited, because
although it allows a conscientious objector in Section 23 (a)(3) the
option to refer a patient seeking reproductive health services and
information - no escape is afforded the conscientious objector in
Section 23 (a)(l) and (2), i.e. against a patient seeking reproductive
health procedures. They claim that the right of other individuals to
conscientiously object, such as: a) those working in public health
facilities referred to in Section 7; b) public officers involved in the
implementation of the law referred to in Section 23(b ); and c)
teachers in public schools referred to in Section 14 of the RH Law,
are also not recognize.191
Petitioner Echavez and the other medical practitioners meanwhile,
contend that the requirement to refer the matter to another health
care service provider is still considered a compulsion on those
objecting healthcare service providers. They add that compelling
them to do the act against their will violates the Doctrine of
Benevolent Neutrality. Sections 9, 14 and 1 7 of the law are too
secular that they tend to disregard the religion of Filipinos.
Authorizing the use of contraceptives with abortive effects,
mandatory sex education, mandatory pro-bono reproductive health
services to indigents encroach upon the religious freedom of those
upon whom they are required.192
Petitioner CFC also argues that the requirement for a conscientious
objector to refer the person seeking reproductive health care
services to another provider infringes on one's freedom of religion
as it forces the objector to become an unwilling participant in the
commission of a serious sin under Catholic teachings. While the
right to act on one's belief may be regulated by the State, the acts
prohibited by the RH Law are passive acts which produce neither
harm nor injury to the public.193
Petitioner CFC adds that the RH Law does not show compelling
state interest to justify regulation of religious freedom because it
mentions no emergency, risk or threat that endangers state
interests. It does not explain how the rights of the people (to equality,
non-discrimination of rights, sustainable human development,
health, education, information, choice and to make decisions
according to religious convictions, ethics, cultural beliefs and the
demands of responsible parenthood) are being threatened or are
not being met as to justify the impairment of religious freedom.194
Finally, the petitioners also question Section 15 of the RH Law
requiring would-be couples to attend family planning and
responsible parenthood seminars and to obtain a certificate of
compliance. They claim that the provision forces individuals to
participate in the implementation of the RH Law even if it
contravenes their religious beliefs.195 As the assailed law dangles
the threat of penalty of fine and/or imprisonment in case of non-
compliance with its provisions, the petitioners claim that the RH Law
forcing them to provide, support and facilitate access and

information to contraception against their beliefs must be struck
down as it runs afoul to the constitutional guarantee of religious
freedom.
The Respondents' Positions
The respondents, on the other hand, contend that the RH Law does
not provide that a specific mode or type of contraceptives be used,
be it natural or artificial. It neither imposes nor sanctions any religion
or belief.196 They point out that the RH Law only seeks to serve the
public interest by providing accessible, effective and quality
reproductive health services to ensure maternal and child health, in
line with the State's duty to bring to reality the social justice health
guarantees of the Constitution,197 and that what the law only
prohibits are those acts or practices, which deprive others of their
right to reproductive health.198 They assert that the assailed law
only seeks to guarantee informed choice, which is an assurance that
no one will be compelled to violate his religion against his free
will.199
The respondents add that by asserting that only natural family
planning should be allowed, the petitioners are effectively going
against the constitutional right to religious freedom, the same right
they invoked to assail the constitutionality of the RH Law.200 In
other words, by seeking the declaration that the RH Law is
unconstitutional, the petitioners are asking that the Court recognize
only the Catholic Church's sanctioned natural family planning
methods and impose this on the entire citizenry.201
With respect to the duty to refer, the respondents insist that the
same does not violate the constitutional guarantee of religious
freedom, it being a carefully balanced compromise between the
interests of the religious objector, on one hand, who is allowed to
keep silent but is required to refer -and that of the citizen who needs
access to information and who has the right to expect that the health
care professional in front of her will act professionally. For the
respondents, the concession given by the State under Section 7 and
23(a)(3) is sufficient accommodation to the right to freely exercise
one's religion without unnecessarily infringing on the rights of
others.202
Whatever burden is placed on the petitioner's religious freedom is
minimal as the duty to refer is limited in duration, location and
impact.203
Regarding mandatory family planning seminars under Section 15 ,
the respondents claim that it is a reasonable regulation providing an
opportunity for would-be couples to have access to information
regarding parenthood, family planning, breastfeeding and infant
nutrition. It is argued that those who object to any information
received on account of their attendance in the required seminars are
not compelled to accept information given to them. They are
completely free to reject any information they do not agree with and
retain the freedom to decide on matters of family life without
intervention of the State.204
For their part, respondents De Venecia et al., dispute the notion that
natural family planning is the only method acceptable to Catholics
and the Catholic hierarchy. Citing various studies and surveys on
the matter, they highlight the changing stand of the Catholic Church
on contraception throughout the years and note the general
acceptance of the benefits of contraceptives by its followers in
planning their families.
The Church and The State
At the outset, it cannot be denied that we all live in a heterogeneous
society. It is made up of people of diverse ethnic, cultural and
religious beliefs and backgrounds. History has shown us that our
government, in law and in practice, has allowed these various
religious, cultural, social and racial groups to thrive in a single
CONSTI LAW II I ACJUCO 467
society together. It has embraced minority groups and is tolerant
towards all - the religious people of different sects and the non-
believers. The undisputed fact is that our people generally believe
in a deity, whatever they conceived Him to be, and to whom they
call for guidance and enlightenment in crafting our fundamental law.
Thus, the preamble of the present Constitution reads:
We, the sovereign Filipino people, imploring the aid of Almighty
God, in order to build a just and humane society, and establish a
Government that shall embody our ideals and aspirations, promote
the common good, conserve and develop our patrimony, and secure
to ourselves and our posterity, the blessings of independence and
democracy under the rule of law and a regime of truth, justice,
freedom, love, equality, and peace, do ordain and promulgate this
Constitution.
The Filipino people in "imploring the aid of Almighty God "
manifested their spirituality innate in our nature and consciousness
as a people, shaped by tradition and historical experience. As this
is embodied in the preamble, it means that the State recognizes with
respect the influence of religion in so far as it instills into the mind
the purest principles of morality.205 Moreover, in recognition of the
contributions of religion to society, the 1935, 1973 and 1987
constitutions contain benevolent and accommodating provisions
towards religions such as tax exemption of church property, salary
of religious officers in government institutions, and optional religious
instructions in public schools.
The Framers, however, felt the need to put up a strong barrier so
that the State would not encroach into the affairs of the church, and
vice-versa. The principle of separation of Church and State was,
thus, enshrined in Article II, Section 6 of the 1987 Constitution, viz:
Section 6. The separation of Church and State shall be inviolable.
Verily, the principle of separation of Church and State is based on
mutual respect.1âwphi1 Generally, the State cannot meddle in the
internal affairs of the church, much less question its faith and
dogmas or dictate upon it. It cannot favor one religion and
discriminate against another. On the other hand, the church cannot
impose its beliefs and convictions on the State and the rest of the
citizenry. It cannot demand that the nation follow its beliefs, even if
it sincerely believes that they are good for the country.
Consistent with the principle that not any one religion should ever
be preferred over another, the Constitution in the above-cited
provision utilizes the term "church" in its generic sense, which refers
to a temple, a mosque, an iglesia, or any other house of God which
metaphorically symbolizes a religious organization. Thus, the
"Church" means the religious congregations collectively.
Balancing the benefits that religion affords and the need to provide
an ample barrier to protect the State from the pursuit of its secular
objectives, the Constitution lays down the following mandate in
Article III, Section 5 and Article VI, Section 29 (2), of the 1987
Constitution:
Section. 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.
Section 29.
xxx.
No public money or property shall be appropriated, applied, paid, or
employed, directly or indirectly, for the use, benefit, or support of
any sect, church, denomination, sectarian institution, or system of
religion, or of any priest, preacher, minister, other religious teacher,

or dignitary as such, except when such priest, preacher, minister, or
dignitary is assigned to the armed forces, or to any penal institution,
or government orphanage or leprosarium.
In short, the constitutional assurance of religious freedom provides
two guarantees: the Establishment Clause and the Free Exercise
Clause.
The establishment clause "principally prohibits the State from
sponsoring any religion or favoring any religion as against other
religions. It mandates a strict neutrality in affairs among religious
groups."206 Essentially, it prohibits the establishment of a state
religion and the use of public resources for the support or prohibition
of a religion.
On the other hand, the basis of the free exercise clause is the
respect for the inviolability of the human conscience.207 Under this
part of religious freedom guarantee, the State is prohibited from
unduly interfering with the outside manifestations of one's belief and
faith.208 Explaining the concept of religious freedom, the Court, in
Victoriano v. Elizalde Rope Workers Union209 wrote:
The constitutional provisions not only prohibits legislation for the
support of any religious tenets or the modes of worship of any sect,
thus forestalling compulsion by law of the acceptance of any creed
or the practice of any form of worship (U.S. Ballard, 322 U.S. 78, 88
L. ed. 1148, 1153), but also assures the free exercise of one's
chosen form of religion within limits of utmost amplitude. It has been
said that the religion clauses of the Constitution are all designed to
protect the broadest possible liberty of conscience, to allow each
man to believe as his conscience directs, to profess his beliefs, and
to live as he believes he ought to live, consistent with the liberty of
others and with the common good. Any legislation whose effect or
purpose is to impede the observance of one or all religions, or to
discriminate invidiously between the religions, is invalid, even
though the burden may be characterized as being only indirect.
(Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970)
But if the state regulates conduct by enacting, within its power, a
general law which has for its purpose and effect to advance the
state's secular goals, the statute is valid despite its indirect burden
on religious observance, unless the state can accomplish its
purpose without imposing such burden. (Braunfeld v. Brown, 366
U.S. 599, 6 Led. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland, 366
U.S. 420, 444-5 and 449).
As expounded in Escritor,
The establishment and free exercise clauses 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.210
Corollary to the guarantee of free exercise of one's religion is the
principle that the guarantee of religious freedom is comprised of two
parts: the freedom to believe, and the freedom to act on one's belief.
The first part is absolute. As explained in Gerona v. Secretary of
Education:211
The realm of belief and creed is infinite and limitless bounded only
by one's imagination and thought. So is the freedom of belief,
including religious belief, limitless and without bounds. One may
believe in most anything, however strange, bizarre and
unreasonable the same may appear to others, even heretical when
weighed in the scales of orthodoxy or doctrinal standards. But
CONSTI LAW II I ACJUCO 468
between the freedom of belief and the exercise of said belief, there
is quite a stretch of road to travel.212
The second part however, is limited and subject to the awesome
power of the State and can be enjoyed only with proper regard to
the rights of others. It is "subject to regulation where the belief is
translated into external acts that affect the public welfare."213
Legislative Acts and the
Free Exercise Clause
Thus, in case of conflict between the free exercise clause and the
State, the Court adheres to the doctrine of benevolent neutrality.
This has been clearly decided by the Court in Estrada v. Escritor,
(Escritor)214 where it was stated "that benevolent neutrality-
accommodation, whether mandatory or permissive, is the spirit,
intent and framework underlying the Philippine Constitution."215 In
the same case, it was further explained that"
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 accommodation is to remove a burden
on, or facilitate the exercise of, a person's or institution's
religion."216 "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."217
In ascertaining the limits of the exercise of religious freedom, the
compelling state interest test is proper.218 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.219 In Escritor, it was written:
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 A
merican 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 A merican 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. [Emphases in the original.
Underlining supplied.]
The Court's Position
In the case at bench, it is not within the province of the Court to
determine whether the use of contraceptives or one's participation
in the support of modem reproductive health measures is moral from
a religious standpoint or whether the same is right or wrong
according to one's dogma or belief. For the Court has declared that
matters dealing with "faith, practice, doctrine, form of worship,
ecclesiastical law, custom and rule of a church ... are
unquestionably ecclesiastical matters which are outside the
province of the civil courts."220 The jurisdiction of the Court extends
only to public and secular morality. Whatever pronouncement the
Court makes in the case at bench should be understood only in this
realm where it has authority. Stated otherwise, while the Court
stands without authority to rule on ecclesiastical matters, as
vanguard of the Constitution, it does have authority to determine
whether the RH Law contravenes the guarantee of religious
freedom.
At first blush, it appears that the RH Law recognizes and respects
religion and religious beliefs and convictions. It is replete with
assurances the no one can be compelled to violate the tenets of his
religion or defy his religious convictions against his free will.
Provisions in the RH Law respecting religious freedom are the
following:
1. The State recognizes and guarantees the human rights of all
persons including their right to equality and nondiscrimination of
these rights, the right to sustainable human development, the right
to health which includes reproductive health, the right to education
and information, and the right to choose and make decisions for
themselves in accordance with their religious convictions, ethics,
cultural beliefs, and the demands of responsible parenthood.
[Section 2, Declaration of Policy]
CONSTI LAW II I ACJUCO 469
2 . The State recognizes marriage as an inviolable social institution
and the foundation of the family which in turn is the foundation of
the nation. Pursuant thereto, the State shall defend:
(a) The right of spouses to found a family in accordance with their
religious convictions and the demands of responsible parenthood."
[Section 2, Declaration of Policy]
3. The State shall promote and provide information and access,
without bias, to all methods of family planning, including effective
natural and modern methods which have been proven medically
safe, legal, non-abortifacient, and effective in accordance with
scientific and evidence-based medical research standards such as
those registered and approved by the FDA for the poor and
marginalized as identified through the NHTS-PR and other
government measures of identifying marginalization: Provided, That
the State shall also provide funding support to promote modern
natural methods of family planning, especially the Billings Ovulation
Method, consistent with the needs of acceptors and their religious
convictions. [Section 3(e), Declaration of Policy]
4. The State shall promote programs that: (1) enable individuals and
couples to have the number of children they desire with due
consideration to the health, particularly of women, and the
resources available and affordable to them and in accordance with
existing laws, public morals and their religious convictions. [Section
3CDJ
5. The State shall respect individuals' preferences and choice of
family planning methods that are in accordance with their religious
convictions and cultural beliefs, taking into consideration the State's
obligations under various human rights instruments. [Section 3(h)]
6. Active participation by nongovernment organizations (NGOs) ,
women's and people's organizations, civil society, faith-based
organizations, the religious sector and communities is crucial to
ensure that reproductive health and population and development
policies, plans, and programs will address the priority needs of
women, the poor, and the marginalized. [Section 3(i)]
7. Responsible parenthood refers to the will and ability of a parent
to respond to the needs and aspirations of the family and children.
It is likewise a shared responsibility between parents to determine
and achieve the desired number of children, spacing and timing of
their children according to their own family life aspirations, taking
into account psychological preparedness, health status,
sociocultural and economic concerns consistent with their religious
convictions. [Section 4(v)] (Emphases supplied)
While the Constitution prohibits abortion, laws were enacted
allowing the use of contraceptives. To some medical practitioners,
however, the whole idea of using contraceptives is an anathema.
Consistent with the principle of benevolent neutrality, their beliefs
should be respected.
The Establishment Clause
and Contraceptives
In the same breath that the establishment clause restricts what the
government can do with religion, it also limits what religious sects
can or cannot do with the government. They can neither cause the
government to adopt their particular doctrines as policy for
everyone, nor can they not cause the government to restrict other
groups. To do so, in simple terms, would cause the State to adhere
to a particular religion and, thus, establishing a state religion.
Consequently, the petitioners are misguided in their supposition that
the State cannot enhance its population control program through the
RH Law simply because the promotion of contraceptive use is
contrary to their religious beliefs. Indeed, the State is not precluded

to pursue its legitimate secular objectives without being dictated
upon by the policies of any one religion. One cannot refuse to pay
his taxes simply because it will cloud his conscience. The
demarcation line between Church and State demands that one
render unto Caesar the things that are Caesar's and unto God the
things that are God's.221
The Free Exercise Clause and the Duty to Refer
While the RH Law, in espousing state policy to promote reproductive
health manifestly respects diverse religious beliefs in line with the
Non-Establishment Clause, the same conclusion cannot be reached
with respect to Sections 7, 23 and 24 thereof. The said provisions
commonly mandate that a hospital or a medical practitioner to
immediately refer a person seeking health care and services under
the law to another accessible healthcare provider despite their
conscientious objections based on religious or ethical beliefs.
In a situation where the free exercise of religion is allegedly
burdened by government legislation or practice, the compelling
state interest test in line with the Court's espousal of the Doctrine of
Benevolent Neutrality in Escritor, finds application. In this case, the
conscientious objector's claim to religious freedom would warrant an
exemption from obligations under the RH Law, unless the
government succeeds in demonstrating a more compelling state
interest in the accomplishment of an important secular objective.
Necessarily so, the plea of conscientious objectors for exemption
from the RH Law deserves no less than strict scrutiny.
In applying the test, the first inquiry is whether a conscientious
objector's right to religious freedom has been burdened. As in
Escritor, there is no doubt that an intense tug-of-war plagues a
conscientious objector. One side coaxes him into obedience to the
law and the abandonment of his religious beliefs, while the other
entices him to a clean conscience yet under the pain of penalty. The
scenario is an illustration of the predicament of medical practitioners
whose religious beliefs are incongruent with what the RH Law
promotes.
The Court is of the view that the obligation to refer imposed by the
RH Law violates the religious belief and conviction of a
conscientious objector. Once the medical practitioner, against his
will, refers a patient seeking information on modem reproductive
health products, services, procedures and methods, his conscience
is immediately burdened as he has been compelled to perform an
act against his beliefs. As Commissioner Joaquin A. Bernas
(Commissioner Bernas) has written, "at the basis of the free
exercise clause is the respect for the inviolability of the human
conscience.222
Though it has been said that the act of referral is an opt-out clause,
it is, however, a false compromise because it makes pro-life health
providers complicit in the performance of an act that they find
morally repugnant or offensive. They cannot, in conscience, do
indirectly what they cannot do directly. One may not be the principal,
but he is equally guilty if he abets the offensive act by indirect
participation.
Moreover, the guarantee of religious freedom is necessarily
intertwined with the right to free speech, it being an externalization
of one's thought and conscience. This in turn includes the right to
be silent. With the constitutional guarantee of religious freedom
follows the protection that should be afforded to individuals in
communicating their beliefs to others as well as the protection for
simply being silent. The Bill of Rights guarantees the liberty of the
individual to utter what is in his mind and the liberty not to utter what
is not in his mind.223 While the RH Law seeks to provide freedom
of choice through informed consent, freedom of choice guarantees
the liberty of the religious conscience and prohibits any degree of
compulsion or burden, whether direct or indirect, in the practice of
one's religion.224
CONSTI LAW II I ACJUCO 470
In case of conflict between the religious beliefs and moral
convictions of individuals, on one hand, and the interest of the State,
on the other, to provide access and information on reproductive
health products, services, procedures and methods to enable the
people to determine the timing, number and spacing of the birth of
their children, the Court is of the strong view that the religious
freedom of health providers, whether public or private, should be
accorded primacy. Accordingly, a conscientious objector should be
exempt from compliance with the mandates of the RH Law. If he
would be compelled to act contrary to his religious belief and
conviction, it would be violative of "the principle of non-coercion"
enshrined in the constitutional right to free exercise of religion.
Interestingly, on April 24, 2013, Scotland's Inner House of the Court
of Session, found in the case of Doogan and Wood v. NHS Greater
Glasgow and Clyde Health Board,225 that the midwives claiming to
be conscientious objectors under the provisions of Scotland's
Abortion Act of 1967, could not be required to delegate, supervise
or support staff on their labor ward who were involved in
abortions.226 The Inner House stated "that if 'participation' were
defined according to whether the person was taking part 'directly' or
' indirectly' this would actually mean more complexity and
uncertainty."227
While the said case did not cover the act of referral, the applicable
principle was the same - they could not be forced to assist abortions
if it would be against their conscience or will.
Institutional Health Providers
The same holds true with respect to non-maternity specialty
hospitals and hospitals owned and operated by a religious group
and health care service providers. Considering that Section 24 of
the RH Law penalizes such institutions should they fail or refuse to
comply with their duty to refer under Section 7 and Section 23(a)(3),
the Court deems that it must be struck down for being violative of
the freedom of religion. The same applies to Section 23(a)(l) and
(a)(2) in relation to Section 24, considering that in the dissemination
of information regarding programs and services and in the
performance of reproductive health procedures, the religious
freedom of health care service providers should be respected.
In the case of Islamic Da'wah Council of the Philippines, Inc. v.
Office of the Executive Secretary228 it was stressed:
Freedom of religion was accorded preferred status by the framers
of our fundamental law. And this Court has consistently affirmed this
preferred status, well aware that it is "designed to protect the
broadest possible liberty of conscience, to allow each man to
believe as his conscience directs, to profess his beliefs, and to live
as he believes he ought to live, consistent with the liberty of others
and with the common good."10
The Court is not oblivious to the view that penalties provided by law
endeavour to ensure compliance. Without set consequences for
either an active violation or mere inaction, a law tends to be
toothless and ineffectual. Nonetheless, when what is bartered for an
effective implementation of a law is a constitutionally-protected right
the Court firmly chooses to stamp its disapproval. The punishment
of a healthcare service provider, who fails and/or refuses to refer a
patient to another, or who declines to perform reproductive health
procedure on a patient because incompatible religious beliefs, is a
clear inhibition of a constitutional guarantee which the Court cannot
allow.
The Implementing Rules and Regulation (RH-IRR)
The last paragraph of Section 5.24 of the RH-IRR reads:

Provided, That skilled health professional such as provincial, city or
municipal health officers, chiefs of hospital, head nurses,
supervising midwives, among others, who by virtue of their office
are specifically charged with the duty to implement the provisions of
the RPRH Act and these Rules, cannot be considered as
conscientious objectors.
This is discriminatory and violative of the equal protection clause.
The conscientious objection clause should be equally protective of
the religious belief of public health officers. There is no perceptible
distinction why they should not be considered exempt from the
mandates of the law. The protection accorded to other
conscientious objectors should equally apply to all medical
practitioners without distinction whether they belong to the public or
private sector. After all, the freedom to believe is intrinsic in every
individual and the protective robe that guarantees its free exercise
is not taken off even if one acquires employment in the government.
It should be stressed that intellectual liberty occupies a place inferior
to none in the hierarchy of human values. The mind must be free to
think what it wills, whether in the secular or religious sphere, to give
expression to its beliefs by oral discourse or through the media and,
thus, seek other candid views in occasions or gatherings or in more
permanent aggrupation. Embraced in such concept then are
freedom of religion, freedom of speech, of the press, assembly and
petition, and freedom of association.229
The discriminatory provision is void not only because no such
exception is stated in the RH Law itself but also because it is
violative of the equal protection clause in the Constitution. Quoting
respondent Lagman, if there is any conflict between the RH-IRR and
the RH Law, the law must prevail.
Justice Mendoza:
I'll go to another point. The RH law .. .in your Comment- in-
Intervention on page 52, you mentioned RH Law is replete with
provisions in upholding the freedom of religion and respecting
religious convictions. Earlier, you affirmed this with qualifications.
Now, you have read, I presumed you have read the IRR-
Implementing Rules and Regulations of the RH Bill?
Congressman Lagman:
Yes, Your Honor, I have read but I have to admit, it's a long IRR and
I have not thoroughly dissected the nuances of the provisions.
Justice Mendoza:
I will read to you one provision. It's Section 5.24. This I cannot find
in the RH Law. But in the IRR it says: " .... skilled health
professionals such as provincial, city or municipal health officers,
chief of hospitals, head nurses, supervising midwives, among
others, who by virtue of their office are specifically charged with the
duty to implement the provisions of the RPRH Act and these Rules,
cannot be considered as conscientious objectors." Do you agree
with this?
Congressman Lagman:
I will have to go over again the provisions, Your Honor.
Justice Mendoza:
In other words, public health officers in contrast to the private
practitioners who can be conscientious objectors, skilled health
professionals cannot be considered conscientious objectors. Do you
agree with this? Is this not against the constitutional right to the
religious belief?
Congressman Lagman:
CONSTI LAW II I ACJUCO 471
Your Honor, if there is any conflict between the IRR and the law, the
law must prevail.230
Compelling State Interest
The foregoing discussion then begets the question on whether the
respondents, in defense of the subject provisions, were able to: 1]
demonstrate a more compelling state interest to restrain
conscientious objectors in their choice of services to render; and 2]
discharge the burden of proof that the obligatory character of the
law is the least intrusive means to achieve the objectives of the law.
Unfortunately, a deep scrutiny of the respondents' submissions
proved to be in vain. The OSG was curiously silent in the
establishment of a more compelling state interest that would
rationalize the curbing of a conscientious objector's right not to
adhere to an action contrary to his religious convictions. During the
oral arguments, the OSG maintained the same silence and evasion.
The Transcripts of the Stenographic Notes disclose the following:
Justice De Castro:
Let's go back to the duty of the conscientious objector to refer. ..
Senior State Solicitor Hilbay:
Yes, Justice.
Justice De Castro:
... which you are discussing awhile ago with Justice Abad. What is
the compelling State interest in imposing this duty to refer to a
conscientious objector which refuses to do so because of his
religious belief?
Senior State Solicitor Hilbay:
Ahh, Your Honor, ..
Justice De Castro:
What is the compelling State interest to impose this burden?
Senior State Solicitor Hilbay:
In the first place, Your Honor, I don't believe that the standard is a
compelling State interest, this is an ordinary health legislation
involving professionals. This is not a free speech matter or a pure
free exercise matter. This is a regulation by the State of the
relationship between medical doctors and their patients.231
Resultantly, the Court finds no compelling state interest which would
limit the free exercise clause of the conscientious objectors,
however few in number. Only the prevention of an immediate and
grave danger to the security and welfare of the community can
justify the infringement of religious freedom. If the government fails
to show the seriousness and immediacy of the threat, State intrusion
is constitutionally unacceptable.232
Freedom of religion means more than just the freedom to believe. It
also means the freedom to act or not to act according to what one
believes. And this freedom is violated when one is compelled to act
against one's belief or is prevented from acting according to one's
belief.233
Apparently, in these cases, there is no immediate danger to the life
or health of an individual in the perceived scenario of the subject
provisions. After all, a couple who plans the timing, number and
spacing of the birth of their children refers to a future event that is
contingent on whether or not the mother decides to adopt or use the

information, product, method or supply given to her or whether she
even decides to become pregnant at all. On the other hand, the
burden placed upon those who object to contraceptive use is
immediate and occurs the moment a patient seeks consultation on
reproductive health matters.
Moreover, granting that a compelling interest exists to justify the
infringement of the conscientious objector's religious freedom, the
respondents have failed to demonstrate "the gravest abuses,
endangering paramount interests" which could limit or override a
person's fundamental right to religious freedom. Also, the
respondents have not presented any government effort exerted to
show that the means it takes to achieve its legitimate state objective
is the least intrusive means.234 Other than the assertion that the
act of referring would only be momentary, considering that the act
of referral by a conscientious objector is the very action being
contested as violative of religious freedom, it behooves the
respondents to demonstrate that no other means can be undertaken
by the State to achieve its objective without violating the rights of
the conscientious objector. The health concerns of women may still
be addressed by other practitioners who may perform reproductive
health-related procedures with open willingness and motivation.
Suffice it to say, a person who is forced to perform an act in utter
reluctance deserves the protection of the Court as the last vanguard
of constitutional freedoms.
At any rate, there are other secular steps already taken by the
Legislature to ensure that the right to health is protected.
Considering other legislations as they stand now, R.A . No. 4 729 or
the Contraceptive Act, R.A. No. 6365 or "The Population Act of the
Philippines" and R.A. No. 9710, otherwise known as "The Magna
Carta of Women," amply cater to the needs of women in relation to
health services and programs. The pertinent provision of Magna
Carta on comprehensive health services and programs for women,
in fact, reads:
Section 17. Women's Right to Health. - (a) Comprehensive Health
Services. - The State shall, at all times, provide for a
comprehensive, culture-sensitive, and gender-responsive health
services and programs covering all stages of a woman's life cycle
and which addresses the major causes of women's mortality and
morbidity: Provided, That in the provision for comprehensive health
services, due respect shall be accorded to women's religious
convictions, the rights of the spouses to found a family in
accordance with their religious convictions, and the demands of
responsible parenthood, and the right of women to protection from
hazardous drugs, devices, interventions, and substances.
Access to the following services shall be ensured:
(1) Maternal care to include pre- and post-natal services to address
pregnancy and infant health and nutrition;
(2) Promotion of breastfeeding;
(3) Responsible, ethical, legal, safe, and effective methods of family
planning;
(4) Family and State collaboration in youth sexuality education and
health services without prejudice to the primary right and duty of
parents to educate their children;
(5) Prevention and management of reproductive tract infections,
including sexually transmitted diseases, HIV, and AIDS;
(6) Prevention and management of reproductive tract cancers like
breast and cervical cancers, and other gynecological conditions and
disorders;
(7) Prevention of abortion and management of pregnancy-related
complications;
CONSTI LAW II I ACJUCO 472
(8) In cases of violence against women and children, women and
children victims and survivors shall be provided with comprehensive
health services that include psychosocial, therapeutic, medical, and
legal interventions and assistance towards healing, recovery, and
empowerment;
(9) Prevention and management of infertility and sexual dysfunction
pursuant to ethical norms and medical standards;
(10) Care of the elderly women beyond their child-bearing years;
and
(11) Management, treatment, and intervention of mental health
problems of women and girls. In addition, healthy lifestyle activities
are encouraged and promoted through programs and projects as
strategies in the prevention of diseases.
(b) Comprehensive Health Information and Education. - The State
shall provide women in all sectors with appropriate, timely,
complete, and accurate information and education on all the above-
stated aspects of women's health in government education and
training programs, with due regard to the following:
(1) The natural and primary right and duty of parents in the rearing
of the youth and the development of moral character and the right
of children to be brought up in an atmosphere of morality and
rectitude for the enrichment and strengthening of character;
(2) The formation of a person's sexuality that affirms human dignity;
and
(3) Ethical, legal, safe, and effective family planning methods
including fertility awareness.
As an afterthought, Asst. Solicitor General Hilbay eventually replied
that the compelling state interest was "Fifteen maternal deaths per
day, hundreds of thousands of unintended pregnancies, lives
changed, x x x."235 He, however, failed to substantiate this point by
concrete facts and figures from reputable sources.
The undisputed fact, however, is that the World Health Organization
reported that the Filipino maternal mortality rate dropped to 48
percent from 1990 to 2008, 236 although there was still no RH Law
at that time. Despite such revelation, the proponents still insist that
such number of maternal deaths constitute a compelling state
interest.
Granting that there are still deficiencies and flaws in the delivery of
social healthcare programs for Filipino women, they could not be
solved by a measure that puts an unwarrantable stranglehold on
religious beliefs in exchange for blind conformity.
Exception: Life Threatening Cases
All this notwithstanding, the Court properly recognizes a valid
exception set forth in the law. While generally healthcare service
providers cannot be forced to render reproductive health care
procedures if doing it would contravene their religious beliefs, an
exception must be made in life-threatening cases that require the
performance of emergency procedures. In these situations, the right
to life of the mother should be given preference, considering that a
referral by a medical practitioner would amount to a denial of
service, resulting to unnecessarily placing the life of a mother in
grave danger. Thus, during the oral arguments, Atty. Liban,
representing CFC, manifested: "the forced referral clause that we
are objecting on grounds of violation of freedom of religion does not
contemplate an emergency."237
In a conflict situation between the life of the mother and the life of a
child, the doctor is morally obliged always to try to save both lives.

If, however, it is impossible, the resulting death to one should not be
deliberate. Atty. Noche explained:
Principle of Double-Effect. - May we please remind the principal
author of the RH Bill in the House of Representatives of the principle
of double-effect wherein intentional harm on the life of either the
mother of the child is never justified to bring about a "good" effect.
In a conflict situation between the life of the child and the life of the
mother, the doctor is morally obliged always to try to save both lives.
However, he can act in favor of one (not necessarily the mother)
when it is medically impossible to save both, provided that no direct
harm is intended to the other. If the above principles are observed,
the loss of the child's life or the mother's life is not intentional and,
therefore, unavoidable. Hence, the doctor would not be guilty of
abortion or murder. The mother is never pitted against the child
because both their lives are equally valuable.238
Accordingly, if it is necessary to save the life of a mother, procedures
endangering the life of the child may be resorted to even if is against
the religious sentiments of the medical practitioner. As quoted
above, whatever burden imposed upon a medical practitioner in this
case would have been more than justified considering the life he
would be able to save.
Family Planning Seminars
Anent the requirement imposed under Section 15239 as a condition
for the issuance of a marriage license, the Court finds the same to
be a reasonable exercise of police power by the government. A
cursory reading of the assailed provision bares that the religious
freedom of the petitioners is not at all violated. All the law requires
is for would-be spouses to attend a seminar on parenthood, family
planning breastfeeding and infant nutrition. It does not even
mandate the type of family planning methods to be included in the
seminar, whether they be natural or artificial. As correctly noted by
the OSG, those who receive any information during their attendance
in the required seminars are not compelled to accept the information
given to them, are completely free to reject the information they find
unacceptable, and retain the freedom to decide on matters of family
life without the intervention of the State.
4-The Family and the Right to Privacy
Petitioner CFC assails the RH Law because Section 23(a) (2) (i)
thereof violates the provisions of the Constitution by intruding into
marital privacy and autonomy. It argues that it cultivates disunity and
fosters animosity in the family rather than promote its solidarity and
total development.240
The Court cannot but agree.
The 1987 Constitution is replete with provisions strengthening the
family as it is the basic social institution. In fact, one article, Article
XV, is devoted entirely to the family.
ARTICLE XV
THE FAMILY
Section 1. The State recognizes the Filipino family as the foundation
of the nation. Accordingly, it shall strengthen its solidarity and
actively promote its total development.
Section 2. Marriage, as an inviolable social institution, is the
foundation of the family and shall be protected by the State.
Section 3. The State shall defend:
The right of spouses to found a family in accordance with their
religious convictions and the demands of responsible parenthood;
CONSTI LAW II I ACJUCO 473
The right of children to assistance, including proper care and
nutrition, and special protection from all forms of neglect, abuse,
cruelty, exploitation and other conditions prejudicial to their
development;
The right of the family to a family living wage and income; and
The right of families or family assoc1at1ons to participate in the
planning and implementation of policies and programs that affect
them.
In this case, the RH Law, in its not-so-hidden desire to control
population growth, contains provisions which tend to wreck the
family as a solid social institution. It bars the husband and/or the
father from participating in the decision making process regarding
their common future progeny. It likewise deprives the parents of
their authority over their minor daughter simply because she is
already a parent or had suffered a miscarriage.
The Family and Spousal Consent
Section 23(a) (2) (i) of the RH Law states:
The following acts are prohibited:
(a) Any health care service provider, whether public or private, who
shall: ...
(2) refuse to perform legal and medically-safe reproductive health
procedures on any person of legal age on the ground of lack of
consent or authorization of the following persons in the following
instances:
(i) Spousal consent in case of married persons: provided, That in
case of disagreement, the decision of the one undergoing the
procedures shall prevail. [Emphasis supplied]
The above provision refers to reproductive health procedures like
tubal litigation and vasectomy which, by their very nature, should
require mutual consent and decision between the husband and the
wife as they affect issues intimately related to the founding of a
family. Section 3, Art. XV of the Constitution espouses that the State
shall defend the "right of the spouses to found a family." One person
cannot found a family. The right, therefore, is shared by both
spouses. In the same Section 3, their right "to participate in the
planning and implementation of policies and programs that affect
them " is equally recognized.
The RH Law cannot be allowed to infringe upon this mutual
decision-making. By giving absolute authority to the spouse who
would undergo a procedure, and barring the other spouse from
participating in the decision would drive a wedge between the
husband and wife, possibly result in bitter animosity, and endanger
the marriage and the family, all for the sake of reducing the
population. This would be a marked departure from the policy of the
State to protect marriage as an inviolable social institution.241
Decision-making involving a reproductive health procedure is a
private matter which belongs to the couple, not just one of them. Any
decision they would reach would affect their future as a family
because the size of the family or the number of their children
significantly matters. The decision whether or not to undergo the
procedure belongs exclusively to, and shared by, both spouses as
one cohesive unit as they chart their own destiny. It is a
constitutionally guaranteed private right. Unless it prejudices the
State, which has not shown any compelling interest, the State
should see to it that they chart their destiny together as one family.
As highlighted by Justice Leonardo-De Castro, Section 19( c) of
R.A. No. 9710, otherwise known as the "Magna Carta for Women,"
provides that women shall have equal rights in all matters relating

to marriage and family relations, including the joint decision on the
number and spacing of their children. Indeed, responsible
parenthood, as Section 3(v) of the RH Law states, is a shared
responsibility between parents. Section 23(a)(2)(i) of the RH Law
should not be allowed to betray the constitutional mandate to protect
and strengthen the family by giving to only one spouse the absolute
authority to decide whether to undergo reproductive health
procedure.242
The right to chart their own destiny together falls within the protected
zone of marital privacy and such state intervention would encroach
into the zones of spousal privacy guaranteed by the Constitution. In
our jurisdiction, the right to privacy was first recognized in Marje v.
Mutuc,243 where the Court, speaking through Chief Justice
Fernando, held that "the right to privacy as such is accorded
recognition independently of its identification with liberty; in itself, it
is fully deserving of constitutional protection."244 Marje adopted the
ruling of the US Supreme Court in Griswold v. Connecticut,245
where Justice William O. Douglas wrote:
We deal with a right of privacy older than the Bill of Rights -older
than our political parties, older than our school system. Marriage is
a coming together for better or for worse, hopefully enduring, and
intimate to the degree of being sacred. It is an association that
promotes a way of life, not causes; a harmony in living, not political
faiths; a bilateral loyalty, not commercial or social projects. Yet it is
an association for as noble a purpose as any involved in our prior
decisions.
Ironically, Griswold invalidated a Connecticut statute which made
the use of contraceptives a criminal offense on the ground of its
amounting to an unconstitutional invasion of the right to privacy of
married persons. Nevertheless, it recognized the zone of privacy
rightfully enjoyed by couples. Justice Douglas in Grisworld wrote
that "specific guarantees in the Bill of Rights have penumbras,
formed by emanations from those guarantees that help give them
life and substance. Various guarantees create zones of privacy."246
At any rate, in case of conflict between the couple, the courts will
decide.
The Family and Parental Consent
Equally deplorable is the debarment of parental consent in cases
where the minor, who will be undergoing a procedure, is already a
parent or has had a miscarriage. Section 7 of the RH law provides:
SEC. 7. Access to Family Planning. – x x x.
No person shall be denied information and access to family planning
services, whether natural or artificial: Provided, That minors will not
be allowed access to modern methods of family planning without
written consent from their parents or guardian/s except when the
minor is already a parent or has had a miscarriage.
There can be no other interpretation of this provision except that
when a minor is already a parent or has had a miscarriage, the
parents are excluded from the decision making process of the minor
with regard to family planning. Even if she is not yet emancipated,
the parental authority is already cut off just because there is a need
to tame population growth.
It is precisely in such situations when a minor parent needs the
comfort, care, advice, and guidance of her own parents. The State
cannot replace her natural mother and father when it comes to
providing her needs and comfort. To say that their consent is no
longer relevant is clearly anti-family. It does not promote unity in the
family. It is an affront to the constitutional mandate to protect and
strengthen the family as an inviolable social institution.
CONSTI LAW II I ACJUCO 474
More alarmingly, it disregards and disobeys the constitutional
mandate that "the natural and primary right and duty of parents in
the rearing of the youth for civic efficiency and the development of
moral character shall receive the support of the Government."247 In
this regard, Commissioner Bernas wrote:
The 1987 provision has added the adjective "primary" to modify the
right of parents. It imports the assertion that the right of parents is
superior to that of the State.248 [Emphases supplied]
To insist on a rule that interferes with the right of parents to exercise
parental control over their minor-child or the right of the spouses to
mutually decide on matters which very well affect the very purpose
of marriage, that is, the establishment of conjugal and family life,
would result in the violation of one's privacy with respect to his
family. It would be dismissive of the unique and strongly-held
Filipino tradition of maintaining close family ties and violative of the
recognition that the State affords couples entering into the special
contract of marriage to as one unit in forming the foundation of the
family and society.
The State cannot, without a compelling state interest, take over the
role of parents in the care and custody of a minor child, whether or
not the latter is already a parent or has had a miscarriage. Only a
compelling state interest can justify a state substitution of their
parental authority.
First Exception: Access to Information
Whether with respect to the minor referred to under the exception
provided in the second paragraph of Section 7 or with respect to the
consenting spouse under Section 23(a)(2)(i), a distinction must be
made. There must be a differentiation between access to
information about family planning services, on one hand, and
access to the reproductive health procedures and modern family
planning methods themselves, on the other. Insofar as access to
information is concerned, the Court finds no constitutional objection
to the acquisition of information by the minor referred to under the
exception in the second paragraph of Section 7 that would enable
her to take proper care of her own body and that of her unborn child.
After all, Section 12, Article II of the Constitution mandates the State
to protect both the life of the mother as that of the unborn child.
Considering that information to enable a person to make informed
decisions is essential in the protection and maintenance of ones'
health, access to such information with respect to reproductive
health must be allowed. In this situation, the fear that parents might
be deprived of their parental control is unfounded because they are
not prohibited to exercise parental guidance and control over their
minor child and assist her in deciding whether to accept or reject the
information received.
Second Exception: Life Threatening Cases
As in the case of the conscientious objector, an exception must be
made in life-threatening cases that require the performance of
emergency procedures. In such cases, the life of the minor who has
already suffered a miscarriage and that of the spouse should not be
put at grave risk simply for lack of consent. It should be emphasized
that no person should be denied the appropriate medical care
urgently needed to preserve the primordial right, that is, the right to
life.
In this connection, the second sentence of Section 23(a)(2)(ii)249
should be struck down. By effectively limiting the requirement of
parental consent to "only in elective surgical procedures," it denies
the parents their right of parental authority in cases where what is
involved are "non-surgical procedures." Save for the two exceptions
discussed above, and in the case of an abused child as provided in
the first sentence of Section 23(a)(2)(ii), the parents should not be
deprived of their constitutional right of parental authority. To deny

them of this right would be an affront to the constitutional mandate
to protect and strengthen the family.
5 - Academic Freedom
It is asserted that Section 14 of the RH Law, in relation to Section
24 thereof, mandating the teaching of Age-and Development-
Appropriate Reproductive Health Education under threat of fine
and/or imprisonment violates the principle of academic freedom .
According to the petitioners, these provisions effectively force
educational institutions to teach reproductive health education even
if they believe that the same is not suitable to be taught to their
students.250 Citing various studies conducted in the United States
and statistical data gathered in the country, the petitioners aver that
the prevalence of contraceptives has led to an increase of out-of-
wedlock births; divorce and breakdown of families; the acceptance
of abortion and euthanasia; the "feminization of poverty"; the aging
of society; and promotion of promiscuity among the youth.251
At this point, suffice it to state that any attack on the validity of
Section 14 of the RH Law is premature because the Department of
Education, Culture and Sports has yet to formulate a curriculum on
age-appropriate reproductive health education. One can only
speculate on the content, manner and medium of instruction that will
be used to educate the adolescents and whether they will contradict
the religious beliefs of the petitioners and validate their
apprehensions. Thus, considering the premature nature of this
particular issue, the Court declines to rule on its constitutionality or
validity.
At any rate, Section 12, Article II of the 1987 Constitution provides
that the natural and primary right and duty of parents in the rearing
of the youth for civic efficiency and development of moral character
shall receive the support of the Government. Like the 1973
Constitution and the 1935 Constitution, the 1987 Constitution
affirms the State recognition of the invaluable role of parents in
preparing the youth to become productive members of society.
Notably, it places more importance on the role of parents in the
development of their children by recognizing that said role shall be
"primary," that is, that the right of parents in upbringing the youth is
superior to that of the State.252
It is also the inherent right of the State to act as parens patriae to
aid parents in the moral development of the youth. Indeed, the
Constitution makes mention of the importance of developing the
youth and their important role in nation building.253 Considering
that Section 14 provides not only for the age-appropriate-
reproductive health education, but also for values formation; the
development of knowledge and skills in self-protection against
discrimination; sexual abuse and violence against women and
children and other forms of gender based violence and teen
pregnancy; physical, social and emotional changes in adolescents;
women's rights and children's rights; responsible teenage behavior;
gender and development; and responsible parenthood, and that
Rule 10, Section 11.01 of the RH-IRR and Section 4(t) of the RH
Law itself provides for the teaching of responsible teenage behavior,
gender sensitivity and physical and emotional changes among
adolescents - the Court finds that the legal mandate provided under
the assailed provision supplements, rather than supplants, the rights
and duties of the parents in the moral development of their children.
Furthermore, as Section 14 also mandates that the mandatory
reproductive health education program shall be developed in
conjunction with parent-teacher-community associations, school
officials and other interest groups, it could very well be said that it
will be in line with the religious beliefs of the petitioners. By imposing
such a condition, it becomes apparent that the petitioners'
contention that Section 14 violates Article XV, Section 3(1) of the
Constitution is without merit.254
CONSTI LAW II I ACJUCO 475
While the Court notes the possibility that educators might raise their
objection to their participation in the reproductive health education
program provided under Section 14 of the RH Law on the ground
that the same violates their religious beliefs, the Court reserves its
judgment should an actual case be filed before it.
6 - Due Process
The petitioners contend that the RH Law suffers from vagueness
and, thus violates the due process clause of the Constitution.
According to them, Section 23 (a)(l) mentions a "private health
service provider" among those who may be held punishable but
does not define who is a "private health care service provider." They
argue that confusion further results since Section 7 only makes
reference to a "private health care institution."
The petitioners also point out that Section 7 of the assailed
legislation exempts hospitals operated by religious groups from
rendering reproductive health service and modern family planning
methods. It is unclear, however, if these institutions are also exempt
from giving reproductive health information under Section 23(a)(l),
or from rendering reproductive health procedures under Section
23(a)(2).
Finally, it is averred that the RH Law punishes the withholding,
restricting and providing of incorrect information, but at the same
time fails to define "incorrect information."
The arguments fail to persuade.
A statute or act suffers from the defect of vagueness when it lacks
comprehensible standards that men of common intelligence must
necessarily guess its meaning and differ as to its application. It is
repugnant to the Constitution in two respects: (1) it violates due
process for failure to accord persons, especially the parties targeted
by it, fair notice of the conduct to avoid; and (2) it leaves law
enforcers unbridled discretion in carrying out its provisions and
becomes an arbitrary flexing of the Government muscle.255
Moreover, in determining whether the words used in a statute are
vague, words must not only be taken in accordance with their plain
meaning alone, but also in relation to other parts of the statute. It is
a rule that every part of the statute must be interpreted with
reference to the context, that is, every part of it must be construed
together with the other parts and kept subservient to the general
intent of the whole enactment.256
As correctly noted by the OSG, in determining the definition of
"private health care service provider," reference must be made to
Section 4(n) of the RH Law which defines a "public health service
provider," viz:
(n) Public health care service provider refers to: (1) public health
care institution, which is duly licensed and accredited and devoted
primarily to the maintenance and operation of facilities for health
promotion, disease prevention, diagnosis, treatment and care of
individuals suffering from illness, disease, injury, disability or
deformity, or in need of obstetrical or other medical and nursing
care; (2) public health care professional, who is a doctor of
medicine, a nurse or a midvvife; (3) public health worker engaged in
the delivery of health care services; or (4) barangay health worker
who has undergone training programs under any accredited
government and NGO and who voluntarily renders primarily health
care services in the community after having been accredited to
function as such by the local health board in accordance with the
guidelines promulgated by the Department of Health (DOH) .
Further, the use of the term "private health care institution" in
Section 7 of the law, instead of "private health care service
provider," should not be a cause of confusion for the obvious reason
that they are used synonymously.

The Court need not belabor the issue of whether the right to be
exempt from being obligated to render reproductive health service
and modem family planning methods, includes exemption from
being obligated to give reproductive health information and to render
reproductive health procedures. Clearly, subject to the qualifications
and exemptions earlier discussed, the right to be exempt from being
obligated to render reproductive health service and modem family
planning methods, necessarily includes exemption from being
obligated to give reproductive health information and to render
reproductive health procedures. The terms "service" and "methods"
are broad enough to include the providing of information and the
rendering of medical procedures.
The same can be said with respect to the contention that the RH
Law punishes health care service providers who intentionally
withhold, restrict and provide incorrect information regarding
reproductive health programs and services. For ready reference, the
assailed provision is hereby quoted as follows:
SEC. 23. Prohibited Acts. - The following acts are prohibited:
(a) Any health care service provider, whether public or private, who
shall:
(1) Knowingly withhold information or restrict the dissemination
thereof, and/ or intentionally provide incorrect information regarding
programs and services on reproductive health including the right to
informed choice and access to a full range of legal, medically-safe,
non-abortifacient and effective family planning methods;
From its plain meaning, the word "incorrect" here denotes failing to
agree with a copy or model or with established rules; inaccurate,
faulty; failing to agree with the requirements of duty, morality or
propriety; and failing to coincide with the truth. 257 On the other
hand, the word "knowingly" means with awareness or
deliberateness that is intentional.258 Used together in relation to
Section 23(a)(l), they connote a sense of malice and ill motive to
mislead or misrepresent the public as to the nature and effect of
programs and services on reproductive health. Public health and
safety demand that health care service providers give their honest
and correct medical information in accordance with what is
acceptable in medical practice. While health care service providers
are not barred from expressing their own personal opinions
regarding the programs and services on reproductive health, their
right must be tempered with the need to provide public health and
safety. The public deserves no less.
7-Egual Protection
The petitioners also claim that the RH Law violates the equal
protection clause under the Constitution as it discriminates against
the poor because it makes them the primary target of the
government program that promotes contraceptive use . They argue
that, rather than promoting reproductive health among the poor, the
RH Law introduces contraceptives that would effectively reduce the
number of the poor. Their bases are the various provisions in the
RH Law dealing with the poor, especially those mentioned in the
guiding principles259 and definition of terms260 of the law.
They add that the exclusion of private educational institutions from
the mandatory reproductive health education program imposed by
the RH Law renders it unconstitutional.
In Biraogo v. Philippine Truth Commission,261 the Court had the
occasion to expound on the concept of equal protection. Thus:
One of the basic principles on which this government was founded
is that of the equality of right which is embodied in Section 1, Article
III of the 1987 Constitution. The equal protection of the laws is
embraced in the concept of due process, as every unfair
discrimination offends the requirements of justice and fair play. It
CONSTI LAW II I ACJUCO 476
has been embodied in a separate clause, however, to provide for a
more specific guaranty against any form of undue favoritism or
hostility from the government. Arbitrariness in general may be
challenged on the basis of the due process clause. But if the
particular act assailed partakes of an unwarranted partiality or
prejudice, the sharper weapon to cut it down is the equal protection
clause.
"According to a long line of decisions, equal protection simply
requires that all persons or things similarly situated should be
treated alike, both as to rights conferred and responsibilities
imposed." It "requires public bodies and inst itutions to treat similarly
situated individuals in a similar manner." "The purpose of the equal
protection clause is to secure every person within a state's
jurisdiction against intentional and arbitrary discrimination, whether
occasioned by the express terms of a statue or by its improper
execution through the state's duly constituted authorities." "In other
words, the concept of equal justice under the law requires the state
to govern impartially, and it may not draw distinctions between
individuals solely on differences that are irrelevant to a legitimate
governmental objective."
The equal protection clause is aimed at all official state actions, not
just those of the legislature. Its inhibitions cover all the departments
of the government including the political and executive departments,
and extend to all actions of a state denying equal protection of the
laws, through whatever agency or whatever guise is taken.
It, however, does not require the universal application of the laws to
all persons or things without distinction. What it simply requires is
equality among equals as determined according to a valid
classification. Indeed, the equal protection clause permits
classification. Such classification, however, to be valid must pass
the test of reasonableness. The test has four requisites: (1) The
classification rests on substantial distinctions; (2) It is germane to
the purpose of the law; (3) It is not limited to existing conditions only;
and (4) It applies equally to all members of the same class.
"Superficial differences do not make for a valid classification."
For a classification to meet the requirements of constitutionality, it
must include or embrace all persons who naturally belong to the
class. "The classification will be regarded as invalid if all the
members of the class are not similarly treated, both as to rights
conferred and obligations imposed. It is not necessary that the
classification be made with absolute symmetry, in the sense that the
members of the class should possess the same characteristics in
equal degree. Substantial similarity will suffice; and as long as this
is achieved, all those covered by the classification are to be treated
equally. The mere fact that an individual belonging to a class differs
from the other members, as long as that class is substantially
distinguishable from all others, does not justify the non-application
of the law to him."
The classification must not be based on existing circumstances
only, or so constituted as to preclude addition to the number
included in the class. It must be of such a nature as to embrace all
those who may thereafter be in similar circumstances and
conditions. It must not leave out or "underinclude" those that should
otherwise fall into a certain classification. [Emphases supplied;
citations excluded]
To provide that the poor are to be given priority in the government's
reproductive health care program is not a violation of the equal
protection clause. In fact, it is pursuant to Section 11, Article XIII of
the Constitution which recognizes the distinct necessity to address
the needs of the underprivileged by providing that they be given
priority in addressing the health development of the people. Thus:
Section 11. The State shall adopt an integrated and comprehensive
approach to health development which shall endeavor to make
essential goods, health and other social services available to all the

people at affordable cost. There shall be priority for the needs of the
underprivileged, sick, elderly, disabled, women, and children. The
State shall endeavor to provide free medical care to paupers.
It should be noted that Section 7 of the RH Law prioritizes poor and
marginalized couples who are suffering from fertility issues and
desire to have children. There is, therefore, no merit to the
contention that the RH Law only seeks to target the poor to reduce
their number. While the RH Law admits the use of contraceptives, it
does not, as elucidated above, sanction abortion. As Section 3(1)
explains, the "promotion and/or stabilization of the population
growth rate is incidental to the advancement of reproductive health."
Moreover, the RH Law does not prescribe the number of children a
couple may have and does not impose conditions upon couples who
intend to have children. While the petitioners surmise that the
assailed law seeks to charge couples with the duty to have children
only if they would raise them in a truly humane way, a deeper look
into its provisions shows that what the law seeks to do is to simply
provide priority to the poor in the implementation of government
programs to promote basic reproductive health care.
With respect to the exclusion of private educational institutions from
the mandatory reproductive health education program under
Section 14, suffice it to state that the mere fact that the children of
those who are less fortunate attend public educational institutions
does not amount to substantial distinction sufficient to annul the
assailed provision. On the other hand, substantial distinction rests
between public educational institutions and private educational
institutions, particularly because there is a need to recognize the
academic freedom of private educational institutions especially with
respect to religious instruction and to consider their sensitivity
towards the teaching of reproductive health education.
8-Involuntary Servitude
The petitioners also aver that the RH Law is constitutionally infirm
as it violates the constitutional prohibition against involuntary
servitude. They posit that Section 17 of the assailed legislation
requiring private and non-government health care service providers
to render forty-eight (48) hours of pro bono reproductive health
services, actually amounts to involuntary servitude because it
requires medical practitioners to perform acts against their will.262
The OSG counters that the rendition of pro bono services
envisioned in Section 17 can hardly be considered as forced labor
analogous to slavery, as reproductive health care service providers
have the discretion as to the manner and time of giving pro bono
services. Moreover, the OSG points out that the imposition is within
the powers of the government, the accreditation of medical
practitioners with PhilHealth being a privilege and not a right.
The point of the OSG is well-taken.
It should first be mentioned that the practice of medicine is
undeniably imbued with public interest that it is both a power and a
duty of the State to control and regulate it in order to protect and
promote the public welfare. Like the legal profession, the practice of
medicine is not a right but a privileged burdened with conditions as
it directly involves the very lives of the people. A fortiori, this power
includes the power of Congress263 to prescribe the qualifications
for the practice of professions or trades which affect the public
welfare, the public health, the public morals, and the public safety;
and to regulate or control such professions or trades, even to the
point of revoking such right altogether.264
Moreover, as some petitioners put it, the notion of involuntary
servitude connotes the presence of force, threats, intimidation or
other similar means of coercion and compulsion.265 A reading of
the assailed provision, however, reveals that it only encourages
private and non- government reproductive healthcare service
CONSTI LAW II I ACJUCO 477
providers to render pro bono service. Other than non-accreditation
with PhilHealth, no penalty is imposed should they choose to do
otherwise. Private and non-government reproductive healthcare
service providers also enjoy the liberty to choose which kind of
health service they wish to provide, when, where and how to provide
it or whether to provide it all. Clearly, therefore, no compulsion, force
or threat is made upon them to render pro bono service against their
will. While the rendering of such service was made a prerequisite to
accreditation with PhilHealth, the Court does not consider the same
to be an unreasonable burden, but rather, a necessary incentive
imposed by Congress in the furtherance of a perceived legitimate
state interest.
Consistent with what the Court had earlier discussed, however, it
should be emphasized that conscientious objectors are exempt from
this provision as long as their religious beliefs and convictions do
not allow them to render reproductive health service, pro bona or
otherwise.
9-Delegation of Authority to the FDA
The petitioners likewise question the delegation by Congress to the
FDA of the power to determine whether or not a supply or product
is to be included in the Essential Drugs List (EDL).266
The Court finds nothing wrong with the delegation. The FDA does
not only have the power but also the competency to evaluate,
register and cover health services and methods. It is the only
government entity empowered to render such services and highly
proficient to do so. It should be understood that health services and
methods fall under the gamut of terms that are associated with what
is ordinarily understood as "health products."
In this connection, Section 4 of R.A. No. 3 720, as amended by R.A.
No. 9711 reads:
SEC. 4. To carry out the provisions of this Act, there is hereby
created an office to be called the Food and Drug Administration
(FDA) in the Department of Health (DOH). Said Administration shall
be under the Office of the Secretary and shall have the following
functions, powers and duties:
"(a) To administer the effective implementation of this Act and of the
rules and regulations issued pursuant to the same;
"(b) To assume primary jurisdiction in the collection of samples of
health products;
"(c) To analyze and inspect health products in connection with the
implementation of this Act;
"(d) To establish analytical data to serve as basis for the preparation
of health products standards, and to recommend standards of
identity, purity, safety, efficacy, quality and fill of container;
"(e) To issue certificates of compliance with technical requirements
to serve as basis for the issuance of appropriate authorization and
spot-check for compliance with regulations regarding operation of
manufacturers, importers, exporters, distributors, wholesalers, drug
outlets, and other establishments and facilities of health products,
as determined by the FDA;
"x x x
"(h) To conduct appropriate tests on all applicable health products
prior to the issuance of appropriate authorizations to ensure safety,
efficacy, purity, and quality;
"(i) To require all manufacturers, traders, distributors, importers,
exporters, wholesalers, retailers, consumers, and non-consumer
users of health products to report to the FDA any incident that

reasonably indicates that said product has caused or contributed to
the death, serious illness or serious injury to a consumer, a patient,
or any person;
"(j) To issue cease and desist orders motu propio or upon verified
complaint for health products, whether or not registered with the
FDA Provided, That for registered health products, the cease and
desist order is valid for thirty (30) days and may be extended for
sixty ( 60) days only after due process has been observed;
"(k) After due process, to order the ban, recall, and/or withdrawal of
any health product found to have caused death, serious illness or
serious injury to a consumer or patient, or is found to be imminently
injurious, unsafe, dangerous, or grossly deceptive, and to require all
concerned to implement the risk management plan which is a
requirement for the issuance of the appropriate authorization;
x x x.
As can be gleaned from the above, the functions, powers and duties
of the FDA are specific to enable the agency to carry out the
mandates of the law. Being the country's premiere and sole agency
that ensures the safety of food and medicines available to the public,
the FDA was equipped with the necessary powers and functions to
make it effective. Pursuant to the principle of necessary implication,
the mandate by Congress to the FDA to ensure public health and
safety by permitting only food and medicines that are safe includes
"service" and "methods." From the declared policy of the RH Law, it
is clear that Congress intended that the public be given only those
medicines that are proven medically safe, legal, non-abortifacient,
and effective in accordance with scientific and evidence-based
medical research standards. The philosophy behind the permitted
delegation was explained in Echagaray v. Secretary of Justice,267
as follows:
The reason is the increasing complexity of the task of the
government and the growing inability of the legislature to cope
directly with the many problems demanding its attention. The growth
of society has ramified its activities and created peculiar and
sophisticated problems that the legislature cannot be expected
reasonably to comprehend. Specialization even in legislation has
become necessary. To many of the problems attendant upon
present day undertakings, the legislature may not have the
competence, let alone the interest and the time, to provide the
required direct and efficacious, not to say specific solutions.
10- Autonomy of Local Governments and the Autonomous Region
of Muslim Mindanao (ARMM)
As for the autonomy of local governments, the petitioners claim that
the RH Law infringes upon the powers devolved to local government
units (LGUs) under Section 17 of the Local Government Code. Said
Section 17 vested upon the LGUs the duties and functions
pertaining to the delivery of basic services and facilities, as follows:
SECTION 17. Basic Services and Facilities. –
(a) Local government units shall endeavor to be self-reliant and shall
continue exercising the powers and discharging the duties and
functions currently vested upon them. They shall also discharge the
functions and responsibilities of national agencies and offices
devolved to them pursuant to this Code. Local government units
shall likewise exercise such other powers and discharge such other
functions and responsibilities as are necessary, appropriate, or
incidental to efficient and effective provision of the basic services
and facilities enumerated herein.
(b) Such basic services and facilities include, but are not limited to,
x x x.
CONSTI LAW II I ACJUCO 478
While the aforementioned provision charges the LGUs to take on
the functions and responsibilities that have already been devolved
upon them from the national agencies on the aspect of providing for
basic services and facilities in their respective jurisdictions,
paragraph (c) of the same provision provides a categorical
exception of cases involving nationally-funded projects, facilities,
programs and services.268 Thus:
(c) Notwithstanding the provisions of subsection (b) hereof, public
works and infrastructure projects and other facilities, programs and
services funded by the National Government under the annual
General Appropriations Act, other special laws, pertinent executive
orders, and those wholly or partially funded from foreign sources,
are not covered under this Section, except in those cases where the
local government unit concerned is duly designated as the
implementing agency for such projects, facilities, programs and
services. [Emphases supplied]
The essence of this express reservation of power by the national
government is that, unless an LGU is particularly designated as the
implementing agency, it has no power over a program for which
funding has been provided by the national government under the
annual general appropriations act, even if the program involves the
delivery of basic services within the jurisdiction of the LGU.269 A
complete relinquishment of central government powers on the
matter of providing basic facilities and services cannot be implied as
the Local Government Code itself weighs against it.270
In this case, a reading of the RH Law clearly shows that whether it
pertains to the establishment of health care facilities,271 the hiring
of skilled health professionals,272 or the training of barangay health
workers,273 it will be the national government that will provide for
the funding of its implementation. Local autonomy is not absolute.
The national government still has the say when it comes to national
priority programs which the local government is called upon to
implement like the RH Law.
Moreover, from the use of the word "endeavor," the LG Us are
merely encouraged to provide these services. There is nothing in
the wording of the law which can be construed as making the
availability of these services mandatory for the LGUs. For said
reason, it cannot be said that the RH Law amounts to an undue
encroachment by the national government upon the autonomy
enjoyed by the local governments.
The ARMM
The fact that the RH Law does not intrude in the autonomy of local
governments can be equally applied to the ARMM. The RH Law
does not infringe upon its autonomy. Moreover, Article III, Sections
6, 10 and 11 of R.A. No. 9054, or the organic act of the ARMM,
alluded to by petitioner Tillah to justify the exemption of the
operation of the RH Law in the autonomous region, refer to the
policy statements for the guidance of the regional government.
These provisions relied upon by the petitioners simply delineate the
powers that may be exercised by the regional government, which
can, in no manner, be characterized as an abdication by the State
of its power to enact legislation that would benefit the general
welfare. After all, despite the veritable autonomy granted the
ARMM, the Constitution and the supporting jurisprudence, as they
now stand, reject the notion of imperium et imperio in the
relationship between the national and the regional governments.274
Except for the express and implied limitations imposed on it by the
Constitution, Congress cannot be restricted to exercise its inherent
and plenary power to legislate on all subjects which extends to all
matters of general concern or common interest.275
11 - Natural Law
With respect to the argument that the RH Law violates natural
law,276 suffice it to say that the Court does not duly recognize it as

a legal basis for upholding or invalidating a law. Our only guidepost
is the Constitution. While every law enacted by man emanated from
what is perceived as natural law, the Court is not obliged to see if a
statute, executive issuance or ordinance is in conformity to it. To
begin with, it is not enacted by an acceptable legitimate body.
Moreover, natural laws are mere thoughts and notions on inherent
rights espoused by theorists, philosophers and theologists. The
jurists of the philosophical school are interested in the law as an
abstraction, rather than in the actual law of the past or present.277
Unless, a natural right has been transformed into a written law, it
cannot serve as a basis to strike down a law. In Republic v.
Sandiganbayan,278 the very case cited by the petitioners, it was
explained that the Court is not duty-bound to examine every law or
action and whether it conforms with both the Constitution and
natural law. Rather, natural law is to be used sparingly only in the
most peculiar of circumstances involving rights inherent to man
where no law is applicable.279
At any rate, as earlier expounded, the RH Law does not sanction
the taking away of life. It does not allow abortion in any shape or
form. It only seeks to enhance the population control program of the
government by providing information and making non-abortifacient
contraceptives more readily available to the public, especially to the
poor.
Facts and Fallacies
and the Wisdom of the Law
In general, the Court does not find the RH Law as unconstitutional
insofar as it seeks to provide access to medically-safe, non-
abortifacient, effective, legal, affordable, and quality reproductive
healthcare services, methods, devices, and supplies. As earlier
pointed out, however, the religious freedom of some sectors of
society cannot be trampled upon in pursuit of what the law hopes to
achieve. After all, the Constitutional safeguard to religious freedom
is a recognition that man stands accountable to an authority higher
than the State.
In conformity with the principle of separation of Church and State,
one religious group cannot be allowed to impose its beliefs on the
rest of the society. Philippine modem society leaves enough room
for diversity and pluralism. As such, everyone should be tolerant and
open-minded so that peace and harmony may continue to reign as
we exist alongside each other.
As healthful as the intention of the RH Law may be, the idea does
not escape the Court that what it seeks to address is the problem of
rising poverty and unemployment in the country. Let it be said that
the cause of these perennial issues is not the large population but
the unequal distribution of wealth. Even if population growth is
controlled, poverty will remain as long as the country's wealth
remains in the hands of the very few.
At any rate, population control may not be beneficial for the country
in the long run. The European and Asian countries, which embarked
on such a program generations ago , are now burdened with ageing
populations. The number of their young workers is dwindling with
adverse effects on their economy. These young workers represent
a significant human capital which could have helped them
invigorate, innovate and fuel their economy. These countries are
now trying to reverse their programs, but they are still struggling. For
one, Singapore, even with incentives, is failing.
And in this country, the economy is being propped up by remittances
from our Overseas Filipino Workers. This is because we have an
ample supply of young able-bodied workers. What would happen if
the country would be weighed down by an ageing population and
the fewer younger generation would not be able to support them?
This would be the situation when our total fertility rate would go
CONSTI LAW II I ACJUCO 479
down below the replacement level of two (2) children per
woman.280
Indeed, at the present, the country has a population problem, but
the State should not use coercive measures (like the penal
provisions of the RH Law against conscientious objectors) to solve
it. Nonetheless, the policy of the Court is non-interference in the
wisdom of a law.
x x x. But this Court cannot go beyond what the legislature has laid
down. Its duty is to say what the law is as enacted by the lawmaking
body. That is not the same as saying what the law should be or what
is the correct rule in a given set of circumstances. It is not the
province of the judiciary to look into the wisdom of the law nor to
question the policies adopted by the legislative branch. Nor is it the
business of this Tribunal to remedy every unjust situation that may
arise from the application of a particular law. It is for the legislature
to enact remedial legislation if that would be necessary in the
premises. But as always, with apt judicial caution and cold neutrality,
the Court must carry out the delicate function of interpreting the law,
guided by the Constitution and existing legislation and mindful of
settled jurisprudence. The Court's function is therefore limited, and
accordingly, must confine itself to the judicial task of saying what the
law is, as enacted by the lawmaking body.281
Be that as it may, it bears reiterating that the RH Law is a mere
compilation and enhancement of the prior existing contraceptive
and reproductive health laws, but with coercive measures. Even if
the Court decrees the RH Law as entirely unconstitutional, there will
still be the Population Act (R.A. No. 6365), the Contraceptive Act
(R.A. No. 4729) and the reproductive health for women or The
Magna Carta of Women (R.A. No. 9710), sans the coercive
provisions of the assailed legislation. All the same, the principle of
"no-abortion" and "non-coercion" in the adoption of any family
planning method should be maintained.
WHEREFORE, the petitions are PARTIALLY GRANTED.
Accordingly, the Court declares R.A. No. 10354 as NOT
UNCONSTITUTIONAL except with respect to the following
provisions which are declared UNCONSTITUTIONAL:
1) Section 7 and the corresponding provision in the RH-IRR insofar
as they: a) require private health facilities and non-maternity
specialty hospitals and hospitals owned and operated by a religious
group to refer patients, not in an emergency or life-threatening case,
as defined under Republic Act No. 8344, to another health facility
which is conveniently accessible; and b) allow minor-parents or
minors who have suffered a miscarriage access to modem methods
of family planning without written consent from their parents or
guardian/s;
2) Section 23(a)(l) and the corresponding provision in the RH-IRR,
particularly Section 5 .24 thereof, insofar as they punish any
healthcare service provider who fails and or refuses to disseminate
information regarding programs and services on reproductive health
regardless of his or her religious beliefs.
3) Section 23(a)(2)(i) and the corresponding provision in the RH-
IRR insofar as they allow a married individual, not in an emergency
or life-threatening case, as defined under Republic Act No. 8344, to
undergo reproductive health procedures without the consent of the
spouse;
4) Section 23(a)(2)(ii) and the corresponding provision in the RH-
IRR insofar as they limit the requirement of parental consent only to
elective surgical procedures.
5) Section 23(a)(3) and the corresponding provision in the RH-IRR,
particularly Section 5.24 thereof, insofar as they punish any
healthcare service provider who fails and/or refuses to refer a
patient not in an emergency or life-threatening case, as defined
 CONSTI LAW II I ACJUCO 480

under Republic Act No. 8344, to another health care service

provider within the same facility or one which is conveniently
accessible regardless of his or her religious beliefs;

6) Section 23(b) and the corresponding provision in the RH-IRR,

particularly Section 5 .24 thereof, insofar as they punish any public
officer who refuses to support reproductive health programs or shall
do any act that hinders the full implementation of a reproductive
health program, regardless of his or her religious beliefs;

7) Section 17 and the corresponding prov1s10n in the RH-IRR

regarding the rendering of pro bona reproductive health service in
so far as they affect the conscientious objector in securing
PhilHealth accreditation; and

8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added

the qualifier "primarily" in defining abortifacients and contraceptives,
as they are ultra vires and, therefore, null and void for contravening
Section 4(a) of the RH Law and violating Section 12, Article II of the
Constitution.

The Status Quo Ante Order issued by the Court on March 19, 2013
as extended by its Order, dated July 16, 2013 , is hereby LIFTED,
insofar as the provisions of R.A. No. 10354 which have been herein
declared as constitutional.

SO ORDERED.

LIBERTY OF ABODE; RIGHT TO TRAVEL
G.R. No. L-14639 March 25, 1919
ZACARIAS VILLAVICENCIO, ET AL., petitioners,
vs.
JUSTO LUKBAN, ET AL., respondents.
Alfonso Mendoza for petitioners.
City Fiscal Diaz for 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 Yñigo and
Rafael Castillo. The governor and the hacendero Yñigo, 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.
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
CONSTI LAW II I ACJUCO 481
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 Yñigo 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 Yñigo, 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 Yñigo 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
Yñigo 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 Yñigo, 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
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.
CONSTI LAW II I ACJUCO 482
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 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
CONSTI LAW II I ACJUCO 483
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. . .
. child, and, if he does not, he is in contempt of the Court for not
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 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
CONSTI LAW II I ACJUCO 484
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
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 Yñigo 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 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 Yñigo, 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
CONSTI LAW II I ACJUCO 485
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 Yñigo 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, Yñigo, 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.

G.R. No. 94284 April 8, 1991
RICARDO C. SILVERIO, petitioner,
vs.
THE COURT OF APPEALS, HON. BENIGNO G. GAVIOLA, as
Judge of the Regional Trial Court of Cebu City, Branch IX, and
PEOPLE OF THE PHILIPPINES, respondents.
Quisumbing, Torres & Evangelista for petitioner.
MELENCIO-HERRERA, J.:
This is a Petition for Review on Certiorari under Rule 45 of the Rules
of Court praying that the Decision of respondent Court of Appeals in
CA-G.R. SP No. 15827, entitled "Ricardo C. Silverio vs. Hon.
Benigno C. Gaviola, etc., et al.," dated 31 January 1990, as well as
the Resolution of 29 June 1990 denying reconsideration, be set
aside.
On 14 October 1985, Petitioner was charged with violation of
Section 20 (4) of the Revised Securities Act in Criminal Case No.
CBU-6304 of the Regional Trial Court of Cebu. In due time, he
posted bail for his provisional liberty.
On 26 January 1988, or more than two (2) years after the filing of
the Information, respondent People of the Philippines filed an
Urgent ex parte Motion to cancel the passport of and to issue a hold-
departure Order against accused-petitioner on the ground that he
had gone abroad several times without the necessary Court
approval resulting in postponements of the arraignment and
scheduled hearings.
Overruling opposition, the Regional Trial Court, on 4 April 1988,
issued an Order directing the Department of Foreign Affairs to
cancel Petitioner's passport or to deny his application therefor, and
the Commission on Immigration to prevent Petitioner from leaving
the country. This order was based primarily on the Trial Court's
finding that since the filing of the Information on 14 October 1985,
"the accused has not yet been arraigned because he has never
appeared in Court on the dates scheduled for his arraignment and
there is evidence to show that accused Ricardo C. Silverio, Sr. has
left the country and has gone abroad without the knowledge and
permission of this Court" (Rollo, p. 45). Petitioner's Motion for
Reconsideration was denied on 28 July 1988.
Petitioner's Certiorari Petition before the Court of Appeals met a
similar fate on 31 January 1990. Hence, this Petition for Review filed
on 30 July 1990.
After the respective pleadings required by the Court were filed, we
resolved to give due course and to decide the case.
Petitioner contends that respondent Court of Appeals erred in not
finding that the Trial Court committed grave abuse of discretion
amounting to lack of jurisdiction in issuing its Orders, dated 4 April
and 28 July 1988, (1) on the basis of facts allegedly patently
erroneous, claiming that the scheduled arraignments could not be
held because there was a pending Motion to Quash the Information;
and (2) finding that the right to travel can be impaired upon lawful
order of the Court, even on grounds other than the "interest of
national security, public safety or public health."
We perceive no reversible error.
1) Although the date of the filing of the Motion to Quash has
been omitted by Petitioner, it is apparent that it was filed long after
the filing of the Information in 1985 and only after several
arraignments had already been scheduled and cancelled due to
Petitioner's non-appearance. In fact, said Motion to Quash was set
for hearing only on 19 February 1988. Convincingly shown by the
CONSTI LAW II I ACJUCO 486
Trial Court and conformed to by respondent Appellate Court is the
concurrence of the following circumstances:
1. The records will show that the information was filed on
October 14, 1985. Until this date (28 July 1988), the case had yet to
be arraigned. Several scheduled arraignments were cancelled and
reset, mostly due to the failure of accused Silverio to appear. The
reason for accused Silverio's failure to appear had invariably been
because he is abroad in the United States of America;
2. Since the information was filed, until this date, accused
Silverio had never appeared in person before the Court;
3. The bond posted by accused Silverio had been cancelled
twice and warrants of arrest had been issued against him all for the
same reason –– failure to appear at scheduled arraignments.
In all candidness, the Court makes the observation that it has given
accused Silverio more than enough consideration. The limit had
long been reached (Order, 28 July 1988, Crim. Case No. CBU-6304,
RTC, Cebu, p. 5; Rollo, p. 73).
Patently, therefore, the questioned RTC Orders, dated 4 April 1988
and 28 July 1988, were not based on erroneous facts, as Petitioner
would want this Court to believe. To all appearances, the pendency
of a Motion to Quash came about only after several settings for
arraignment had been scheduled and cancelled by reason of
Petitioner's non-appearance.
2) Petitioner's further submission is that respondent
Appellate Court "glaringly erred" in finding that the right to travel can
be impaired upon lawful order of the Court, even on grounds other
than the "interest of national security, public safety or public health."
To start with, and this has not been controverted by Petitioner, the
bail bond he had posted had been cancelled and Warrants of Arrest
had been issued against him by reason, in both instances, of his
failure to appear at scheduled arraignments. Warrants of Arrest
having been issued against him for violation of the conditions of his
bail bond, he should be taken into custody. "Bail is the security given
for the release of a person in custody of the law, furnished by him
or a bondsman, conditioned upon his appearance before any court
when so required by the Court or the Rules (1985 Rules on Criminal
Procedure, as amended, Rule 114, Secs. 1 and 2).
The foregoing condition imposed upon an accused to make himself
available at all times whenever the Court requires his presence
operates as a valid restriction of his right to travel (Manotoc, Jr. vs.
Court of Appeals, et al. No. 62100, 30 May 1986, 142 SCRA 149).
A person facing criminal charges may be restrained by the Court
from leaving the country or, if abroad, compelled to return
(Constitutional Law, Cruz, Isagani A., 1987 Edition, p. 138). So it is
also that "An accused released on bail may be re-arrested without
the necessity of a warrant if he attempts to depart from the
Philippines without prior permission of the Court where the case is
pending (ibid., Sec. 20 [2nd
par. ]).
Petitioner takes the posture, however, that while the 1987
Constitution recognizes the power of the Courts to curtail the liberty
of abode within the limits prescribed by law, it restricts the allowable
impairment of the right to travel only on grounds of interest of
national security, public safety or public health, as compared to the
provisions on freedom of movement in the 1935 and 1973
Constitutions.
Under the 1935 Constitution, the liberty of abode and of travel were
treated under one provision.1âwphi1 Article III, Section 1(4) thereof
reads:
 CONSTI LAW II I ACJUCO 487

The liberty of abode and of changing the same within the limits undue delay, with an accused holding himself amenable at all times
prescribed by law shall not be impaired. to Court Orders and processes.

The 1973 Constitution altered the 1935 text by explicitly including WHEREFORE, the judgment under review is hereby AFFIRMED.
the liberty of travel, thus: Costs against petitioner, Ricardo C. Silverio.

The liberty of abode and of travel shall not be impaired except upon SO ORDERED.
lawful order of the court or when necessary in the interest of national
security, public safety, or public health (Article IV, Section 5).

The 1987 Constitution has split the two freedoms into two distinct
sentences and treats them differently, to wit:

Sec. 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.

Petitioner thus theorizes that under the 1987 Constitution, Courts

can impair the right to travel only on the grounds of "national
security, public safety, or public health."

The submission is not well taken.

Article III, Section 6 of the 1987 Constitution should be interpreted

to mean that while the liberty of travel may be impaired even without
Court Order, the appropriate executive officers or administrative
authorities are not armed with arbitrary discretion to impose
limitations. They can impose limits only on the basis of "national
security, public safety, or public health" and "as may be provided by
law," a limitive phrase which did not appear in the 1973 text (The
Constitution, Bernas, Joaquin G.,S.J., Vol. I, First Edition, 1987, p.
263). Apparently, the phraseology in the 1987 Constitution was a
reaction to the ban on international travel imposed under the
previous regime when there was a Travel Processing Center, which
issued certificates of eligibility to travel upon application of an
interested party (See Salonga vs. Hermoso & Travel Processing
Center, No. 53622, 25 April 1980, 97 SCRA 121).

Article III, Section 6 of the 1987 Constitution should by no means be

construed as delimiting the inherent power of the Courts to use all
means necessary to carry their orders into effect in criminal cases
pending before them. When by law jurisdiction is conferred on a
Court or judicial officer, all auxillary writs, process and other means
necessary to carry it into effect may be employed by such Court or
officer (Rule 135, Section 6, Rules of Court).

Petitioner's argument that the ruling in Manotoc, Jr., v. Court of

Appeals, et al. (supra), to the effect that the condition imposed upon
an accused admitted to bail to make himself available at all times
whenever the Court requires his presence operates as a valid
restriction on the right to travel no longer holds under the 1987
Constitution, is far from tenable. The nature and function of a bail
bond has remained unchanged whether under the 1935, the 1973,
or the 1987 Constitution. Besides, the Manotoc ruling on that point
was but a re-affirmation of that laid down long before in People v.
Uy Tuising, 61 Phil. 404 (1935).

Petitioner is facing a criminal charge. He has posted bail but has

violated the conditions thereof by failing to appear before the Court
when required. Warrants for his arrest have been issued. Those
orders and processes would be rendered nugatory if an accused
were to be allowed to leave or to remain, at his pleasure, outside
the territorial confines of the country. Holding an accused in a
criminal case within the reach of the Courts by preventing his
departure from the Philippines must be considered as a valid
restriction on his right to travel so that he may be dealt with in
accordance with law. The offended party in any criminal proceeding
is the People of the Philippines. It is to their best interest that criminal
prosecutions should run their course and proceed to finality without

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 YÑIGUEZ and PHILIPPINE
CONSTITUTION ASSOCIATION (PHILCONSA), represented by
its President, CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG,
SEDFREY ORDOÑEZ, 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.
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.
CONSTI LAW II I ACJUCO 488
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.
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
CONSTI LAW II I ACJUCO 489
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 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
CONSTI LAW II I ACJUCO 490
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, 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
CONSTI LAW II I ACJUCO 491
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 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.
CONSTI LAW II I ACJUCO 492
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
 CONSTI LAW II I ACJUCO 493

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.

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. 81958 June 30, 1988
PHILIPPINE ASSOCIATION OF SERVICE EXPORTERS, INC.,
petitioner,
vs.
HON. FRANKLIN M. DRILON as Secretary of Labor and
Employment, and TOMAS D. ACHACOSO, as Administrator of
the Philippine Overseas Employment Administration,
respondents.
Gutierrez & Alo Law Offices for petitioner.
SARMIENTO, J.:
The petitioner, Philippine Association of Service Exporters, Inc.
(PASEI, for short), a firm "engaged principally in the recruitment of
Filipino workers, male and female, for overseas placement," 1
challenges the Constitutional validity of Department Order No. 1,
Series of 1988, of the Department of Labor and Employment, in the
character of "GUIDELINES GOVERNING THE TEMPORARY
SUSPENSION OF DEPLOYMENT OF FILIPINO DOMESTIC AND
HOUSEHOLD WORKERS," in this petition for certiorari and
prohibition. Specifically, the measure is assailed for "discrimination
against males or females;" 2 that it "does not apply to all Filipino
workers but only to domestic helpers and females with similar skills;"
3 and that it is violative of the right to travel. It is held likewise to be
an invalid exercise of the lawmaking power, police power being
legislative, and not executive, in character.
In its supplement to the petition, PASEI invokes Section 3, of Article
XIII, of the Constitution, providing for worker participation "in policy
and decision-making processes affecting their rights and benefits as
may be provided by law." 4 Department Order No. 1, it is contended,
was passed in the absence of prior consultations. It is claimed,
finally, to be in violation of the Charter's non-impairment clause, in
addition to the "great and irreparable injury" that PASEI members
face should the Order be further enforced.
On May 25, 1988, the Solicitor General, on behalf of the
respondents Secretary of Labor and Administrator of the Philippine
Overseas Employment Administration, filed a Comment informing
the Court that on March 8, 1988, the respondent Labor Secretary
lifted the deployment ban in the states of Iraq, Jordan, Qatar,
Canada, Hongkong, United States, Italy, Norway, Austria, and
Switzerland. * In submitting the validity of the challenged
"guidelines," the Solicitor General invokes the police power of the
Philippine State.
It is admitted that Department Order No. 1 is in the nature of a police
power measure. The only question is whether or not it is valid under
the Constitution.
The concept of police power is well-established in this jurisdiction. It
has been defined as the "state authority to enact legislation that may
interfere with personal liberty or property in order to promote the
general welfare." 5 As defined, it consists of (1) an imposition of
restraint upon liberty or property, (2) in order to foster the common
good. It is not capable of an exact definition but has been, purposely,
veiled in general terms to underscore its all-comprehensive
embrace.
"Its scope, ever-expanding to meet the exigencies of the times, even
to anticipate the future where it could be done, provides enough
room for an efficient and flexible response to conditions and
circumstances thus assuring the greatest benefits." 6
It finds no specific Constitutional grant for the plain reason that it
does not owe its origin to the Charter. Along with the taxing power
and eminent domain, it is inborn in the very fact of statehood and
sovereignty. It is a fundamental attribute of government that has
CONSTI LAW II I ACJUCO 494
enabled it to perform the most vital functions of governance.
Marshall, to whom the expression has been credited, 7 refers to it
succinctly as the plenary power of the State "to govern its citizens."
8
"The police power of the State ... is a power coextensive with self-
protection, and it is not inaptly termed the "law of overwhelming
necessity." It may be said to be that inherent and plenary power in
the State which enables it to prohibit all things hurtful to the comfort,
safety, and welfare of society." 9
It constitutes an implied limitation on the Bill of Rights. According to
Fernando, it is "rooted in the conception that men in organizing the
state and imposing upon its government limitations to safeguard
constitutional rights did not intend thereby to enable an individual
citizen or a group of citizens to obstruct unreasonably the enactment
of such salutary measures calculated to ensure communal peace,
safety, good order, and welfare." 10 Significantly, the Bill of Rights
itself does not purport to be an absolute guaranty of individual rights
and liberties "Even liberty itself, the greatest of all rights, is not
unrestricted license to act according to one's will." 11 It is subject to
the far more overriding demands and requirements of the greater
number.
Notwithstanding its extensive sweep, police power is not without its
own limitations. For all its awesome consequences, it may not be
exercised arbitrarily or unreasonably. Otherwise, and in that event,
it defeats the purpose for which it is exercised, that is, to advance
the public good. Thus, when the power is used to further private
interests at the expense of the citizenry, there is a clear misuse of
the power. 12
In the light of the foregoing, the petition must be dismissed.
As a general rule, official acts enjoy a presumed vahdity. 13 In the
absence of clear and convincing evidence to the contrary, the
presumption logically stands.
The petitioner has shown no satisfactory reason why the contested
measure should be nullified. There is no question that Department
Order No. 1 applies only to "female contract workers," 14 but it does
not thereby make an undue discrimination between the sexes. It is
well-settled that "equality before the law" under the Constitution 15
does not import a perfect Identity of rights among all men and
women. It admits of classifications, provided that (1) such
classifications rest on substantial distinctions; (2) they are germane
to the purposes of the law; (3) they are not confined to existing
conditions; and (4) they apply equally to all members of the same
class. 16
The Court is satisfied that the classification made-the preference for
female workers — rests on substantial distinctions.
As a matter of judicial notice, the Court is well aware of the unhappy
plight that has befallen our female labor force abroad, especially
domestic servants, amid exploitative working conditions marked by,
in not a few cases, physical and personal abuse. The sordid tales of
maltreatment suffered by migrant Filipina workers, even rape and
various forms of torture, confirmed by testimonies of returning
workers, are compelling motives for urgent Government action. As
precisely the caretaker of Constitutional rights, the Court is called
upon to protect victims of exploitation. In fulfilling that duty, the Court
sustains the Government's efforts.
The same, however, cannot be said of our male workers. In the first
place, there is no evidence that, except perhaps for isolated
instances, our men abroad have been afflicted with an Identical
predicament. The petitioner has proffered no argument that the
Government should act similarly with respect to male workers. The
Court, of course, is not impressing some male chauvinistic notion
that men are superior to women. What the Court is saying is that it

was largely a matter of evidence (that women domestic workers are
being ill-treated abroad in massive instances) and not upon some
fanciful or arbitrary yardstick that the Government acted in this case.
It is evidence capable indeed of unquestionable demonstration and
evidence this Court accepts. The Court cannot, however, say the
same thing as far as men are concerned. There is simply no
evidence to justify such an inference. Suffice it to state, then, that
insofar as classifications are concerned, this Court is content that
distinctions are borne by the evidence. Discrimination in this case is
justified.
As we have furthermore indicated, executive determinations are
generally final on the Court. Under a republican regime, it is the
executive branch that enforces policy. For their part, the courts
decide, in the proper cases, whether that policy, or the manner by
which it is implemented, agrees with the Constitution or the laws,
but it is not for them to question its wisdom. As a co-equal body, the
judiciary has great respect for determinations of the Chief Executive
or his subalterns, especially when the legislature itself has
specifically given them enough room on how the law should be
effectively enforced. In the case at bar, there is no gainsaying the
fact, and the Court will deal with this at greater length shortly, that
Department Order No. 1 implements the rule-making powers
granted by the Labor Code. But what should be noted is the fact that
in spite of such a fiction of finality, the Court is on its own persuaded
that prevailing conditions indeed call for a deployment ban.
There is likewise no doubt that such a classification is germane to
the purpose behind the measure. Unquestionably, it is the avowed
objective of Department Order No. 1 to "enhance the protection for
Filipino female overseas workers" 17 this Court has no quarrel that
in the midst of the terrible mistreatment Filipina workers have
suffered abroad, a ban on deployment will be for their own good and
welfare.
The Order does not narrowly apply to existing conditions. Rather, it
is intended to apply indefinitely so long as those conditions exist.
This is clear from the Order itself ("Pending review of the
administrative and legal measures, in the Philippines and in the host
countries . . ."18), meaning to say that should the authorities arrive
at a means impressed with a greater degree of permanency, the
ban shall be lifted. As a stop-gap measure, it is possessed of a
necessary malleability, depending on the circumstances of each
case. Accordingly, it provides:
9. LIFTING OF SUSPENSION. — The Secretary of Labor and
Employment (DOLE) may, upon recommendation of the Philippine
Overseas Employment Administration (POEA), lift the suspension
in countries where there are:
1. Bilateral agreements or understanding with the
Philippines, and/or,
2. Existing mechanisms providing for sufficient safeguards to
ensure the welfare and protection of Filipino workers. 19
The Court finds, finally, the impugned guidelines to be applicable to
all female domestic overseas workers. That it does not apply to "all
Filipina workers" 20 is not an argument for unconstitutionality. Had
the ban been given universal applicability, then it would have been
unreasonable and arbitrary. For obvious reasons, not all of them are
similarly circumstanced. What the Constitution prohibits is the
singling out of a select person or group of persons within an existing
class, to the prejudice of such a person or group or resulting in an
unfair advantage to another person or group of persons. To apply
the ban, say exclusively to workers deployed by A, but not to those
recruited by B, would obviously clash with the equal protection
clause of the Charter. It would be a classic case of what Chase
refers to as a law that "takes property from A and gives it to B." 21
It would be an unlawful invasion of property rights and freedom of
contract and needless to state, an invalid act. 22 (Fernando says:
CONSTI LAW II I ACJUCO 495
"Where the classification is based on such distinctions that make a
real difference as infancy, sex, and stage of civilization of minority
groups, the better rule, it would seem, is to recognize its validity only
if the young, the women, and the cultural minorities are singled out
for favorable treatment. There would be an element of
unreasonableness if on the contrary their status that calls for the law
ministering to their needs is made the basis of discriminatory
legislation against them. If such be the case, it would be difficult to
refute the assertion of denial of equal protection." 23 In the case at
bar, the assailed Order clearly accords protection to certain women
workers, and not the contrary.)
It is incorrect to say that Department Order No. 1 prescribes a total
ban on overseas deployment. From scattered provisions of the
Order, it is evident that such a total ban has hot been contemplated.
We quote:
5. AUTHORIZED DEPLOYMENT-The deployment of domestic
helpers and workers of similar skills defined herein to the following
[sic] are authorized under these guidelines and are exempted from
the suspension.
5.1 Hirings by immediate members of the family of Heads of
State and Government;
5.2 Hirings by Minister, Deputy Minister and the other senior
government officials; and
5.3 Hirings by senior officials of the diplomatic corps and duly
accredited international organizations.
5.4 Hirings by employers in countries with whom the
Philippines have [sic] bilateral labor agreements or understanding.
xxx xxx xxx
7. VACATIONING DOMESTIC HELPERS AND WORKERS OF
SIMILAR SKILLS--Vacationing domestic helpers and/or workers of
similar skills shall be allowed to process with the POEA and leave
for worksite only if they are returning to the same employer to finish
an existing or partially served employment contract. Those workers
returning to worksite to serve a new employer shall be covered by
the suspension and the provision of these guidelines.
xxx xxx xxx
9. LIFTING OF SUSPENSION-The Secretary of Labor and
Employment (DOLE) may, upon recommendation of the Philippine
Overseas Employment Administration (POEA), lift the suspension
in countries where there are:
1. Bilateral agreements or understanding with the
Philippines, and/or,
2. Existing mechanisms providing for sufficient safeguards to
ensure the welfare and protection of Filipino workers. 24
xxx xxx xxx
The consequence the deployment ban has on the right to travel
does not impair the right. The right to travel is subject, among other
things, to the requirements of "public safety," "as may be provided
by law." 25 Department Order No. 1 is a valid implementation of the
Labor Code, in particular, its basic policy to "afford protection to
labor," 26 pursuant to the respondent Department of Labor's rule-
making authority vested in it by the Labor Code. 27 The petitioner
assumes that it is unreasonable simply because of its impact on the
right to travel, but as we have stated, the right itself is not absolute.
The disputed Order is a valid qualification thereto.
 CONSTI LAW II I ACJUCO 496

Neither is there merit in the contention that Department Order No. 1

constitutes an invalid exercise of legislative power. It is true that
police power is the domain of the legislature, but it does not mean
that such an authority may not be lawfully delegated. As we have
mentioned, the Labor Code itself vests the Department of Labor and
Employment with rulemaking powers in the enforcement whereof.
28

The petitioners's reliance on the Constitutional guaranty of worker

participation "in policy and decision-making processes affecting
their rights and benefits" 29 is not well-taken. The right granted by
this provision, again, must submit to the demands and necessities
of the State's power of regulation.

The Constitution declares that:

Sec. 3. The State shall afford full protection to labor, local and
overseas, organized and unorganized, and promote full
employment and equality of employment opportunities for all. 30

"Protection to labor" does not signify the promotion of employment

alone. What concerns the Constitution more paramountly is that
such an employment be above all, decent, just, and humane. It is
bad enough that the country has to send its sons and daughters to
strange lands because it cannot satisfy their employment needs at
home. Under these circumstances, the Government is duty-bound
to insure that our toiling expatriates have adequate protection,
personally and economically, while away from home. In this case,
the Government has evidence, an evidence the petitioner cannot
seriously dispute, of the lack or inadequacy of such protection, and
as part of its duty, it has precisely ordered an indefinite ban on
deployment.

The Court finds furthermore that the Government has not

indiscriminately made use of its authority. It is not contested that it
has in fact removed the prohibition with respect to certain countries
as manifested by the Solicitor General.

The non-impairment clause of the Constitution, invoked by the

petitioner, must yield to the loftier purposes targetted by the
Government. 31 Freedom of contract and enterprise, like all other
freedoms, is not free from restrictions, more so in this jurisdiction,
where laissez faire has never been fully accepted as a controlling
economic way of life.

This Court understands the grave implications the questioned Order

has on the business of recruitment. The concern of the Government,
however, is not necessarily to maintain profits of business firms. In
the ordinary sequence of events, it is profits that suffer as a result of
Government regulation. The interest of the State is to provide a
decent living to its citizens. The Government has convinced the
Court in this case that this is its intent. We do not find the impugned
Order to be tainted with a grave abuse of discretion to warrant the
extraordinary relief prayed for.

WHEREFORE, the petition is DISMISSED. No costs.

SO ORDERED.

FREEDOM OF ASSOCIATION
G.R. No. L-27833 April 18, 1969
IN THE MATTER OF PETITION FOR DECLARATORY RELIEF
RE CONSTITUTIONALITY OF REPUBLIC ACT 4880. ARSENIO
GONZALES and FELICISIMO R. CABIGAO, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.
F. R. Cabigao in his own behalf as petitioner.
B. F. Advincula for petitioner Arsenio Gonzales.
Ramon Barrios for respondent Commission on Elections.
Sen. Lorenzo Tañada as amicus curiae.
FERNANDO, J.:
A statute designed to maintain the purity and integrity of the electoral
process by Congress calling a halt to the undesirable practice of
prolonged political campaign bringing in their wake serious evils not
the least of which is the ever increasing cost of seeking public office,
is challenged on constitutional grounds. More precisely, the basic
liberties of free speech and free press, freedom of assembly and
freedom of association are invoked to nullify the act. Thus the
question confronting this Court is one of transcendental
significance.
It is faced with the reconciliation of two values esteemed highly and
cherished dearly in a constitutional democracy. One is the freedom
of belief and of expression availed of by an individual whether by
himself alone or in association with others of similar persuasion, a
goal that occupies a place and to none in the legal hierarchy. The
other is the safeguarding of the equally vital right of suffrage by a
prohibition of the early nomination of candidates and the limitation
of the period of election campaign or partisan political activity, with
the hope that the time-consuming efforts, entailing huge
expenditures of funds and involving the risk of bitter rivalries that
may end in violence, to paraphrase the explanatory note of the
challenged legislation, could be devoted to more fruitful endeavors.
The task is not easy, but it is unavoidable. That is of the very
essence of judicial duty. To paraphrase a landmark opinion, 1 when
we act in these matters we do so not on the assumption that to us
is granted the requisite knowledge to set matters right, but by virtue
of the responsibility we cannot escape under the Constitution, one
that history authenticates, to pass upon every assertion of an
alleged infringement of liberty, when our competence is
appropriately invoked.
This then is the crucial question: Is there an infringement of liberty?
Petitioners so alleged in his action, which they entitled Declaratory
Relief with Preliminary Injunction, filed on July 22, 1967, a
proceeding that should have been started in the of Court of First
Instance but treated by this Court as one of prohibition in view of the
seriousness and the urgency of the constitutional issue raised.
Petitioners challenged the validity of two new sections now included
in the Revised Election Code, under Republic Act No. 4880, which
was approved and took effect on June 17, 1967, prohibiting the too
early nomination of candidates 2 and limiting the period of election
campaign or partisan political activity. 3
The terms "candidate" and "election campaign" or "partisan political
activity" are likewise defined. The former according to Act No. 4880
"refers to any person aspiring for or seeking an elective public office
regarded of whether or not said person has already filed his
certificate of candidacy or has been nominated by any political party
as its candidate." "Election campaign" or "partisan political activity"
refers to acts designed to have a candidate elected or not or
promote the candidacy of a person or persons to a public office."
Then the acts were specified. There is a proviso that simple
expression of opinion and thoughts concerning the election shall not
CONSTI LAW II I ACJUCO 497
be considered as part of an election campaign. There is the further
proviso that nothing stated in the Act "shall be understood to prevent
any person from expressing his views on current political problems
or issues, or from mentioning the names of the candidates for public
office whom he supports." 4
Petitioner Cabigao was, at the time of the filing 6f the petition, an
incumbent councilor in the 4th District of Manila and the Nacionalista
Party official candidate for Vice-Mayor of Manila to which he was
subsequently elected on November 11, 1967; petitioner Gonzales,
on the other hand, is a private individual, a registered voter in the
City of Manila and a political leader of his co-petitioner. It is their
claim that "the enforcement of said Republic Act No. 4880 in
question [would] prejudice [their] basic rights..., such as their
freedom of speech, their freedom of assembly and their right to form
associations or societies for purpose not contrary to law, guaranteed
under the Philippine Constitution," and that therefore said act is
unconstitutional.
After invoking anew the fundamental rights to free speech, free
press, freedom of association and freedom of assembly with a
citation of two American Supreme Court decisions, 5 they asserted
that "there is nothing in the spirit or intention of the law that would
legally justify its passage and [enforcement] whether for reasons of
public policy, public order or morality, and that therefore the
enactment of Republic Act [No.] 4880 under, the guise of regulation
is but a clear and simple abridgment of the constitutional rights of
freedom of speech, freedom of assembly and the right to form
associations and societies for purposes not contrary to law, ..."
There was the further allegation that the nomination of a candidate
and the fixing of period of election campaign are matters of political
expediency and convenience which only political parties can
regulate or curtail by and among themselves through self-restraint
or mutual understanding or agreement and that the regulation and
limitation of these political matters invoking the police power, in the
absence of clear and present danger to the state, would render the
constitutional rights of petitioners meaningless and without effect.
To the plea of petitioners that after hearing, Republic Act No. 4880
be declared unconstitutional, null and void, respondent Commission
on Elections, in its answer filed on August 1, 1967, after denying the
allegations as to the validity of the act "for being mere conclusions
of law, erroneous at that," and setting forth special affirmative
defenses, procedural and substantive character, would have this
Court dismiss the petition.
Thereafter the case was set for hearing on August 3, 1967. On the
same date a resolution was passed by us to the following effect: "At
the hearing of case L-27833 (Arsenio Gonzales, et al. vs.
Commission on Elections), Atty. F. Reyes Cabigao appeared for the
petitioners and Atty. Ramon Barrios appeared for the respondent
and they were given a period of four days from today within which
to submit, simultaneously,, their respective memorandum in lieu of
oral argument."
On August 9, 1967, another resolution, self-explanatory in
character, came from this Court. Thus: "In ease G.R. No. L-27833
(Arsenio Gonzales, et al. vs. Commission on Elections), the Court,
with eight (8) Justice present, having deliberated on the issue of the
constitutionality of Republic Act No. 4880; and a divergence of views
having developed among the Justices as to the constitutionality of
section 50-B, pars. (c), (d) and (e) of the Revised Election Code:
considering the Constitutional provision that "no treaty or law may
be declared unconstitutional without the concurrence of two-thirds
of all the members of the (Supreme) Court' (sec. 10, Art, VII), the
Court [resolved] to defer final voting on the issue until after the return
of the Justices now on official leave."
The case was then reset for oral argument. At such hearing, one of
the co-petitioners, now Vice-Mayor Felicisimo Cabigao of the City of
Manila acting as counsel, assailed the validity of the challenged

legislation relying primarily on American Supreme Court opinion that
warn against curtailment in whatever guise or form of the cherished
freedoms of expression, of assemble and of association, all
embraced in the First Amendment of the United States Constitution.
Respondent Commission on Elections was duly represented by
Atty. Ramon Barrios.
Senator Lorenzo M. Tañada was asked to appear as amicus curiae.
That he did, arguing most impressively with a persuasive exposition
of the existence of undeniable conditions that imperatively called for
regulation of the electoral process and with full recognition that Act
No. 4880 could indeed be looked upon as a limitation on the
preferred rights of speech and press, of assembly and of
association. He did justify its enactment however under the clear
and present danger doctrine, there being the substantive evil of
elections, whether for national or local officials, being debased and
degraded by unrestricted campaigning, excess of partisanship and
undue concentration in politics with the loss not only of efficiency in
government but of lives as well.
The matter was then discussed in conference, but no final action
was taken. The divergence of views with reference to the
paragraphs above mentioned having continued, on Oct. 10, 1968,
this Court, by resolution, invited certain entities to submit
memoranda as amici curiae on the question of the validity of R.A.
Act No. 4880. The Philippine Bar Association, the Civil Liberties
Union, the U.P. Law Center and the U.P. Women Lawyers' Circle
were included, among them. They did file their respective
memoranda with this Court and aided it in the consideration of the
constitutional issues involved.
1. In the course of the deliberations, a serious procedural objection
was raised by five members of the Court. 6 It is their view that
respondent Commission on Elections not being sought to be
restrained from performing any specific act, this suit cannot be
characterized as other than a mere request for an advisory opinion.
Such a view, from the remedial law standpoint, has much to
recommend it. Nonetheless, a majority would affirm, the original
stand that under the circumstances it could still rightfully be treated
as a petition for prohibition.
The language of Justice Laurel fits the case "All await the decision
of this Court on the constitutional question. Considering, therefore,
the importance which the instant case has assumed and to prevent
multiplicity of suits, strong reasons of public policy demand that [its]
constitutionality ... be now resolved." 7 It may likewise be added that
the exceptional character of the situation that confronts us, the
paramount public interest, and the undeniable necessity for a ruling,
the national elections being, barely six months away, reinforce our
stand.
It would appear undeniable, therefore, that before us is an
appropriate invocation of our jurisdiction to prevent the enforcement
of an alleged unconstitutional statute. We are left with no choice
then; we must act on the matter.
There is another procedural obstacle raised by respondent to be
hurdled. It is not insuperable. It is true that ordinarily, a party who
impugns the validity of a statute or ordinance must have a
substantial interest in the case such that he has sustained, or will
sustain, direct injury as a result of its enforcement. 8 Respondent
cannot see such interest as being possessed by petitioners. It may
indicate the clarity of vision being dimmed, considering that one of
the petitioners was a candidate for an elective position. Even if such
were the case, however, the objection is not necessarily fatal. In this
jurisdiction, the rule has been sufficiently relaxed to allow a taxpayer
to bring an action to restrain the expenditure of public funds through
the enforcement of an invalid or unconstitutional legislative
measure. 9
CONSTI LAW II I ACJUCO 498
2. In the answer of the respondent as well as its memorandum,
stress was laid on Republic Act No. 4880 as an exercise of the
police power of the state, designed to insure a free, orderly and
honest election by regulating "conduct which Congress has
determined harmful if unstrained and carried for a long period before
elections it necessarily entails huge expenditures of funds on the
part of the candidates, precipitates violence and even deaths,
results in the corruption of the electorate, and inflicts direful
consequences upon public interest as the vital affairs of the country
are sacrificed to purely partisan pursuits." Evidently for respondent
that would suffice to meet the constitutional questions raised as to
the alleged infringement of free speech, free press, freedom of
assembly and 'freedom' of association. Would it were as simple as
that?
An eloquent excerpt from a leading American decision 10
admonishes though against such a cavalier approach. "The case
confronts us again with the duty our system places on this Court to
say where the individual's, freedom ends the State's power begins.
Choice on that border, now as always delicate, is perhaps more so
where the usual. presumption supporting legislation is balanced by
the preferred place given in our scheme to the great, the
indispensable democratic freedoms secured by the First
Amendment.... That priority gives these liberties a sanctity and a
sanction not permitting dubious intrusions. And it is the character of
the right, not of the limitation, which determines what standard
governs the choice..."
Even a leading American State court decision on a regulatory
measure dealing with elections, cited in the answer of respondent,
militates against a stand minimizing the importance and significance
of the alleged violation of individual rights: "As so construed by us,
it has not been made to appear that section 8189, Comp. Gen.
Laws, section 5925, Rev. Gen. St., is on its face violative of any
provision of either the state or Federal Constitution on the subject of
free speech or liberty of the press, nor that its operation is in any
wise subversive of any one's constitutional liberty." 11 Another
leading State decision is much more emphatic: "Broad as the power
of the legislature is with respect to regulation of elections, that power
is not wholly without limitation. Under the guise of regulating
elections, the legislature may not deprive a citizen of the right of trial
by jury. A person charged with its violation may not be compelled to
give evidence against himself. If it destroys the right of free speech,
it is to that extent void." 12
The question then of the alleged violation of Constitutional rights
must be squarely met.lawphi1.nêt
3. Now as to the merits. A brief resume of the basic rights on which
petitioners premise their stand that the act is unconstitutional may
prove illuminating. The primacy, the high estate accorded freedom
of expression is of course a fundamental postulate of our
constitutional system. No law shall be passed abridging the freedom
of speech or of the press .... 13 What does it embrace? At the very
least, free speech and free press may be identified with the liberty
to discuss publicly and truthfully any matter of public interest without
censorship or punishment. 14 There is to be then no previous
restraint on the communication of views or subsequent liability
whether in libel suits, 15 prosecution for sedition, 16 or action for
damages, 17 or contempt proceedings 18 unless there be a clear
and present danger of substantive evil that Congress has a right to
prevent.
The vital need in a constitutional democracy for freedom of
expression is undeniable whether as a means of assuring individual
self-fulfillment, of attaining the truth, of assuring participation by the
people in social including political decision-making, and of
maintaining the balance between stability and change. 19 The trend
as reflected in Philippine and American decisions is to recognize the
broadcast scope and assure the widest latitude to this constitutional
guaranty. It represents a profound commitment to the principle that

debate of public issue should be uninhibited, robust, and wide-open.
20 It is not going too far, according to another American decision, to
view the function of free speech as inviting dispute. "It may indeed
best serve its high purpose when it induces a condition of unrest,
creates dissatisfaction with conditions as they are, or even stirs
people to anger." 21 Freedom of speech and of the press thus
means something more than the right to approve existing political
beliefs or economic arrangements, to lend support to official
measures, to take refuge in the existing climate of opinion on any
matter of public consequence. So atrophied, the right becomes
meaningless. The right belongs as well, if not more, for those who
question, who do not conform, who differ. To paraphrase Justice
Holmes, it is freedom for the thought that we hate, no less than for
the thought that agrees with us. 22
So with Emerson one may conclude that "the theory of freedom of
expression involves more than a technique for arriving at better
social judgments through democratic procedures. It comprehends a
vision of society, a faith and a whole way of life. The theory grew out
of an age that was awakened and invigorated by the idea of new
society in which man's mind was free, his fate determined by his
own powers of reason, and his prospects of creating a rational and
enlightened civilization virtually unlimited. It is put forward as a
prescription for attaining a creative, progressive, exciting and
intellectually robust community. It contemplates a mode of life that,
through encouraging toleration, skepticism, reason and initiative,
will allow man to realize his full potentialities. It spurns the alternative
of a society that is tyrannical, conformist, irrational and stagnant."
23
From the language of the specified constitutional provision, it would
appear that the right is not susceptible of any limitation. No law may
be passed abridging the freedom of speech and of the press. The
realities of life in a complex society preclude however a literal
interpretation. Freedom of expression is not an absolute. It would be
too much to insist that at all times and under all circumstances it
should remain unfettered and unrestrained. There are other societal
values that press for recognition. How is it to be limited then?
This Court spoke, in Cabansag v. Fernandez; 24 of two tests that
may supply an acceptable criterion for permissible restriction. Thus:
"These are the 'clear and present danger' rule and the 'dangerous
tendency' rule. The first, as interpreted in a number of cases, means
that the evil consequence of the comment or utterance must be
extremely serious and the degree of imminence extremely high'
before the utterance can be punished. The danger to be guarded
against is the 'substantive evil' sought to be prevented." It has the
advantage of establishing according to the above decision "a
definite rule in constitutional law. It provides the criterion as to what
words may be public established."
The Cabansag case likewise referred to the other test, the
"dangerous tendency" rule and explained it thus: "If the words
uttered create a dangerous tendency which the state has a right to
prevent, then such words are punishable. It is not necessary that
some definite or immediate acts of force, violence, or unlawfulness
be advocated. It is sufficient that such acts be advocated in general
terms. Nor is it necessary that the language used be reasonably
calculated to incite persons to acts of force, violence, or
unlawfulness. It is sufficient if the natural tendency and probable
effect of the utterance be to bring about the substantive evil which
the legislative body seeks to prevent.
We posed the issue thus: "Has the letter of Cabansag created a
sufficient danger to a fair administration of justice? Did its remittance
to the PCAC create a danger sufficiently imminent to come under
the two rules mentioned above?" The choice of this Court was
manifest and indisputable. It adopted the clear and present danger
test. As a matter of fact, in an earlier decision, Primicias v. Fugoso,
25 there was likewise an implicit acceptance of the clear and present
danger doctrine.
CONSTI LAW II I ACJUCO 499
Why repression is permissible only when the danger of substantive
evil is present is explained by Justice Branders thus: ... the evil
apprehended is so imminent that it may befall before there is
opportunity for full discussion. If there be time to expose through
discussion the falsehood and fallacies, to avert the evil by the
processes of education, the remedy to be applied is more speech,
not enforced silence." 26 For him the apprehended evil must be
"relatively serious." For "[prohibition] of free speech and assembly
is a measure so stringent that it would be inappropriate as the
means for averting a relatively trivial harm to society." Justice Black
would go further. He would require that the substantive evil be
"extremely serious." 27 Only thus may there be a realization of the
ideal envisioned by Cardozo: "There shall be no compromise of the
freedom to think one's thoughts and speak them, except at those
extreme borders where thought merges into action." 28 It received
its original formulation from Holmes. Thus: "The question in every
case is whether the words used in such circumstances and of such
a nature as to create a clear and present danger that they will bring
about the substantive evils that Congress has a right to prevent. It
is a question of proximity and degree." 29
This test then as a limitation on freedom of expression is justified by
the danger or evil a substantive character that the state has a right
to prevent. Unlike the dangerous tendency doctrine, the danger
must not only be clear but also present. The term clear seems to
point to a causal connection with the danger of the substantially evil
arising from the utterance questioned. Present refers to the time
element. It used to be identified with imminent and immediate
danger. The danger must not only be probable but very likely
inevitable.
4. How about freedom of assembly? The Bill of Rights as thus noted
prohibits abridgment by law of freedom of speech or of the press. It
likewise extends the same protection to the right of the people
peaceably to assemble. As was pointed out by Justice Malcolm in
the case of United States v. Bustos, 30 this right is a necessary
consequence of our republican institution and complements the
right of free speech. Assembly means a right on the part of citizens
to meet peaceably for consultation in respect to public affairs. From
the same Bustos opinion: "Public policy, the welfare of society and
orderly administration of government have demanded protection for
public opinion." To paraphrase the opinion of Justice Rutledge
speaking for the majority in Thomas v. Collins,31 it was not by
accident or coincidence that the rights to freedom of speech and of
the press were coupled in a single guaranty 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. They are cognate rights and the assurance afforded by
the clause of this section of the Bill of Rights wherein they are
contained, applies to all. As emphatically put in the leading case of
United States v. Cruikshank, 32 "the very idea of a government,
republican in form, implies a right on the part of its citizens to meet
peaceably for consultation in respect to public affairs and to petition
for redress of grievances." As in the case of freedom of expression,
this right is not to be limited, much less denied, except on a showing
of a clear and present danger of a substantive evil that Congress
has a right to prevent.
5. Our Constitution likewise recognizes the freedom to form
association for purposes not contrary to law. 33 With or without a
constitutional provision of this character, it may be assumed that the
freedom to organize or to be a member of any group or society
exists. With this explicit provision, whatever doubts there may be on
the matter are dispelled. Unlike the cases of other guarantee which
are mostly American in origin, this particular freedom has an
indigenous cast. It can trace its origin to the Malolos Constitution.
In the United States, in the absence of an explicit provision of such
character, it is the view of Justice Douglas that it is primarily the first
amendment of her Constitution, which safeguards freedom of

speech and of the press, of assembly and of petition "that provides
[associations] with the protection they need if they are to remain
viable and continue to contribute to our Free Society." 34 He
adopted the view of De Tocqueville on the importance and the
significance of the freedom to associate. Thus: "The most natural
privilege of man, next to the right of acting for himself, is that of
combining his exertions with those of his fellow creatures and of
acting in common with them. The right of association therefore
appears to me almost inalienable in its nature as the right of
personal liberty. No legislator can attack it without impairing the
foundation of society." 35
There can be no dispute as to the soundness of the above
observation of De Tocqueville. Since man lives in social it would be
a barren existence if he could not freely associate with others of
kindred persuasion or of congenial frame of mind. As a matter of
fact, the more common form of associations may be likely to be
fraternal, cultural, social or religious. Thereby, for almost everybody,
save for those exceptional few who glory in aloofness and isolation
life is enriched and becomes more meaningful.
In a sense, however, the stress on this freedom of association
should be on its political significance. If such a right were non-
existent then the likelihood of a one-party government is more than
a possibility. Authoritarianism may become unavoidable. Political
opposition will simply cease to exist; minority groups may be
outlawed, constitutional democracy as intended by the Constitution
may well become a thing of the past.
Political parties which, as is originally the case, assume the role
alternately of being in the majority or in the minority as the will of the
electorate dictates, will lose their constitutional protection. It is
undeniable therefore, that the utmost scope should be afforded this
freedom of association.
It is indispensable not only for its enhancing the respect that should
be accorded a human personality but equally so for its assurance
that the wishes of any group to oppose whatever for the moment is
the party in power and with the help of the electorate to set up its
own program of government would not be nullified or frustrated. To
quote from Douglas anew: "Justice Frankfurter thought that political
and academic affiliations have a preferred position under the due
process version of the First Amendment. But the associational rights
protected by the First Amendment are in my view much broader and
cover the entire spectrum in political ideology as well as in art, in
journalism, in teaching, and in religion. In my view, government can
neither legislate with respect to nor probe the intimacies of political,
spiritual, or intellectual relationships in the myriad of lawful societies
and groups, whether popular or unpopular, that exist in this country."
36
Nonetheless, the Constitution limits this particular freedom in the
sense that there could be an abridgment of the right to form
associations or societies when their purposes are "contrary to law".
How should the limitation "for purposes not contrary to law" be
interpreted? It is submitted that it is another way of expressing the
clear and present danger rule for unless an association or society
could be shown to create an imminent danger to public safety, there
is no justification for abridging the right to form association
societies.37 As was so aptly stated: "There is no other course
consistent with the Free Society envisioned by the First
Amendment. For the views a citizen entertains, the beliefs he
harbors, the utterances he makes, the ideology he embraces, and
the people he associates with are no concern to government — until
and unless he moves into action. That article of faith marks indeed
the main difference between the Free Society which we espouse
and the dictatorships both on the Left and on the Right." 38 With the
above principles in mind, we now consider the validity of the
prohibition in Republic Act No. 4880 of the too early nomination of
candidates and the limitation found therein on the period of election
campaign or partisan political activity alleged by petitioners to offend
CONSTI LAW II I ACJUCO 500
against the rights of free speech, free press, freedom of assembly
and freedom of association. In effect what are asked to do is to
declare the act void on its face evidence having been introduced as
to its actual operation. There is respectable authority for the court
having the power to so act. Such fundamental liberties are accorded
so high a place in our constitutional scheme that any alleged
infringement manifest in the wording of statute cannot be allowed to
pass unnoticed. 39
In considering whether it is violative of any of the above rights, we
cannot ignore of course the legislative declaration that its enactment
was in response to a serious substantive evil affecting the electoral
process, not merely in danger of happening, but actually in
existence, and likely to continue unless curbed or remedied. To
assert otherwise would be to close one's eyes to the realities of the
situation. Nor can we ignore the express legislative purpose
apparent in the proviso "that simple expressions of opinion and
thoughts concerning the election shall not be considered as part of
an election campaign," and in the other proviso "that nothing herein
stated shall be understood to prevent any person from expressing
his views on current political problems or issues, or from mentioning
the names of the candidates for public office whom he supports."
Such limitations qualify the entire provision restricting the period of
an election campaign or partisan political activity.
The prohibition of too early nomination of candidates presents a
question that is not too formidable in character. According to the act:
"It shall be unlawful for any political party political committee, or
political group to nominate candidates for any elective public officio
voted for at large earlier than one hundred and fifty days
immediately preceding an election, and for any other elective public,
office earlier than ninety days immediately preceding an election."
40
The right of association is affected. Political parties have less
freedom as to the time during which they may nominate candidates;
the curtailment is not such, however, as to render meaningless such
a basic right. Their scope of legitimate activities, save this one, is
not unduly narrowed. Neither is there infringement of their freedom
to assemble. They can do so, but not for such a purpose. We sustain
in validity. We do so unanimously.
The limitation on the period of "election campaign" or "partisan
political activity" calls for a more intensive scrutiny. According to
Republic Act No. 4880: "It is unlawful for any person whether or not
a voter or candidate, or for any group or association of persons
whether or not a political party or political committee, to engage in
an election campaign or partisan political activity except during the
period of one hundred twenty days immediately preceding an
election involving a public office voted for at large and ninety days
immediately preceding an election for any other elective public
office. The term 'candidate' refers to any person aspiring for or
seeking an elective public office, regardless of whether or not said
person has already filed his certificate of candidacy or has been
nominated by any political party as its candidate. The term 'election
campaign' or 'partisan political activity' refers to acts designed to
have a candidate elected or not or promote the candidacy of a
person or persons to a public office ..."
If that is all there is to that provision, it suffers from the fatal
constitutional infirmity of vagueness and may be stricken down.
What other conclusion can there be extending as it does to so wide
and all-encompassing a front that what is valid, being a legitimate
exercise of press freedom as well as freedom of assembly,
becomes prohibited? That cannot be done; such an undesirable
eventuality, this Court cannot allow to pass.
It is a well-settled principle that stricter standard of permissible
statutory vagueness may be applied to a statute having inhibiting
effect on speech; a man may the less be required to act at his peril
here, because the free dissemination of ideas may be the loser.41

Where the statutory provision then operates to inhibit the exercise
of individual freedom affirmatively protected by the Constitution, the
imputation of vagueness sufficient to invalidate the statute is
inescapable. 42 The language of Justice Douglas, both appropriate
and vigorous, comes to mind: "Words which are vague and fluid ...
may be as much of a trap for the innocent as the ancient laws of
Caligula." 43 Nor is the reason difficult to discern: ."These freedoms
are delicate and vulnerable, as well as supremely precious in our
society. The threat of sanctions may deter their exercise almost as
potently as the actual application of sanctions." 44
7. The constitutional objections are thus formidable. It cannot be
denied that the limitations thus imposed on the constitutional rights
of free speech and press, of assembly, and of association cut
deeply, into their substance. This on the one hand.
On the other, it cannot be denied either that evils substantial in
character taint the purity of the electoral process. There can be
under the circumstances then no outright condemnation of the
statute. It could not be said to be unwarranted, much less arbitrary.
There is need for refraining from the outright assumption that the
constitutional infirmity is apparent from a mere reading thereof.
For under circumstances that manifest abuses of the gravest
character, remedies much more drastic than what ordinarily would
suffice would indeed be called for. The justification alleged by the
proponents of the measures weighs heavily with the members of the
Court, though in varying degrees, in the appraisal of the aforesaid
restrictions to which such precious freedoms are subjected. They
are not unaware of the clear and present danger that calls for
measures that may bear heavily on the exercise of the cherished
rights of expression, of assembly, and of association.
This is not to say, that once such a situation is found to exist there
is no limit to the allowable limitations on such constitutional rights.
The clear and present danger doctrine rightly viewed requires that
not only should there be an occasion for the imposition of such
restrictions but also that they be limited in scope.
There are still constitutional questions of a serious character then to
be faced. The practices which the act identifies with "election
campaign" or "partisan political activity" must be such that they are
free from the taint of being violative of free speech, free press,
freedom of assembly, and freedom of association. What removes
the sting from constitutional objection of vagueness is the
enumeration of the acts deemed included in the terms "election
campaign" or "partisan political activity."
They are: "(a) Forming organizations, associations, clubs,
committees or other groups of persons for the purpose of soliciting
votes and/or undertaking any campaign or propaganda for or
against a party or candidate; (b) holding political conventions,
caucuses, conferences, meetings, rallies, parades, or other similar
assemblies, for the purpose of soliciting votes and/or undertaking
any campaign or propaganda for or against a candidate or party;(c)
making speeches, announcements or commentaries or holding
interviews for or against the election or any party or candidate for
public office; (d) publishing or distributing campaign literature or
materials; (e) directly or indirectly soliciting votes and/or undertaking
any campaign or propaganda for or against any party; (f) giving,
soliciting, or receiving contributions for election campaign purposes,
either directly or indirectly." 45 As thus limited the objection that may
be raised as to vagueness has been minimized, if not totally set at
rest. 46
8. This Court, with the aforementioned five Justices unable to agree,
is of the view that no unconstitutional infringement exists insofar as
the formation of organization, associations, clubs, committees, or
other groups of persons for the purpose of soliciting votes or
undertaking any campaign or propaganda or both for or against a
candidate or party is restricted 47 and that the prohibition against
CONSTI LAW II I ACJUCO 501
giving, soliciting, or receiving contribution for election purposes,
either directly or indirectly, is equally free from constitutional
infirmity. 48
The restriction on freedom of assembly as confined to holding
political conventions, caucuses, conferences, meetings, rallies,
parades or other similar assemblies for the purpose of soliciting
votes or undertaking any campaign or propaganda or both for or
against a candidate or party, 49 leaving untouched all other
legitimate exercise of such poses a more difficult question.
Nevertheless, after a thorough consideration, and with the same
Justices entertaining the opposite conviction, we reject the
contention that it should be annulled. Candor compels the
admission that the writer of this opinion suffers from the gravest
doubts. For him, such statutory prescription could very well be within
the outermost limits of validity, beyond which lies the abyss of
unconstitutionality.
The other acts, likewise deemed included in "election campaign" or
"partisan political activity" tax to the utmost the judicial
predisposition to view with sympathy legislative efforts to regulate
election practices deemed inimical, because of their collision with
the preferred right of freedom of expression. From the outset, such
provisions did occasion divergence of views among the members of
the Court. Originally only a minority was for their being adjudged as
invalid. It is not so. any more. 50 This is merely to emphasize that
the scope of the curtailment to which freedom of expression may be
subjected is not foreclosed by the recognition of the existence of a
clear and present danger of a substantive evil, the debasement of
the electoral process.
The majority of the Court is thus of the belief that the solicitation or
undertaking of any campaign or propaganda whether directly or
indirectly, by an individual, 51 the making of speeches,
announcements or commentaries or holding interview for or against
the election for any party or candidate for public office, 52 or the
publication or distribution of campaign literature or materials, 53
suffer from the corrosion of invalidity. It lacks however one more
affirmative vote to call for a declaration of unconstitutionality.
This is not to deny that Congress was indeed called upon to seek
remedial measures for the far-from-satisfactory condition arising
from the too-early nomination of candidates and the necessarily
prolonged, political campaigns. The direful consequences and the
harmful effects on the public interest with the vital affairs of the
country sacrificed many a time to purely partisan pursuits were
known to all. Moreover, it is no exaggeration to state that violence
and even death did frequently occur because of the heat
engendered by such political activities. Then, too, the opportunity
for dishonesty and corruption, with the right to suffrage being
bartered, was further magnified.
Under the police power then, with its concern for the general welfare
and with the commendable aim of safe-guarding the right of
suffrage, the legislative body must have felt impelled to impose the
foregoing restrictions. It is understandable for Congress to believe
that without the limitations thus set forth in the challenged
legislation, the laudable purpose of Republic Act No. 4880 would be
frustrated and nullified. Whatever persuasive force such approach
may command failed to elicit the assent of a majority of the Court.
This is not to say that the conclusion reached by the minority that
the above poisons of the statute now assailed has passed the
constitutional test is devoid of merit.
It only indicates that for the majority, the prohibition of any speeches,
announcements or commentaries, or the holding of interviews for or
against the election of any party or candidate for public office and
the prohibition of the publication or distribution of campaign
literature or materials, against the solicitation of votes whether
directly or indirectly, or the undertaking of any campaign literature
or propaganda for or against any candidate or party is repugnant to

a constitutional command. To that extent, the challenged statute
prohibits what under the Constitution cannot by any law be
abridged.
More specifically, in terms of the permissible scope of legislation
that otherwise could be justified under the clear and present danger
doctrine, it is the consideration opinion of the majority, though
lacking the necessary vote for an adjudication of invalidity, that the
challenged statute could have been more narrowly drawn and the
practices prohibited more precisely delineated to satisfy the
constitutional requirements as to a valid limitation under the clear
and present danger doctrine.
In a 1968 opinion, the American Supreme Court made clear that the
absence of such reasonable and definite standards in a legislation
of its character is fatal. 54 Where, as in the case of the above
paragraphs, the majority of the Court could discern "an over breadth
that makes possible oppressive or capricious application" 55 of the
statutory provisions, the line dividing the valid from the
constitutionally infirm has been crossed. Such provisions offend the
constitutional principle that "a governmental purpose constitutionally
subject to control or prevent activities state regulation may not be
achieved by means which sweep unnecessarily broadly and thereby
invade the area of protected freedoms. 56
It is undeniable, therefore, that even though the governmental
purposes be legitimate and substantial, they cannot be pursued by
means that broadly stifle fundamental personal liberties when the
end can be more narrowly achieved. 57 For precision of regulation
is the touchstone in an area so closely related to our most precious
freedoms. 58
Under the circumstances then, a majority of the Court feels
compelled to view the statutory provisions in question as
unconstitutional on their face inasmuch as they appear to range too
widely and indiscriminately across the fundamental liberties
associated with freedom of the mind. 59
Such a conclusion does not find favor with the other members of the
Court. For this minority group, no judgment of nullity insofar as the
challenged sections are concerned is called for. It cannot accept the
conclusion that the limitations thus imposed on freedom of
expression vitiated by their latitudinarian scope, for Congress was
not at all insensible to the problem that an all-encompassing
coverage of the practices sought to be restrained would seriously
pose.
Such an approach finds support in the exposition made by the
author of the measure, Senator Lorenzo M. Tañada, appearing
before us as amicus curiae. He did clearly explain that such
provisions were deemed by the legislative body to be part and parcel
of the necessary and appropriate response not merely to a clear and
present danger but to the actual existence of a grave and
substantive evil of excessive partisanship, dishonesty and
corruption as well as violence that of late has invariably marred
election campaigns and partisan political activities in this country.
He did invite our attention likewise to the well-settled doctrine that in
the choice of remedies for an admitted malady requiring
governmental action, on the legislature primarily rests the
responsibility. Nor should the cure prescribed by it, unless clearly
repugnant to fundamental rights, be ignored or disregarded.
More than that, he would stress the two provisos already mentioned,
precisely placed in the state as a manifestation of the undeniable
legislative determination not to transgress the preferred freedom of
speech, of press, of assembly and of association. It is thus provided:
"That simple expressions or opinion and thoughts concerning the
election shall not be considered as part of an election campaign [and
that nothing in the Act] shall be understood to prevent any person
from expressing his views on current political problems or issues, or
from mentioning the names of the candidates for public office whom
CONSTI LAW II I ACJUCO 502
he supports. 60 If properly implemented then, as it ought to, the
barrier to free, expression becomes minimal and far from
unwarranted.
For the minority of the Court, all of the above arguments possess
sufficient persuasive force to blunt whatever cutting edge may be
ascribed to the fears entertained that Congress failed to abide by
what the Constitution commands as far as freedom of the mind and
of association are concerned. It is its opinion that it would be
premature to say the least, for a judgment of nullity of any provision
found in Republic Act No. 4880. The need for adjudication arises
only if in the implementation of the Act, there is in fact an
unconstitutional application of its provisions. Nor are we called
upon, under this approach, to anticipate each and every problem
that may arise. It is time enough to consider it when there is in fact
an actual, concrete case that requires an exercise of judicial power.
9. To recapitulate, we give due recognition to the legislative concern
to cleanse, and, if possible, render spotless, the electoral process.
There is full acceptance by the Court of the power of Congress,
under narrowly drawn legislation to impose the necessary
restrictions to what otherwise would be liberties traditionally
accorded the widest scope and the utmost deference, freedom of
speech and of the press, of assembly, and of association. We
cannot, however, be recreant to the trust reposed on us; we are
called upon to safeguard individual rights. In the language of Justice
Laurel: "This Court is perhaps the last bulwark of constitutional
government. It shall not obstruct the popular will as manifested
through proper organs... But, in the same way that it cannot
renounce the life breathed into it by the Constitution, so may it not
forego its obligation, in proper cases, to apply the necessary,..." 61
We recognize the wide discretion accorded Congress to protect vital
interests. Considering the responsibility incumbent on the judiciary,
it is not always possible, even with the utmost sympathy shown for
the legislative choice of means to cure an admitted evil, that the
legislative judgment arrived at, with its possible curtailment of the
preferred freedoms, be accepted uncritically. There may be times,
and this is one of them, with the majority, with all due reject to a
coordinate branch, unable to extend their approval to the aforesaid
specific provisions of one of the sections of the challenged statute.
The necessary two-third vote, however, not being obtained, there is
no occasion for the power to annul statutes to come into play.
Such being the case, it is the judgment of this Court that Republic
Act No. 4880 cannot be declared unconstitutional.
WHEREFORE, the petition is dismissed and the writ of prayed for
denied. Without costs.

A.C. 1928 December 19, 1980
In the Matter of the IBP Membership Dues Delinquency of
Atty. MARCIAL A. EDILLION (IBP Administrative Case No.
MDD-1), petitioner,
FERNANDO, C.J.:
The full and plenary discretion in the exercise of its competence to
reinstate a disbarred member of the bar admits of no doubt. All the
relevant factors bearing on the specific case, public interest, the
integrity of the profession and the welfare of the recreant who had
purged himself of his guilt are given their due weight. Respondent
Marcial A. Edillon was disbarred on August 3, 1978, 1 the vote being
unanimous with the late.
Chief Justice Castro ponente. From June 5, 1979, he had
repeatedly pleaded that he be reinstated. The minute resolution
dated October 23, 1980, granted such prayer. It was there made
clear that it "is without prejudice to issuing an extended opinion." 2
Before doing so, a recital of the background facts that led to the
disbarment of respondent may not be amiss. As set forth in the
resolution penned by the late Chief Justice Castro: "On November
29. 1975, the Integrated Bar of the Philippines (IBP for short) Board
of Governors, unanimously adopted Resolution No. 75-65 in
Administrative case No. MDD-1 (In the Matter of the Membership
Dues Delinquency of Atty. Marcial A. Edillon) recommending to the
Court the removal of the name of the respondent from its Roll of
Attorneys for 'stubborn refusal to pay his membership dues' to the
IBP since the latter's constitution notwithstanding due notice. On
January 21, 1976, the IBP, through its then President Liliano B. Neri,
submitted the said resolution to the Court for consideration and
approval,. Pursuant to paragraph 2, Section 24, Article III of the By-
Laws of the IBP, which. reads: ... Should the delinquency further
continue until the following June 29, the Board shall promptly inquire
into the cause or causes of the continued delinquency and take
whatever action it shall deem appropriate, including a
recommendation to the Supreme Court for the removal of the
delinquent member's name from the Roll of Attorneys. Notice of the
action taken should be submit by registered mail to the member and
to the Secretary of the Chapter concerned.' On January 27, 1976,
the Court required the respondent to comment on the resolution and
letter adverted to above he submitted his comment on February 23,
1976, reiterating his refusal to pay the membership fees due from
him. On March 2, 1976, the Court required the IBP President and
the IBP Board of Governors to reply to Edillon's comment: On March
24, 1976, they submitted a joint reply. Thereafter, the case was set
for hearing on June 3, 1976. After the hearing, the parties were
required to submit memoranda in amplification of their oral
arguments. The matter was thenceforth submitted for resolution." 3
Reference was then made to the authority of the IBP Board of
Governors to recommend to the Supreme Court the removal of a
delinquent member's name from the Roll of Attorneys as found in
Rules of Court: 'Effect of non-payment of dues. — Subject to the
provisions of Section 12 of this Rule, default in the payment of
annual dues for six months shall warrant suspension of membership
in the Integrated Bar, and default in such payment for one year shall
be a ground for the removal of the name of the delinquent member
from the Roll of Attorneys. 4
The submission of respondent Edillion as summarized in the
aforesaid resolution "is that the above provisions constitute an
invasion of his constitutional rights in the sense that he is being
compelled, as a pre-condition to maintaining his status as a lawyer
in good standing, to be a member of the IBP and to pay the
corresponding dues, and that as a consequence of this compelled
financial support of the said organization to which he is admittedly
personally antagonistic, he is being deprived of the rights to liberty
and property guaranteed to him by the Constitution. Hence, the
CONSTI LAW II I ACJUCO 503
respondent concludes, the above provisions of the Court Rule and
of the IBP By-Laws are void and of no legal force and effect. 5 It was
pointed out in the resolution that such issues was raised on a
previous case before the Court, entitled 'Administrative Case No.
526, In the Matter of the Petition for the Integration of the Bar of the
Philippines, Roman Ozaeta, et al., Petitioners.' The Court
exhaustively considered all these matters in that case in its
Resolution ordaining the integration of the Bar of the Philippines,
promulgated on January 9, 1973. 6 The unanimous conclusion
reached by the Court was that the integration of the Philippine Bar
raises no constitutional question and is therefore legally
unobjectionable, "and, within the context of contemporary
conditions in the Philippine, has become an imperative means to
raise the standards of the legal profession, improve the
administration of justice, and enable the Bar to discharge its public
responsibility fully and effectively." 7
As mentioned at the outset, the vote was unanimous. From the time
the decision was rendered, there were various pleadings filed by
respondent for reinstatement starting with a motion for
reconsideration dated August 19, 1978. Characterized as it was by
persistence in his adamantine refusal to admit the full competence
of the Court on the matter, it was not unexpected that it would be
denied. So it turned out. 8 It was the consensus that he continued
to be oblivious to certain balic juridical concepts, the appreciation of
which does not even require great depth of intellect. Since
respondent could not be said to be that deficient in legal knowledge
and since his pleadings in other cases coming before this Tribunal
were quite literate, even if rather generously sprinkled with invective
for which he had been duly taken to task, there was the impression
that his recalcitrance arose from and sheer obstinacy. Necessary,
the extreme penalty of disbarment visited on him was more than
justified.
Since then, however, there were other communications to this Court
where a different attitude on his part was discernible. 9 The tone of
defiance was gone and circumstances of a mitigating character
invoked — the state of his health and his advanced age. He likewise
spoke of the welfare of former clients who still rely on him for
counsel, their confidence apparently undiminished. For he had in his
career been a valiant, if at times unreasonable, defender of the
causes entrusted to him.
This Court, in the light of the above, felt that reinstatement could be
ordered and so it did in the resolution of October 23, 1980. It made
certain that there was full acceptance on his part of the competence
of this Tribunal in the exercise of its plenary power to regulate the
legal profession and can integrate the bar and that the dues were
duly paid. Moreover, the fact that more than two years had elapsed
during which he war. barred from exercising his profession was
likewise taken into account. It may likewise be said that as in the
case of the inherent power to punish for contempt and paraphrasing
the dictum of Justice Malcolm in Villavicencio v. Lukban, 10 the
power to discipline, especially if amounting to disbarment, should be
exercised on the preservative and not on the vindictive principle. 11
One last word. It has been pertinently observed that there is no
irretrievable finality as far as admission to the bar is concerned. So
it is likewise as to loss of membership. What must ever be borne in
mind is that membership in the bar, to follow Cardozo, is a privilege
burdened with conditions. Failure to abide by any of them entails the
loss of such privilege if the gravity thereof warrant such drastic
move. Thereafter a sufficient time having elapsed and after
actuations evidencing that there was due contrition on the part of
the transgressor, he may once again be considered for the
restoration of such a privilege. Hence, our resolution of October 23,
1980.
The Court restores to membership to the bar Marcial A. Edillon.

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.
Vicente T. Ocampo & Associates for petitioners.
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 the Court of Appeals.
Petitioners filed a motion for reconsideration thereof, but during its
CONSTI LAW II I ACJUCO 504
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:
.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.
CONSTI LAW II I ACJUCO 505
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 may jointly refer the dispute to the [Public
Sector Labor- Management] Council for appropriate action.
Government employees may, therefore, through their unions or
associations, either petition the Congress for the betterment of the
terms and conditions of employment which are within the ambit of
legislation or negotiate with the appropriate government agencies
for the improvement of those which are not fixed by law. If there be
any unresolved grievances, the dispute may be referred to the
Public Sector Labor - Management Council for appropriate action.
But employees in the civil service may not resort to strikes, walk-
outs and other temporary work stoppages, like workers in the private
sector, to pressure the Govemment to accede to their demands. As
now provided under Sec. 4, Rule III of the Rules and Regulations to
Govern the Exercise of the Right of Government- Employees to
Self- Organization, which took effect after the instant dispute arose,
"[t]he terms and conditions of employment in the government,
including any political subdivision or instrumentality thereof and
government- owned and controlled corporations with original
charters are governed by law and employees therein shall not strike
for the purpose of securing changes thereof."
II
CONSTI LAW II I ACJUCO 506
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
restrain the SSS and its agents from withholding payment thereof
and to compel the SSS to pay them. In their supplemental reply,
petitioners annexed an order of the Civil Service Commission, dated
May 5, 1989, which ruled that the officers of the SSSEA who are not
preventively suspended and who are reporting for work pending the
resolution of the administrative cases against them are entitled to
their salaries, year-end bonuses and other fringe benefits and
affirmed the previous order of the Merit Systems Promotion Board.
The matter being extraneous to the issues elevated to this Court, it
is Our view that petitioners' remedy is not to petition this Court to
issue an injunction, but to cause the execution of the aforesaid
order, if it has already become final.
WHEREFORE, no reversible error having been committed by the
Court of Appeals, the instant petition for review is hereby DENIED
and the decision of the appellate court dated March 9, 1988 in CA-
G.R. SP No. 13192 is AFFIRMED. Petitioners' "Petition/Application
for Preliminary and Mandatory Injunction" dated December 13,1988
is DENIED.
SO ORDERED.

NON-IMPAIRMENT OF CONTRACTS
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.
Oposa Law Office for petitioners.
The Solicitor General for 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
CONSTI LAW II I ACJUCO 507
plaintiffs therein, now the principal petitioners, are all minors duly
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 complaint2
was instituted as a taxpayers' class suit3 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.
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.
CONSTI LAW II I ACJUCO 508
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 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
CONSTI LAW II I ACJUCO 509
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 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.
CONSTI LAW II I ACJUCO 510
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.
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
CONSTI LAW II I ACJUCO 511
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 . . .
 CONSTI LAW II I ACJUCO 512

Needless to say, all licenses may thus be revoked or rescinded by
executive action. It is not a contract, property or a property right
protested by the due process clause of the Constitution. In Tan vs.
Director of Forestry, 25 this Court held:
. . . A timber license is an instrument by which the State regulates
the utilization and disposition of forest resources to the end that
public welfare is promoted. A timber license is not a contract within
the purview of the due process clause; it is only a license or
privilege, which can be validly withdrawn whenever dictated by
public interest or public welfare as in this case.
A license is merely a permit or privilege to do what otherwise would
be unlawful, and is not a contract between the authority, federal,
state, or municipal, granting it and the person to whom it is granted;
neither is it property or a property right, nor does it create a vested
right; nor is it taxation (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. Ong Tin, 54 O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. & Co., Inc.
vs. Deputy Executive Secretary: 26
. . . Timber licenses, permits and license agreements are the
principal instruments by which the State regulates the utilization and
disposition of forest resources to the end that public welfare is
promoted. And it can hardly be gainsaid that they merely evidence
a privilege granted by the State to qualified entities, and do not vest
in the latter a permanent or irrevocable right to the particular
concession area and the forest products therein. They may be
validly amended, modified, replaced or rescinded by the Chief
Executive when national interests so require. Thus, they are not
deemed contracts within the purview of the due process of law
clause [See Sections 3(ee) and 20 of Pres. Decree No. 705, as
amended. Also, Tan v. Director of Forestry, G.R. No. L-24548,
October 27, 1983, 125 SCRA 302].
Under our form of government the use of property and the making
of contracts are normally matters of private and not of public
concern. The general rule is that both shall be free of governmental
interference. But neither property rights nor contract rights are
absolute; for government cannot exist if the citizen may at will use
his property to the detriment of his fellows, or exercise his freedom
of contract to work them harm. Equally fundamental with the private
right is that of the public to regulate it in the common interest.
In short, the non-impairment clause must yield to the police power
of the state. 31
Finally, it is difficult to imagine, as the trial court did, how the non-
impairment clause could apply with respect to the prayer to enjoin
the respondent Secretary from receiving, accepting, processing,
renewing or approving new timber licenses for, save in cases of
renewal, no contract would have as of yet existed in the other
instances. Moreover, with respect to renewal, the holder is not
entitled to it as a matter of right.
WHEREFORE, being impressed with merit, the instant Petition is
hereby GRANTED, and the challenged Order of respondent Judge
of 18 July 1991 dismissing Civil Case No. 90-777 is hereby set
aside. The petitioners may therefore amend their complaint to
implead as defendants the holders or grantees of the questioned
timber license agreements.
No pronouncement as to costs.
SO ORDERED.

Since timber licenses are not contracts, the non-impairment clause,

which reads:

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. In other words, the constitutional
guaranty of non-impairment of obligations of contract is limited by
the exercise of the police power of the State, in the interest of public
health, safety, moral and general welfare.

The reason for this is emphatically set forth in Nebia vs. New York,
29 quoted in Philippine American Life Insurance Co. vs. Auditor
General,30 to wit:

[G.R. No. 126102. December 4, 2000]
ORTIGAS & CO. LTD., petitioner, vs. THE COURT OF
APPEALS and ISMAEL G. MATHAY III, respondents.
DECISION
QUISUMBING, J.:
This petition seeks to reverse the decision of the Court of Appeals,
dated March 25, 1996, in CA-G.R. SP No. 39193, which nullified the
writ of preliminary injunction issued by the Regional Trial Court of
Pasig City, Branch 261, in Civil Case No. 64931. It also assails the
resolution of the appellate court, dated August 13, 1996, denying
petitioners motion for reconsideration.
The facts of this case, as culled from the records, are as follows:
On August 25, 1976, petitioner Ortigas & Company sold to Emilia
Hermoso, a parcel of land known as Lot 1, Block 21, Psd-66759,
with an area of 1,508 square meters, located in Greenhills
Subdivision IV, San Juan, Metro Manila, and covered by Transfer
Certificate of Title No. 0737. The contract of sale provided that the
lot:
1. (1) be used exclusivelyfor residential purposes only, and not more
than one single-family residential building will be constructed
thereon,
xxx
6. The BUYER shall not erectany sign or billboard on the rooffor
advertising purposes
xxx
11. No single-family residential building shall be erecteduntil the
building plans, specificationhave been approved by the SELLER
xxx
14....restrictions shall run with the land and shall be construed as
real covenants until December 31, 2025 when they shall cease and
terminate[1]
These and the other conditions were duly annotated on the
certificate of title issued to Emilia.
In 1981, the Metropolitan Manila Commission (now Metropolitan
Manila Development Authority) enacted MMC Ordinance No. 81-01,
also known as the Comprehensive Zoning Area for the National
Capital Region. The ordinance reclassified as a commercial area a
portion of Ortigas Avenue from Madison to Roosevelt Streets of
Greenhills Subdivision where the lot is located.
On June 8, 1984, private respondent Ismael Mathay III leased the
lot from Emilia Hermoso and J.P. Hermoso Realty Corp.. The lease
contract did not specify the purposes of the lease. Thereupon,
private respondent constructed a single story commercial building
for Greenhills Autohaus, Inc., a car sales company.
On January 18, 1995, petitioner filed a complaint against Emilia
Hermoso with the Regional Trial Court of Pasig, Branch 261.
Docketed as Civil Case No. 64931, the complaint sought the
demolition of the said commercial structure for having violated the
terms and conditions of the Deed of Sale. Complainant prayed for
the issuance of a temporary restraining order and a writ of
preliminary injunction to prohibit petitioner from constructing the
commercial building and/or engaging in commercial activity on the
lot. The complaint was later amended to implead Ismael G. Mathay
CONSTI LAW II I ACJUCO 513
III and J.P. Hermoso Realty Corp., which has a ten percent (10%)
interest in the lot.
In his answer, Mathay III denied any knowledge of the restrictions
on the use of the lot and filed a cross-claim against the Hermosos.
On June 16, 1995, the trial court issued the writ of preliminary
injunction. On June 29, 1995, Mathay III moved to set aside the
injunctive order, but the trial court denied the motion.
Mathay III then filed with the Court of Appeals a special civil action
for certiorari, docketed as CA-G.R. SP No. 39193, ascribing to the
trial court grave abuse of discretion in issuing the writ of preliminary
injunction. He claimed that MMC Ordinance No. 81-01 classified the
area where the lot was located as commercial area and said
ordinance must be read into the August 25, 1976 Deed of Sale as a
concrete exercise of police power.
Ortigas and Company averred that inasmuch as the restrictions on
the use of the lot were duly annotated on the title it issued to Emilia
Hermoso, said restrictions must prevail over the ordinance, specially
since these restrictions were agreed upon before the passage of
MMC Ordinance No. 81-01.
On March 25, 1996, the appellate court disposed of the case as
follows:
WHEREFORE, in light of the foregoing, the petition is hereby
GRANTED. The assailed orders are hereby nullified and set aside.
SO ORDERED.[2]
In finding for Mathay III, the Court of Appeals held that the MMC
Ordinance No. 81-01 effectively nullified the restrictions allowing
only residential use of the property in question.
Ortigas seasonably moved for reconsideration, but the appellate
court denied it on August 13, 1996.
Hence, the instant petition.
In its Memorandum, petitioner now submits that the principal issue
in this case is whether respondent Court of Appeals correctly set
aside the Order dated June 16, 1995 of the trial court which issued
the writ of preliminary injunction on the sole ground that MMC
Ordinance No. 81-01 nullified the building restriction imposing
exclusive residential use on the property in question.[3] It also
asserts that Mathay III lacks legal capacity to question the validity of
conditions of the deed of sale; and he is barred by estoppel or waiver
to raise the same question like his principals, the owners.[4] Lastly,
it avers that the appellate court unaccountably failed to address
several questions of fact.
Principally, we must resolve the issue of whether the Court of
Appeals erred in holding that the trial court committed grave abuse
of discretion when it refused to apply MMC Ordinance No.81-01 to
Civil Case No. 64931.
But first, we must address petitioners allegation that the Court of
Appeals unaccountably failed to address questions of fact. For basic
is the rule that factual issues may not be raised before this Court in
a petition for review and this Court is not duty-bound to consider
said questions.[5] CA-G.R. SP No. 39193 was a special civil action
for certiorari, and the appellate court only had to determine if the trial
court committed grave abuse of discretion amounting to want or
excess of jurisdiction in issuing the writ of preliminary injunction.
Thus, unless vital to our determination of the issue at hand, we shall
refrain from further consideration of factual questions.
Petitioner contends that the appellate court erred in limiting its
decision to the cited zoning ordinance. It avers that a contractual

right is not automatically discarded once a claim is made that it
conflicts with police power. Petitioner submits that the restrictive
clauses in the questioned contract is not in conflict with the zoning
ordinance. For one, according to petitioner, the MMC Ordinance No.
81-01 did not prohibit the construction of residential buildings.
Petitioner argues that even with the zoning ordinance, the seller and
buyer of the re-classified lot can voluntarily agree to an exclusive
residential use thereof. Hence, petitioner concludes that the Court
of Appeals erred in holding that the condition imposing exclusive
residential use was effectively nullified by the zoning ordinance.
In its turn, private respondent argues that the appellate court
correctly ruled that the trial court had acted with grave abuse of
discretion in refusing to subject the contract to the MMC Ordinance
No. 81-01. He avers that the appellate court properly held the police
power superior to the non-impairment of contract clause in the
Constitution. He concludes that the appellate court did not err in
dissolving the writ of preliminary injunction issued by the trial court
in excess of its jurisdiction.
We note that in issuing the disputed writ of preliminary injunction,
the trial court observed that the contract of sale was entered into in
August 1976, while the zoning ordinance was enacted only in March
1981. The trial court reasoned that since private respondent had
failed to show that MMC Ordinance No. 81-01 had retroactive effect,
said ordinance should be given prospective application only,[6]
citing Co vs. Intermediate Appellate Court, 162 SCRA 390 (1988).
In general, we agree that laws are to be construed as having only
prospective operation. Lex prospicit, non respicit. Equally settled,
only laws existing at the time of the execution of a contract are
applicable thereto and not later statutes, unless the latter are
specifically intended to have retroactive effect.[7] A later law which
enlarges, abridges, or in any manner changes the intent of the
parties to the contract necessarily impairs the contract itself[8] and
cannot be given retroactive effect without violating the constitutional
prohibition against impairment of contracts.[9]
But, the foregoing principles do admit of certain exceptions. One
involves police power. A law enacted in the exercise of police power
to regulate or govern certain activities or transactions could be given
retroactive effect and may reasonably impair vested rights or
contracts. Police power legislation is applicable not only to future
contracts, but equally to those already in existence.[10]
Nonimpairment of contracts or vested rights clauses will have to
yield to the superior and legitimate exercise by the State of police
power to promote the health, morals, peace, education, good order,
safety, and general welfare of the people.[11] Moreover, statutes in
exercise of valid police power must be read into every contract.[12]
Noteworthy, in Sangalang vs. Intermediate Appellate Court,[13] we
already upheld MMC Ordinance No. 81-01 as a legitimate police
power measure.
The trial courts reliance on the Co vs. IAC,[14] is misplaced. In Co,
the disputed area was agricultural and Ordinance No. 81-01 did not
specifically provide that it shall have retroactive effect so as to
discontinue all rights previously acquired over lands located within
the zone which are neither residential nor light industrial in
nature,[15] and stated with respect to agricultural areas covered that
the zoning ordinance should be given prospective operation
only.[16] The area in this case involves not agricultural but urban
residential land. Ordinance No. 81-01 retroactively affected the
operation of the zoning ordinance in Greenhills by reclassifying
certain locations therein as commercial.
Following our ruling in Ortigas & Co., Ltd. vs. Feati Bank & Trust
Co., 94 SCRA 533 (1979), the contractual stipulations annotated on
the Torrens Title, on which Ortigas relies, must yield to the
ordinance. When that stretch of Ortigas Avenue from Roosevelt
Street to Madison Street was reclassified as a commercial zone by
the Metropolitan Manila Commission in March 1981, the restrictions
CONSTI LAW II I ACJUCO 514
in the contract of sale between Ortigas and Hermoso, limiting all
construction on the disputed lot to single-family residential buildings,
were deemed extinguished by the retroactive operation of the
zoning ordinance and could no longer be enforced. While our legal
system upholds the sanctity of contract so that a contract is deemed
law between the contracting parties,[17] nonetheless, stipulations in
a contract cannot contravene law, morals, good customs, public
order, or public policy.[18] Otherwise such stipulations would be
deemed null and void. Respondent court correctly found that the trial
court committed in this case a grave abuse of discretion amounting
to want of or excess of jurisdiction in refusing to treat Ordinance No.
81-01 as applicable to Civil Case No. 64931. In resolving matters in
litigation, judges are not only duty-bound to ascertain the facts and
the applicable laws,[19] they are also bound by their oath of office
to apply the applicable law.[20]
As a secondary issue, petitioner contends that respondent Mathay
III, as a mere lessee of the lot in question, is a total stranger to the
deed of sale and is thus barred from questioning the conditions of
said deed. Petitioner points out that the owners of the lot voluntarily
agreed to the restrictions on the use of the lot and do not question
the validity of these restrictions. Petitioner argues that Mathay III as
a lessee is merely an agent of the owners, and could not override
and rise above the status of his principals. Petitioner submits that
he could not have a higher interest than those of the owners, the
Hermosos, and thus had no locus standi to file CA-G.R. SP No.
39193 to dissolve the injunctive writ issued by the RTC of Pasig City.
For his part, private respondent argues that as the lessee who built
the commercial structure, it is he and he alone who stands to be
either benefited or injured by the results of the judgment in Civil
Case No. 64931. He avers he is the party with real interest in the
subject matter of the action, as it would be his business, not the
Hermosos, which would suffer had not the respondent court
dissolved the writ of preliminary injunction.
A real party in interest is defined as the party who stands to be
benefited or injured by the judgment or the party entitled to the avails
of the suit. Interest within the meaning of the rule means material
interest, an interest in issue and to be affected by the decree, as
distinguished from mere interest in the question involved, or a mere
incidental interest.[21] By real interest is meant a present substantial
interest, as distinguished from a mere expectancy or a future,
contingent, subordinate, or consequential interest.[22]
Tested by the foregoing definition, private respondent in this case is
clearly a real party in interest. It is not disputed that he is in
possession of the lot pursuant to a valid lease. He is a possessor in
the concept of a holder of the thing under Article 525 of the Civil
Code.[23] He was impleaded as a defendant in the amended
complaint in Civil Case No. 64931. Further, what petitioner seeks to
enjoin is the building by respondent of a commercial structure on
the lot. Clearly, it is private respondents acts which are in issue, and
his interest in said issue cannot be a mere incidental interest. In its
amended complaint, petitioner prayed for, among others, judgment
ordering the demolition of all improvements illegally built on the lot
in question.[24] These show that it is petitioner Mathay III, doing
business as Greenhills Autohaus, Inc., and not only the Hermosos,
who will be adversely affected by the courts decree.
Petitioner also cites the rule that a stranger to a contract has no
rights or obligations under it,[25] and thus has no standing to
challenge its validity.[26] But in seeking to enforce the stipulations
in the deed of sale, petitioner impleaded private respondent as a
defendant. Thus petitioner must recognize that where a plaintiff has
impleaded a party as a defendant, he cannot subsequently question
the latters standing in court.[27]
WHEREFORE, the instant petition is DENIED. The challenged
decision of the Court of Appeals dated March 25, 1996, as well as
 CONSTI LAW II I ACJUCO 515

the assailed resolution of August 13, 1996, in CA-G.R. SP No.

39193 is AFFIRMED. Costs against petitioner.

SO ORDERED.

ACCESS TO COURTS
G.R. No. L-21707 March 18, 1967
FELIPE ACAR, ET AL., petitioners,
vs.
HON. INOCENCIO ROSAL, in his capacity as Executive Judge,
Court of First Instance of Negros Oriental, 12th Judicial
District, respondent.
F. S. Villarin for petitioners.
Jose B. Navarro for respondent.
BENGZON J.P., J.:
All over the world, Constitutions share one purpose: to protect and
enhance the people's interest, as a nation collectively and as
persons individually. The Philippine Constitution is no exception.
Interpretation of its provisions, therefore, should be done with a view
to realizing this fundamental objective. Among the provisions in our
Constitution is one both, timely and far-reaching, as it affects the
people at large and relates to social justice problems of the day. It
is Subsec. 21, Sec. I of Art. III: "Free access to the courts shall not
be denied to any person by reason of poverty." It is the one involved
in this case.
A suit was filed in the Court of First Instance of Negros Oriental on
February 21, 1963 by ten persons for their own behalf and that of
9,000 other farm laborers working off and on in sugar cane
plantations at the Bais milling district, Negros Oriental, against
Compañia General de Tabacos de Filipinas, Central Azucarera de
Bais, Compañia Celulosa de Filipinas, Ramon Barata, Aurelio
Montinola, Sr., and Miguel Franco. Plaintiffs sought to recover their
alleged participations or shares amounting to the aggregate sum of
P14,031,836.74, in the sugar, molasses, bagasse and other
derivatives based on the provisions of Republic Act 809 (The Sugar
Act of 1952), particularly Sections 1 and 9 thereof:
SECTION 1. In the absence of written milling agreements between
the majority of planters and the millers of sugarcane in any milling
district in the Philippines, the unrefined sugar produced in that
district from the milling by any sugar central of the sugar-cane of any
sugar-cane planter or plantation owner, as well as all by-products
and derivatives thereof, shall be divided between them as follows:
Sixty per centum for the planter, and forty per centum for the central
in any milling district the maximum actual production of which is not
more than four hundred thousand piculs: Provided, That the
provisions of this section shall not apply to sugar centrals with an
actual production of less than one hundred fifty thousand piculs;
Sixty-two and one-half per centum for the planter, and thirty-seven
and one-half per centum for the central in any milling district the
maximum actual production of which exceeds four hundred
thousand piculs but does not exceed six hundred thousand piculs;
Sixty-five per centum for the planter, and thirty-five per centum for
the central in any milling district the maximum actual production of
which exceeds six hundred thousand piculs but does not exceed
nine hundred thousand piculs;
Sixty-seven and one-half per centum for the planter, and thirty-two
and one-half per centum for the central in any milling district the
maximum actual production of which exceeds nine hundred
thousand piculs but does not exceed one million two hundred
thousand piculs;
Seventy per centum for the planter, and thirty per centum for the
central in any milling district the maximum actual production of
which exceeds one million two hundred thousand
piculs.1äwphï1.ñët
CONSTI LAW II I ACJUCO 516
By actual production is meant the total production of the mill for the
crop year immediately preceding.
xxx xxx xxx
SEC. 9. In addition to the benefits granted by the Minimum Wage
Law, the proceeds of any increase in the participation granted the
planters under this Act and above their present share shall be
divided between the planter and his laborers in the plantation in the
following proportion:
Sixty per centum of the increased participation for the laborers and
forty per centum for the planters. The distribution of the share
corresponding to the laborers shall be made under the supervision
of the Department of Labor.
The benefits granted to laborers in sugar plantations under this Act
and in the Minimum Wage Law shall not in any way be diminished
by such labor contracts known as "by the piece," "by the volume,"
"by the area," or by any other system of "pakyaw," the Secretary of
Labor being hereby authorized to issue the necessary orders for the
enforcement of this provision."
Furthermore, plaintiffs asked thereunder as well as by separate
motion, that the aforementioned court authorize them to sue as
pauper litigants, under Sec. 22, Rule 3 of the Rules of Court:
SEC. 22. Pauper litigant. — Any court may authorize a litigant to
prosecute his action or defense as a pauper upon a proper showing
that he has no means to that effect by affidavits, certificate of the
corresponding provincial, city or municipal treasurer, or otherwise.
Such authority once given shall include an exemption from payment
of legal fees and from filing appeal bond, printed record and printed
brief. The legal fees shall be a lien to any judgment rendered in the
case favorably to the pauper, unless the court otherwise provides.
invoking Sec. 1, subsec. (21) of Art. III of the Constitution of the
Philippines. They alleged that they had no means, to pay the docket
fee of P14,500.00, being laborers dependent solely on their daily
wages for livehood and possessed of no properties. And in support
of the foregoing, the ten named plaintiffs submitted certificates of
the municipal treasurers of their places of residence stating that they
have no real property declared in their names in said municipalities.
Acting on the petition to litigate in forma pauperis, the Court of First
Instance issued an order on May 27, 1963, denying the same upon
the ground that the plaintiffs have regular employment and sources
of income and, thus, can not be classified as poor or paupers.
Plaintiffs sought reconsideration of said order but reconsideration
was denied in an order dated June 11, 1963. Assailing said two CFI
orders and asserting their alleged right not to be denied free access
to the courts by reason of poverty, plaintiffs in said case filed herein,
on August 1, 1963, the present special civil action or certiorari and
mandamus. Petition to litigate as pauper in the instant case before
Us was also filed. And on August 16, 1963, We allowed petitioners
herein to litigate in this Court as paupers and required respondent
to answer. Respondent's answer was filed on November 2, 1963.
After hearing on February 10, 1964 this case was submitted for
decision.
The sole issue herein is whether petitioners were deprived, by the
orders in question, of free access to the courts by reason of poverty.
In denying petitioners' motion to litigate as paupers, respondent
Judge adopted the definition at "pauper" in Black's Law Dictionary
(at p. 1284) as "a person so poor that he must be supported at public
expense". And, as afore-stated, he ruled that petitioners are not that
poor.
 CONSTI LAW II I ACJUCO 517

Such interpretation, to our mind, does not fit with the purpose of the perfecting an appeal would have presented the same question of
rules on suits in forma pauperis and the provision of the Constitution, exemption from legal fees, appeal bond and similar requisites.
in the Bill of Rights, that: "Free access to the courts shall not be
denied to any person by reason of poverty." As applied to statutes Wherefore, petitioners are declared entitled to litigate as paupers in
or provisions on the right to sue in forma pauperis, the term has a their class suit before respondent Judge and the latter is hereby
broader meaning. It has thus been recognized that: "An applicant ordered to grant their petition to litigate in forma pauperis. No costs.
for leave to sue in forma pauperis need not be a pauper; the fact So ordered.
that he is able-bodied and may earn the necessary money is no
answer to his statement that he has not sufficient means to
prosecute the action or to secure the costs" (14 Am. Jur. 31). It
suffices that plaintiff is indigent (Ibid.), the not a public charge. And
the difference between "paupers" and "indigent" persons is that the
latter are "persons who have no property or source of income
sufficient for their support aside from their own labor, though self-
supporting when able to work and in employment" (Black's Law
Dictionary, p. 913, "Indigent", citing People vs. Schoharie County,
121 NY 345, 24 NE 830). It is therefore in this sense of being
indigent that "pauper" is taken when referring to suits in forma
pauperis. Black's Law Dictionary in fact defines pauper, thus: "A
person so poor that he must be supported at public expense; also a
suitor who, on account of poverty, is allowed to sue or defend
without being chargeable with costs" (p. 1284, emphasis supplied).

It is further argued that the docket fee of P14,500 would very well
be shouldered by petitioners since there are around 9,000 of them.
It must be remembered, however that the action in question was
filed by way of a class suit. And the Rules of Court allowing such
procedure state under Sec. 12, Rule 3:

SEC. 12. Class suit. — When the subject matter of the controversy
is one of common or general interest to many persons, and the
parties are so numerous that it is impracticable to bring them all
before the court, one or more may sue or defend for the benefit of
all. But in such case the court shall make sure that the parties
actually before it are sufficiently numerous and representative so
that all interest concerned are fully protected. Any party in interest
shall have a right to intervene in protection of his individual interest.

So that in the suit before respondent Judge the ten named

petitioners herein are the ones suing, albeit for the benefit of all the
others. It follows that the payment of docket fee would be directly
charged upon them, not upon the unnamed "9,000 other laborers."
And even if the 9,000 other laborers should later bear the payment
of said docket fee of P14,500, the same would be spread among
them at about P1.60 each. Said cost of pressing their respective
average demand of P1.60 each is, to Our mind, a substantial
imposition on a seasonal farm laborer earning barely subsistent
wages. And as pointed out, this is only the initial fee; subsequent
fees and charges would have to be paid. The philosophy underlying
the constitutional mandate of free access to the courts
notwithstanding poverty, therefore, calls for exemption of herein
petitioners from payment of the aforesaid legal fees in their
assertion and claim of substantial rights under the Sugar Act of
1952.

Returning to the purpose of all Constitutions, as mentioned earlier,

We find this course the most sensible, logical and practical
construction demanded by the free access clause of the
Constitution. For a contrary interpretation could not make said
provision the living reality that it is designed to be.

As regards the fact that the supporting certifications of indigence

refer only to the ten named plaintiffs, suffice it to reiterate that this
involves a class suit, where it is not practicable to bring all the other
9,000 laborers before the court. This Court finds the supporting
evidence of indigence adequate, showing in petitioners' favor, as
plaintiffs in the suit before respondent Judge, the right not to be
denied free access to the courts by reason of poverty. Since they
were excluded from the use and enjoyment of said right, mandamus
lies to enforce it. Appeal was unavailing, since they were not even
accorded the status of litigants, for non-payment of docket fee; and

CUSTODIAL INVESTIGATION
G.R. No. 122485 February 1, 1999
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LARRY MAHINAY Y AMPARADO, accused-appellant.
PER CURIAM:
A violation of the dignity, purity and privacy of a child who is still
innocent and unexposed to the ways of worldly pleasures is a
harrowing experience that destroys not only her future but of the
youth population as well, who in the teachings of our national hero,
are considered the hope of the fatherland. Once again, the Court is
confronted by another tragic desecration of human dignity,
committed no less upon a child, who at the salad age of a few days
past 12 years, has yet to knock on the portals of womanhood, and
met her untimely death as a result of the "intrinsically evil act" of
non-consensual sex called rape. Burdened with the supreme
penalty of death, rape is an ignominious crime for which necessity
is neither an excuse nor does there exist any other rational
justification other than lust. But those who lust ought not to last.
The Court quotes with approval from the People's Brief, the facts
narrating the horrible experience and the tragic demise of a young
and innocent child in the bloody hands of appellant, as such facts
are ably supported by evidence on record: 1*
Appellant Larry Mahinay started working as houseboy with Maria
Isip on November 20, 1953. His task was to take care of Isip's house
which was under construction adjacent to her old residence situated
inside a compound at No. 4165 Dian Street, Gen. T. de Leon,
Valenzuela, Metro Manila. But he stayed and slept in an apartment
also owned by Isip, located 10 meters away from the unfinished
house (TSN, September 6, 1995, pp. 5-10).
The victim, Ma. Victoria Chan, 12 years old, was Isip's neighbor in
Dian Street. She used to pass by Isip's house on her way to school
and play inside the compound yard, catching maya birds together
with other children. While they were playing, appellant was always
around washing his clothes. Inside the compound yard was a septic
tank (TSN, August 22, 1995, pp. 29-31; September 6, 1995, pp.17;
20-22).
On June 25, 1995, at 8 o'clock a.m., appellant joined Gregorio
Rivera in a drinking spree. Around 10 o'clock in the morning,
appellant, who was already drunk, left Gregorio Rivera and asked
permission from Isip to go out with his friends (TSN, September 6,
1995; pp. 9-11).
Meantime, Isip's sister-in-law, Norgina Rivera, who also owned a
store fronting the compound, saw Ma.Victoria on that same day
three to four times catching birds inside Isip's unfinished house
around 4 o'clock in the afternoon. The unfinished house was about
8 meters away from Rivera's store (TSN, September 18, 1995, pp.
9-11).
On the other hand, Sgt. Roberto Suni, also a resident of Dian Street,
went to his in-law's house between 6 to 7 o'clock p.m. to call his
office regarding changes on the trip of President Fidel V. Ramos.
The house of his in-laws was near the house of Isip. On his way to
his in-law's house, Sgt. Suni met appellant along Dian Street. That
same evening, between 8 to 9 o'clock p.m., he saw Ma. Victoria
standing in front of the gate of the unfinished house (TSN,
September 27, 1995, pp. 3-7; 14-17).
Later, at 9 o'clock in the evening, appellant showed up at Norgina
Rivera's store to buy lugaw. Norgina Rivera informed appellant that
there was none left of it. She notice that appellant appeared to be
uneasy and in deep thought. His hair was disarrayed; he was drunk
CONSTI LAW II I ACJUCO 518
and was walking in a dazed manner. She asked why he looked so
worried but he did not answer. Then he left and walked back to the
compound (TSN, September 18, 1995, pp. 4-8; 12-14).
Meanwhile, Elvira Chan noticed that her daughter, Ma. Victoria, was
missing. She last saw her daughter wearing a pair of white shorts,
brown belt, a yellow hair ribbon, printed blue blouse, dirty white
panty, white lady sando and blue rubber slippers (TSN, August 23,
1995, pp. 22, 33).
Isip testified that appellant failed to show up for supper that night.
On the following day, June 26, 1995, at 2 o'clock in the morning,
appellant boarded a passenger jeepney driven by Fernando
Trinidad at the talipapa. Appellant alighted at the top of the bridge
of the North Expressway and had thereafter disappeared (TSN,
September 20, 1995, pp. 4-9; September 27, l995; pp. 14-17).
That same morning, around 7:30, a certain Boy found the dead body
of Ma. Victoria inside the septic tank. Boy immediately reported what
he saw to the victim's parents, Eduardo and Elvira Chan (TSN,
September 6, 1995, p. 13).
With the help of the Valenzuela Police, the lifeless body of Ma.
Victoria was retrieved from the septic tank. She was wearing a
printed blouse without underwear. Her face bore bruises. Results of
the autopsy revealed the following findings:
Cyanosis, lips and nailbeds,
Contusions, suprapubic area, 6.0 x 3.0 cm., thigh right,
Anterior aspect, middle third, 4.5 x 3.0 cm.
Contused-abrasions on the forehead, 5.0 x 5.0 cm. angle of the left
eye, lateral aspect, 2.5 x 1.5 cm. left jaw, 13.5 x 7.0 cm. neck,
antero-lateral aspect, right, 2.0 x 1.0 cm. and left, 7.0 x 6.0 cm., left
iliac area, 9.0 x 5.5 cm. intraclavicular area, left, posterior aspect,
4.0 x 2.0 cm. scapular area, right 4.0 x 4.0 cm. subscapular area,
left, 1.5 x 1.5 cm. lumbar area, left 7.0 x 8.0 cm. arm, left, posterior
aspect, middle third, 11.00 x 4.0 cm elbows, right, 4.0 x 3.0 cm. and
left 6.0 x 5.0 cm, forearms, left, posterior aspect, lower rd, 5.2 x 4.0
cm. hand, left, dorsal aspect, 0.8 x 0.9 cm. thighs; right antero-lateral
aspect, upper 33rd , 12.0 x 10.0 cm. right anterior aspect, lower 3rd
5.0 x 2.0 cm. and left antero-lower 3rd, 5.5 x 2.5 cm. knee, right,
lateral aspect, 1.5 X 1.0 cm. lateral mallcolum, left, 3.0 x 3.5 cm.
foot, left, dorsal aspect 2.2 x 1.0 cm.
Hematoma, forehead, and scalp, left, 3.5 x 3.0 cm.
Hemorrhage, interstitial, underneath nailmarks, neck, subepicardial,
subpleural petechial hemorrhages.
Hemorrhage, subdural, left fronto-parietal area.
Tracheo-bronchial tree, congested.
Other visceral organs, congested.
Stomach, contain 1/4 rice and other food particles.
CAUSE OF DEATH - Asphyxia by Manual Strangulation; Traumatic
Head Injury, Contributory.
REMARKS: Hymen: tall, thick with complete lacerations at 4:00 and
8:00 o'clock position corresponding to the face of a watch edges
congested with blood clots. (TSN, August 18, 1995; p. 4; Record, p.
126).
Back in the compound, SPO1 Arsenio Nacis and SPO1 Arnold
Alabastro were informed by Isip that her houseboy, appellant Larry
Mahinay, was missing. According to her, it was unlikely for appellant

to just disappear from the apartment since whenever he would go
out, he would normally return on the same day or early morning of
the following day (TSN, September 6, 1995, pp. 6-11-27).
SPO1 Nacis and SPO1 Alabastro were also informed that a
townmate of appellant was working in a pancit factory at Barangay
Reparo, Caloocan City. They proceeded to said place. The owner
of the factory confirmed to them that appellant used to work at the
factory but she did not know his present whereabouts. Appellant's
townmate, on the other hand, informed them that appellant could
possibly be found on 8th Street, Grace Park, Caloocan City (TSN,
August 14, 1995, pp. 8-9).
The policemen returned to the scene of the crime. At the second
floor of the house under construction, they retrieved from one of the
rooms a pair of dirty white short pants, a brown belt and a yellow
hair ribbon which was identified by Elvira Chan to belong to her
daughter, Ma. Victoria. They also found inside another room a pair
of blue slippers which Isip identified as that of appellant. Also found
in the yard, three armslength away from the septic tank were an
underwear, a leather wallet, a pair of dirty long pants and a pliers
positively identified by Isip as appellant's belongings. These items
were brought to the police station (TSN, August 14, 1995, pp. 10-
13; August 18, 1995, pp. 3-8; August 23, 1995, pp. 21-25).
A police report was subsequently prepared including a referral slip
addressed to the office of the Valenzuela Prosecutor. The next day,
SPO1 Virgilio Villano retrieved the victim's underwear from the
septic tank (TSN, August 23, 1995, pp. 3-8; 14-17).
After a series of follow-up operations, appellant was finally arrested
in Barangay Obario Matala, Ibaan, Batangas. He was brought to the
Valenzuela Police Station. On July 7, 1995, with the assistance of
Atty. Restituto Viernes, appellant executed an extra-judicial
confession wherein he narrated in detail how he raped and killed the
victim. Also, when appellant came face to face with the victim's
mother and aunt, he confided to them that he was not alone in raping
and killing the victim. He pointed to Zaldy and Boyet as his co-
conspirators (TSN, August 14,1995, pp. 13-21).
Thus, on July 10, 1995, appellant was charged with rape with
homicide in an Information which reads:2
That on or about the 26th day of June 1995 in Valenzuela, Metro
Manila and within the jurisdiction of this Honorable Court the above-
named accused, by means of force and intimidation employed upon
the person of MARIA VICTORIA CHAN y CABALLERO, age 12
years old, did then and there wilfully, unlawfully and feloniously lie
with and have sexual intercourse with said MARIA VICTORIA
CHAN Y CABALLERO against her will and without her consent; that
on the occasion of said sexual assault, the above-named accused,
choke and strangle said MARIA VICTORIA CHAN Y CABALLERO
as a result of which, said victim died.
Contrary to law.3
to which he pleaded not guilty. After trial, the lower court rendered
a decision convicting appellant of the crime charged, sentenced him
to suffer the penalty of death and to pay a total of P73,000.00 to the
victim's heirs. The dispositive portion of the trial court's decision
states:
WHEREFORE, finding accused Larry Mahinay y Amparado guilty
beyond reasonable doubt of the crime charged, he is hereby
sentenced to death by electricution (sic). He is likewise condemned
to indemnify the heirs of the victim, Ma. Victoria Chan the amount of
P50,000.00 and to pay the further sum of P23,000.00 for the funeral,
burial and wake of the victim.
Let the complete records of the case be immediately forwarded to
the Honorable Supreme Court for the automatic review in
CONSTI LAW II I ACJUCO 519
accordance to Article 47 of the Revised Penal Code as amended by
Section 22 of Republic Act No. 7659.
SO ORDERED. 4
Upon automatic review by the Court en banc pursuant to Article 47
of the Revised Penal Code. (RPC), as amended,5 appellant insists
that the circumstantial evidence presented by the prosecution
against him is insufficient to prove his guilt beyond reasonable
doubt. In his testimony summarized by the trial court, appellant
offered his version of what transpired as follows:
(T)hat on June 25, 1995, around 9:30 a.m. on Dian Street, Gen. T.
de Leon, Valenzuela, Metro Manila, he joined Gregorio Rivera and
a certain Totoy in a drinking spree. Gregorio Rivera is the brother of
Maria Isip, appellant's employer. After consuming three cases of red
horse beer, he was summoned by Isip to clean the jeepney. He
finished cleaning the jeepney at 12 o'clock noon. Then he had lunch
and took a bath. Later, he asked permission from Isip to go out with
his friends to see a movie. He also asked for a cash advance of
P300.00 (TSN, October 16, 1995, pp. 4-5-5).
At 2 o'clock in the afternoon, appellant, instead of going out with his
friend, opted to rejoin Gregorio Rivera and Totoy for another
drinking session. They consumed one case of red horse beer.
Around 6 o'clock p.m., Zaldy, a co-worker, fetched him at Gregorio
Rivera's house. They went to Zaldy's house and bought a bottle of
gin. They finished drinking gin around 8 o'clock p.m. After
consuming the bottle of gin, they went out and bought another bottle
of gin from a nearby store. It was already 9 o'clock in the evening.
While they were at the store, appellant and Zaldy met Boyet. After
giving the bottle of gin to Zaldy and Boyet, appellant left (TSN,
October 16, 1995, pp. 6-7).
On his way home, appellant passed by Norgina Rivera's store to
buy lugaw. Norgina Rivera informed him that there was none left of
it. He left the store and proceeded to Isip's apartment. But because
it was already closed, he decided to sleep at the second floor of
Isip's unfinished house. Around 10 o'clock p.m., Zaldy and Boyet
arrived carrying a cadaver. The two placed the body inside the room
where appellant was sleeping. As appellant stood up, Zaldy pointed
to him a knife. Zaldy and Boyet directed him to rape the dead body
of the child or they would kill him. He, however, refused to follow.
Then, he was asked by Zaldy and Boyet to assist them in bringing
the dead body downstairs. He obliged and helped dump the body
into the septic tank. Thereupon, Zaldy and Boyet warned him that
should they ever see him again, they would kill him. At 4 o'clock the
following morning, he left the compound and proceeded first to
Navotas and later to Batangas (TSN, October 16, 1995, pp. 4-13).
Subsequently, appellant was apprehended by the police officers in
Ibaan, Batangas. The police officers allegedly brought him to a big
house somewhere in Manila. There, appellant heard the police
officer's plan to salvage him if he would not admit that he was the
one who raped and killed the victim. Scared, he executed an extra-
judicial confession. He claimed that he was assisted by Atty.
Restituto Viernes only when he was forced to sign the extra-judicial
confession (TSN, October 16, 1995, pp. 9-11).6
This being a death penalty case, the Court exercises the greatest
circumspection in the review thereof since "there can be no stake
higher and no penalty more severe . . . than the termination of a
human life." 7 For life, once taken is like virginity, which once defiled
can never be restored. In order therefore, that appellant's guilty mind
be satisfied, the Court states the reasons why, as the records are
not shy, for him to verify.
The proven circumstances of this case when juxtaposed with
appellant's proffered excuse are sufficient to sustain his conviction
beyond reasonable doubt, notwithstanding the absence of any
direct evidence relative to the commission of the crime for which he

was prosecuted. Absence of direct proof does not necessarily
absolve him from any liability because under the Rules on
evidence8 and pursuant to settled jurisprudence, 9 conviction may
be had on circumstantial evidence provided that the following
requisites concur:
1. there is more than one circumstance;
2. the facts from which the inferences are derived are
proven; and
3. the combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt.
Simply put, for circumstantial evidence to be sufficient to support a
conviction, all circumstances must be consistent with each other,
consistent with the hypothesis that the accused is guilty, and at the
same time inconsistent with the hypothesis that he is innocent and
with every other rational hypothesis except that of guilt.10 Facts and
circumstances consistent with guilt and inconsistent with innocence,
constitute evidence which, in weight and probative force, may
surpass even direct evidence in its effect upon the court.11
In the case at bench, the trial court gave credence to several
circumstantial evidence, which upon thorough review of the Court is
more than enough to prove appellant's guilt beyond the shadow of
reasonable doubt. These circumstantial evidence are as follows:
FIRST — Prosecution witness Norgina Rivera, sister-in-law of Maria
Isip, owner of the unfinished big house where the crime happened
and the septic tank where the body of Maria Victoria Chan was
found in the morning of June 26, 1995 is located, categorically
testified that at about 9:00 in the evening on June 25, 1995, accused
Larry Mahinay was in her store located in front portion of the
compound of her sister-in-law Maria Isip where the unfinished big
house is situated buying rice noodle (lugaw). That she noticed the
accused's hair was disarranged, drunk and walking in sigsagging
manner. That the accused appeared uneasy and seems to be
thinking deeply. That the accused did not reply to her queries why
he looked worried but went inside the compound.
SECOND — Prosecution witness Sgt. Roberto C. Suni,
categorically testified that on June 25, 1995 between 6:00 and 7:00
in the evening, on his way to his in-laws house, he met accused
Larry Mahinay walking on the road leading to his in-law's residence
which is about 50 to 75 meters away to the unfinished big house of
Maria Isip. That he also saw victim Maria Victoria Chan standing at
the gate of the unfinished big house of Maria Isip between 8:00 and
9:00 in the same evening.
THIRD — Prosecution witness Maria Isip, owner of the unfinished
big house where victim's body was found inside the septic tank,
testified that accused Larry Mahinay is her houseboy since
November 20, 1993. That in the morning of June 25, 1995, a
Sunday, Larry Mahinay asked permission from her to leave. That
after finishing some work she asked him to do accused Larry
Mahinay left. That it is customary on the part of Larry Mahinay to
return in the afternoon of the same day or sometimes in the next
morning. That accused Larry Mahinay did not return until he was
arrested in Batangas on July 7, 1995.
FOURTH — Prosecution witness Fernando Trinidad, a passenger
jeepney driver plying the route Karuhatan-Ugong and vice versa
which include Dian St., Gen. T. de Leon, Valenzuela, Metro Manila,
pinpointed the accused Larry Mahinay as one of the passengers
who boarded his passenger jeepney on June 26, 1995 at 2:00 early
morning and alighted on top of the overpass of the North
Expressway.
FIFTH — Personal belongings of the victim was found in the
unfinished big house of Maria Isip where accused Larry Mahinay
CONSTI LAW II I ACJUCO 520
slept on the night of the incident. This is a clear indication that the
victim was raped and killed in the said premises.
There is no showing that the testimonies of the prosecution
witnesses (sic) fabricated or there was any reason for them to testify
falsely against the accused. The absence of any evidence as to the
existence of improper motive sustain the conclusion that no such
improper motive exists and that the testimonies of the witnesses,
therefore, should be given full faith and credit. (People vs.
Retubado, 58585 January 20, 1988 162 SCRA 276,. 284; People
vs. Ali L-18512 October 30, 1969, 29 SCRA 756).
SIXTH — Accused Larry Mahinay during the custodial investigation
and after having been informed of his constitutional rights with the
assistance of Atty. Restituto Viernes of the Public Attorney's Office
voluntarily gave his statement admitting the commission of the
crime. Said confession of accused Larry Mahinay given with the
assistance of Atty. Restituto Viernes is believed to have been freely
and voluntarily given. That accused did not complain to the proper
authorities of any maltreatment on his person (People vs. delos
Santos L-3398 May 29, 1984;150 SCRA 311). He did not even
informed the Inquest Prosecutor when he sworn to the truth of his
statement on July 8, 1995 that he was forced, coersed or was
promised of reward or leniency. That his confession abound with
details know only to him. The Court noted that a lawyer from the
Public Attorneys Office Atty. Restituto Viernes and as testified by
said Atty. Viernes he informed and explained to the accused his
constitutional rights and was present all throughout the giving of the
testimony. That he signed the statement given by the accused.
Lawyer from the Public Attorneys Office is expected to be watchful
and vigilant to notice any irregularity in the manner of the
investigation and the physical conditions of the accused. The post
mortem findings shows that the cause of death Asphyxia by manual
strangulation; Traumatic Head injury Contributory substantiate.
Consistent with the testimony of the accused that he pushed the
victim and the latter's head hit the table and the victim lost
consciousness.
Pagpasok niya sa kuwarto, hinawakan ko siya sa kamay tapos
tinulak ko siya, tapos tumama iyong ulo niya sa mesa. Ayon na,
nakatulog siya tapos ni-rape ko na siya.
There is no clear proof of maltreatment and/or tortured in giving the
statement. There were no medical certificate submitted by the
accused to sustain his claim that he was mauled by the police
officers.
There being no evidence presented to show that said confession
were obtained as a result of violence, torture, maltreatment,
intimidation, threat or promise of reward or leniency nor that the
investigating officer could have been motivated to concoct facts
narrated in said affidavit; the confession of the accused is held to be
true, correct and freely or voluntarily given. (People v. Tuazon 6
SCRA 249; People v. Tiongson 6 SCRA 431, People v. Baluran 52
SCRA 71, People v. Pingol 35 SCRA 73.)
SEVENTH — Accused Larry Mahinay testified in open Court that he
was notable to enter the apartment where he is sleeping because it
was already closed and he proceeded to the second floor of the
unfinished house and slept. He said while sleeping Zaldy and Boyet
arrived carrying the cadaver of the victim and dumped it inside his
room. That at the point of a knife, the two ordered him to have sex
with the dead body but he refused. That the two asked him to assist
them in dumping the dead body of the victim in the septic tank
downstairs. (Tsn pp. 8-9 October 16, 1995). This is unbelievable
and unnatural. Accused Larry Mahinay is staying in the apartment
and not in the unfinished house. That he slept in the said unfinished
house only that night of June 25, 1995 because the apartment
where he was staying was already closed. The Court is at a loss
how would Zaldy and Boyet knew he (Larry Mahinay) was in the
second floor of the unfinished house.

Furthermore, if the child is already dead when brought by Zaldy and
Boyet in the room at the second floor of the unfinished house where
accused Larry Mahinay was sleeping, why will Boyet and Zaldy still
brought the cadaver upstairs only to be disposed/dump later in the
septic tank located in the ground floor. Boyet and Zaldy can easily
disposed and dumped the body in the septic tank by themselves.
It is likewise strange that the dead body of the child was taken to the
room where accused Larry Mahinay was sleeping only to force the
latter to have sex with the dead body of the child.
We have no test to the truth of human testimony except it's
conformity to aver knowledge observation and experience.
Whatever is repugnant to these belongs to the miraculous. (People
vs. Santos L-385 Nov. 16, 1979)
EIGHT — If the accused did not commit the crime and was only
forced to disposed/dumpted the body of the victim in the septic tank,
he could have apprise Col. Maganto, a high ranking police officer or
the lady reporter who interviewed him. His failure and omission to
reveal the same is unnatural. An innocent person will at once
naturally and emphatically repel an accusation of crime as a matter
of preservation and self-defense and as a precaution against
prejudicing himself. A person's silence therefore, particularly when
it is persistent will justify an inference that he is not innocent. (People
vs. Pilones, L-32754-5 July 21, 1978).
NINTH — The circumstance of flight of the accused strongly indicate
his consciousness of guilt. He left the crime scene on the early
morning after the incident and did not return until he was arrested in
Batangas on July 7, 1995. 12
Guided by the three principles in the review of rape cases, to wit:13
1). An accusation for rape can be made with facility; it is
difficult to prove but more difficult for the person accused, though
innocent, to disprove;
2). In view of the intrinsic nature of the crime of rape, where
only two persons are usually involved, the testimony of the
complainant is scrutinized with extreme caution; and
3). The evidence of the prosecution stands or falls on its own
merits and cannot be allowed to draw strength from the weakness
of the defense.
the foregoing circumstantial evidence clearly establishes the felony
of rape with homicide defined and penalized under Section 335 of
the Revised Penal Code, as amended by Section 11, R.A. 7659,
which provides:
When and how rape is committed - Rape is committed by having
carnal knowledge of a woman under any of the following
circumstances.
1.) By using force or intimidation;
2.) When the woman is deprived of reason or otherwise
unconscious: and
3.) When the woman is under twelve years of age or is
demented.
The crime of rape shall be punished by reclusion perpetua.
Whenever the crime of rape is committed with use of a deadly
weapon or by two or more persons, the penalty shall be reclusion
perpetua to death.
CONSTI LAW II I ACJUCO 521
When by reason or on the occasion of the rape, the victim has
become insane, the penalty shall be death.
When the rape is attempted or frustrated and a homicide is
committed by reason or on the occasion thereof, the penalty shall
be reclusion perpetua to death.
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 of 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 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. 14
At the time of the commission of this heinous act, rape was still
considered a crime against chastity,15 although under the Anti-
Rape Law of 1997 (R.A. No. 8353), rape has since been re-
classified as a crime against persons under Articles 266-A and 266-
B, and thus, may be prosecuted even without a complaint filed by
the offended party.
The gravamen of the offense of rape, prior to R.A. 8353, is sexual
congress with a woman by force and without consent. 16 (Under the
new law, rape may be committed even by a woman and the victim
may even be a
man.) 17 If the woman is under 12 years of age, proof of force and
consent becomes immaterial18 not only because force is not an
element of statutory rape, 19 but the absence of a free consent is
presumed when the woman is below such age. Conviction will
therefore lie, provided sexual intercourse is proven. But if the
woman is 12 years of age or over at the time she was violated, as
in this case, not only the first element of sexual intercourse must be
proven but also the other element that the perpetrator's evil acts with
the offended party was done through force, violence, intimidation or
threat needs to be established. Both elements are present in this
case.
Based on the evidence on record, sexual intercourse with the victim
was adequately proven. This is shown from the testimony of the
medical doctor who conducted post mortem examination on the
child's body:
Q: And after that what other parts or the victim did you
examine?
A: Then I examined the genitalia of the victim.
 CONSTI LAW II I ACJUCO 522

Q: And what did you find out after you examined the genitalia 23. T: Ngayon, nais kong ipaalam sa iyo na ang
of the victim? pangalan ng batang babae na iyong ni rape at pinatay ay si MA.
VICTORIA CHAN? Matatandaan mo ha ito?
A: The hymen was tall-thick with complete laceration at 4:00
o'clock and 8:00 o'clock position and that the edges were S: Oho.
congested.
24. T: Nung ma-rape mo, nakaraos ka ba?
Q: Now, what might have caused the laceration?
S: Naka-isa po.
A: Under normal circumstances this might have (sic) caused
by a penetration of an organ. 25. T: Nais kong liwanagin sa iyo kung ano ang ibig
sabihin ng "NAKARAOS", maaari bang ipaliwanag mo ito?
Q: So, the laceration was caused by the penetration of a male
organ? S: Nilabasan po ako ng tamod.

A: Adult male organ, sir. 26 T: Nung nakaraos ka, nasaan parte na katawan ng
batang babae yung iyong ari?
Q: You are very sure of that, Mr. Witness?
S: Nakapasok po doon sa ari nung babae.
A: I am very sure of that.20
27. T: Natapos mong ma-rape si MA. VICTORIA
Besides, as may be gleaned from his extrajudicial confession, CHAN, ano pa ang sumunod mong ginawa?
appellant himself admitted that he had sexual congress with the
unconscious child. S: Natulak ko siya sa terrace.

15. T: Ano ang nangyari ng mga sandali o oras na 28. T: Ano ang nangyari kay MA. VICTORIA matapos
iyon? mong itulak sa terrace?

S: Natutulog po ako sa itaas ng bahay ni ATE MARIA, yung S: Inilagay ko po sa poso-negra.

malaking bahay na ginagawa, tapos dumating yung batang babae.
Pag-pasok niya sa kuwarto hinawakan ko siya sa kamay tapos 29. T: Saan makikita yung poso negra na sinasabi mo?
tinulak ko siya. Tapos tumama yung ulo niya sa mesa. Ayon na,
nakakatulog na siya tapos ni rape ko na siya. S: Doon din sa malaking bahay ni ATE MARIA.

16. T: Ano ang suot nung batang babae na sinasabi 30. T: Bakit mo namang naisipang ilagay si MA.
mo? VICTORIA sa poso-negra?

S: Itong short na ito, (pointing to a dirty white short placed S: Doon ko lang po inilagay.
atop this investigator's table. Subject evidence were part of
evidences recovered at the crime scene). 31. T: Bakit nga doon mo inilagay siya?

17. T: Bakit mo naman ni rape yung batang babae? S: Natatakot po ako.

S: Eh nasobrahan ako ng lasing. Hindi ko na alam ang 32. T: Kanino ka natatakot?

ginagawa ko.
S: Natatakot po ako sa ginawa kong masama, natatakot ako
18. T: Ano ba ang inyong ininom bakit ka nasobrahan sa mga pulis.
ng lasing?
33. T: Buhay pa ba si MA. VICTORIA nung ilagay mo
S: Red Horse po at saka GIN. siya sa poso-negra?

19. T: Saan lugar ng malaking bahay ni ATE MARIA S: Hindi ko po alam dahil nung pagbagsak niya inilagay ko
mo ni rape yung batang babae?. na siya sa poso-negra.

S: Sa kuwarto ko po sa itaas. 34. T: Nung gawin mo ba itong krimen na ito, mayroon

ka kasama?
20. T: Kailan ito at anong oras nangyari?
S: Nag-iisa lang po ako.
S: Mga bandang alas 8:00 ng gabi, araw ng Linggo, hindi ko
na matandaan kung anong petsa, basta araw ng Linggo. 35. T: Noong mga oras o sandaling gahasain mo si
MA. VICTORIA CHAN, buhay pa ba siya o patay na?
21. T: Saan lugar ito nangyari?
S: Buhay pa po.
S: Sa Dian, Gen. T. de Leon, Valenzuela, M.M.
36. T: Papaano mo siya pinatay?
22. T: Alam mo ba ang pangalan ng batang babae na ni rape
mo? S: Tinulak ko nga po siya sa terrace.21

S: Hindi ko po alam. In proving sexual intercourse, it is not full or deep penetration of the
victim's vagina; rather the slightest penetration of the male organ
into the female sex organ is enough to consummate the sexual
 CONSTI LAW II I ACJUCO 523

intercourse. 22 The mere touching by the male's organ or instrument Q— And when this question and answer period started, what
of sex of the labia of the pudendum of the woman's private parts is was the first thing that you did as assisting lawyer to the accused?
sufficient to consummate rape.
A— First, I tried to explain to him his right, sir, under the
From the wounds, contusions and abrasions suffered by the victim, constitution.
force was indeed employed upon her to satisfy carnal lust.
Moreover, from appellant's own account, he pushed the victim Q— What are those right?
causing the latter to hit her head on the table and fell unconscious.
It was at that instance that he ravished her and satisfied his A— That he has the right to remain silent. That he has the right
salacious and prurient desires. Considering that the victim, at the of a counsel of his own choice and that if he has no counsel a lawyer
time of her penile invasion, was unconscious, it could safely be will be appointed to him and that he has the right to refuse to answer
concluded that she had not given free and voluntary consent to her any question that would incriminate him.
defilement, whether before or during the sexual act.
Q— Now, after enumerating these constitutional rights of
Another thing that militates against appellant is his extra judicial accused Larry Mahinay, do you recall whether this constitutional
confession, which he, however, claims was executed in violation of right enumerated by you were reduced in writing?
his constitutional right to counsel. But his contention is belied by the
records as well as the testimony of the lawyer who assisted, warned A— Yes, sir, and it was also explained to him one by one by
and explained to him his constitutionally guaranteed pre- Police Officer Alabastro.
interrogatory and custodial rights. As testified to by the assisting
lawyer: Q— I show to you this constitutional right which you said were
reduced into writing, will you be able to recognize the same?
Q— Will you please inform the Court what was that call about?
A— Yes, sir.
A— We went to the station, police investigation together with
Atty. Froilan Zapanta and we were told by Police Officer Alabastro Q— Will you please go over this and tell the Court whether that
that one Larry Mahinay would like to confess of the crime of, I think, is the same document you mentioned?
rape with homicide.
A— Yes, sir, these were the said rights reduced into writing.
Q— And upon reaching the investigation room of Valenzuela
PNP who were the other person present? ATTY. PRINCIPE:

A— Police Officer Alabastro, sir, Police Officer Nacis and other
investigator inside the investigation room and the parents of the
child who was allegedly raped.
Q— And when you reached the investigation room do you
notice whether the accused already there?
May we request, Your Honor, that this document be marked as our
Exhibit A. proper.
Q— Do you recall after reducing into writing this constitutional
right of the accused whether you asked him to sign to acknowledge
or to conform?

A— The accused was already there. A— I was the one who asked him, sir. It was Police Officer
Alabastro.
Q— Was he alone?
Q— But you were present?
A— He was alone, sir.
A— I was then present when he signed.
Q— So, when you were already infront of SPO1 Arnold
Alabastro and the other PNP Officers, what did they tell you, if any? Q— There is a signature in this constitutional right after the
enumeration, before and after there are two (2) signatures, will you
A— They told us together with Atty. Zapanta that this Larry please recognize the two (2) signatures?
Mahinay would like to confess of the crime charged, sir.
A— These were the same signatures signed in my presence,
Q— By the way, who was that Atty. Zapanta? sir.

A— Our immediate Superior of the Public Attorney's Office. Q— The signature of whom?

Q— Was he also present at the start of the question and A— The signature of Larry Mahinay, sir.
answer period to the accused?
ATTY. PRINCIPE:
A— No more, sir, he already went to our office. I was left alone.
May we request, Your Honor, that the two (2) signatures identified
Q— But he saw the accused, Larry Mahinay? by my compañero be encircled and marked as Exhibit A-1 and A-2.

A— Yes, sir. Q— After you said that you apprised the accused of his
constitutional right explaining to him in Filipino, in local dialect, what
Q— Now, when Atty. Zapanta left at what time did the question was the respond of the accused?
and answer period start?
A— Larry Mahinay said that we will proceed with his
A— If I am not mistaken at around 4:05 of July 7, 1995 in the statement.
afternoon, sir.
Q— What was the reply?
 CONSTI LAW II I ACJUCO 524

A— He said "Opo". evaluation of the testimony of witnesses is received on appeal with

the highest respect, 26 the same being supported by substantial
Q— Did you ask him of his educational attainment? evidence on record. There was no showing that the court a quo had
overlooked or disregarded relevant facts and circumstances which
A— It was the Police Officer who asked him. when considered would have affected the outcome of this case27
or justify a departure from the assessments and findings of the court
Q— In your presence? below. The absence of any improper or ill-motive on the part of the
principal witnesses for the prosecution all the more strengthens the
A— In my presence, sir. conclusion that no such motive exists. 28 Neither was any wrong
motive attributed to the police officers who testified against
Q— And when he said or when he replied "Opo" so the appellant.
question started?
Coming now to the penalty, the sentence imposed by the trial court
A— Yes, sir. is correct. Under Article 335 of the Revised Penal Code (RPC), as
amended by R.A. 7659 "when by reason or on occasion of the rape,
Q— I noticed in this Exhibit A that there is also a waiver of a homicide is committed, the penalty shall be death." This special
rights, were you present also when he signed this waiver? complex crime is treated by law in the same degree as qualified rape
- that is, when any of the 7 (now 10) "attendant circumstances"
A— Yes, sir, I was also present. enumerated in the law is alleged and proven, in which instances,
the penalty is death. In cases where any of those circumstances is
Q— Did you explain to him the meaning of this waiver? proven though not alleged, the penalty cannot be death except if the
circumstance proven can be properly appreciated as an aggravating
A— I had also explained to him, sir. circumstance under Articles 14 and 15 of the RPC which will affect
the imposition of the proper penalty in accordance with Article 53 of
Q— In Filipino? the RPC However, if any of those circumstances proven but not
alleged cannot be considered as an aggravating circumstance
A— In Tagalog, sir. under Articles 14 and 15, the same cannot affect the imposition of
the penalty because Article 63 of the RPC in mentioning aggravating
Q— And there is also a signature after the waiver in Filipino circumstances refers to those defined in Articles 14 and 15. Under
over the typewritten name Larry Mahinay, "Nagsasalaysay", whose R.A. No. 8353, if any of the 10 circumstances is alleged in the
signature is that? information/complaint, it may be treated as a qualifying
circumstance. But if it is not so alleged, it may be considered as an
A— This is also signed in my presence. aggravating circumstance, in which case the only penalty is death -
subject to the usual proof of such circumstance in either case.
Q— Why are you sure that this is his signature?
Death being a single indivisible penalty and the only penalty
A— He signed in my presence, sir. prescribed by law for the crime of "rape with homicide", the court
has no option but to apply the same "regardless of any mitigating or
Q— And below immediately are the two (2) signatures. The aggravating circumstance that may have attended the commission
first one is when Larry Mahinay subscribed and sworn to, there is a of the crime"29 in accordance with Article 63 of the RPC, as
signature here, do you recognize this signature? amended. 30 This case of rape with homicide carries with it penalty
of death which is mandatorily imposed by law within the import of
A— This is my signature, sir. Article 47 of the RPC, as amended, which provides:

Q— And immediately after your first signature is a Certification
that you have personally examined the accused Larry Mahinay and
testified that he voluntary executed the Extra Judicial Confession,
do you recognize the signature?
A— This is also my signature, sir.23 (emphasis supplied).
Appellant's defense that two other persons brought to him the dead
body of the victim and forced him to rape the cadaver is too
unbelievable. In the words of Vice-Chancellor Van Fleet of New
Jersey, 24
Evidence to be believed must not only proceed from the mouth of a
credible witness, but must be credible in itself - such as the common
experience and observation of mankind can approve as probable
under the circumstances. We have no test or the truth of human
testimony, except its conformity to our knowledge, observation and
experience. Whatever is repugnant to these belongs to the
miraculous, and is outside of judicial cognizance.
Ultimately, all the foregoing boils down to the issue of credibility of
witnesses. Settled is the rule that the findings of facts and
assessment of credibility of witnesses is a matter best left to the trial
court because of its unique position of having observed that elusive
and incommunicable evidence of the witnesses' deportment on the
stand while testifying, which opportunity is denied to the appellate
courts.25 In this case, the trial court's findings, conclusions and
The death penalty shall be imposed in all cases in which it must be
imposed under existing laws, except when the guilty person is below
eighteen (18) years of age at the time of the commission of the crime
or is more than seventy years of age or when upon appeal or
automatic review of the case by the Supreme Court, the required
majority vote is not obtained for the imposition of the death penalty,
in which cases the penalty shall be reclusion perpetua.
(emphasis supplied).
In an apparent but futile attempt to escape the imposition of the
death penalty, appellant tried to alter his date of birth to show that
he was only 17 years and a few months old at the time he committed
the rape and thus, covered by the proscription on the imposition of
death if the guilty person is below eighteen (18) years at the time of
the commission of the crime.31 Again, the record rebuffs appellant
on this point considering that he was proven to be already more than
20 years of age when he did the heinous act.
Pursuant to current case law, a victim of simple rape is entitled to a
civil indemnity of fifty thousand pesos (P50,000.00) but if the crime
of rape is committed or effectively qualified by any of the
circumstances under which the death penalty is authorized by
present amended law, the civil indemnity for the victim shall be not
less than seventy-five thousand pesos (P75,000.00).32 In addition
to such indemnity, she can also recover moral damages pursuant to
Article 2219 of the Civil Code 33 in such amount as the court deems
 CONSTI LAW II I ACJUCO 525

just, without the necessity for pleading or proof of the basis thereof.
34 Civil indemnity is different from the award of moral and exemplary
damages. 35 The requirement of proof of mental and physical
suffering provided in Article 2217 of the Civil Code is dispensed with
because it is "recognized that the victim's injury is inherently
concomitant with and necessarily resulting from the odious crime of
rape to warrant per se the award of moral damages". 36 Thus, it
was held that a conviction for rape carries with it the award of moral
damages to the victim without need for pleading or proof of the basis
thereof. 37
Exemplary damages can also be awarded if the commission of the
crime was attended by one or more aggravating circumstances
pursuant to Article 2230 of the Civil Code38 after proof that the
offended party is entitled to moral, temperate and compensatory
damages. 39 Under the circumstances of this case, appellant is
liable to the victim's heirs for the amount of P75,000.00 as civil
indemnity and P50,000.00 as moral damages.
Lastly, considering the heavy penalty of death and in order to ensure
that the evidence against an accused were obtained through lawful
means, the Court, as guardian of the rights of the people lays down
the procedure, guidelines and duties which the arresting, detaining,
inviting, or investigating officer or his companions must do and
observe at the time of making an arrest and again at and during the
time of the custodial interrogation 40 in accordance with the
Constitution, jurisprudence and Republic Act No. 7438: 41 It is high-
time to educate our law-enforcement agencies who neglect either
by ignorance or indifference the so-called Miranda rights which had
become insufficient and which the Court must update in the light of
new legal developments:
1. The person arrested, detained, invited or under custodial
investigation must be informed in a language known to and
understood by him of the reason for the arrest and he must be
shown the warrant of arrest, if any; Every other warnings,
information or communication must be in a language known to and
understood by said person;
8. In addition, if the person arrested waives his right to a
lawyer, he must be informed that it must be done in writing AND in
the presence of counsel, otherwise, he must be warned that the
waiver is void even if he insist on his waiver and chooses to speak;
9. That the person arrested must be informed that he may
indicate in any manner at any time or stage of the process that he
does not wish to be questioned with warning that once he makes
such indication, the police may not interrogate him if the same had
not yet commenced, or the interrogation must ceased if it has
already begun;
10. The person arrested must be informed that his initial
waiver of his right to remain silent, the right to counsel or any of his
rights does not bar him from invoking it at any time during the
process, regardless of whether he may have answered some
questions or volunteered some statements;
11. He must also be informed that any statement or evidence,
as the case may be, obtained in violation of any of the foregoing,
whether inculpatory or exculpatory, in whole or in part, shall be
inadmissible in evidence.
Four members of the Court — although maintaining their adherence
to the separate opinions expressed in People v. Echegaray 42 that
R.A. No. 7659, insofar as it prescribes the death penalty, is
unconstitutional — nevertheless submit to the ruling of the Court, by
a majority vote, that the law is constitutional and that the death
penalty should accordingly be imposed.
WHEREFORE, the conviction of appellant is hereby AFFIRMED
except for the award of civil indemnity for the heinous rape which is
INCREASED to P75,000.00, PLUS P50,000.00 moral damages.
In accordance with Section 25 of Republic Act No. 7659, amending
Article 83 of the Revised Penal Code, upon finality of this decision,
let the records of this case be forthwith forwarded to the Office of
the President for possible exercise of the pardoning power.

2. He must be warned that he has a right to remain silent and SO ORDERED.

that anystatement he makes may be used as evidence against him;

3. He must be informed that he has the right to be assisted

at all times and have the presence of an independent and competent
lawyer, preferably of his own choice;

4. He must be informed that if he has no lawyer or cannot

afford the services of a lawyer, one will be provided for him; and that
a lawyer may also be engaged by any person in his behalf, or may
be appointed by the court upon petition of the person arrested or
one acting in his behalf;

5. That whether or not the person arrested has a lawyer, he

must be informed that no custodial investigation in any form shall be
conducted except in the presence of his counsel or after a valid
waiver has been made;

6. The person arrested must be informed that, at any time,

he has the right to communicate or confer by the most expedient
means - telephone, radio, letter or messenger - with his lawyer
(either retained or appointed), any member of his immediate family,
or any medical doctor, priest or minister chosen by him or by any
one from his immediate family or by his counsel, or be visited
by/confer with duly accredited national or international non-
government organization. It shall be the responsibility of the officer
to ensure that this is accomplished;

7. He must be informed that he has the right to waive any of

said rights provided it is made voluntarily, knowingly and intelligently
and ensure that he understood the same;

G.R. No. 131036 June 20, 2001
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DONATO DEL ROSARIO, defendant-appellant.
BUENA, J.:
This is an appeal from the decision of the Regional Trial Court at
Olongapo City, Branch 72 in Criminal Case No. 838-92, entitled
"People of the Philippines versus Donato del Rosario," convicting
the accused of the crime of robbery with homicide and sentencing
him to reclusion perpetua.
On November 20, 1992, an information was filed against Donato del
Rosario charging him of robbery with homicide committed as
follows:
"That on or about the twenty-sixth (26th) of September, 1992, in the
City of Olongapo, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, with intent of gain and
without the knowledge and consent of the owner, and by means of
violence and intimidation, did then and there wilfully, unlawfully and
feloniously take, steal and carry away one (1) pc. of 22K grams of
gold bracelet worth P3,500.00, one (1) pc. of diamond ring with letter
‘E’ worth P3,200.00, one (1) pc. of wedding ring worth P800.00, two
(2) pairs of gold earring worth P1,600.00 and cash money in the
amount of P1,600.00, all in the total amount of Ten Thousand Seven
Hundred Pesos (P10,700.00), Philippine Currency, belonging to
Emelita Paragua, and on the occasion of said robbery and for the
purpose of enabling him to take, steal and carry away the above-
mentioned items, the herein accused, did then and there wilfully,
unlawfully, feloniously and taking advantage of superior strength
and with intent to kill treacherously attack, assault, hit her with a
hard object on the head and then strangle and tie the neck of Raquel
Lopez (niece of Emelita Paragua) with a Cat-V wire to prevent her
from breathing and making an outcry, thereby inflicting upon said
Raquel Lopez asphyxia injuries which directly caused her death
shortly thereafter."1
Upon arraignment on February 3, 1993, accused Donato del
Rosario, assisted by counsel, pleaded not guilty to the crime
charged. The Regional Trial Court thereafter proceeded with the
trial.
Culled from the records are the following:
On September 26, 1992, at about 8:10 in the morning, Emelita
Paragua and a companion, a Delia Aquino, left their house at 1657
Balic-Balic, Sta. Rita, Olongapo City to go to the former’s stall in the
public market. Raquel Lopez, the 11-year old niece of Paragua, was
left behind as she had no classes that day, a Saturday.
Notified of the news that their house was on fire, they went home.
Paragua saw that the sala set, their merchandise (stuffed toys that
they sell at the public market), and the cassette were burned. When
she entered the kitchen, she saw her niece lying on her stomach
with a raincoat covering her head and her neck and arms tied with
CATV wire. Parts of her hand and her thigh were burned. Raquel
Lopez was already dead when her aunt discovered her. The total
value of the burned properties was around Thirty Thousand Pesos
(P30,000.00). Emelita Paragua likewise discovered that six pieces
of her jewelries were missing.
SPO1 Ramon Fernandez received a report regarding the fire in
Balic-Balic wherein a minor who was identified as Raquel Lopez
was found dead. Together with his chief investigator, Leonardo
Esteban and other personnel, he went to the scene of the incident
to conduct an investigation.
CONSTI LAW II I ACJUCO 526
He found the single-storey house in complete disarray. The sala
was set on fire and he found the items therein burned. Likewise the
two bedrooms.
He located the body of Raquel Lopez in the kitchen. Her head was
covered with a pink raincoat and around her neck was a CATV wire.
She was lying face down, her hands behind her back.
Inquiries made revealed that a certain Ramon Ilagan was seen in
the vicinity of the house before the incident. Ramon Ilagan was
interrogated but denied the accusation against him. Since no
evidence could be produced linking him to the crime, he was
released.
Three days after the incident, the police received information from
the live-in partner of Ilagan, that a certain Donato del Rosario was
seen standing at the back of the house of Paragua before the crime
was committed and had disappeared since then. Del Rosario’s
mother and common-law wife were questioned about the
whereabouts of the accused. SPO1 Fernandez told the mother of
del Rosario that her son was suspected of committing the crimes in
Balic-Balic.
On October 2, 1992, the Olongapo City police received a call from
the Subic police that Donato del Rosario surrendered to police
officer Fernando Morales, the brother-in-law of his common-law
wife, Ruby Tan. Thereafter, SPO1 Fernandez, together with
Inspector Leonardo Esteban and PO3 Laurea, proceeded to Subic
to fetch Donato del Rosario.
Del Rosario, even without being asked, told them that he really
surrendered to Morales because he was being bothered by his
conscience and that he was very willing to accompany them to
recover the stolen items. He also volunteered the information as to
where he sold the jewelries that he took from the house of Emelita
Paragua.
Thereafter the policemen from Olongapo and Donato del Rosario
proceeded to the places mentioned by the latter – Barrio Barretto,
Olongapo City, where the "Lovely Kahael Pawnshop" was located,
and Barangay Magsaysay, Iba, Zambales. Del Rosario was not
even handcuffed at the time.
At the Lovely Kahael pawnshop del Rosario pointed out the jewelry
that he had pawned. He also signed the pawnshop ticket in order
that a wedding band and a diamond ring with the letter "E" could be
redeemed. At the pawnshop he was identified by Florencio
Gamboa, the OIC/appraiser therein.
Afterwards they proceeded to Magsaysay, Iba, Zambales to the
shop of Rogelio Adriano. They were not able to immediately recover
a bracelet and a 7-day ring that were sold to Adriano, a watch
repairer and a buyer/seller of second hand jewelry, as he had given
them to his son for safekeeping. However, Adriano assured the
police that he is going to voluntarily surrender the jewelry because
he learned of the girl who was found dead and of the robbery. His
son, Rogelio Adriano, Jr., returned the jewelry to the police some
days later. Both Adrianos identified del Rosario as the person who
sold them the jewelry. After the jewelry was recovered, the police
called Emelita Paragua who positively identified the jewels as hers.
Del Rosario was then brought to the Olongapo police station. A
lawyer, Atty. Norberto dela Cruz, was called in to assist del Rosario.
During the custodial investigation, Atty. dela Cruz was present the
whole time. He informed del Rosario what was stated in the
waiver/confession. It was only when del Rosario said that he fully
understood its contents that Atty. dela Cruz signed it as counsel.
SPO1 Fernandez brought the accused and Atty. dela Cruz to
Assistant City Prosecutor Martinez for subscription.

As to be expected, Donato del Rosario’s account of the day in
question, September 26, 1992, was different.
He alleged that on the morning of September 26, 1992, at around
7:00 A.M., he went to Subic, Zambales to buy containers for his
vinegar and Clorox business. He was with a certain Rancen Anonat,
the son of his would-be employer. They returned to Balic-balic at
around 9:00 A.M. and spent the night at the house of Anonat. The
following day, he went to the house of his common-law wife. On the
28th of September, he went to Navotas and returned to Subic the
next day. On the 30th he stayed with the brother-in-law of his
common-law wife, Fernando Morales, a police officer in Subic.
It was Morales who informed del Rosario that he was a suspect in
the arson case. He was persuaded by Morales to place himself in
the custody of the police pending the investigation of the case, as
there was a threat to kill him by a certain Zapanta, a member of a
salvage team in Olongapo. He spent the night in the detention cell
in Subic.
On October 1, four policemen from Olongapo arrived. He was led
out of the detention cell to talk with the policemen. In the
investigation room, he was told that he would be taken to Olongapo
for further investigation. Morales told him to trust the police as they
are in the same corps. He was not handcuffed when he was taken
out to the vehicle which would take him to Olongapo.
When they arrived in the police station (Station A), he found his aunt
and some people in a room. When he sat down he was boxed by an
unknown man.
Thereafter, he was brought to Station B. He was forced to sign a
document, but not before being mauled with a rattan stick and a
chair. While he was being mauled he was forced to admit that he
committed the arson.
From the "mayores" in the jail, he found out that the document he
had signed was a waiver.
Del Rosario did not recall going to the prosecutor’s office to file or
submit his counter-affidavit. Neither did he go to the fiscal’s office
for preliminary investigation.
Based on the findings of Dr. Richard Patilano, medico-legal officer,
the cause of death of Raquel Lopez was asphyxia by strangulation
and multiple physical injuries. The victim was already dead when
the burning took place because the body did not show any
carbonization or black color.
On November 8, 1996, an order was issued stating, among other
things, that since the prosecution and the defense agreed that if
witness Raymund Tan (the father of the accused’s common-law
wife) will be presented to testify that his son-in-law (Fernando
Morales) accompanied del Rosario in surrendering to the police
department of Subic, Zambales, the testimony of the said witness
was dispensed with.2
On April 2, 1997, a decision was rendered by the trial court
convicting the accused and imposing the following penalty:
"WHEREFORE, the Court finds the accused Donato del Rosario
guilty beyond reasonable doubt of the crime of Robbery with
Homicide and hereby sentences him to the maximum of Reclusion
Perpetua or from THIRTY-THREE (33) YEARS and FOUR (4)
MONTHS and ONE (1) DAY to FORTY YEARS, and to indemnify
the heirs of Raquel Lopez y Paragua the amount of ONE HUNDRED
THOUSAND PESOS (P100,000.00) and to pay the costs.
"SO ORDERED."3
CONSTI LAW II I ACJUCO 527
Hence, this appeal where accused-appellant assigns the following
errors allegedly committed by the trial court:
"I
"IT IS ERRONEOUS AND ILLOGICAL FOR THE TRIAL COURT
TO CONVICT APPELLANT WHEN THE ELEMENTAL
REQUISITES OF THE SPECIAL COMPLEX CRIME OF ROBBERY
WITH HOMICIDE ARE NOT PRESENT.
"II
"THE COURT A QUO IS LIKEWISE IN ERROR IN HANDING
DOWN A CONVICTION ON A CIRCUMSTANTIAL EVIDENCE
ABSENT ITS REQUISITE ELEMENTS.
"III
"THE LOWER COURT’S QUESTIONED DECISION
OVERLOOKED MATERIAL FACTS OF IMPORTANCE AND
SUBSTANCE WHICH IF CONSIDERED WOULD TILT THE SCALE
OF ‘LADY JUSTICE’ TO ACQUIT THE APPELLANT."
The appeal is unmeritorious.
Accused-appellant Donato del Rosario contends that it is essential
to prove the intent to rob and that the intent to rob must come first
before the killing transpired. He is of the impression that not all the
essential requisites of the crime of robbery with homicide were
proven.
We hold otherwise.
In the offense of robbery with homicide, a crime primarily classified
as one against property and not against persons, the prosecution
has to firmly establish the following elements: (a) the taking of
personal property with the use of violence or intimidation against a
person; (b) the property thus taken belongs to another; (c) the taking
is characterized by intent to gain or animus lucrandi; and (d) on the
occasion of the robbery or by reason thereof, the crime of homicide,
which is therein used in a generic sense, was committed.4
Animus lucrandi, or intent to gain, is an internal act which can be
established through the overt acts of the offender.5 Although proof
as to motive for the crime is essential when the evidence of the theft
is circumstantial, the intent to gain or animus lucrandi is the usual
motive to be presumed from all furtive taking of useful property
appertaining to another, unless special circumstances reveal a
different intent on the part of the perpetrator. "xxx (T)he intent to
gain may be presumed from the proven unlawful taking."6
Intent to gain (animus lucrandi) is presumed to be alleged in an
information where it is charged that there was unlawful taking
(apoderamiento) and appropriation by the offender of the things
subject of the robbery.7
In this case, it was apparent that the reason why accused-appellant
stole the jewelry of Emelita Paragua was because he intended to
gain by them. He had already admitted that he needed money to
marry his common-law wife.8
We take note of the places where the jewelry were recovered – a
pawnshop in Olongapo City, and a stall of a second hand jewelry
buyer in Iba.
Florencio Gamboa, the OIC/appraiser of the Lovely Kahael
Pawnshop, remembered giving the accused-appellant nine hundred
pesos (P900.00) for the two pieces of jewelry the latter had pawned,
while Rogelio Adriano admitted paying the accused the amount of
One Thousand Five Hundred Pesos (P1,500.00) for two jewelries.

If gaining through unlawful means was farthest from the mind of the
accused, why then did he pawn and sell the jewelry he had taken
from Emelita Paragua for a total amount of two thousand four
hundred pesos (P2,400.00)?
The accused vehemently denies having robbed the house of
Emelita Paragua. But the testimonies of Gamboa and the Adrianos
that it was the accused who pawned and sold, respectively, the
jewelry to them shows that the accused had in his possession the
stolen jewelry. His failure to refute this must be taken against him.
It is a rule established by an abundance of jurisprudence that when
stolen property is found in the possession of one, not the owner,
without a satisfactory explanation of his possession, he will be
presumed to be the thief. This rule is in accordance with the
disputable presumption "that a person found in possession of a thing
taken in the doing of a recent wrongful act is the taker and doer of
the whole act."9
We conclude that accused-appellant went to the house of Emelita
Paragua because he intended to rob her. Lamentably, Paragua’s
niece, Raquel Lopez, was in the way and she had to be dealt with
in the direct manner possible. And the means resorted to by the
accused-appellant was to strangle her until her very last breath.
Raquel Lopez was killed on the occasion of the robbery because
she was the only one in the house at that time and the only witness
to the crime that accused-appellant committed.
Her autopsy report revealed that she was already dead before the
fire started, thus eliminating any inference that arson was committed
to finish her off. The arson was but a ruse to cover up the theft.
It is immaterial whether the killing transpired before or after the
robbery. In the crime of robbery with homicide, the homicide may
precede robbery or may occur after robbery. What is essential is
that there is a nexus, an intimate connection between robbery and
the killing whether the latter be prior or subsequent to the former, or
whether both crimes be committed at the same time.10
Accused-appellant claims that his arrest was violative of his
constitutional rights and that all the evidence obtained thereat were
fruits of the poisonous tree and therefore inadmissible in any
proceeding of whatever nature and for any purpose. He alleged that
he was mauled to force him to sign a confession.
Contrary to accused-appellant’s allegation that he was arrested, we
find that he was not, and that he voluntarily surrendered to police
officer Fernando Morales of the Subic police.
In fact, his surrender was to be the gist of the testimony of Raymund
Tan, the father of his common-law wife, had he testified: that his
son-in-law, Fernando Morales, accompanied del Rosario in
surrendering to the police department of Subic, Zambales.11
(Emphasis supplied) We do not see why Raymund Tan would not
say that Morales accompanied del Rosario in surrendering to the
police if it was not the truth.
We, therefore, find that accused-appellant surrendered to the police
authorities, confessed to the crime, volunteered the information as
to where he pawned and sold the jewelry, and went with the
Olongapo police willingly to the Lovely Kahael Pawnshop and to the
stall of the Adrianos and to the police station in Olongapo. He
admitted that he was not even handcuffed.
After his surrender and the recovery of the jewelry, accused-
appellant executed a waiver and confession in the vernacular, in the
presence of his aunt and some persons whom he cannot identify.12
He was assisted by Atty. dela Cruz. The waiver reads:
"W A I V E R
CONSTI LAW II I ACJUCO 528
"SA SINUMANG KINAUUKULAN:
"AKO, DONATO DEL ROSARIO Y LACORTE, NASA HUSTONG
GULANG AT NAKATIRA SA NR. 1663 Balic-balic, Sta. Rita,
Olongapo City ay nagsasaad ng mga sumusunod:
"1. Na ako ay kusang sumuko sa Pulisya noong ika-02 ng Oktubre
1992 dahil sa nakokonsensiya ako sa nagawa kong pagpatay kay
Raquel Lopez at pagnanakaw at pagsunog ko sa bahay nila;
"2. Na sa dahilang ito ay pinawawalang bisa ko ang aking mga
karapatan na nakapaloob sa Art. 125 ng RPC at ako ay pumapayag
na pansamantalang magpakulong at pumailalim sa pangangalaga
ng mga pulis at para na rin makaharap ko ang nagrereklamo sa
akin.
"3. Na nilagdaan ko ang pawawalang bisa ko sa aking mga
karapatan bilang patotoo sa nilalaman nito.
(Sgd.) Donato del Rosario
Nagsasaad
Assisted by:
(Sgd.) ATTY. NORBERTO DELA CRUZ"13 (Italics supplied)
A confession to be admissible must be: (1) express and categorical;
(2) given voluntarily, and intelligently where the accused realizes the
legal significance of his act; (3) with assistance of competent and
independent counsel; (4) in writing, and in the language known to
and understood by the confessant; and (5) signed, or if the
confessant does not know how to read and write, thumbmarked by
him.14
As officers of the court, lawyers have a responsibility to assist in the
proper administration of justice.15 As an officer of the court, he has
in his favor the presumption of regularity in the performance of his
sworn duties and responsibilities.16 Absent any showing that Atty.
dela Cruz was remiss in his duty, the confession of the accused-
appellant is valid and binding upon him and is thus admissible in
evidence.
Assuming for the sake of argument that the extrajudicial admission
is not binding upon him, let it be stressed that he was positively
identified by Florencio Gamboa, the appraiser of Lovely Kahael
Pawnshop, and by Rogelio Adriano and his son, as the person who
pawned and sold the jewelry.
Both SPO1 Ramon Fernandez and Lt. Leonardo Esteban told the
court that the accused voluntarily led them to the place where he
pawned and sold the jewelry so that the jewelry could be recovered.
If he was not the culprit, how did he come to know where to lead the
policemen in order to retrieve the jewelry of Emelita Paragua?
Where there is nothing to indicate that a witness was actuated by
improper motives, his positive and categorical declarations on the
witness stand under solemn oath deserve full faith and credence.17
We find it incredible that he was mauled to force him to sign his
confession, let alone mauled.
Accused-appellant admitted knowing Fernando Morales of the
Subic police station. His relationship with the said police officer
would make other police officers be wary of him. They could not
have dared maul him as del Rosario would have sent word to
Morales as to the fate he had suffered in the hands of the Olongapo
police.
The Olongapo police would have had a hands-off policy with regard
to the accused-appellant, as they would not have wanted any of their
 CONSTI LAW II I ACJUCO 529

friends or relatives to be mauled by the Subic police if they ever get

arrested there. Quid pro quo.

In addition, bare assertions of maltreatment by the police authorities

in extracting confessions from the accused are not sufficient in view
of the standing rule enunciated in cases of People vs. Mada-I
Santalani;18 People vs. Balane;19 and People vs. Villanueva,20
"that where the defendants did not present evidence of compulsion,
or duress nor violence on their person; where they failed to complain
to the officer who administered their oaths; where they did not
institute any criminal or administrative action against their alleged
intimidators for maltreatment; where there appeared to be no marks
of violence on their bodies; and where they did not have themselves
examined by a reputable physician to buttress their claim, all these
were considered by this Court as factors indicating
voluntariness."21

The court a quo did not hand down a conviction based on

circumstantial evidence.

The accused-appellant voluntarily surrendered to the police and

admitted his guilt by way of the waiver/confession he had signed.
Circumstantial evidence had no place in this case.

Accused-appellant relied on alibi as a defense to belie the

accusation against him. However, nobody was presented to
corroborate his statements as to his whereabouts on the day when
the robbery, homicide, and arson took place, not even Rancen
Anonat who was his companion on that day and who was with him
when the crimes occurred. Already a weak defense, alibi becomes
even weaker by reason of the failure of the defense to present any
corroboration.22

In the absence of showing that the factual findings of the trial judge
were reached arbitrarily or without sufficient basis, these findings
are to be received with respect by, and indeed are binding on, the
Supreme Court.23

In every case, courts must specify the award for each item of
damages and make a finding thereon in the body of the decision.24
Prevailing jurisprudence awards only P50,000.00 to the heirs of the
victim without need of any evidence other than the fact of the
commission of the crime. The trial court therefore erred in awarding
P100,000.00 as indemnity.

WHEREFORE, IN VIEW OF THE FOREGOING, the conviction of

appellant is AFFIRMED, with the modification that the P100,000.00
awarded as indemnity is reduced to P50,000.00 pursuant to the
prevailing jurisprudence.

SO ORDERED.

RIGHT TO BAIL
G.R. No. 79269 June 5, 1991
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. PROCORO J. DONATO, in his official capacity as
Presiding Judge, Regional Trial Court, Branch XII, Manila;
RODOLFO C. SALAS, alias Commander Bilog, respondents.
The Solicitor General for petitioner.
Jose Suarez, Romeo Capulong, Efren Mercado and Movement
of Attorneys for Brotherhood, Integrity, Nationalism, Inc.
(MABINI) for Rodolfo Salas.
DAVIDE, JR., J.:
The People of the Philippines, through the Chief State Prosecutor
of the Department of Justice, the City Fiscal of Manila and the Judge
Advocate General, filed the instant petition for certiorari and
prohibition, with a prayer for restraining order/preliminary injunction,
to set aside the order of respondent Judge dated July 7, 1987
granting bail to the accused Rodolfo Salas alias "Commander Bilog"
in Criminal Case No. 86-48926 for Rebellion,1 and the subsequent
Order dated July 30, 1987 granting the motion for reconsideration
of 16 July 1987 by increasing the bail bond from P30,000.00 to
P50,000.00 but denying petitioner's supplemental motion for
reconsideration of July 17, 1987 which asked the court to allow
petitioner to present evidence in support of its prayer for a
reconsideration of the order of 7 July 1987.
The pivotal issues presented before Us are whether the right to bail
may, under certain circumstances, be denied to a person who is
charged with an otherwise bailable offense, and whether such right
may be waived.
The following are the antecedents of this petition:
In the original Information2 filed on 2 October 1986 in Criminal Case
No. 86-48926 of the Regional Trial Court of Manila, later amended
in an Amended Information3 which was filed on 24 October 1986,
private respondent Rodolfo Salas, alias "Commander Bilog", and his
co-accused were charged for the crime of rebellion under Article
134, in relation to Article 135, of the Revised Penal Code allegedly
committed as follows:
That in or about 1968 and for some time before said year and
continuously thereafter until the present time, in the City of Manila
and elsewhere in the Philippines, the Communist Party of the
Philippines, its military arm, the New People's Army, its mass
infiltration network, the National Democratic Front with its other
subordinate organizations and fronts, have, under the direction and
control of said organizations' leaders, among whom are the
aforenamed accused, and with the aid, participation or support of
members and followers whose whereabouts and identities are still
unknown, risen publicly and taken arms throughout the country
against the Government of the Republic of the Philippines for the
purpose of overthrowing the present Government, the seat of which
is in the City of Manila, or of removing from the allegiance to that
government and its laws, the country's territory or part of it;
That from 1970 to the present, the above-named accused in their
capacities as leaders of the aforenamed organizations, in
conspiracy with, and in support of the cause of, the organizations
aforementioned, engaged themselves in war against the forces of
the government, destroying property or committing serious violence,
and other acts in the pursuit of their unlawful purpose, such as . . .
(then follows the enumeration of specific acts committed before and
after February 1986).
CONSTI LAW II I ACJUCO 530
At the time the Information was filed the private respondent and his
co-accused were in military custody following their arrest on 29
September 1986 at the Philippine General Hospital, Taft Ave.,
Manila; he had earlier escaped from military detention and a cash
reward of P250,000.00 was offered for his
capture.4
A day after the filing of the original information, or on 3 October
1986, a petition for habeas corpus for private respondent and his
co-accused was filed with this Court5 which, as shall hereafter be
discussed in detail, was dismissed in Our resolution of 16 October
1986 on the basis of the agreement of the parties under which
herein private respondent "will remain in legal custody and will face
trial before the court having custody over his person" and the
warrants for the arrest of his co-accused are deemed recalled and
they shall be immediately released but shall submit themselves to
the court having jurisdiction over their person.
On November 7, 1986 , private respondent filed with the court below
a Motion to Quash the Information alleging that: (a) the facts alleged
do not constitute an offense; (b) the Court has no jurisdiction over
the offense charged; (c) the Court has no jurisdiction over the
persons of the defendants; and (d) the criminal action or liability has
been extinguished,6 to which petitioner filed an Opposition7 citing,
among other grounds, the fact that in the Joint Manifestation and
Motion dated October 14, 1986, in G.R. No. 76009, private
respondent categorically conceded that:
xxx xxx xxx
Par. 2 (B) — Petitioner Rodolfo Salas will remain in legal custody
and face trial before the court having custody over his person.
In his Order of March 6, 1987,8 respondent Judge denied the motion
to quash.
Instead of asking for a reconsideration of said Order, private
respondent filed on 9 May 1987 a petition for bail,9 which herein
petitioner opposed in an Opposition filed on 27 May 198710 on the
ground that since rebellion became a capital offense under the
provisions of P.D. Nos. 1996, 942 and 1834, which amended Article
135 of the Revised Penal Code, by imposing the penalty of reclusion
perpetua to death on those who promote, maintain, or head a
rebellion the accused is no longer entitled to bail as evidence of his
guilt is strong.
On 5 June 1987 the President issued Executive Order No. 187
repealing, among others, P.D. Nos. 1996, 942 and 1834 and
restoring to full force and effect Article 135 of the Revised Penal
Code as it existed before the amendatory decrees. Thus, the
original penalty for rebellion, prision mayor and a fine not to exceed
P20,000.00, was restored.
Executive Order No. 187 was published in the Official Gazette in its
June 15, 1987 issue (Vol. 83, No. 24) which was officially released
for circulation on June 26, 1987.
In his Order of 7 July 198711 respondent Judge, taking into
consideration Executive Order No. 187, granted private
respondent's petition for bail, fixed the bail bond at P30,000.00 and
imposed upon private respondent the additional condition that he
shall report to the court once every two (2) months within the first
ten (10) days of every period thereof. In granting the petition
respondent Judge stated:
. . . There is no more debate that with the effectivity of Executive
Order No. 187, the offense of rebellion, for which accused Rodolfo
Salas is herein charged, is now punishable with the penalty of
prision mayor and a fine not exceeding P20,000.00, which makes it
now bailable pursuant to Section 13, Article III, 1986 Constitution

and Section 3, Rule 114, 1985 Rules of Criminal Procedure. Unlike
the old rule, bail is now a matter of right in non-capital offenses
before final judgment. This is very evident upon a reading of Section
3, Rule 114, aforementioned, in relation to Section 21, same rule. In
view, therefore, of the present circumstances in this case, said
accused-applicant is now entitled to bail as a matter of right
inasmuch as the crime of rebellion ceased to be a capital offense.
As to the contention of herein petitioner that it would be dangerous
to grant bail to private respondent considering his stature in the
CPP-NPA hierarchy, whose ultimate and overriding goal is to wipe
out all vestiges of our democracy and to replace it with their
ideology, and that his release would allow his return to his
organization to direct its armed struggle to topple the government
before whose courts he invokes his constitutional right to bail,
respondent Judge replied:
True, there now appears a clash between the accused's
constitutional right to bail in a non-capital offense, which right is
guaranteed in the Bill of Rights and, to quote again the prosecution,
"the existence of the government that bestows the right, the
paramount interest of the state." Suffice to state that the Bill of
Rights, one of which is the right to bail, is a "declaration of the rights
of the individual, civil, political and social and economic, guaranteed
by the Constitution against impairment or intrusion by any form of
governmental action. Emphasis is placed on the dignity of man and
the worth of individual. There is recognition of certain inherent and
inalienable rights of the individual, which the government is
prohibited from violating" (Quisumbing-Fernando, Philippine
Constitutional Law, 1984 Edition, p. 77). To this Court, in case of
such conflict as now pictured by the prosecution, the same should
be resolved in favor of the individual who, in the eyes of the law, is
alone in the assertion of his rights under the Bill of Rights as against
the State. Anyway, the government is that powerful and strong,
having the resources, manpower and the wherewithals to fight those
"who oppose, threathen (sic) and destroy a just and orderly society
and its existing civil and political institutions." The prosecution's fear
may or may not be founded that the accused may later on jump bail
and rejoin his comrades in the field to sow further disorders and
anarchy against the duly constituted authorities. But, then, such a
fear can not be a reason to deny him bail. For the law is very explicit
that when it comes to bailable offenses an accused is entitled as a
matter of light to bail. Dura est lex sed lex.
In a motion to reconsider12 the above order filed on 16 July 1987,
petitioner asked the court to increase the bail from P30,000.00 to
P100,000.00 alleging therein that per Department of Justice Circular
No. 10 dated 3 July 1987, the bail for the, provisional release of an
accused should be in an amount computed at P10,000.00 per year
of imprisonment based on the medium penalty imposable for the
offense and explaining that it is recommending P100,000.00
because the private respondent "had in the past escaped from the
custody of the military authorities and the offense for which he is
charged is not an ordinary crime, like murder, homicide or robbery,
where after the commission, the perpetrator has achieved his end"
and that "the rebellious acts are not consummated until the well-
organized plan to overthrow the government through armed struggle
and replace it with an alien system based on a foreign ideology is
attained."
On 17 July 1987, petitioner filed a supplemental motion for
reconsideration13 indirectly asking the court to deny bail to the
private respondent and to allow it to present evidence in support
thereof considering the "inevitable probability that the accused will
not comply with this main condition of his bail –– to appear in court
for trial," a conclusion it claims to be buttressed "by the following
facts which are widely known by the People of the Philippines and
which this Honorable Court may have judicial notice of:
1. The accused has evaded the authorities for thirteen years
and was an escapee from detention when arrested;
CONSTI LAW II I ACJUCO 531
2. He was not arrested at his residence as he had no known
address;
3. He was using the false name "Manuel Mercado Castro" at
the time of his arrest and presented a Driver's License to
substantiate his false identity;
4. The address he gave "Panamitan, Kawit, Cavite," turned
out to be also a false address;
5. He and his companions were on board a private vehicle
with a declared owner whose identity and address were also found
to be false;
6. Pursuant to Ministry Order No. 1-A dated 11 January 1982
, a reward of P250,000.00 was offered and paid for his arrest,
which "clearly indicate that the accused does not entertain the
slightest intention to appear in court for trial, if released." Petitioner
further argues that the accused, who is the Chairman of the
Communist Party of the Philippines and head of its military arm, the
NPA, together with his followers, are now engaged in an open
warfare and rebellion against this government and threatens the
existence of this very Court from which he now seeks provisional
release," and that while he is entitled to bail as a matter of right in
view of Executive Order No. 187 which restored the original penalty
for rebellion under Article 135 of the Revised Penal Code, yet, when
the interest of the State conflicts with that of an individual, that of the
former prevails for "the right of the State of self-preservation is
paramount to any of the rights of an individual enshrined in the Bill
of Rights of the Constitution." Petitioner further invokes precedents
in the United States of America holding "that there is no absolute
constitutional barrier to detention of potentially dangerous resident
aliens pending deportation proceedings,14 and that an arrestee
may be incarcerated until trial as he presents a risk of flight;15 and
sustaining a detention prior to trial of arrestee charged with serious
felonies who are found after an adversary hearing to pose threat to
the safety of individuals and to the community which no condition of
release can dispel.16
On 30 July 1987 respondent Judge handed down the Order17
adverted to in the introductory portion of this decision the dispositive
portion of which reads:
WHEREFORE, in the light of the foregoing considerations, the Court
finds the "supplemental" motion for reconsideration to be without
merit and hereby denies it but finds the first motion for
reconsideration to be meritorious only insofar as the amount of bail
is concerned and hereby reconsiders its Order of July 7, 1987 only
to increase the amount of bail from P30,000.00 to P50,000.00,
subject to the approval of this Court, and with the additional
condition that accused Rodolfo Salas shall report to the court once
every two (2) months within the first ten (10) days of every period
thereof (Almendras vs. Villaluz, et al., L-31665, August 6, 1975, 66
SCRA 58).
In denying the supplemental motion for reconsideration the
respondent Judge took into account the "sudden turn-about" on the
part of the petitioner in that a day earlier it filed a motion for
reconsideration wherein it conceded the right of the private
respondent to bail but merely asked to increase the amount of bail;
observed that it is only a reiteration of arguments in its opposition to
the petition for bail of 25 May 1987; asserted that the American
precedents are not applicable since the cases involved deportation
of aliens and, moreover, the U.S. Federal Constitution does not
contain a proviso on the right of an accused to bail in bailable
offenses, but only an injunction against excessive bail; and quoted
the concurring opinion of the late Justice Pedro Tuason in the cases
of Nava, et al. vs. Gatmaitan, L-4853, Hernandez vs. Montesa, L-

4964 and Angeles vs. Abaya, L-5108, October 11, 1951, 90 Phil,
172.
Unable to agree with said Order, petitioner commenced this petition
submitting therein the following issues:
THE HONORABLE RESPONDENT JUDGE PROCORO J.
DONATO ACTED WITH GRAVE ABUSE OF DISCRETION AND IN
EXCESS OF HIS JURISDICTION, AND IN TOTAL DISREGARD
OF THE PREVAILING REALITIES, WHEN HE DENIED
PETITIONER'S SUPPLEMENTAL MOTION FOR
RECONSIDERATION WITH PRAYER TO BE GIVEN THE
OPPORTUNITY TO ADDUCE EVIDENCE IN SUPPORT OF ITS
OPPOSITION TO THE GRANT OF BAIL TO THE RESPONDENT
RODOLFO SALAS.
THE HONORABLE RESPONDENT JUDGE PROCORO J.
DONATO ACTED WITH GRAVE ABUSE OF DISCRETION AND IN
EXCESS OF HIS JURISDICTION WHEN HE GRANTED BAIL TO
THE RESPONDENT RODOLFO SALAS.
in support of which petitioner argues that private respondent is
estopped from invoking his right to bail, having expressly waived it
in G.R. No. 76009 when he agreed to "remain in legal custody and
face trial before the court having custody of his person" in
consideration of the recall of the warrant of arrest for his co-
petitioners Josefina Cruz and Jose Concepcion; and the right to bail,
even in non-capital offenses, is not absolute when there is prima
facie evidence that the accused is a serious threat to the very
existence of the State, in which case the prosecution must be
allowed to present evidence for the denial of bail. Consequently,
respondent Judge acted with grave abuse of discretion when he did
not allow petitioner to present all the evidence it may desire to
support its prayer for the denial of bail and when he declared that
the State has forfeited its right to do so since during all the time that
the petition for bail was pending, it never manifested, much less
hinted, its intention to adduce such evidence. And that even if
release on bail may be allowed, respondent judge, in fixing the
amount of bail at P50,000.00 (originally P30,000.00 only), failed to
take into account the lengthy record of private respondents' criminal
background, the gravity of the pending charge, and the likelihood of
flight.18
In Our resolution of 11 August 198719 We required the respondents
to comment on the petition and issued a Temporary Restraining
Order ordering respondent Judge to cease and desist from
implementing his order of 30 July 1987 granting bail to private
respondent in the amount of P50,000.00.
In his Comment filed on 27 August 1987,20 private respondent asks
for the outright dismissal of the petition and immediate lifting of the
temporary restraining order on the following grounds:
I
RESPONDENT SALAS NEVER WAIVED HIS RIGHT TO BAIL;
NEITHER IS HE ESTOPPED FROM ASSERTING SAID RIGHT.
ON THE CONTRARY IT IS PETITIONER WHO IS ESTOPPED
FROM RAISING THE SAID ISSUE FOR THE FIRST TIME ON
APPEAL.
II
RESPONDENT SALAS ENJOYS NOT ONLY THE
CONSTITUTIONAL RIGHT TO BE PRESUMED INNOCENT BUT
ALSO THE RIGHT TO BAIL.
III
CONSTI LAW II I ACJUCO 532
RESPONDENT SALAS IS NOT CHARGED WITH A CAPITAL
OFFENSE (RECLUSION PERPETUA), HENCE HE HAS THE
RIGHT TO BAIL AS MANDATED BY THE CONSTITUTION.
IV
THE ORDER OF JULY 30, 1987 DENYING PETITIONER
OPPORTUNITY TO PRESENT EVIDENCE IS CORRECT.
PETITIONER'S ALLEGED RIGHT TO PRESENT EVIDENCE IS
NON-EXISTENT AND/OR HAD BEEN WAIVED.
V
THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER IN
THIS CASE VIOLATES NOT ONLY RESPONDENT SALAS'
RIGHT TO BAIL BUT ALSO HIS OTHER CONSTITUTIONAL
RIGHT TO DUE PROCESS.
We required the petitioner to reply to the comment of private
respondent.21 The reply was filed on 18 September 1987.22
In Our resolution of 15 October 198723 We gave due course to the
petition and required the parties to file simultaneously their
memoranda within twenty days from notice.
In their respective manifestations and motions dated 5 November24
and 23 November 198725 petitioner and private respondents asked
to be excused from filing their Memoranda and that the petition and
reply be considered as the Memorandum for petitioner and the
Comment as the Memorandum for private respondent, which We
granted in Our resolution of 19 November 198726 and 1 December
1987,27 respectively.
In Our resolution of 14 September 1989 We required the Solicitor
General to express his stand on the issues raised in this petitions,28
which he complied with by filing his Manifestation on 30 May 199029
wherein he manifests that he supports the petition and submits that
the Order of respondent Judge of July 7, July 17 and July 30, 1987
should be annulled and set aside asserting that private respondent
had waived the light to bail in view of the agreement in G.R. No.
76009; that granting bail to him is accepting wide-eyed his
undertaking which he is sure to break; in determining bail, the
primary consideration is to insure the attendance of the accused at
the trial of the case against him which would be frustrated by the
"almost certainty that respondent Salas will lump bail of whatever
amount"; and application of the guidelines provided for in Section
10 of Rule 114, 1985 Rules on Criminal Procedure on the amount
of bail dictates denial of bail to private respondent. The Solicitor
General likewise maintains that the right of the petitioner to hearing
on the application of private respondent for bail cannot be denied by
respondent Judge.
And now on the issues presented in this case.
I.
Unquestionably, at the time the original and the amended
Informations for rebellion and the application for bail were filed
before the court below the penalty imposable for the offense for
which the private respondent was charged was reclusion perpetua
to death. During the pendency of the application for bail Executive
Order No. 187 was issued by the President, by virtue of which the
penalty for rebellion as originally provided for in Article 135 of the
Revised Penal Code was restored. The restored law was the
governing law at the time the respondent court resolved the petition
for bail.
We agree with the respondent court that bail cannot be denied to
the private respondent for he is charged with the crime of rebellion
as defined in Article 134 of the Revised Penal Code to which is
attached the penalty of prision mayor and a fine not exceeding

P20,000.00.30 It is, therefore, a bailable offense under Section 13
of Article III of the 1987 Constitution which provides 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 prescribed 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.
Section 3, Rule 114 of the Rules of Court, as amended, also
provides:
Bail, a matter of right: exception. — All persons in custody shall,
before final conviction, be entitled to bail as a matter of right, except
those charged with a capital offense or an offense which, under the
law at the time of its commission and at the time of the application
for bail, is punishable by reclusion perpetua, when evidence of guilt
is strong.
Therefore, before conviction bail is either a matter of right or of
discretion. It is a matter of right when the offense charged is
punishable by any penalty lower than reclusion perpetua.31 To that
extent the right is absolute.32
And so, in a similar case for rebellion, People vs. Hernandez, et al.,
99 Phil. 515, despite the fact that the accused was already
convicted, although erroneously, by the trial court for the complex
crime of rebellion with multiple murders, arsons and robberies, and
sentenced to life imprisonment, We granted bail in the amount of
P30,000.00 during the pendency of his appeal from such conviction.
To the vigorous stand of the People that We must deny bail to the
accused because the security of the State so requires, and because
the judgment of conviction appealed from indicates that the
evidence of guilt of Hernandez is strong, We held:
. . . Furthermore, individual freedom is too basic, too transcendental
and vital in a republican state, like ours, to be derived upon mere
general principles and abstract consideration of public safety.
Indeed, the preservation of liberty is such a major preoccupation of
our political system that, not satisfied with guaranteeing its
enjoyment in the very first paragraph of section (1) of the Bill of
Rights, the framers of our Constitution devoted paragraphs (3), (4),
(5), (6), (7), (8), (11), (12), (13), (14), (15), (16), (17), (18), and (21)
of said section (1) to the protection of several aspects of freedom.
The 1987 Constitution strengthens further the right to bail by
explicitly providing that it shall not be impaired even when the
privilege of the writ of habeas corpus is suspended. This overturns
the Court's ruling in Garcia-Padilla vs. Enrile, et al., supra., to wit:
The suspension of the privilege of the writ of habeas corpus must,
indeed, carry with it the suspension of the right to bail, if the
government's campaign to suppress the rebellion is to be enhanced
and rendered effective. If the right to bail may be demanded during
the continuance of the rebellion, and those arrested, captured and
detained in the course thereof will be released, they would, without
the least doubt, rejoin their comrades in the field thereby
jeopardizing the success of government efforts to bring to an end
the invasion, rebellion or insurrection.
Upon the other hand, if the offense charged is punishable by
reclusion perpetua bail becomes a matter of discretion. It shall be
denied if the evidence of guilt is strong. The court's discretion is
limited to determining whether or not evidence of guilt is strong.33
But once it is determined that the evidence of guilt is not strong, bail
also becomes a matter of right. In Teehankee vs. Director of
Prisons, supra., We held:
CONSTI LAW II I ACJUCO 533
The provision on bail in our Constitution is patterned after similar
provisions contained in the Constitution of the United States and
that of many states of the Union. And it is said that:
The Constitution of the United States and the constitution of the
many states provide that all persons shall be bailable by sufficient
sureties, except for capital offenses, where the proof is evident or
the presumption of guilt is great, and, under such provisions, bail is
a matter of right which no court or judge can properly refuse, in all
cases not embraced in the exceptions. Under such provisions bail
is a matter of right even in cases of capital offenses, unless the proof
of guilt is evident or the presumption thereof is great!34
Accordingly, the prosecution does not have the right to present
evidence for the denial of bail in the instances where bail is a matter
of right. However, in the cases where the grant of bail is
discretionary, due process requires that the prosecution must be
given an opportunity to present, within a reasonable time, all the
evidence that it may desire to introduce before the court should
resolve the motion for bail.35
We agree, however, with petitioner that it was error for the
respondent court to fix the bond at P30,000.00, then later at
P50,000.00 without hearing the prosecution. The guidelines for the
fixing of the amount of bail provided for in Section 10 of Rule 114 of
the Rules of Court are not matters left entirely to the discretion of
the court. As We stated in People vs. Dacudao, et al., 170 SCRA,
489, 495:
Certain guidelines in the fixing of a bailbond call for the presentation
of evidence and reasonable opportunity for the prosecution to refute
it. Among them are the nature and circumstances of the crime,
character and reputation of the accused, the weight of the evidence
against him, the probability of the accused appearing at the trial,
whether or not the accused is a fugitive from justice, and whether or
not the accused is under bond in other case. . . .
In the instant case petitioner has sufficiently made out allegations
which necessitate a grant of an opportunity to be heard for the
purpose of determining the amount of bail, but not for the denial
thereof because aforesaid Section 10 of Rule 114 does not
authorize any court to deny bail.
II.
It must, however, be stressed that under the present state of the
law, rebellion is no longer punishable by prision mayor and fine not
exceeding P20,000.00. Republic Act No. 6968 approved on 24
October 1990 and which took effect after publication in at least two
newspapers of general circulation, amended, among others, Article
135 of the Revised Penal Code by increasing the penalty for
rebellion such that, as amended, it now reads:
Article 135. Penalty for rebellion, insurrection or coup d'etat.
––– Any person who promotes, maintains, or heads a rebellion or
insurrection shall suffer the penalty of reclusion perpetua.
Any person merely participating or executing the commands of
others in a rebellion or insurrection shall suffer the penalty of
reclusion perpetua.
xxx xxx xxx
This amendatory law cannot apply to the private respondent for acts
allegedly committed prior to its effectivity. It is not favorable to him.
"Penal laws shall have a retroactive effect insofar as they favor the
person guilty of a felony, who is not a habitual criminal, as this term
is defined in Rule 5 of Article 62 of this Code, although at the time
of the publication of such laws a final sentence has been
pronounced and the convict is serving the same.36

III.
We agree with Petitioner that private respondent has, however,
waived his right to bail in G.R. No. 76009.
On 3 October 1986, or the day following the filing of the original
information in Criminal Case No. 86-48926 with the trial court, a
petition for habeas corpus for herein private respondent, and his co-
accused Josefina Cruz and Jose Concepcion, was filed with this
Court by Lucia Cruz, Aida Concepcion Paniza and Beatriz Salas
against Juan Ponce Enrile, Gen. Fidel Ramos, Brig. Gen. Renato
de Villa, Brig. Gen. Ramon Montaño, and Col. Saldajeno praying,
among others, that the petition be given due course and a writ of
habeas corpus be issued requiring respondents to produce the
bodies of herein private respondent and his co-accused before the
Court and explain by what authority they arrested and detained
them. The following proceedings took place thereafter in said case:
1. In a resolution of 7 October 1986 We issued a writ of
habeas corpus, required respondents to make a return of the writ on
or before the close of office hours on 13 October and set the petition
for hearing on 14 October 1986 at 10:00 o'clock in the morning.
2. On 13 October 1986 respondents, through the Office of
the Solicitor General, filed a Return To The Writ of Habeas Corpus
alleging therein that private respondent and Josefina Cruz alias
"Mrs. Mercado", and Jose Milo Concepcion alias "Eugene Zamora"
were apprehended by the military on September 29, 1986 in the
evening at the Philippine General Hospital Compound at Taft Ave.,
Mangga being leaders or members of the Communist Party of the
Philippines, New People's Army and National Democratic Front,
organizations dedicated to the overthrow of the Government
through violent means, and having actually committed acts of
rebellion under Article 134 of the Revised Penal Code, as amended.
After their arrest they were forthwith charged with rebellion before
Branch XII of the Regional Trial Court, National Capital Region in
Criminal Case No. 86-48926 and on 3 October warrants for their
arrest were issued and respondents continue to detain them
because of the warrants of arrest and the pendency of the criminal
cases against them. Respondents further allege that, contrary to the
allegation in the petition, herein private respondent was not a
member of the NDF panel involved in peace negotiations with the
Government; neither is he and his companions Cruz and
Concepcion covered by any, safe conduct pass issued by
competent authorities.
3. At the hearing on 14 October 1986 the parties informed
the Court of certain agreements reached between them. We issued
a resolution reading as follows:
When this case was called for hearing this morning, Attorneys
Romeo Capulong, Arno V. Sanidad, Efren H. Mercado, Edgardo
Pamin-tuan, Casiano Sabile, Ramon Cura, and William Chua
appeared for the petitioners with Atty. Capulong arguing for the
petitioners. Solicitor General Sedfrey Ordonez, Assistant Solicitor
General Romeo C. de la Cruz and Trial Attorney Josue E. Villanueva
appeared for the respondents, with Solicitor General Ordoñez
arguing for the respondents.
Petitioners' counsel, Atty. Romeo Capulong, manifested in open
Court that in conformity with the agreement reached with the
government, the petition for habeas corpus will be withdrawn with
detainee Rodolfo Salas to remain under custody, whereas his co-
detainees Josefina Cruz and Jose Milo Concepcion will be released
immediately.
Solicitor General Sedfrey Ordoñez, also in open Court, confirmed
the foregoing statement made by petitioners' counsel regarding the
withdrawal of the petition for habeas corpus, declaring that no
objection will be interposed to the immediate release of detainees
Josefina Cruz and Jose Milo Concepcion, and that no bond will be
CONSTI LAW II I ACJUCO 534
required of them, but they will continue to face trial with their co-
accused, Rodolfo Salas; further, that they will not be rearrested on
the basis of the warrants issued by the trial court provided that they
manifest in open Court their willingness to subject themselves to the
jurisdiction of the Court and to appear in court when their presence
is required.
In addition, he stated that he is willing to confer with petitioners'
counsel today relative to the compromise agreement that they have
previously undertaken to submit.
Upon manifestation of petitioners' counsel, Atty. Romeo Capulong,
that on his oath as member of the Bar, the detainees Josefina Cruz
and Jose Milo Concepcion have agreed to subject themselves to the
jurisdiction of the trial court, the Court ordered their immediate
release.
Thereafter, the Court approved the foregoing manifestations and
statements and required both parties to SUBMIT to the Court their
compromise agreement by 4:00 o'clock this afternoon. Teehankee,
C.J., is on official leave.
4. At 3:49 o'clock in the afternoon of 14 October 1986 the
parties submitted a Joint Manifestation and Motion duly signed by
Atty. Romeo Capulong, counsel for petitioners, and Solicitor
General Sedfrey Ordoñez, Assistant Solicitor General Romeo C. de
la Cruz and Trial Attorney Josue S. Villanueva, counsel for
respondents, which reads as follows:
COME NOW petitioners and the respondents, assisted by their
respective counsel, and to this Honorable Tribunal respectfully
manifest:
1. That in the discussion between Romeo Capulong,
petitioners' counsel, and Solicitor General Sedfrey A. Ordoñez on
October 13, 1986 exploratory talks were conducted to find out how
the majesty of the law may be preserved and human considerations
may be called into play.
2. That in the conference both counsel agreed to the
following terms of agreement:
a. The petition for habeas corpus will be withdrawn by
petitioners and Josefina Cruz and Jose Milo Concepcion will be
immediately released but shall appear at the trial of the criminal case
for rebellion (People v. Rodolfo Salas, et al., Criminal Case No. 4886
[should be 86-48926], Regional Trial Court, National Capital Judicial
Region) filed against them under their personal recognizance.
b. Petitioner Rodolfo Salas will remain in legal custody and
face trial before the court having custody over his person.
c. The warrant of arrest for the persons of Josefina Cruz and
Jose Milo Concepcion is hereby deemed recalled in view of formal
manifestation before the Supreme Court that they will submit
themselves to the court having jurisdiction over their person.
3. That on October 14, the Solicitor General was able to
obtain the conformity of the Government to the foregoing terms
which were likewise accepted by petitioner (sic) and their counsel of
record.
4. That the two counsel submitted their oral manifestation
during the hearing on October 14 and the present manifestation in
compliance with the resolution announced in court this morning.
WHEREFORE, it is prayed that the petition for habeas corpus be
dismissed.
5. On 16 October 1986 We issued the following resolution:

G.R. No. 76009 [In the Matter of the Petition for Habeas Corpus of
Rodolfo Salas, Josefina Cruz and Jose Milo Concepcion, et al. v.
Hon. Juan Ponce Enrile, Gen. Fidel V. Ramos, Brig. Gen. Renato
de Villa, Brig. Gen. Ramon Montaño and Col. Virgilio Saldajeno]
considering the Joint Manifestation and Motion dated October 14,
1986 filed by Attorneys Romeo Capulong, Arno V. Sanidad, Efren
H. Mercado and Ricardo Fernandez, Jr. as counsel for petitioners
and Solicitor General Sedfrey A. Ordonez and Assistant Solicitor
General Romeo C. de la Cruz and Trial Attorney Josue S. Villanueva
as counsel for respondents which states that they have entered into
an agreement whereby: [a] the petition for habeas corpus will be
withdrawn by petitioners, and Josefina Cruz and Jose Milo
Concepcion will be immediately released but shall appear at the trial
of the criminal case for rebellion [People vs. Rodolfo Salas, et al.,
Criminal Case No. 4886, Regional Trial Court, National Capital
Judicial Region, Branch XII, Manila], filed against them, on their
personal recognizance; [b] petitioner Rodolfo Salas will remain in
legal custody and face trial before the court having custody over his
person; and [c] the warrant of arrest for the person of Josefina Cruz
and Jose Milo Concepcion is hereby deemed recalled in view of the
formal manifestation before this Court that they will submit
themselves to the court having jurisdiction over their person and in
view of the said agreement, the petition for habeas corpus be
dismissed, the Court Resolved to DISMISS the petition for habeas
corpus but subject to the condition that petitioners' lead counsel,
Atty. Capulong, upon his oath as member of the Bar, shall abide by
his commitment to ensure the appearance of Josefina Cruz and
Jose Milo Concepcion at the trial of the criminal case for rebellion
filed against them. Teehankee, C.J., is on official leave.
It is the stand of the petitioner that private respondent, "in agreeing
to remain in legal custody even during the pendency of the trial of
his criminal case, [he] has expressly waived his right to bail."37
Upon the other hand, private respondent asserts that this claim is
totally devoid of factual and legal basis, for in their petition for
habeas corpus they precisely questioned the legality of the arrest
and the continued detention of Rodolfo Salas, Josefina Cruz and
Jose Milo Concepcion, which was not resolved by this Court or by
the compromise agreement of the parties but left open for further
determination in another proceeding. Moreover, the matter of the
right to bail was neither raised by either party nor resolved by this
Court, and the legal steps promptly taken by private respondent
after the agreement was reached, like the filing of the motion to
quash on 7 November 1986 and the petition for bail on 14 May 1987,
were clear and positive assertions of his statutory and constitutional
rights to be granted not only provisional but final and permanent
liberty. Finally, private respondent maintains that the term "legal
custody" as used in the Joint Manifestation and Motion simply
means that private respondent agreed to continue to be in the
custody of the law or in custodia legis and nothing else; it is not to
be interpreted as waiver.
Interestingly, private respondent admits that:
"Custody" has been held to mean nothing less than actual
imprisonment. It is also defined as the detainer of a person by virtue
of a lawful authority, or the "care and possession of a thing or
person." (Bouviers Law Dictionary, Third Ed, Vol. I, pp. 741-742
citing Smith v. Com. 59 Pa. 320 and Rolland v. Com. 82 Pa. 306)
He further admits that, in the light of Section 1 of Rule 114 of the
Rules of Court and settled jurisprudence, the "constitutional right to
bail is subject to the limitation that the person applying for admission
to bail should be in the custody of the law or otherwise deprived of
his liberty."38
When the parties in G.R. No. 76009 stipulated that:
b. Petitioner Rodolfo Salas will remain in legal custody and
face trial before the court having custody over his person.
CONSTI LAW II I ACJUCO 535
they simply meant that Rodolfo Salas, herein respondent, will
remain in actual physical custody of the court, or in actual
confinement or detention, as distinguished from the stipulation
concerning his co-petitioners, who were to be released in view of
the recall of the warrants of arrest against them; they agreed,
however, "to submit themselves to the court having jurisdiction over
their persons." Note should be made of the deliberate care of the
parties in making a fine distinction between legal custody and court
having custody over the person in respect to Rodolfo Salas and
court having jurisdiction over the persons of his co-accused. Such a
fine distinction was precisely intended to emphasize the agreement
that Rodolfo Salas will not be released, but should remain in
custody. Had the parties intended otherwise, or had this been
unclear to private respondent and his counsel, they should have
insisted on the use of a clearer language. It must be remembered
that at the time the parties orally manifested before this Court on 14
October 1986 the terms and conditions of their agreement and
prepared and signed the Joint Manifestation and Motion, a warrant
of arrest had already been issued by the trial court against private
respondent and his co-accused. The stipulation that only the
warrants of arrest for Josefina Cruz and Jose Milo Concepcion shall
be recalled and that only they shall be released, further confirmed
the agreement that herein petitioner shall remain in custody of the
law, or detention or confinement.
In defining bail as:
. . . the security given for the release of a person in custody of the
law, . . .
Section 1 of Rule 114 of the Revised Rules of Court admits no other
meaning or interpretation for the term "in custody of the law" than
that as above indicated. The purpose of bail is to relieve an accused
from imprisonment until his conviction and yet secure his
appearance at the trial.39 It presupposes that the person applying
for it should be in the custody of the law or otherwise deprived of
liberty.40
Consequently, having agreed in G.R. No. 76009 to remain in legal
custody, private respondent had unequivocably waived his right to
bail.
But, is such waiver valid?
Article 6 of the Civil Code expressly provides:
Art. 6. Rights may be waived, unless the waiver is contrary to
law, public order, public policy, morals, or good customs, or
prejudicial to a third person with a right recognized by law.
Waiver is defined as "a voluntary and intentional relinquishment or
abandonment of a known existing legal right, advantage, benefit,
claim or privilege, which except for such waiver the party would have
enjoyed; the voluntary abandonment or surrender, by a capable
person, of a right known by him to exist, with the intent that such
right shall be surrendered and such person forever deprived of its
benefit; or such conduct as warrants an inference of the
relinquishment of such right; or the intentional doing of an act
inconsistent with claiming it."41
As to what rights and privileges may be waived, the authority is
settled:
. . . the doctrine of waiver extends to rights and privileges of any
character, and, since the word "waiver" covers every conceivable
right, it is the general rule that a person may waive any matter which
affects his property, and any alienable right or privilege of which he
is the owner or which belongs to him or to which he is legally entitled,
whether secured by contract, conferred with statute, or guaranteed
by constitution, provided such rights and privileges rest in the
individual, are intended for his sole benefit, do not infringe on the
 CONSTI LAW II I ACJUCO 536

rights of others, and further provided the waiver of the right or

privilege is not forbidden by law, and does not contravene public
policy; and the principle is recognized that everyone has a right to
waive, and agree to waive, the advantage of a law or rule made
solely for the benefit and protection of the individual in his private
capacity, if it can be dispensed with and relinquished without
infringing on any public right, and without detriment to the
community at large. . . .

Although the general rule is that any right or privilege conferred by

statute or guaranteed by constitution may be waived, a waiver in
derogation of a statutory right is not favored, and a waiver will be
inoperative and void if it infringes on the rights of others, or would
be against public policy or morals and the public interest may be
waived.

While it has been stated generally that all personal rights conferred
by statute and guaranteed by constitution may be waived, it has also
been said that constitutional provisions intended to protect property
may be waived, and even some of the constitutional rights created
to secure personal liberty are subjects of waiver.42

In Commonwealth vs. Petrillo,43 it was held:

Rights guaranteed to one accused of a crime fall naturally into two

classes: (a) those in which the state, as well as the accused, is
interested; and (b) those which are personal to the accused, which
are in the nature of personal privileges. Those of the first class
cannot be waived; those of the second may be.

It is "competent for a person to waive a right guaranteed by the

Constitution, and to consent to action which would be invalid if taken
against his will."44

This Court has recognized waivers of constitutional rights such as,

for example, the right against unreasonable searches and
seizures;45 the right to counsel and to remain silent;46 and the right
to be heard.47

Even the 1987 Constitution expressly recognizes a waiver of rights

guaranteed by its Bill of Rights.1âwphi1 Section 12(l) of Article III
thereof on the right to remain silent and to have a competent and
independent counsel, preferably of his own choice states:

. . . These rights cannot be waived except in writing and in the

presence of counsel.

This provision merely particularizes the form and manner of the

waiver; it, nevertheless, clearly suggests that the other rights may
be waived in some other form or manner provided such waiver will
not offend Article 6 of the Civil Code.

We hereby rule that the right to bail is another of the constitutional

rights which can be waived. It is a right which is personal to the
accused and whose waiver would not be contrary to law, public
order, public policy, morals, or good customs, or prejudicial to a third
person with a right recognized by law.

The respondent Judge then clearly acted with grave abuse of

discretion in granting bail to the private respondent.

WHEREFORE, the Orders of respondent Judge of July 7, 1987 and

July 30, 1987 in Criminal Case No. 86-48926 entitled People of the
Philippines vs. Rodolfo C. Salas alias Commander Bilog/Henry,
Josefina Cruz alias Mrs. Mercado, and Jose Milo Concepcion alias
Eugene Zamora, for Rebellion, are hereby NULLIFIED and SET
ASIDE.

SO ORDERED.

G.R. No. 115407 August 28, 1995
MIGUEL P. PADERANGA, petitioner,
vs.
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES,
respondents.
REGALADO, J.:
The adverse decision in this case promulgated by respondent Court
of Appeals in CA-G.R. SP No. 32233 on November 24, 1993, as
well as its resolution of April 26, 1994 denying the motion for
reconsideration thereof, are challenged by petitioner Miguel P.
Paderanga in this appeal by certiorari through a petition which
raises issues centering mainly on said petitioner's right to be
admitted to bail.
On January 28, 1990, petitioner was belatedly charged in an
amended information as a co-conspirator in the crime of multiple
murder in Criminal Case No. 86-39 of the Regional Trial Court,
Branch 18 of Cagayan de Oro City for the killing of members of the
Bucag family sometime in 1984 in Gingoog City of which petitioner
was the mayor at the time. The original information, filed on October
6, 1986 with the Regional Trial Court of Gingoog City,1 had initially
indicted for multiple murder eight accused suspect, namely, Felipe
Galarion, Manuel Sabit, Cesar Sabit, Julito Ampo, Eddie Torion,
John Doe, Peter Doe And Richard Doe as the alleged conspirators
in the indiscriminate slaying of the spouses Romeo and Juliet Bucag
and their son, Romeo, Jr. However, only one of the accused, Felipe
Galarion, was apprehended, tried and eventually convicted.
Galarion later escaped from prison. The others have remained at
large up to the present. 2
In a bizarre twist of events, one Felizardo ("Ely") Roxas was
implicated in the crime. In an amended information dated October
6, 1988, he was charged as a co-accused therein. As herein
petitioner was his former employer and thus knew him well, Roxas
engaged the former's services as counsel in said case. Ironically, in
the course of the preliminary investigation therein, said accused, in
a signed affidavit dated March 30, 1989 but which he later retracted
on June 20, 1990, implicated petitioner as the supposed
mastermind behind the massacre of the Bucag family.3
Then, upon the inhibition of the City Prosecutor of Cagayan de Oro
City from the case per his resolution of July 7, 1989, the Department
of Justice, at the instance of said prosecutor, designated a
replacement, State Prosecutor Henrick F. Gingoyon, for purposes
of both the preliminary investigation and prosecution of Criminal
Case No. 86-39. Pursuant to a resolution of the new prosecutor
dated September 6, 1989, petitioner was finally charged as a co-
conspirator in said criminal case in a second amended information
dated October 6, 1992. Petitioner assailed his inclusion therein as a
co-accused all the way to this Court in G.R. No. 96080 entitled "Atty.
Miguel P. Paderanga vs. Hon. Franklin M. Drilon, Hon. Silvestre H.
Bello III, Atty. Henrick F. Gingoyon, Helen B. Canoy and Rebecca
B. Tan." In an en banc decision promulgated on April 19, 1991, the
Court sustained the filing of the second amended information
against him.4
Under this backdrop, the trial of the base was all set to start with the
issuance of an arrest warrant for petitioner's apprehension but,
before it could be served on him, petitioner through counsel, filed on
October 28, 1992 a motion for admission to bail with the trial court
which set the same for hearing on November 5, 1992. Petitioner
duly furnished copies of the motion to State Prosecutor Henrick F.
Gingoyon, the Regional State Prosecutor's Office, and the private
prosecutor, Atty. Benjamin Guimong. On November 5, 1992, the
trial court proceeded to hear the application for bail. Four of
petitioner's counsel appeared in court but only Assistant Prosecutor
CONSTI LAW II I ACJUCO 537
Erlindo Abejo of the Regional State Prosecution's Office appeared
for the prosecution.5
As petitioner was then confined at the Cagayan Capitol College
General Hospital due to "acute costochondritis," his counsel
manifested that they were submitting custody over the person of
their client to the local chapter president of the integrated Bar of the
Philippines and that, for purposes of said hearing of his bail
application, he considered being in the custody of the law.
Prosecutor Abejo, on the other hand, informed the trial court that in
accordance with the directive of the chief of their office, Regional
State prosecutor Jesus Zozobrado, the prosecution was neither
supporting nor opposing the application for bail and that they were
submitting the same to the sound discretion of the trail judge.6
Upon further inquiries from the trial court, Prosecutor Abejo
announced that he was waiving any further presentation of
evidence. On that note and in a resolution dated November 5, 1992,
the trial court admitted petitioner to bail in the amount of
P200,000.00. The following day, November 6, 1992, petitioner,
apparently still weak but well enough to travel by then, managed to
personally appear before the clerk of court of the trial court and
posted bail in the amount thus fixed. He was thereafter arraigned
and in the trial that ensued, he also personally appeared and
attended all the scheduled court hearings of the case.7
The subsequent motion for reconsideration of said resolution filed
twenty (20) days later on November 26, 1992 by Prosecutor
Gingoyon who allegedly received his copy of the petition for
admission to bail on the day after the hearing, was denied by the
trial court in its omnibus order dated March 29, 1993. On October 1,
1993, or more than six (6) months later, Prosecutor Gingoyon
elevated the matter to respondent Court of Appeals through a
special civil action for certiorari. Thus were the resolution and the
order of the trial court granting bail to petitioner annulled on
November 24, 1993, in the decision now under review, on the
ground that they were tainted with grave abuse of discretion.8
Respondent court observed in its decision that at the time of
petitioner's application for bail, he was not yet "in the custody of the
law," apparently because he filed his motion for admission to bail
before he was actually arrested or had voluntarily surrendered. It
further noted that apart from the circumstance that petitioner was
charged with a crime punishable by reclusion perpetua, the
evidence of guilt was strong as borne out by the fact that no bail was
recommended by the prosecution, for which reasons it held that the
grant of bail was doubly improvident. Lastly, the prosecution,
according to respondent court, was not afforded an opportunity to
oppose petitioner's application for bail contrary to the requirements
of due process. Hence, this appeal.
Petitioner argues that, in accordance with the ruling of this Court in
Santiago vs. Vasquez etc., et al.,9 his filing of the aforesaid
application for bail with the trial court effectively conferred on the
latter jurisdiction over his person. In short, for all intents and
purposes, he was in the custody of the law. In petitioner's words, the
"invocation by the accused of the court's jurisdiction by filing a
pleading in court is sufficient to vest the court with jurisdiction over
the person of the accused and bring him within the custody of the
law."
Petitioner goes on to contend that the evidence on record negates
the existence of such strong evidence as would bar his provisional
release on bail. Furthermore, the prosecution, by reason of the
waiver by Prosecutor Abejo of any further presentation of evidence
to oppose the application for bail and whose representation in court
in behalf of the prosecution bound the latter, cannot legally assert
any claim to a denial of procedural due process. Finally, petitioner
points out that the special civil action for certiorari was filed in
respondent court after an unjustifiable length of time.

On the undisputed facts , the legal principles applicable and the
equities involved in this case, the Court finds for petitioner.
1. Section 1 of Rule 114, as amended, defines bail as the
security given for the release of a person in custody of the law,
furnished by him or a bondsman, conditioned upon his appearing
before any court as required under the conditions specified in said
Rule. Its main purpose, then, is to relieve an accused from the rigors
of imprisonment until his conviction and yet secure his appearance
at the trial.10 As bail is intended to obtain or secure one's provisional
liberty, the same cannot be posted before custody over him has
been acquired by the judicial authorities, either by his lawful arrest
or voluntary surrender.11 As this Court has put it in a case "it would
be incongruous to grant bail to one who is free."12
The rationale behind the rule is that it discourages and prevents
resort to the former pernicious practice whereby an accused could
just send another in his stead to post his bail, without recognizing
the jurisdiction of the court by his personal appearance therein and
compliance with the requirements therefor.13 Thus, in Feliciano vs.
Pasicolan, etc., et al.,14 where the petitioner who had been charged
with kidnapping with murder went into hiding without surrendering
himself, and shortly thereafter filed a motion asking the court to fix
the amount of the bail bond for his release pending trial, the
Supreme Court categorically pronounced that said petitioner was
not eligible for admission to bail.
As a paramount requisite then, only those persons who have either
been arrested, detained, or other wise deprived of their freedom will
ever have occasion to seek the protective mantle extended by the
right to bail. The person seeking his provisional release under the
auspices of bail need not even wait for a formal complaint or
information to be filed against him as it is available to "all persons"15
where the offense is bailable. The rule is, of course, subject to the
condition or limitation that the applicant is in the custody of the
law.16
On the other hand, a person is considered to be in the custody of
the law (a) when he is arrested either by virtue of a warrant of arrest
issued pursuant to Section 6, Rule 112, or by warrantless arrest
under Section 5, Rule 113 in relation to Section 7, Rule 112 of the
revised Rules on Criminal Procedure, or (b) when he has voluntarily
submitted himself to the jurisdiction of the court by surrendering to
the proper authorities.17 in this light, the ruling, vis-a-vis the facts in
Santiago vs. Vasquez, etc., et al.,18 should be explained.
In said case, the petitioner who was charged before the
Sandiganbayan for violation of the Anti-Graft and Corrupt Practices
Act, filed through counsel what purported to be an "Urgent Ex-parte
Motion for Acceptance of Cash Bail Bond." Said petitioner was at
the time confined in a hospital recuperating from serious physical
injuries which she sustained in a major vehicular mishap.
Consequently, she expressly sought leave "that she be considered
as having placed herself under the jurisdiction of (the
Sandiganbayan) for purposes of the required trial and other
proceedings." On the basis of said ex-parte motion and the peculiar
circumstances obtaining in that incident, the Sandiganbayan
authorized petitioner to post a cash bail bond for her provisional
liberty without need of her personal appearance in view of her
physical incapacity and as a matter of humane consideration.
When the Sandiganbayan later issued a hold departure order
against her, she question the jurisdiction of that court over her
person in a recourse before this Court, on the ground that "she
neither been arrested nor has she voluntarily surrendered, aside
from the fact that she has not validly posted bail since she never
personally appeared before said court" In rejecting her arguments,
the Court held that she was clearly estopped from assailing the
jurisdiction of the Sandiganbayan for by her own representations in
the urgent ex parte motion for bail she had earlier recognized such
jurisdiction. Furthermore, by actually posting a cash bail was
CONSTI LAW II I ACJUCO 538
accepted by the court, she had effectively submitted to its
jurisdiction over her person. Nonetheless, on the matter of bail, the
Court took pains to reiterate that the same cannot be posted before
custody of the accused has been acquired by the judicial authorities
either by his arrest or voluntary surrender.
In the case of herein petitioner, it may be conceded that he had
indeed filed his motion for admission to bail before he was actually
and physically placed under arrest. He may, however, at that point
and in the factual ambience therefore, be considered as being
constructively and legally under custody. Thus in the likewise
peculiar circumstance which attended the filing of his bail application
with the trail court, for purposes of the hearing thereof he should be
deemed to have voluntarily submitted his person to the custody of
the law and, necessarily, to the jurisdiction of the trial court which
thereafter granted bail as prayed for. In fact, an arrest is made either
by actual restraint of the arrestee or merely by his submission to the
custody of the person making the arrest.19 The latter mode may be
exemplified by the so-called "house arrest" or, in case of military
offenders, by being "confined to quarters" or restricted to the military
camp area.
It should be stressed herein that petitioner, through his counsel,
emphatically made it known to the prosecution and to the trail court
during the hearing for bail that he could not personally appear as he
was then confined at the nearby Cagayan Capitol College General
Hospital for acute costochondritis, and could not then obtain medical
clearance to leave the hospital. The prosecution and the trial court,
notwithstanding their explicit knowledge of the specific whereabouts
of petitioner, never lifted a finger to have the arrest warrant duly
served upon him. Certainly, it would have taken but the slightest
effort to place petitioner in the physical custody of the authorities,
since he was then incapacitated and under medication in a hospital
bed just over a kilometer away, by simply ordering his confinement
or placing him under guard.
The undeniable fact is that petitioner was by then in the constructive
custody of the law. Apparently, both the trial court and the
prosecutors agreed on that point since they never attempted to have
him physically restrained. Through his lawyers, he expressly
submitted to physical and legal control over his person, firstly, by
filing the application for bail with the trail court; secondly, by
furnishing true information of his actual whereabouts; and, more
importantly, by unequivocally recognizing the jurisdiction of the said
court. Moreover, when it came to his knowledge that a warrant for
his arrest had been issued, petitioner never made any attempt or
evinced any intent to evade the clutches of the law or concealed his
whereabouts from the authorities since the day he was charged in
court, up to the submission application for bail, and until the day of
the hearing thereof.
At the hearing, his counsel offered proof of his actual confinement
at the hospital on account of an acute ailment, which facts were not
at all contested as they were easily verifiable. And, as a
manifestation of his good faith and of his actual recognition of the
authority of trial court, petitioner's counsel readily informed the court
that they were surrendering custody of petitioner to the president of
the Integrated Bar of the Philippines, Misamis Oriental Chapter.20
In other words, the motion for admission to bail was filed not for the
purpose or in the manner of the former practice which the law
proscribes for the being derogatory of the authority and jurisdiction
of the courts, as what had happened in Feliciano. There was here
no intent or strategy employed to obtain bail in absentia and thereby
be able to avoid arrest should the application therefore be denied.
2. Section 13, Article III of the Constitution lays down the rule
that before conviction, all indictees shall be allowed bail, except only
those charged with offenses punishable by reclusion perpetua when
the evidence of guilt is strong. In pursuance thereof, Section 4 of
Rule 114, as amended, now provides that all persons in custody
shall, before conviction by a regional trial court of an offense not

punishable by death, reclusion perpetua or life imprisonment, be
admitted to bail as a matter of right. The right to bail, which may be
waived considering its personal nature21 and which, to repeat,
arises from the time one is placed in the custody of the law, springs
from the presumption of innocence accorded every accused upon
whom should not be inflicted incarceration at the outset since after
trial he would be entitled to acquittal, unless his guilt be established
beyond reasonable doubt.22
Thus, the general rule is that prior to conviction by the regional trial
court of a criminal offense, an accused is entitled to be released on
bail as a matter of right, the present exceptions thereto being the
instances where the accused is charged with a capital offense or an
offense punishable by reclusion perpetua or life imprisonment23
and the evidence of guilt is strong. Under said general rule, upon
proper application for admission to bail, the court having custody of
the accused should, as a matter of course, grant the same after a
hearing conducted to specifically determine the conditions of the bail
in accordance with Section 6 (now, Section 2) of Rule 114. On the
other hand, as the grant of bail becomes a matter of judicial
discretion on the part of the court under the exceptions to the rule,
a hearing, mandatory in nature and which should be summary or
otherwise in the discretion of the court,24 is required with the
participation of both the defense and a duly notified representative
of the prosecution, this time to ascertain whether or not the evidence
of guilt is strong for the provisional liberty of the applicant.25 Of
course, the burden of proof is on the prosecution to show that the
evidence meets the required quantum.26
Where such a hearing is set upon proper motion or petition, the
prosecution must be give an opportunity to present, within a
reasonable time, all the evidence that it may want to introduce
before the court may resolve the application, since it is equally
entitled as the accused to due process.27 If the prosecution is
denied this opportunity, there would be a denial of procedural due
process, as a consequence of which the court's order in respect of
the motion or petition is void.28 At the hearing, the petitioner can
rightfully cross-examine the witnesses presented by the prosecution
and introduce his own evidence in rebuttal.29 When, eventually, the
court issues an order either granting or refusing bail, the same
should contain a summary of the evidence for the prosecution,
followed by its conclusion as to whether or not the evidence of guilt
is strong.30 The court, though, cannot rely on mere affidavits or
recitals of their contents, if timely objected to, for these represent
only hearsay evidence, and thus are insufficient to establish the
quantum of evidence that the law requires.31
In this appeal, the prosecution assails what it considers to be a
violation of procedural due process when the court below allowed
Assistant Prosecutor Erlindo Abejo of the Regional State
Prosecutor's Office to appear in behalf of the prosecution, instead
of State Prosecutor Henrick P. Gingoyon who is claimed to be the
sole government prosecutor expressly authorized to handle the
case and who received his copy of the motion only on the day after
the hearing had been conducted. Accordingly, the prosecution now
insists that Prosecutor Abejo had no authority at all to waive the
presentation of any further evidence in opposition to the application
for bail and to submit the matter to the sound discretion of the trial
court. In addition, they argue that the prosecution was not afforded
"reasonable time" to oppose that application for bail.
We disagree. Firstly, it is undisputed that the Office of the Regional
State Prosecutor acted as the collaborating counsel, with State
Prosecutor Henrick Gingoyon, in Criminal Case No. 86-39 on the
basis of an authority from then Chief State Prosecutor Fernando de
Leon which was sent through radio message on July 10, 1992 and
duly received by the Office of the Regional State Prosecutor on the
same date. This authorization, which was to be continuing until and
unless it was expressly withdrawn, was later confirmed and then
withdrawn only on July 12, 1993 by then Secretary of Justice
Franklin M. Drilon. This was done after one Rebecca Bucag-tan
CONSTI LAW II I ACJUCO 539
questioned the authority of Regional State Prosecutor Jesus
Zozobrado and State Prosecutor II Erlindo Abejo to enter their
appearance as collaborating government prosecutors in said
criminal case.32 It was in fact by virtue of this arrangement that the
same Prosecutor Zozobrado and Prosecutor Perseverando Arana
entered their appearance as collaborating prosecutor in the
previous hearing in said case.33 Hence, on the strength of said
authority and of its receipt of the notice of the hearing for bail, the
Regional State Prosecutor's Office, through Prosecutor Abejo, could
validly represent the prosecution in the hearing held on November
5, 1992.
Secondly, although it is now claimed that Prosecutor Abejo was
allegedly not familiar with the case, he nonetheless was explicitly
instructed about the position of the Regional State Prosecutor's
Office on the matter. Prosecutor Zozobrado, whose office received
its copy of the motion on the very day when it was sent, that is,
October 28, 1992, duly instructed Prosecutor Abejo to manifest to
the court that the prosecution was neither supporting nor opposing
the application for bail and that they were submitting the matter to
its sound discretion. Obviously, what this meant was that the
prosecution, at that particular posture of the case, was waiving the
presentation of any countervailing evidence. When the court a quo
sought to ascertain whether or not that was the real import of the
submission by Prosecutor Abejo, the latter readily answered in the
affirmative.
The following exchanges bear this out:
PROSECUTOR ERLINDO ABEJO:
I was informed to appear in this case just now Your Honor.
COURT:
Where is your Chief of Office? Your office received a copy of the
motion as early as October 28. There is an element of urgency here.
PROSECUTOR ABEJO:
I am not aware of that, Your Honor, I was only informed just now.
The one assigned here is State Prosecutor Perseverando Arena, Jr.
who unfortunately is in the hospital attending to his sick son. I do not
know about this but before I came I received an instruction from our
Chief to relay to this court the stand of the office regarding the
motion to admit bail. That office is neither supporting nor opposing
it and we are submitting to the sound discretion of the Honorable
Court.
COURT:
Place that manifestation on record. For the record, Fiscal Abejo,
would you like to formally enter your appearance in this matter?
PROSECUTOR ABEJO:
Yes, Your Honor. For the government, the Regional State
Prosecutor's Office represented by State Prosecutor Erlindo Abejo.
COURT:
By that manifestation do you want the Court to understand that in
effect, at least, the prosecution is dispensing with the presentation
of evidence to show that the guilt of the accused is strong, the denial
...
PROSECUTOR ABEJO:
I am amenable to that manifestation, Your Honor.
COURT:
 CONSTI LAW II I ACJUCO 540

Final inquiry. Is the Prosecution willing to submit the incident
covered by this particular motion for resolution by this court?
PROSECUTOR ABEJO:
the circumstances, that period was more than reasonable. The fact
that Prosecutor Gingoyon received his copy of the application only
on November 6, 1992 is beside the point for, as already established,
the Office of the Regional State Prosecutor was authorized to
appear for the People.

Yes, Your Honor.
COURT:
Without presenting any further evidence?
PROSECUTOR ABEJO:
Yes, Your Honor.34
It is further evident from the foregoing that the prosecution, on the
instructions of Regional State prosecutor Zozobrado, had no
intention at all to oppose the motion for bail and this should be so
notwithstanding the statement that they were "neither supporting
nor opposing" the motion. What is of significance is the
manifestation that the prosecution was "submitting (the motion) to
the sound discretion of the Honorable Court." By that, it could not
be any clearer. The prosecution was dispensing with the
introduction of evidence en contra and this it did at the proper forum
and stage of the proceedings, that is, during the mandatory hearing
for bail and after the trial court had fully satisfied itself that such was
the position of the prosecution.
3. In Herras Teehankee vs. Director of Prisons,35 it was
stressed that where the trial court has reasons to believe that the
prosecutor's attitude of not opposing the application for bail is not
justified, as when he is evidently committing a gross error or a
dereliction of duty, the court, in the interest of Justice, must inquire
from the prosecutor concerned as the nature of his evidence to
determine whether or not it is strong. And, in the very recent
administrative matter Re: First Indorsement Dated July 21, 1992 of
Hon. Fernando de Leon, Chief State Prosecutor, Department of
Justice; Alicia A. Baylon, City Prosecutor of Dagupan City vs. Judge
Deodoro Sison, 36 the Court, citing Tucay vs. Domagas, etc., 37
held that where the prosecutor interposes no objection to the motion
of the accused, the trial court should nevertheless set the
application for hearing and from there diligently ascertain from the
prosecution whether the latter is really not contesting the bail
application.
4. What finally militates against the cause of the prosecutor
is the indubitably unreasonable period of time that elapsed before it
questioned before the respondent court the resolution and the
omnibus order of the trial court through a special civil action for
certiorari. The Solicitor General submits that the delay of more than
six (6) months, or one hundred eighty-four (184) days to be exact,
was reasonable due to the attendant difficulties which characterized
the prosecution of the criminal case against petitioner. But then, the
certiorari proceeding was initiated before the respondent court long
after trial on the merits of the case had ensued in the court below
with the active participation of prosecution lawyers, including
Prosecutor Gingoyon. At any rate, the definitive rule now in that the
special civil action for certiorari should not be instituted beyond a
period of the three months,38 the same to be reckoned by taking
into account the duration of time that had expired from the
commission of the acts complained to annul the same.39
ACCORDINGLY, the judgment of respondent Court of Appeals in
CA-G.R. SP No. 32233, promulgated on November 24, 1993,
annulling the resolution dated November 5, 1992 and the omnibus
order dated March 29, 1993 of the Regional Trial Court of Cagayan
de Oro City, as well as said respondent court's resolution of April
26, 1994 denying the motion for reconsideration of said judgment,
are hereby REVERSED and SET ASIDE. The aforesaid resolution
and omnibus order of the Regional Trail Court granting bail to
petitioner Miguel P. Paderanga are hereby REINSTATED.
SO ORDERED.

No irregularity, in the context of procedural due process, could

therefore be attributed to the trial court here as regards its order
granting bail to petitioner. A review of the transcript of the
stenographic notes pertinent to its resolution of November 5, 1992
and the omnibus order of March 29, 1993 abundantly reveals
scrupulous adherence to procedural rules. As summarized in its
aforementioned order, the lower court exhausted all means to
convince itself of the propriety of the waiver of evidence on the part
of the prosecution. Moreover, the omnibus order contained the
requisite summary of the evidence of both the prosecution and the
defense, and only after sifting through them did the court conclude
that petitioner could be provisionally released on bail.
Parenthetically, there is no showing that, since then and up to the
present, petitioner has ever committed any violation of the
conditions of his bail.

As to the contention that the prosecutor was not given the

opportunity to present its evidence within a reasonable period of
time, we hold otherwise. The records indicate that the Regional
State Prosecutor's Office duly received its copy of the application for
bail on the very same day that the it was filed with the trial court on
October 28, 1992. Counted from said date up to the day of the
hearing on November 5, 1992, the prosecution had more than one
(1) week to muster such evidence as it would have wanted to
adduce in that hearing in opposition to the motion. Certainly, under

RIGHTS OF THE ACCUSED
[G.R. No. 127126. September 17, 1998]
People of the Philippines, plaintiff-appellee, vs. Rodrigo
Calma y Sacdalan, accused-appellant.
DECISION
PER CURIAM:
This Court repeats: men who rape children, worse, their own
daughters, are filthier than the slime where they belong. Whatever
punishment is imposed on them can never expiate their loathsome
offense, for which forgiveness itself from a mortal court, at least,
would be a sin.[1]
There is no fathoming the deluge of rape cases, often involving
children, that has swamped the Court. But this particular case is by
far, the most bizarre. Not just one but three young girls have been
left precipitately stigmatized by the bestial violence perpetrated on
them by their own father. The very person who should have
protected them with his life, destroyed theirs. What strikes this Court
as extremely perverse is that he spared no one, not even his
daughter of the tenderest age of 5.
Accused-appellant Rodrigo Calma was charged with two (2) counts
of Rape under Art. 335 of the Revised Penal Code, as amended by
Sec. 11 of Republic Act No. 7659, and one (1) count of Acts of
Lasciviousness under Art. 336 of the Revised Penal Code in relation
to Sec. 5(b) of Art. III of Republic Act No. 7610[2], before the
Regional Trial Court, 3rd Judicial Region, Malolos Bulacan, Branch
14[3] in the following three (3) separate Informations:
In Crim. Case No. 752-M-96, for Rape:
The undersigned upon the prior sworn complaint of the offended
party, fourteen (14) year old minor Annalyn Calma, accuses
RODRIGO CALMA Y SACDALAN of Rape, defined and penalized
under Art. 335 of the Revised Penal Code as amended by Sec. 11
of Republic Act [No.] 7659, committed as follows:
That in between the period May 1995 to March 8, 1996, in Marilao,
Bulacan and within the jurisdiction of this Honorable Court, the
above-named accused, being the biological father of the offended
party Annalyn Calma, with lewd designs and by means of threat and
violence by arming himself with bladed weapon, did then and there
willfully, unlawfully and feloniously lie and had sexual intercourse
with private complainant Annalyn Calma against her will and
consent.
CONTRARY TO LAW.[4]
In Crim. Case No. 752-M-96, also for Rape:
The undersigned upon the prior sworn complaint of the offended
party, ten (10) year old minor Roselyn Calma, assisted by her
mother Myrna Calma y Ignacio, accuses RODRIGO CALMA Y
SACDALAN of Rape, defined and penalized under Art. 335 of the
Revised Penal Code as amended by Sec. 11 of Republic Act [No.]
7659, committed as follows:
That in between the period May 1995 to March 8, 1996, in Marilao,
Bulacan and within the jurisdiction of this Honorable Court, the
above-named accused, being the biological father of the offended
party Roselyn Calma, with lewd designs, did then and there willfully,
unlawfully and feloniously lie and had sexual intercourse with private
complainant Roselyn Calma against her will and consent.
CONTRARY TO LAW.[5]
CONSTI LAW II I ACJUCO 541
In Crim. Case no. 754-M-96, for Acts of Lasciviousness:
The undersigned upon the prior sworn complaint of Myrna Calma y
Ignacio in behalf of her Four (4) year old daughter Irene Calma, the
offended party, accuses RODRIGO CALMA Y SACDALAN of ACTS
OF LASCIVIOUSNESS defined and penalized under Art. 336 of the
Revised Penal Code, in relation to Section 5 (b), Art. III of Republic
Act [No.] 7610, committed as follows:
That in between the period May 1995 to March 8, 1996, in Marilao,
Bulacan and with the jurisdiction of this Honorable Court, the above-
named accused, by taking advantage of his natural daughter, Four
(4) year old Irene Calma, did then and there wilfully, unlawfully and
feloniously with lewd designs, touched the private parts of the
above-stated offended party.
CONTRARY TO LAW.[6]
Accused-appellant pleaded not guilty to the charges.
On May 31, 1996, the three cases were jointly tried upon motion of
the prosecution.
The evidence of the prosecution established that between May 1995
and March 8, 1996, accused-appellant forced himself on his two
daughters, namely, Annalyn and Roselyn, born on July 11, 1981[7]
and December 28, 1985[8], respectively. During the same period,
accused-appellant inserted his finger into the sex organ of his
youngest daughter, Irene, born on June 29, 1991[9]
At ages 15, 11 and 5 years, Annalyn, Roselyn, and Irene,
respectively, testified thus:
Annalyn on the witness stand:
A. One day by the middle of May, 1995, my father arrived home
drank [sic] and he forced me to undress myself while carrying an
icepick.
xxx
Q. But can you tell us the time?
A. It was already night time, madam.
xxx
Q. And where did this incident happened [sic]?
A. In our bedroom, madam.
xxx
Q. When you said that your father removed your panty and your
short[s] and your father was only wearing his short[s] at that time,
what did your father do to you if any?
A. He asked me to lie down on the bed, madam.
Q. And when you laid down on the bed, what happened next?
A. He approached me pointing the icepick towards me, sir.
xxx
Q. And then when he approached you, what happened next?
A. He started to kiss me on the different parts of my body, madam.
Q. Specifically what part of your body did he kiss first?
 CONSTI LAW II I ACJUCO 542

A. My vagina, madam. A. He ordered me or instructed me to undress myself, madam.

"x x x Q. Did you actually remove your clothes?

Q. Did you not resist or cry or ask him the reason why he was doing A. Yes, madam because I was frightened then.
that to you?
Q. How about your father, what happened to his clothes then?
A. I asked him, madam.
A. He likewise removed his short pants, madam.
Q. And what was his answer?
Q. So, both of you were totally naked?
A. None, madam.
A. Yes, madam.
xxx
Q. After you were both totally naked, did [sic] you kindly tell us what
Q. And after your father kissed your whole body, your breast and happened next?
including your vagina that was all he did to you?
A. He instructed me to lie down on [the] bed, madam.
A. On that particular day, yes madam on that day only.
Q. After you laid down on [the] bed, what happened next?
xxx
A. He placed himself on top of me, madam.
Q. After that first incident, you did not tell anyone or anybody your
mother and brother and your sister what your father did to you? Q. And when he laid on top of you, do you recall what

A. I did not, sir. happened next?

Q. Why? A. Yes, madam.

A. Because at the very start, he had already threatened us and he Q. What was that?
told us that he would kill our mother in our presence, madam.
A. He was making a push and pull motion, madam.
Q. And after that first incident in the middle of May, 1995, this act
was never repeated again? xxx

A. It was repeated again, madam. Q. When you say that he was likewise making this push up motion,
did you notice anything else?
Q. How many times?
A. He inserted his penis on [sic] my vagina, madam.
A. For many more times, madam.
Q. How do you know it was his penis that was inserted on [sic] your
xxx vagina?

A. After a week time [sic] or something like that in as much as he A. Because I saw it, madam.
seem[s] not to be satisfied he inserted his sex organ [in]to mine,
madam. Q. When he inserted his penis inside your vagina, what did you feel?

Q. Can you recall the first time your father inserted his penis inside A. I cried because it was painful, madam.
your private parts?
Q. Did you resist or fought [sic] back to [sic] what your father was
A. No more, madam. doing to you?

Q. You can not recall the exact date? xxx

A. I can no longer recall, madam. SP BALAWAG:

xxx Q. What did you do if any?

Q. Now, when you were left alone with your father, do you recall A. I cried and cried and when I was struggling to free myself, he
what happened if any? pointed again the icepick on [sic] me, madam.

A. Yes, madam. Q. And can you tell us for how long did this push up movements
[which] your father was doing while his penis was inserted in your
xxx vagina lasted [sic]?

A. First he look [sic] our main door and then he ordered me to get
inside our bedroom, madam.
Q. After he instructed you to get inside your bedroom, what
happened next?
A. For less than five (5) minutes, madam.
Q. After that what happened?
A. He stood up and seated himself on top of the bed, madam.

Q. What did you see when your father suddenly stood [sic] up and
sit on top of the bed?
xxx
A. He took hold and played with his sex organ or penis, madam.
Q. After playing [with] his sex organ, what happened next?
A. Something came out of his penis, madam.
Q. Would you kindly describe to us what you saw coming out from
his penis?
A. A sticky substance, madam.
Q. Why do you know that this sticky substance came out from the
penis of your father?
A. Because he was showing that to me, madam. He even told me
that that substance was the one introducing [sic] baby, madam.
xxx
Q. And after this first sexual abuse committed by your father on you,
you never relayed this incident to anyone?
A. Yes, madam I did not.
Q. Why was this?
A. As I have stated a while ago, he was threatening us. He was
threatening me and he further stated that that will include my mother
and even my other sister and brother, madam.
Q. You stated earlier that this sexual abuse was repeatedly done by
your father?
A. Yes, madam.
xxx
A. When my mother was not yet around whenever he likes it.
xxx
Q. During the time that you have or you were repeatedly raped or
your father have [sic] sexual intercourse with you, will you kindly tell
us the positions your father did?
A. Sometimes I am lying on my back. Sometimes I am on my side
that is all.
xxx
SP BALAWAG:
Q. In all those instances that you were repeatedly abused by your
father notwithstanding the return of your mother, you never told
anyone what was [sic] your father was doing to you?
A. I did not, madam.
Q. Why?
A. Because I am afraid of his threat and I love very much my family.
xxx
Q. Now, madam witness, do you recall the last time when your father
sexually abused you?
CONSTI LAW II I ACJUCO 543
A. Yes, madam.
Q. When was that?
A. March 3, Sunday in the morning 1996, madam.
Q. In other words, madam witness since the middle of May, 1995,
up to March 3, 1996, this sexual abuse committed by your father
lasted up to one (1) year?
A. Yes, madam.[10]
Roselyn on the witness stand:
Q. Can you tell us, Madam Witness, what grade were you in and
how old were you at the time you were first sexually molested by
your father?
A. I was then in Grade 2 and I was only 8 years old then, madam.
xxx
Q. In other words, Madam Witness, the first time you were sexually
abused by your father, you were left alone with him?
A. Yes, madam.
Q. And you also mentioned earlier that you were first sexually
abused by your father in your living room, can you tell us who
brought you there in the living room?
A. It was he, madam.
xxx
Q. Now, when your father or the accused led you in the living room
of your house alone and you were alone with him, can you recall
what happened, if any?
A. First, he instructed me to remove my shorts but I didnt want and
what he did is that he pointed an ice pick to [sic] me, madam.
xxx
Q. When you refused at first to remove your shorts and then the
accused pointed an ice pick at you, can you recall what happened
next?
A. It was he who removed my shorts, madam.
Q. In what particular part of your body was the ice pick pointed?
A. On my neck, madam. x x x
Q. After your father removed your shorts, what happened next, if
any?
A. He brought out his sex organ from his short, he lifted up one of
my feet and make [sic] me lie down on my back and he placed
himself on top of me, madam.
Q. What part of your leg was raised at that time?
A. My right leg, madam.
Q. In other words, while you were lying down, the accused lifted your
right leg and then he went on top of you?
A. Yes, madam.
 CONSTI LAW II I ACJUCO 544

xxx
Q. In what particular portion of the house?
PROS. BALAUAG:
A. Also, in the living room, madam.
Q. What happened next after your father laid on top of you?
xxx
A. He was actually making a push and full [sic] motions [sic]
(kinakabayo). Q. Now, you mentioned earlier that the second time you were
sexually abused by your father, it happened in the living room, can
xxx you tell us what your father did to you at that time?

PROS. BALAUAG: A. The same as in the first occasion, he instructed me to remove my

Q. Now, after your father went on top of you, what did he do next, if
any and made [sic] that kinakabayo?
A. He pulled out his sex organ and then played with it, madam.
Q. Where did he pulled [sic] out his sex organ?
A. From my sex organ, madam.
Q. In other words, madam Witness, your father inserted his sex
organ or penis in your vagina?
A. Yes, madam.
Q. Can you tell what you felt at that time while the penis of your
father was inserted in your vagina?
clothes, madam.
Q. In other words, madam witness, what you are trying to say to us
right now was that the second time you were sexually abused by
your father, it was like the first incident when you were sexually
abused?
A. Yes, madam.
xxx
A. The same as in the first occasion when I was abused by my
father. He first brought out his sex organ from his shorts and then
allowed me to lie down on my back, then raised my right leg and
then he inserted his sex organ to [six] my sex organ, madam.
xxx

A. It was painful, madam. Q. When was that, the last time you were sexually abused by your
father?
Q. Did you not tell him about it?
A. March 8, 1996, madam, because after that date it was then the
A. I told him about that, madam. birthday of my father.

Q. What was his responds [sic]? Q. In other words, the birthday of the accused is March 9.

A. None, madam. A. Yes, madam.

xxx xxx

Q. After your father pulled out his sex organ or his penis, can you A. I was about to place my bag inside that bedroom and I have to
recall what happened next or what did he do with it, if any? change clothes while my father followed me inside.

A. After my father had pulled out his sex organ from my sex organ Q. Madam Witness, where did you came [sic] from on that particular
he played with it and something whity [sic] substance came out, date?
madam.
A. I came from school, madam.
Q. Did you actually see that whity [sic] substance coming out from
your fathers penis? Q. When your father followed you inside the bedroom, can you recall
what happened next, if any?
A. Yes, madam, because he was then in front of me.
A. Yes, madam.
xxx
Q. What happened?
Q. Now, did you not tell anyone of what had happened to you?
A. He instructed me to lie down on my back and instructed me
A. I did not, madam. further to remove my shorts, madam.

Q. Why not, madam witness? Q. Did you obey his orders?

A. I am afraid, madam, because he told me that if I do so, he would A. No madam, I did not.
kill my mother.
Q. What happened next when you refused to removed [sic] your
xxx shorts?

Q. Now, the second time you were sexually abused by your father, A. He pointed an ice pick to [sic] me, madam.
can you tell us where did it happen?
Q. The same ice pick he pointed at you on the first occasion you
A. In the same hut, madam. were sexually abused by your father?
 CONSTI LAW II I ACJUCO 545

WITNESS TOUCHING HER RIGHT AND MIDDLE FINGER.

A. No madam, it is different.
Q. Nasaan kayo pagka pinapasok ni Papa yong daliri niya sa
Q. How can you tell that it was a different ice pick that he used? penching mo?

A. I said that it was different ice pick because the first ice pick he A. Nasa kama po.
used on me before, I kept it away, so what he did, he made another
ice pick which is quite longer. Q. Anong suot mo pag nasa kama kayo tapos pinapasok ni Papa
yong daliri niya sa penching mo? Nasaan ka?
Q. Did you actually see your father making that particular ice pick?
A. Nasa amin po.
A. Yes, madam.
Q. Saan yon amin na sinasabi mo, Irene saan anak?
xxx
PROS. AGARAN: The witness is now crying, your Honor.
Q. Now, after your father placed some oil in [sic] his penis, what did
he do next, if he did anything? ATTY. JOSON: Scratching only, your Honor.

A. He lifted again one of my legs and then placed himself on top of PROS. AGARAN:
me, madam.
Q. Pag ipinapasok ang daliri ni Papa sa penching mo, ano ang
Q. In other words, madam witness, the third time you were sexually nararamdaman mo?
abused by your father, he lifted again your right legs [sic] but this
time he put some oil in [sic] it before he inserted it in your vagina? A. Masakit po.

A. Yes, madam. Q. Maliban sa pagpasok ng daliri ng Papa sa penching mo, ano pa

ang ginawa sa iyo?
Q. And after inserting his penis inside your vagina, what happened
next, if any? A. No answer.

A. He removed his sex organ or pulled out his sex organ and then PROS. AGARAN: She refused to answer, your Honor, but she kept
played with it and sticky substance came out of it.[11] on crying.

Irene on the witness stand: COURT:

PROS. AGARAN: Q. Bakit ka umiiyak? Hindi naman kami nagagalit sa iyo.

Q. Irene, kilala mo ba si Mama? PROS. AGARAN:

A. Opo. Q. Meron ka bang pinagkuwentuhan ng ginawa ng Papa mo ang

pagpasok sa penching mo?
xxx
A. Wala po.
Q. Si Papa kilala mo rin?
Q. Kahit kanino?
A. Opo.
A. Wala po.
xxx
Q. Kay Mama, hindi mo kinuwento kay Mama?
Q. Irene, mahal mo ba si Mama?
A. Hindi po.
A. Opo.
Q. Bakit hindi mo kinuwento kay Mama?
Q. Eh, si Papa, mahal mo rin ba?
A. Eh, wala siya.
A. Hindi na po.
Q. Nasaan si Mama noon nuong ipasok niya ang daliri niya sa
Q. Bakit hindi mo na mahal si Papa? penching mo?

A. Kasi po ang kamay niya ay pinapasok sa penching ko. A. Kina Lola po.

Q. Pakituro mo nga kung ano yong sinasabi mong penching? Q. Hindi na ba bumalik si Mama sa bahay?

AT THIS JUNCTURE, THE WITNESS IS CRYING. AND WITNESS A. Bumalik po.

[IS] TOUCHING HER SEX ORGAN.
Q. Eh, bakit hindi mo ikinuwento?
Q. Ano yong kamay na ipinapasok doon sa penching mo, sabihin
mo nga anak kung ano yon? Nasaan yong daliring sinasabi mo, ituro A. Gabi na po.
mo kung anong daliri ang ipinapasok ng iyong Papa sa penching
mo? Q. Ibig mong sabihin pag gabi na si Mama natutulog ka na?
 CONSTI LAW II I ACJUCO 546

A. Opo.
Q. Anong naramdaman mo nong ilagay iyon?
Q. Wala kang talagang pinagkwentuhan?
A. Painful, your Honor.
A. Wala po.
Q. Ano pa?
Q. Hindi mo ikinuwento maski na kina Ate?
No answer.
A. Kay Roselyn po.
ATTY. JOSON: No further question, your Honor.[12]
Q. Ano ang sinabi mo kay Ate Roselyn?
Accused-appellant denied his daughters accusations. He charged
PROS. AGARAN: The witness refused to answer, your Honor. That that Myrna Ignacio, his common law wife and mother of his children,
will be all for the witness, your Honor. coached his daughters to lie. He claimed that he had seriously hurt
her in the past, twice by electrocution on suspicion of infidelity. He
COURT: also accused her of using the criminal cases to force him to waive
his ownership rights over their house and lot in her favor.
Q. Ituro mo nga kung sino ang nagpapasok ng daliri sa penching
mo? Seeking to help accused-appellant, his mother, Catalina Calma, his
neighbor, Gloria Ceraus, his mothers laundrywoman, Eugenia
A. WITNESS POINTING TO A PERSON IN THE COURTROOM Lontoc, his sister-in-law, Lolita Calma, family friend, Rosalie Ofrecio,
WHO STOOD UP AND GAVE HIS NAME AS RODRIGO CALMA. and a confidante of Annalyn, Larry Laurora, attested to the close
family ties of the Calmas. They testified that accused-appellants
PROS. AGARAN: daughters, especially Annalyn, showed much affection towards their
father. Catalina Calma, Lolita Calma and Larry Laurora even
Q. Sino siya? insinuated that Annalyn was in love with her father and was
seducing him.
A. Papa ko.
On September 25, 1996, the trial court convicted the accused on all
COURT: Cross? three (3) charges. It ruled:

ATTY. JOSON: Yes, your Honor. With the kind permission of this The defenses position that the charges were fabricated and that the
Honorable Court. private complainants were coached is untenable. A teenage
unmarried lass would not ordinarily file a rape complaint against
COURT: Proceed. anybody much less her own father if it were not true (People v.
Matrimonio, 215 SCRA 613). A daughter, especially one of tender
ATTY. JOSON: age would not accuse her own father of this heinous crime had she
really not have been aggrieved (People v. Dusohan, 227 SCRA 87;
Q. Irene, is it not a fact that your mother and your father frequently People v. Magpayo, 226 SCRA 13). In their childhood innocence
quarrel with each other? and naivete they could not have concocted the story of how they
were wantonly ravished and sexually assaulted (see People v.
A. Yes, sir. Magallanes, 218 SCRA 109; People v. Joya, 227 SCRA 9).

Q. And in fact, because of that frequent trouble your mother was Neither is there no [sic] merit in the accuseds argument that the
angry [sic] to your father? abuses if true could not have been endured by the private
complainants for almost a year without telling anyone. It is not
A. Yes, sir. uncommon for young girls to conceal for sometime the assaults on
their virtue because of the rapists threats on their lives. Delay or
Q. And because your mother was angry she told you to testify vaccilation in making a criminal accusation does not necessarily
against your father? impair the credibility of the witness if such delay is satisfactorily
explained (People v. Errojo, 229 SCRA 49 x x x). The fact that there
PROS. AGARAN: Your Honor, at her age she is incompetent to was no outcry from the offended party is immaterial in the rape of a
testify on those matters. child below twelve years old (People v. Ylarde, 224 SCRA 405).
Also, the precise date when complainant was sexually abused is not
COURT: Let the witness answer. an essential element of the offense (People v. Ocampo, 206 SCRA
223).
A. No, sir.
The defense also argues that there was no external evidence of the
Q. Considering that your mother did not instructed [sic] you to file use of force. In the case of People v. Coloma it has held that
action against your father, my question to you Irene is, who is the previous passivity of a daughter in allowing her father to have carnal
person who told you that something wrong was done to you by your knowledge of her for eight (8) years is not a valid defense against
father? unconsented intercourse. The kind of force or violence, threat or
intimidation as between father and daughter need not be of such
A. None, sir. nature and degree as would be required in other cases, for the father
in this particular instance exercises strong moral and physical
COURT: influence and control over his daughter (People v. Coloma, 222
SCRA 255). In a rape case committed by a father against his own
Q. Di ba natutulog ka nuong ilagay ang kamay niya sa penching daughter the fathers moral ascendancy and influence over the latter
mo? substitutes for violence and intimidation (People v. Matrimonio, 215
SCRA 613).
A. No, your Honor.

It was held in People v. Ignacio, 233 SCRA 1, that courts may take
judicial notice of the interesting fact that among poor couples with
big families living in small quarters, copulation does not seem to be
a problem despite the presence of other persons around them.
Rape can be committed even if the victim is sleeping on the same
bed with others (People v. Villorente, 210 SCRA 647). Thus it was
not impossible for the accused to commit the abuses on his
daughters simply because they were sleeping on the same bed.
It was also argues [sic] that the extent of the injuries sustained by
the two younger complainants are not enough to support the
charges. Suffice it to say that healed lacerations in the hymen do
not negate rape; neither does the absence of spermatozoa in the
vaginal canal (People v. Liquiran, 228 SCRA 62; People v.
Magallanes, 218 SCRA 109). Even if there were no lacerations of
the hymen this fact alone does not necessarily mean that there was
no rape. The merest introduction of the male organ into the labia of
the pudendum is sufficient. The mere penetration of the penis by the
entry thereof into the labia majora of the female organ even without
rupture of the hymen suffices to warrant a conviction for rape
(People v. Sanchez, 250 SCRA 14). Annalyn and Roselyn testified
that there was penetration and that it was very painful. The pain
could be nothing but the result of penile penetration, sufficient to
constitute rape (People v. Sanchez, supra).
The mother of the accused, as well as his sister-in-law imply (sic)
that an amorous relationship could exist between the accused and
Annalyn, and such is one of the theories of the defense. However,
where the accused adopted the theory that the victim consented to
his sexual desires, the sexual act itself is deemed admitted except
as to consent [but] x x x as contrary evidence showed the victim
sustained physical injuries consistent with her claim that she was
sexually abused without her consent (People v. Saluna, 226 SCRA
447). The charge that the complainant in a rape case has loose
morals must be supported by strong evidence (People v. Coloma,
222 SCRA 255). Such a claim could only lead this court to believe
that the defense would try to exculpate the accused by blaming the
victim, which this court is not inclined to do.
The accused imputes false motive in the filing of these case[s] on
the part of Myrna. It is unnatural for a parent to use her offspring as
an engine of malice, especially if it will subject a daughter to
embarassment and even stigma (People v. Ching, 240 SCRA 267;
People v. Ignacio, 233 SCRA 1). No mother would stoop so low as
to subject her daughter to physical hardship and shame
concommittant to a rape prosecution just to assuage her own hurt
feelings (People v. Rejano, 237 SCRA 627).
A violation of a womans chastity becomes doubly repulsive where
the outrage is perpetrated on ones own flesh and blood, for the
culprit is reduced to a level lower than a beast (People v. Dusohan,
227 SCRA 87). Because of the acts of the accused the private
complainants have been denied their right to grow up and discover
the wonders of womanhood in the natural way, and an award of
moral indemnification in the amount of P50,000.00 is proper (People
v. Escoto, 229 SCRA 430; People v. Mejorada, 224 SCRA 857), as
well as an award of exemplary damages as correction for the public
good (People v. Matrimonio, 215 SCRA 613), in the amount of
P25,000.00.[13]
Accordingly, accused-appellant was meted out the following
penalties:
WHEREFORE, premises considered, judgment is hereby rendered:
In Criminal Case No. 752-M-96
Finding the accused Rodrigo Calma y Sacdalan GUILTY beyond
reasonable doubt of the crime of rape and sentencing him to the
penalty of death to be carried out in accordance with law; and to
indemnify Annalyn Calma in the amount of P50,000.00, to pay her
CONSTI LAW II I ACJUCO 547
the amount of P50,000.00 as moral damages, the amount of
P25,000.00 as exemplary damages;
In Criminal Case No. 753-M-96
Finding accused Rodrigo Calma y Sacdalan GUILTY beyond
reasonable doubt of the crime of rape and sentencing him to the
penalty of death to be carried out in accordance with law; and to
indemnify Roselyn Calma in the amount of P50,000.00, to pay her
the amount of P50,000.00 as moral damages and the amount of
P25,000.00 as exemplary damages; and
In Criminal Case No. 754-M-96
Finding the accused Rodrigo Calma y Sacdalan GUILTY beyond
reasonable doubt of the [crime of] acts of lasciviousness under
Article 336 of the Revised Penal Code and R.A. [No.] 7610, and
sentencing him to the penalty of reclusion temporal in its medium
period, to indemnify Irene Calma in the amount of P50,000.00, to
pay P50,000.00 as moral damages and P25,000.00 as exemplary
damages.
SO ORDERED.[14]
On automatic appeal because of its twin sentences imposing the
death penalty, the foregoing decision of the trial court is now before
us.
In his Brief dated October 21, 1997, accused-appellant interposed
a single error, thus:
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED OF
THE CRIMES CHARGED DESPITE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE
DOUBT.[15]
We find on record overwhelming evidence of the guilt of accused-
appellant. The testimony of the three victims, his own daughters,
withstood the test of cross-examination. They spontaneously,
clearly and credibly spoke of the details of their defilement. The
defense did not dispute the time, the place, the manner and the
frequency of the sexual abuses. Neither did the defense show that
their hymenal lacerations, as found by Dr. Jesusa Nieves Vergara,
the medico-legal officer who examined them, were the results of
other causes. Dr. Vergara testified, thus:
xxx
Q. At around 11:30 in the morning of that day, do you recall having
physically examine [sic] the person[s] of Roselyn Calma, Irene
Calma and Annalyn Calma?
A. Yes, sir.
xxx
SP BALAUAG:
Q. You stated that you conducted a physical examination on the
person of Annalyn Calma on May 3, 1996, is [sic] the findings of
your examination was [sic] also reduced in writing?
A. Yes, madam.
Q. I am showing to you medico legal report No. M-647-96, what
relation has this medico legal report to the one you stated you
executed?
A. This is the original medico legal report No. M-647-96 which I
prepared.

xxx
Q. We are marking the same as our Exhibit K, and that the signature
of Dr. Vergara be bracketed and be marked as Exhibit K-1. x x x
You stated in your genital findings that on separating the same
disclosed an elastic, fleshy-type hymen with shallow healed
lacerations at 3 and 5 oclock and deep healed lacerations at 8 and
9 oclock positions. [I]n laymans language, can you tell us wat this
[sic] genital findings means [sic]?
A. The numbers here, 3, 5, 8 and 9 oclock will just indicate the
positions of the lacerations. So, since the hymen is circular in
appearance, it is being correlated to the face of the watch when we
say the laceration is 3:00 oclock, it means that the laceration or it
occupies the number in the clock. The same goes with the 5, 8 and
9 oclock. By shallow laceration, it means that it does not exceed
more than 50% or more than half of the width of the hymen and by
deep laceration, it exceed [sic] more than 50% or more than 1/2 of
the width of the hymen and by healed laceration, it means that the
edges of the laceration has already healed showing reaction like
swelling, redness or contusion on the area.
xxx
SP Balauag:
Q. You concluded in your conclusion that the subject is in non-virgin
state physically. Can you kindly explain how you were able to
conclude that the subject is in a non-virgin state?
A. The findings in the hymen is [sic] a healing laceration.
xxx
Q. Dr., can you tell us what might have cause [sic] this laceration in
the hymen you found on [sic] Annalyn Calma?
A. Forcible entry of a hard blunt object.
xxx
COURT:
xxx
Q. What was the cause of your conclusion or findings that the victim
is no longer a virgin?
A. Forcible entry of a hard blunt object can be caused by an insertion
of a male sex organ.
SP BALAUAG:
Q. On May 6, 1996, did you examine the person of Rosallyn [sic]
Calma?
A. Yes, madam.
Q. After conducting your physical examination was [sic] your
findings reduced into writing?
A. Yes, madam.
xxx
Q. [Let] the signature over the typewritten name Jesusa Vergara be
bracketed and be marked as our Exhibit L-1 x x x. You stated in your
findings that on the genital [area]:
`There is absence of pubic hair. Labia majora are full, convex and
gaping with th [sic] pinkish labia minora presenting in between. On
CONSTI LAW II I ACJUCO 548
separating the same disclosed an elastic, fleshy-type hymen with
shallow healed lacerations at 3 and 9 oclock positions. External
vaginal origice [sic] admits tip of the examiners smallest finger. Now
in laymans language, Doctor, can you tell us what this [sic] gental
findings means [sic]?
A. That I found two (2) lacerations on the hymen, positions 3 and 9
oclock positions. [B]oth lacerations were shallow healed lacerations.
Q. Now, Doctor, there appears a conclusion [where] you said [in the]
medico legal report that the subject is in a non-virgin state
physically, can you tell us the basis of your conclusion?
A. The basis for saying this is my findings on the hymen revealing
the healed lacerations.
Q. This laceration you found on the hymen [of] the private
complainant Rosallyn [sic] Calma, can yoy [sic] inform this
Honorable Court what or [sic] might have cause [sic] the said
lacerations?
A. Forcible entry of a hard blunt object which can be a form of an
erected sexual organ.
Q. On May 3, 1996, do you remember having physically examine
[sic] the person of Irene Calma?
A. Yes, madam.
Q. Was [sic] your findings after you physically examine [sic] the
person of Irene Calma reduced into writing?
A. Yes, madam.
xxx
Q. I forgot, we are marking the findings of the doctor as Exhibit L-3,
your Honor for purposes of identification we are marking the medico
legal report 649-M-96 as our Exhibit M and the signature over the
typewritten name Dr. Jesusa Vergara be bracketed and be marked
as our Exhibit M-1. x x x Doctor, in this [sic] findings regarding the
four year old private complainant Irene Calma you stated in your
findings that there are lacerations found in the hymen of the four (4)
year old child, can you tell us in laymans language what this means?
A. In this particular case, there were two (2) lacerations noted on
the hymen of the victim. [B]oth were healing lacerations one shallow
healing laceration 3 oclock and another, deep laceration position 3
oclock.
Q. Can you tell us the basis of your conclusion that the victim Irene
Calma is also [in] a non-virgin state?
A. My basis for saying this [is] the findings on the hymen revealing
lacerations.
Q. In this particular case where the victim or the private complainant
is four years old, will you tell us what might have caused the
laceration you found in the hymen of Irene Calma?
A. Forcible entry of a hard blunt object.[16]
At most, during cross-examination, the defense got Dr. Vergara to
concede that hymenal lacerations can also be caused by a fall on a
sharp object. The defense, however, failed to establish that the
three victims had, on specific occasions, met an accident of that
nature. Thus goes the cross-examination of Dr. Vergara:
ATTY. JOSON:

Q. Madam witness, x x x you stated that that [sic] x x x the healed
laceration might be caused by a blunt instrument or an erected adult
penis. Now, madam witness, aside from adult male penis, what
other factor that might caused [sic] lacerations in the hymen which
falls under the category of a hard blund [sic] object?
A. Insertion of the finger provided that diameter of the finger is
greater than the diameter of the opening of the vagina, [sir].
Q. Can it be the finger of the subject person herself?
I withdraw that.
xxx
Q. In fact, aside from the erected male penis, finger, what are the
other factors or things that might cause laceration in the hymen?
A. A fall against a hard sharp object, sir.
Q. Doctor, is it possible considering the young age of the subject
person by strenuous exercise and activities may the same caused
[sic] laceration of the hymen?
A. No, sir there has to be a direct trauma on the hymen, sir.
Q. How about riding on a bicycle?
A. No, sir.
Q. Doctor, you also stated healing laceration, from the time of the
examination what is the probable time or what is the period of time
wherein you can still consider a laceration a healing laceration?
A. Less than seven (7) days per examination, sir.
Q. To be considered a healed laceration, the examination must be
conducted within seven days?
A. More than seven (7) days.
Q. Healing laceration?
A. For healed laceration, it should be more than seven (7) days, for
heal[ing] lacerations less than seven (7) days.
xxx
COURT:
Q. Doctor, can you determine Dr. when was the actual date wherein
the victim lost their virginity?
A. For the exact date, I can not determine but I can only
approximate, but my findings are compatible per their allegations
that the incident happened a year [before my examination].[17]
Accused-appellant next submits that the evidence of the
prosecution should not be given credence by this Court because of
their inherent improbabilities. He pleads this Court to consider his
daughters to have lied under oath because:
1. Annalyn and Roselyn both testified that he always withdrew his
penis and ejaculated outside them, but such self-control and
willpower is impossible for a man who lusted even for his own
daughters.[18]
2. His daughters did not behave like rape victims. They continued to
be close and affectionate towards him, hugging and kissing him in
public. They always slept together in one room. They continuously
attended their classes and even got high grades.[19]
CONSTI LAW II I ACJUCO 549
3. His daughters should have died or suffered some serious physical
injury if it were true that his penis forcefully penetrated their
vaginas.[20]
All these, accused-appellant submits, cast reasonable doubt on his
guilt.
The law presumes that an accused is innocent and this presumption
stands until it is overturned by competent and credible proof. It is
incumbent upon the prosecution to establish the guilt of the
defendant beyond a reasonable doubt. The reasonable doubt
should necessarily pertain to the facts constitutive of the crime
charged.[21] Discrepancies that touch on significant facts are crucial
on the guilt or innocence of an accused.[22] Conversely,
inconsistencies and discrepancies in details which are irrelevant to
the elements of the crime are not grounds for acquittal.[23] The rule
of falsus in uno, falsus in omnibus has never been regarded as
positive, mandatory, or inflexible.[24]
Surmises and conjectures have no place in a judicial inquiry and are
especially anathema in a criminal prosecution.[25] In a criminal
prosecution a reasonable doubt can be created by many things but
to be sufficient to prevent a conviction, it must arise from the
evidence adduced or from the lack of evidence, and can arise from
no other legitimate source.[26] While no test definitively determines
which is and which is not considered reasonable doubt under the
law, it must necessarily involve genuine and irreconcilable
contradictions based, not on suppositional thinking, but on the hard
facts constituting the elements of the crime. It is not mere possible
doubt, because everything relating to human affairs is open to some
possible or imaginary doubt.[27] It should not be vague, speculative
or whimsical, but intelligent, reasonable and impartial and based on
a careful examination and conscious consideration of all the
evidence in the case.[28] A reasonable doubt is not such a doubt as
any man may start by questioning for the sake of a doubt; nor a
doubt suggested or surmised without foundation in facts or
testimony, for it is possible always to question any conclusion
derived from testimony, but such questioning is not what is
reasonable doubt. Rather, it is that state of the case which, after the
entire comparison and consideration of all the evidence leaves the
mind of the judge in that condition that he cannot say that he feels
an abiding conviction to a moral certainty of the truth of the
charge.[29] Absolute certainty is not demanded by the law to convict
of any criminal charge but moral certainty is required, and this
certainty must attend every proposition of proof requisite to
constitute the offense.[30] Absolute, mathematical, or metaphysical
certainty is not essential, and besides, in judicial investigation, it is
wholly unattainable. Moral certainty is all that can be required.
In the instant case, accused-appellant exhorts this court to consider
the lack of internal ejaculation and the absence of any injury on the
part of the victims, which were testified to by the prosecution
witnesses themselves, and their continuous show of affection
towards their father, as testified to by the defense witnesses, as
indicia of reasonable doubt warranting his acquittal. They lied,
argues accused-appellant, because their testimony is improbable, if
not impossible, and their affectionate behavior towards him, their
alleged rapist, was a contradiction in terms.
We agree with the Solicitor General that these contentions are
conjectural. On the charge that the narrations of the victims were
fabricated for the purpose of evading the questions as to why no
spermatozoa was found in them during the physical examinations
and why they did not get pregnant, the Solicitor General correctly
noted that Annalyn and Roselyn were last sexually abused by
appellant in March 1996 while the physical examinations were
conducted on May 3, 1996 or almost two (2) months thereafter.
Hence, even assuming that he ejaculated while they had
intercourse, the spermatozoa would have been washed off by May
3, 1996, not to mention that the lifetime of spermatozoa definitely
 CONSTI LAW II I ACJUCO 550

does not run to two (2) months. In any event, the presence or
absence of spermatozoa in the vagina is not even determinative of
the commission of rape because a sperm test is not a sine qua non
for the successful prosecution of a rape case.[31] The important
element in rape is penetration of the pudenda and not emission of
seminal fluid.[32]
The Court is also not impressed by accused-appellant's claim that
he could not have raped Annalyn and Roselyn because they
continued to be close to him, i.e., they still hugged and kissed him
in public and continued to sleep with him in one room. They were
also allegedly able to continue attending their classes and obtain
good grades at the time they were supposedly molested by him.
It was Catalina Calma, mother of accused-appellant, , who testified
about Annalyns and Roselyns supposed show of affection towards
him and their supposed normal life during that trying period. But
Catalinas testimony is hard to believe. Annalyn herself testified that
at that time, she was cutting classes and in school, her classmates
saw her crying at the library.[33] Roselyn, on her part, testified that
she was greatly bothered by what appellant had done to her and
after the case was filed, she felt at peace and was able to continue
with her studies.[34]
of Republic Act No. 7659, and one (1) count of Acts of
Lasciviousness under Art. 336 of the Revised Penal Code in relation
to Sec. 5(B) of Art. III of Republic Act No. 7610, is AFFIRMED with
the slight modification that the civil indemnity in each of the three
offenses is increased to P75,000.00 in accordance with the latest
jurisprudence[39]on the matter. Accused-appellant RODRIGO
CALMA Y SACDALAN is hereby sentenced:
In Criminal Case No. 752-M-96
To the penalty of death to be carried out in accordance with law; and
to indemnify Annalyn Calma in the amount of P75,000.00, and to
pay her the amount of P50,000.00 as moral damages and
P25,000.00 as exemplary damages;
In Criminal Case No. 753-M-96
To the penalty of death to be carried out in accordance with law; and
to indemnify Roselyn Calma in the amount of P75,000.00, and to
pay her the amount of P50,000.00 as moral damages and
P25,000.00 as exemplary damages; and
In Criminal Case No. 754-M-96

There is also nothing commendable in accused-appellant's To the penalty of reclusion temporal in its medium period; and to
contention that the forceful insertion of a normal-size adult male indemnify Irene Calma in the amount of P50,000.00, and to pay
penis into the vagina of girls of victims' ages would have required P50,000.00 as moral damages and P25,000.00 as exemplary
hospitalization and medical attention. Again, we sustain the Solicitor damages.
General's argument that full penetration of the vagina is not
necessary to constitute the consummated crime of rape. It is settled Four (4) Members of the Court, although maintaining their
that the mere entry of the penis into the labia majora of the female adherence to the separate opinions expressed in People v.
organ, even without rupture of the hymen, suffices to warrant a Echegaray[40] that R.A. No. 7659 insofar as it prescribes the
conviction of rape.[35] penalty of DEATH is unconstitutional, nevertheless, submit to the
ruling of the Court, by a majority vote, that the law is constitutional
The arguments of accused-appellant are premised on the and that the death penalty should accordingly be imposed.
misconception that reasonable doubt is anything and everything that
removes a statement from the matrix of certitude. Were we to agree In accordance with Section 25 of Republic Act No. 7659, amending
with him and treat every unlikely or uncommon trait characterizing a Article 83 of the Revised Penal Code, upon finality of this decision,
person, each strange or unusual event in the occurrence of a crime, let the records of this case be forthwith forwarded to the Office of
or just any unexplained, irregular or dysfunctional behavior on the the President for possible exercise of the pardoning power. No
part of the accused or his victims, as basis for reasonable doubt, no pronouncement as to costs.
criminal prosecution would prevail. It bears repeating that even
inconsistencies and discrepancies in the prosecution evidence, SO ORDERED.
unless treating of the elements of the crime, would not necessarily
bring about a judgment of acquittal. In this case, there is not even
any inconsistency or discrepancy to speak of. Accused-appellant
denied criminal liability by simply insisting that his daughters, with
coaching from their mother, lied on the witness stand. But during
cross examination, they never flinched in their testimony. They
spoke in simple, direct words customary of children of their ages,
and they maintained their testimony amidst warnings[36] by the
court and the defense counsel that their father may be meted out
the death penalty if found guilty of the crimes that they were
charging him with. Significantly, their testimony was corroborated by
the medical findings of vaginal lacerations on all three victims and
their non-virgin state.[37] Neither may any of the defense evidence
be attributed with having materially negated the positive testimony
of accused-appellants daughters regarding their defilement in the
hands of their father. The defense witnesses may have testified that
they remained affectionate towards their father and continued to
earn high grades in school, but they denied these statements and
countered that they had cut classes and were sometimes seen
crying in the library by some of their classmates.[38] All things
considered, we find the evidence against the accused-appellant
established his guilt beyond reasonable doubt.

WHEREFORE, the appeal is HEREBY DENIED, and the judgment

of conviction rendered by the Regional Trial Court, 3rd Judicial
Region, Malolos Bulacan, Branch 14, finding Rodrigo Calma y
Sacdalan guilty beyond reasonable doubt for two (2) counts of Rape
under Art. 335 of the Revised Penal Code, as amended by Sec. 11

[G. R. No. 128823-24. December 27, 2002]
PEOPLE OF THE PHILIPPINES, accused-appellee, vs. PEDRO
FLORES, JR., y FLORES ALIAS PESIONG, accused-appellant.
DECISION
CARPIO-MORALES, J.:
An assault on sexual innocence can open a floodgate of emotions.
This Court, however, cannot allow emotions to drown an accuseds
right to be informed of the nature and cause of the accusation
against him.
For automatic review before this Court is the Joint Decision of the
Regional Trial Court, Branch 46, Urdaneta, Pangasinan finding
accused-appellant Pedro Flores Jr. y Flores alias Pesiong guilty of
two counts of rape of his then 11 year old daughter and sentencing
him to suffer the penalty of death in each.
The complaints against accused-appellant filed on February 3, 1997
read as follows:
Criminal Case No. U-9184:
CRIMINAL COMPLAINT[1]
The undersigned, FILIPINA FLORES Y LAZO, 11 years old, grade
three pupil and a resident of Sitio Buenlag, Brgy Nancamaliran
West, Urdaneta, Pangasinan, under oath, hereby accuses PEDRO
FLORES, JR., Y FLORES for the crime of RAPE, committed as
follows:
That on the 9th day of December 1996, in the morning at Sitio
Buenlag, Brgy. Nancamaliran West, Municipality of Urdaneta,
Province of Pangasinan, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, by means of force
and intimidation, did then and there, willfully, unlawfully, criminally
and feloniously sexually abuse the herein complaining witness
FILIPINA FLORES Y LAZO, 11 years old, all against her will.
x x x (Emphasis supplied).
Criminal Case No. U-9185:
CRIMINAL COMPLAINT[2]
The undersigned, FILIPINA FLORES Y LAZO, 11 years old, grade
three pupil and a resident of Sitio Buenlag, Brgy. Nancamaliran
West, Urdaneta, Pangasinan, under oath, hereby accuses PEDRO
FLORES, JR., Y FLORES, ALIAS PESYONG, committed as
follows:
That on the 28th day of December 1996, in the evening at Sitio
Buenlag, Brgy Nancamaliran West, Municipality of Urdaneta,
Province of Pangasinan, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, with deliberate
intent and by means of force and intimidation, did then and there,
willfully, unlawfully, criminally and feloniously sexually abuse the
herein complaining witness FILIPINA FLORES, an 11 years old and
daughter of the herein accused with the use of sharp pointed bladed
weapon and all against her will.
x x x (Emphasis supplied).
Arraigned on February 10, 1997, accused-appellant pleaded not
guilty to both charges.[3]
Culled from the records of the case are the following facts
established by the prosecution:
CONSTI LAW II I ACJUCO 551
On December 5, 1996, private complainant Filipina L. Flores
(Filipina), 11 years old at the time, and her younger sister Catherine
were left to the care of their father, herein accused-appellant, at their
family residence in Sitio Buenlag, Barangay Nancamaliran West,
Urdaneta, Pangasinan, their mother Marcelina L. Flores having
departed for Singapore to work as an overseas contract worker.
After partaking of supper on the night of December 9, 1996,[4]
accused-appellant asked Filipina to accompany him to the comfort
room situated outside their house,[5] claiming that he was afraid of
ghosts.[6] Albeit Filipina did not believe[7] him, she acquiesced
because her mother had told her to always obey her father.[8]
When accused-appellant came out of the comfort room, he ordered
Filipina to remove her short pants, threatening her with death if she
disobeyed,[9] and made her lie down.[10] He then removed his short
pants and brief and, against her will, he inserted his finger and later
his penis into Filipinas vagina[11] where she later felt hot fluid.[12]
Accused-appellant thereafter wiped Filipinas vagina and his hand,
threatened to kill her if she reported what he did, directed her to put
on her shorts, and they both went home. The following morning,
Filipina reported the incident to her Inang Lorie whose full name is
Norielyn Antonio, the aunt of her mother, who told her that if her
father would sexually assault her again, he would have him
detained.
Nineteen nights later or on December 28, 1996, as Filipina lay
asleep in their house, she was awakened when accused-appellant
touched her right foot.[13] Armed with a knife[14], accused-
appellant told her not to talk[15] and ordered her to remove her short
pants and panty. She complied. Accused-appellant thereupon
removed his short pants and brief and went on top of her chest
during which she tried to push him away but failed.
Accused-appellant then inserted his finger into Filipinas vagina for
some time,[16] wiped his hands, and then inserted his penis for a
long time as he was sucking her breast. Filipina felt accused-
appellants semen drop into her private organ where she noticed the
presence of blood and a bit of whitish substance.
Accused-appellant later wiped her vagina with a towel. The following
morning, private complainant again reported the matter to her
grandaunt Norielyn,[17] and to her playmate Carla Salvador.[18]
On January 31, 1997, Filipina, accompanied by Norielyn, a relative,
and a tricycle driver-neighbor, reported the matter to the Philippine
National Police of Urdaneta where she gave a statement. On the
same day, she, still accompanied by Norielyn, submitted herself to
a medical examination at the Don Amadeo J. Perez, Jr. Memorial
General Hospital the results of which are contained in a medical
certificate[19] showing the following:
(-) Negative menarche
- Multiple deep healed lacerations all over the labia majora.
- Admits examining finger with ease.
- (+) sticky whitish discharge.
Dr. Jeanna B. Nebril, the examining physician, found the presence
of deep-healed lacerations all over the labia majora[20] which deep-
healed lacerations connote, according to the doctor, the application
of force, possibly two weeks before the examination.
Denying the accusations, accused-appellant claimed as follows:
Filipina, whom he whipped in the afternoon of December 9, 1996 for
not attending school on the 6th, 7th and 8th of December that year
and for having received money from her classmate,[21] was not in

their house on the night of December 9, 1996 because she was in
the house of Norielyn. Neither was she in their house on the night
of December 28, 1996 as she was at the house of his mother
Margarita Flores[22] in Cafloresan.
Accused-appellants testimony was corroborated by his mother
Margarita, and his teenaged children Benito and Baby Jean Flores
who were staying in his mothers house. It was also corroborated by
another teenaged child, Jocelyn Flores, who was staying in the
house of accused-appellants mother-in-law, Lourdes Lazo, also in
Barangay Nancamaliran West.[23] Jocelyn added that Filipina had
intimated to her that she fabricated the rape charges because their
maternal grandmother Lourdes wanted their father, accused-
appellant, jailed as he begrudged him for having eloped with their
mother,[24] and that Lourdes threatened her with abandonment or
detention in jail in case she defied, and promised to give her jewelry,
shoes and dress if she agreed to carry out her desire.
After trial, the court a quo found accused-appellant guilty of
Statutory Rape and sentenced her to death in both cases in its April
7, 1997 Joint Decision, the dispositive portion of which reads:
WHEREFORE, JUDGMENT is rendered CONVICTING PEDRO
FLORES, JR. Y FLORES ALIAS PESIONG beyond reasonable
doubt of the crime of Statutory Rape, an offense defined and
penalized under paragraph 3, Article 335, of the Revised Penal
Code in relation to Section 1, Republic Act 7659 aggravated by
relationship, the Court sentences, PEDRO FLORES, JR. Y
FLORES ALIAS PESIONG as follows:
CRIMINAL CASE NO. U-9184 to suffer the penalty of DEATH;
ordering Pedro Flores, Jr. y Flores alias Pesiong to pay Filipina the
sum of P50,000.00 as moral damages, P20,000.00 as exemplary
damages, plus all the necessary penalties and costs.
CRIMINAL CASE NO. U-9185 to suffer the penalty of DEATH;
ordering Pedro Flores, Jr. y Flores alias Pesiong to pay Filipina the
sum of P50,000.00 as moral damages, P20,000.00 as exemplary
damages, plus all the necessary penalties and costs.
Pedro Flores, Jr. y Flores alias Pesiong shall be committed
immediately to the National Bilibid Prisons. The Branch Clerk of
Court is hereby ordered to transmit the entire records of this case to
the Honorable Supreme Court of the Philippines for automatic
review of this Decision.
In view of the penalty of death imposed by the court a quo, the case
is now before this Court on automatic review. Accused-appellant
assigns as errors the following:
I. THAT THE FILING OF THE CASE [AT BAR] WAS MOTIVATED
BY SOME FACTORS OTHER THAN THE TRUTH AS TO ITS
COMMISSION, AND SO THE ACCUSED SHOULD BE
ACQUITTED.
II. THAT THE COURT [A QUO] ERRED IN NOT APPRECIATING
THE DEFENSE OF THE ACCUSED-APPELLANT THAT THE
COMPLAINANT WAS NOT AT THE SCENE OF THE CRIME
WHEN THE ALLEGED INCIDENTS TOOK PLACE, A DEFENSE
SUFFICIENT TO OVERCOME AND DESTROY THE TESTIMONY
OF THE COMPLAINANT THAT WOULD HAVE WARRANTED THE
ACQUITTAL OF THE ACCUSED-APELLANT.
It is settled that in a criminal case, an appeal throws the whole case
open for review, and it becomes the duty of the appellate court to
correct such errors as may be found in the judgment appealed from,
whether they are made the subject of assignment of errors or
not.[25]
It is at once apparent, from a reading of the above-quoted
complaints, that accused-appellant was denied the constitutional
CONSTI LAW II I ACJUCO 552
right to be informed of the nature and cause of the accusation
against him. This right has the following objectives: [26]
1. To furnish the accused with such a description of the charge
against him as will enable him to make the defense;
2. To avail himself of his conviction or acquittal for protection against
further prosecution for the same cause;
3. To inform the court of the facts alleged, so that it may decide
whether they are sufficient in law to support a conviction if one
should be had.
The right cannot be waived for reasons of public policy.[27] Hence,
it is imperative that the complaint or information filed against the
accused be complete to meet its objectives. As such, an indictment
must fully state the elements of the specific offense alleged to have
been committed.[28] For an accused cannot be convicted of an
offense, even if duly proven, unless it is alleged or necessarily
included in the complaint or information.[29]
The court a quo found accused-appellant guilty of Statutory Rape
under Article 335[30] of the Revised Penal Code, as amended by R.
A. No. 7659 (which restored the death penalty for heinous crimes
effective December 31, 1993) which provides:
Article 335. When and how rape is committed.--- Rape is committed
by having carnal knowledge of a woman under any of the following
circumstances:
1. By using force or intimidation;
2. When the woman is deprived of reason or otherwise unconscious;
and
3. When the woman is under twelve years of age or is demented.
The gravamen of the crime of rape is carnal knowledge or sexual
intercourse between a man and a woman under the circumstances
enumerated in the penal code.[31] Thus, to sustain a conviction, the
complaint or information must allege that the accused had carnal
knowledge of or sexual intercourse with the private complainant. In
the criminal complaints at bar, however, no such allegation was
made.
The allegation that accused-appellant did sexually abuse Filipina
does not suffice. In the recent case of People v. Lito Egan alias
Akiao[32], this Court ruled that although the prosecution has proved
that [the therein private complainant] Lenie was sexually abused,
the evidence proffered is inadequate to establish carnal
knowledge.[33] Hence, sexual abuse cannot be equated with carnal
knowledge or sexual intercourse.[34] The allegation in the instant
criminal complaints that accused-appellant sexually abuse[d] the
private complainant cannot thus be read to mean that accused-
appellant had carnal knowledge or sexual intercourse with the
private complainant.
This Court is not unaware of the rule in case there is a variance
between allegation and proof as etched in Section 4 of Rule 120 of
the Revised Rules of Criminal Procedure which reads:
SEC. 4. Judgment in case of variance between allegation and
proof.When there is variance between the offense charged in the
complaint or information and that proved, and the offense as
charged is included in or necessarily includes the offense proved,
the accused shall be convicted of the offense proved which is
included in the offense charged, or of the offense charged which is
included in the offense proved.[35]
The case at bar, however, is not one of variance between allegation
and proof. The recital of facts in the criminal complaints simply does

not properly charge rape, sexual abuse not being an essential
element or ingredient thereof.
Neither can accused-appellant be convicted of acts of
lasciviousness or of any offense for that matter under our penal
laws. It is settled that what characterizes the charge is the actual
recital of facts [36] in the complaint or information. For every crime
is made up of certain acts and intent which must be set forth in the
complaint or information with reasonable particularity of time, place,
names (plaintiff and defendant), and circumstances. In other words,
the complaint must contain a specific allegation of every fact and
circumstance necessary to constitute the crime charged[37], the
accused being presumed to have no independent knowledge of the
facts that constitute the offense.[38]
And even under the provisions of Republic Act No. 7610 (The
Special Protection of Children Against Child Abuse, Exploitation and
Discrimination Act),[39] accused-appellant cannot be held liable.
Section 5 of said Act provides:
SEC. 5. Child Prostitution and Other Sexual Abuse. -- Children,
whether male or female, who for money, profit, or any other
consideration or due to the coercion or influence of any adult,
syndicate or group, indulge in sexual intercourse or lascivious
conduct, are deemed to be children exploited in prostitution and
other sexual abuse.
The penalty of reclusion temporal in its medium period to reclusion
perpetua shall be imposed upon the following:
(a) Those who engage in or promote, facilitate or induce child
prostitution which include, but are not limited to, the following:
(1) Acting as a procurer of a child prostitute;
(2) Inducing a person to be a client of a child prostitute by means of
written or oral advertisements or other similar means;
(3) Taking advantage of influence or relationship to procure a child
as a prostitute;
(4) Threatening or using violence towards a child to engage him as
a prostitute; or
(5) Giving monetary consideration, goods or other pecuniary benefit
to a child with the intent to engage such child in prostitution.
(b) Those who commit the act of sexual intercourse or lascivious
conduct with a child exploited in prostitution or subjected to other
sexual abuse: Provided, That when the victim is under twelve (12)
years of age, the perpetrators shall be prosecuted under Article 335,
paragraph 3, for rape and Article 336 of the Revised Penal Code,
as amended by Act No. 3815, for rape or lascivious conduct when
the victim is under twelve (12) years of age shall be reclusion
temporal in its medium period; and
(c) Those who derive profit or advantage therefrom, whether as
manager or owner of the establishment where the prostitution takes
place or of the sauna, disco, bar, resort, place of entertainment or
establishment serving as a cover or which engages in prostitution in
addition to the activity for which the license has been issued to said
establishment. (Emphasis and underscoring supplied).
Section 2 (g) of the Rules and Regulations on the Reporting and
Investigation of Child Abuse Cases[40], issued pursuant to Section
32 of Republic Act No. 7610, defines sexual abuse by inclusion as
follows:
Sexual abuse includes 1) the employment, use, persuasion,
enticement, or coercion of a child to engage in, or assist another
person to engage in sexual intercourse or lascivious conduct or 2)
CONSTI LAW II I ACJUCO 553
the molestation, 3) prostitution, or 4) incest with children.
(Underscoring supplied)
From this broad, non-exclusive definition, this Court finds that the
phrase sexually abuse in the criminal complaints at bar does not
comply with the requirement that the complaint must contain a
specific averment of every fact necessary to constitute the crime.
Notably, the phrase sexual abuse is not used under R.A. No. 7610
as an elemental fact but as an altogether separate offense. Above-
quoted Section 5 thereof enumerates the punishable acts that must
be alleged in the complaint or information to hold an accused liable,
none of which is reflected in the complaints at bar charging accused-
appellant.
The case of People v. Cruz [41] is instructive. There the information
in Criminal Case No. 15368-R read:
That on or about the 2nd day of August, 1997, in the City of Baguio,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there willfully, unlawfully and
feloniously commit sexual abuse on his daughter either by raping
her or committing acts of lasciviousness on her, which has debased,
degraded and demeaned the intrinsic worth and dignity of his
daughter, JEANNIE ANN DELA CRUZ as a human being.
CONTRARY TO LAW. (Emphasis supplied)
Finding the above-quoted information void, this Court held:
The Court also finds that accused-appellant cannot be convicted of
rape or acts of lasciviousness under the information in Criminal
Case No. 15368-R, which charges accused-appellant of a violation
of R.A. No. 7610 (The Special Protection of Children Against Child
Abuse, Exploitation and Discrimination Act), either by raping her or
committing acts of lasciviousness.
It is readily apparent that the facts charged in said information do
not constitute an offense. The information does not cite which
among the numerous sections or subsections of R.A. No. 7610 has
been violated by accused-appellant. Moreover, it does not state the
acts and omissions constituting the offense, or any special or
aggravating circumstances attending the same, as required under
the rules of criminal procedure. Section 8, Rule 110 thereof
provides:
Designation of the offense.The complaint or information shall state
the designation of the offense given by the statue, aver the acts or
omissions constituting the offense, and specify its qualifying and
aggravating circumstances. If there is no designation of the offense,
reference shall be made to the section or subsection of the statute
punishing it.
The allegation in the information that accused-appellant willfully,
unlawfully and feloniously commit sexual abuse on his daughter
[Jeannie Ann] either by raping her or committing acts of
lasciviousness on her is not a sufficient averment of the acts
constituting the offense as required under Section 8, for these are
conclusions of law, not facts. The information in Criminal Case No.
15368-R is therefore void for being violative of the accused-
appellants constitutionally-guaranteed right to be informed of the
nature and cause of the accusation against him. (Emphasis &
underscoring supplied)
As held by this Court in the above-case of Cruz, the allegation in the
information that the therein accused-appellant sexually abused the
therein private complainant by either raping or committing acts of
lasciviousness on her is not a sufficient averment of the acts
constituting the offense as required under Section 8 [of Rule 110],
for these are conclusions of law, not facts. Nothing less can be said
of the criminal complaints in the cases at bar. They are void for being
 CONSTI LAW II I ACJUCO 554

violative of the accused-appellants constitutional right to be

informed of the nature and cause of the accusation against him.

This Court thus takes this occasion to remind public prosecutors of

their crucial role in crafting criminal complaints and information. For
all efforts may be rendered futile and justice may be denied by a
failure to state the acts or omissions complained of as constituting
the offense as exemplified by the present case.

The foregoing disquisition leaves it unnecessary to dwell on

accused-appellants assigned errors or of other errors including
failure to allege relationship in the first complaint, and lack of proof
of minority in both cases.

WHEREFORE, the informations in Criminal Case Nos. U-9184 and

U-9185 are hereby declared null and void for being violative of the
constitutional right of accused-appellant Pedro Flores, Jr. y Flores
alias Pesiong, for Rape to be informed of the nature and cause of
the accusation against him. Hence, the cases against him are
hereby DISMISSED.

The Director of Prisons is hereby directed to forthwith cause the

release of accused-appellant unless the latter is being lawfully held
for another cause and to inform the Court accordingly within 10 days
from notice.

Costs de oficio.

SO ORDERED.

G.R. No. 134583 July 14, 2004
PEOPLE OF THE PHILIPPINES, appellee,
vs.
FREDDIE MURILLO, appellant.
DECISION
AUSTRIA-MARTINEZ, J.:
Before this Court on automatic review is the decision1 rendered by
the Regional Trial Court, Branch 259, Parañaque, dated June 1,
1998, finding appellant Freddie Murillo guilty beyond reasonable
doubt of the crime of murder and sentencing him to suffer the
penalty of death.
The Information charges appellant Freddie Murillo as follows:
That on or about the 6th day of June, 1997, in the Municipality of
Parañaque, Metro Manila, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, with intent to kill
and with treachery and evident premeditation, did then and there
willfully, unlawfully and feloniously attack, assault and stab one Paz
Abiera with a bladed weapon on her chest, thereby inflicting upon
her serious and mortal wounds which directly caused her death.
With the aggravating circumstances of cruelty and abuse of superior
strength.
CONTRARY TO LAW.2
Upon arraignment, appellant, with the assistance of Atty. Dante O.
Garin of the Public Attorney's Office, pleaded guilty to the charge.3
Trial then ensued.
The prosecution presented Sancho Ferreras, brother of the victim;
barangay tanod Ramon Saraos; SPO2 Angel Nieves of the
Parañaque Police; and NBI Medico-legal Officer Ludivino Lagat.
They established the following facts:
On June 12, 1997, SPO2 Nieves received a report that Paz Abiera
was missing.4 The following day, Ramon Saraos, a barangay tanod
of Cul de Sac Rotonda, Sun Valley, Parañaque received a request
from Sarah Murillo, mother of herein appellant and Arlan Murillo, to
investigate a foul smell emanating from the house of Paz Abiera.
Said house was being shared by Paz and her two nephews,
appellant and Arlan. When Ramon asked appellant what happened
to his aunt, the latter answered that Paz had been missing since
June 7, 1997 and that he earlier reported the incident to the police.
Ramon then asked permission from appellant to look inside the
house and there he noticed blood stains at the foot of the house.
Ramon also noticed that the foul odor was coming from inside. He
asked assistance from the Parañaque Police and SPO2 Nieves
responded. When SPO2 Nieves arrived, they removed the toilet
bowl and opened the septic tank where they recovered parts of
human arms and legs.5 SPO2 Nieves questioned Freddie and
Arlan, who both denied any involvement in the killing of Paz. SPO2
Nieves later ordered that the two brothers be brought to Block 6.
After about 30 minutes, SPO2 Nieves received a call from the radio
saying that Freddie Murillo already admitted to having killed his aunt
Paz Aberia using a knife. Freddie then showed them where he threw
Paz's severed head. They were able to locate a red and white
striped plastic bag which contained the victim's head at a canal near
the service road of the South Super Highway. They also found a
blood stained bed sheet, reading glasses and a stone with blood
stains in the house of the victim.6
They recovered a total of eighty pieces of body parts that were all in
an advanced state of decomposition. An examination conducted on
the body parts showed that there were stab wounds that penetrated
the lungs, the intestines and the liver. The examination also showed
CONSTI LAW II I ACJUCO 555
that it is possible that the instrument used in killing and decapitating
the victim was a knife.7
As a hostile witness of the prosecution, appellant testified as follows:
On June 6, 1997, at around 2:30 in the afternoon, his aunt, Paz
Abiera scolded and slapped him for wasting electricity after she
caught him watching television at the second floor of their house.
His vision darkened ("nagdilim na po ang pangingin ko") due to the
repeated times that Paz scolded and uttered hurtful words to him.
When he saw a knife, he took it and stabbed her on the chest. He
dragged her body from the second floor to the comfort room
downstairs where he chopped her body into several pieces using
the same knife. After doing so, he removed the toilet bowl and
dumped the body parts into the septic tank. He brought the severed
head to the highway along the service road near Astra. Later, he
asked help from his brother Arlan in cementing a new toilet bowl
over the septic tank. His brother Arlan did not know that he killed
their aunt. It took him a while to confess his guilt because he was
afraid that the police might hurt him. While his mother, Sarah Murillo,
often visited him and Arlan at their aunt's house, he did not tell his
mother about what he did because he was afraid.8
After the testimony of appellant, the prosecution rested its case. On
June 1, 1998, the trial court rendered its decision with the following
findings:
Assessing the evidence on record, particularly considering the
admission made in open Court by the herein accused despite
having been duly informed by his counsel of the consequences of
his testimony, this Court finds without an iota of doubt that he alone
committed the abominable act of killing his aunt and later on
hideously dismembering her body in his attempt to hide the corpus
of his crime. Truly unspeakable is the manner by which accused
Murillo disposed of the body of the victim first by cutting her body
parts and hiding them in a septic tank and then throwing away the
victim's head in a canal or drainage along the service road near the
South Superhighway.
...
The information charges the herein accused for committing the
crime of Murder with the qualifying circumstances of treachery
(alevosia) and evident premeditation and with cruelty and abuse of
superior strength as aggravating circumstances.
On the aggravating circumstances of abuse of superior strength, the
mere fact that the assailant is a male person whereas the victim is
a woman does not ipso fact mean that such circumstance can be
appreciated by the Court unless perhaps if it was shown that the
attacker was a Hulk Hogan and the victim is a frail reed thin woman.
Cruelty likewise cannot be inferred in the case at bar from the fact
that the body of the deceased was dismembered in the absence of
proof that this was done while the victim was still alive. The object
sought to be attained by Murillo in this case may well have been to
make the recovery of the body of the victim absolutely impossible.
In regard to the qualifying circumstances of treachery or alevosia
and evident premeditation, the fact that no commotion, no unusual
sounds or noises were even heard or noticed in the vicinity at the
time of the stabbing of the victim would indicate that the accused
planned the killing and made sure that in its execution, there would
be no risk to himself arising from any defense which said victim
might make. Considering the rule however, that, if two or more
possible qualifying circumstances were alleged and proven or in the
case obtaining at the bar, only one would qualify the offense to
Murder and the other would be generic.9
The dispositive portion of the decision reads:
WHEREFORE, premises considered, finding accused FREDDIE
MURILLO, GUILTY beyond reasonable doubt of the crime of Murder

as defined and penalized under Art. 248 of the Revised Penal Code
with the qualifying and/or generic aggravating circumstances of
treachery or alevosia and or evident premeditation, this Court
hereby sentences him to the penalty of DEATH and to suffer the
accessory penalties provided by law specifically Art. 40 of the
Revised Penal Code. For the civil liabilities, he is further condemned
to indemnify the heirs of the herein victim Paz Abiera the amount of
P50,000.00 in line with existing jurisprudence; P27,000.00 for
funeral expenses; P50,000.00 for moral damages and P50,000.00
for exemplary damages.
The Clerk of Court is also directed to prepare the Mittimus for the
immediate transfer of accused Freddie Murillo from the Parañaque
City Jail to the Bureau of Correction in Muntinlupa City and finally to
forward all the records of this case to the Supreme Court for
automatic review in accordance with Sec. 9, Rule 122 of the Rules
of Court and Art. 47 of the Revised Penal Code as amended by R.A.
7659.
SO ORDERED.10
Hence this automatic review pursuant to Article 47 of the Revised
Penal Code, as amended.
In his brief, appellant claims that the court a quo gravely erred:
I desires.18
…IN CONVICTING (HIM) OF THE CRIME OF MURDER AND
SENTENCING HIM TO DEATH ON THE BASIS OF HIS
IMPROVIDENT PLEA OF GUITY; and
II
…IN CONSIDERING THE CIRCUMSTANCES OF TREACHERY
AND EVIDENT PREMEDITATION IN QUALIFYING THE KILLING
TO MURDER NOTWITHSTANDING THAT THE PROSECUTION
FAILED TO ESTABLISH THE SAME.11
Appellant argues: His plea of guilt was improvident since there was
no indication that he fully understood that the qualifying
circumstances charged in the information would result to the penalty
of death. He only admitted the killing but not the circumstances of
treachery and evident premeditation. There could be no evident
premeditation since he stabbed Paz only after losing his senses.
There could also be no treachery since it cannot be determined with
certainty whether or not the wounds inflicted on the victim were
made before or after her death. The aggravating circumstance of
"outraging or scoffing at his person or corpse" cannot be
appreciated in this case since it was not alleged in the
Information.12
The Solicitor General points out that there was treachery since the
appellant himself admitted that when his aunt scolded him, he took
a knife and suddenly stabbed her in the chest;13 and that the trial
court did not err in finding the presence of evident premeditation.14
In his Reply, appellant adds that the observations made by the court
a quo are based merely on inferences that are unsubstantiated by
concrete evidence.15
After reviewing the entire records of the case, we find that there was
an improvident plea of guilt that warrants the remand of the case to
the trial court.
Rule 116 of the Rules on Criminal Procedure provides:
SEC. 3. Plea of guilty to capital offense; reception of evidence.---
When the accused pleads guilty to a capital offense, the court shall
conduct a searching inquiry into the voluntariness and full
comprehension of the consequences of his plea and shall require
CONSTI LAW II I ACJUCO 556
the prosecution to prove his guilt and the precise degree of
culpability. The accused may also present evidence in his behalf.
The reason for this rule is that courts must necessarily proceed with
more care where the possible punishment is in its severest form –
death – for the reason that the execution of such sentence is
irrevocable. Experience has shown that innocent persons have at
times pleaded guilty in the hope of a lenient treatment, or upon bad
advice or because of promises of the authorities or parties of a
lighter penalty should he admit guilt or express remorse. An
accused might be admitting his guilt before the court and thus forfeit
his life and liberty without having fully understood the meaning,
significance and consequences of his plea. The judge therefore has
the duty to ensure that the accused does not suffer by reason of
mistaken impressions.16 Requiring the trial court to take further
evidence would also aid this Court on appellate review in evaluating
the propriety or impropriety of the plea.17
Under the said rule, three things are required from the trial court
when a plea of guilty to a capital offense is entered: (1) the court
must conduct a searching inquiry into the voluntariness of the plea
and the accused's full comprehension of the consequences thereof;
(2) the court must require the prosecution to present evidence to
prove the guilt of the accused and the precise degree of his
culpability; and (3) the court must ask the accused if he desires to
present evidence on his behalf and allow him to do so if he
The searching inquiry referred to here means more than just
informing cursorily the accused that he faces jail term.19 The inquiry
must expound on the events that actually took place during the
arraignment, the words spoken and the warnings given, with special
attention to the age of the accused, his educational attainment and
socio-economic status as well as the manner of his arrest and
detention, the provision of counsel in his behalf during the custodial
and preliminary investigations, and the opportunity of his defense
counsel to confer with him. The trial court must also explain to the
accused the essential elements of the crime he is charged with as
well as its respective penalties and civil liabilities.20 The exact
length of imprisonment under the law and the certainty that he will
serve time at the national penitentiary or a penal colony must be
fully explained to the accused. The court must also explain to the
accused that once convicted, he could be meted the death penalty
and that it is a single and indivisible penalty that will be imposed
regardless of any mitigating circumstance that may have attended
the commission of the felony.21 The court must also direct a series
of questions to the defense counsel to determine whether he has
conferred with the accused and has completely explained to the
latter the meaning of a plea of guilt. This formula is mandatory and
absent any showing that it has been followed, a searching inquiry
cannot be said to have been undertaken.22
In People vs. Pastor,23 the Court explained that while there is no
definite and concrete rule as to how a trial judge must conduct a
"searching inquiry", the following guidelines should nevertheless be
observed:
1. Ascertain from the accused himself (a) how he was brought into
the custody of the law; (b) whether he had the assistance of a
competent counsel during the custodial and preliminary
investigations; and (c) under what conditions he was detained and
interrogated during the investigations. This is intended to rule out
the possibility that the accused has been coerced or placed under a
state of duress either by actual threats of physical harm coming from
malevolent quarters or simply because of the judge's intimidating
robes.
2. Ask the defense counsel a series of questions as to whether he
had conferred with, and completely explained to, the accused the
meaning and consequences of a plea of guilty.

3. Elicit information about the personality profile of the accused,
such as his age, socio-economic status, and educational
background, which may serve as a trustworthy index of his capacity
to give a free and informed plea of guilty.
4. Inform the accused the exact length of imprisonment or nature of
the penalty under the law and the certainty that he will serve such
sentence. For not infrequently, an accused pleads guilty in the hope
of a lenient treatment or upon bad advice or because of promises of
the authorities or parties of a lighter penalty should he admit guilt or
express remorse. It is the duty of the judge to ensure that the
accused does not labor under these mistaken impressions because
a plea of guilty carries with it not only the admission of authorship of
the crime proper but also of the aggravating circumstances
attending it, that increase punishment.
5. Inquire if the accused knows the crime with which he is charged
and fully explain to him the elements of the crime which is the basis
of his indictment. Failure of the court to do so would constitute a
violation of his fundamental right to be informed of the precise nature
of the accusation against him and a denial of his right to due
process.
6. All questions posed to the accused should be in a language
known and understood by the latter.
7. The trial judge must satisfy himself that the accused in pleading
guilty, is truly guilty. The accused must be required to narrate the
tragedy or reenact the crime or furnish its missing details.24
In the case at bar, records do not show that a searching inquiry was
ever conducted by the judge when appellant entered his plea of
guilty. The Order dated July 14, 1997 simply reads as follows:
Accused, when arraigned, with the assistance of Atty. Dante O
Garin of the Public Attorney's Office, pleaded GUILTY to the crime
charged in the information.
Let this case be set for hearing on July 28, 1997 at 8:30 o'clock in
the morning.
Let subpoena be issued to all prosecution witnesses for the next
scheduled hearing.
SO ORDERED.25
While we have held that the absence of the transcript of
stenographic notes of the proceedings during the arraignment does
not make the procedure flawed, the minutes of the proceedings,
however, must indubitably show that the judge has substantially
complied with the requirements of Rule 116, Sec. 3.26 No less than
a man's life is at stake in this case. Whatever appellant might have
said to show that he was waiving his defense voluntarily and with
full knowledge of the consequences of his plea should have been
made of record.27 Here, there is no proof at all that the judge ever
conducted any searching inquiry.
The trial court mentioned in its decision the importance of Section
3, Rule 116, of the Rules of Court in cases of pleas of guilt, however,
it failed to show compliance therewith. Pertinent portions of the
decision read:
Under Sec. 3, Rule 116 of the Rules of Court, when the accused
pleads guilty to a capital offense, the court shall conduct a searching
inquiry into the voluntariness and full comprehension of the
consequences of his plea and require the prosecution to prove his
guilt and the precise degree of culpability. The accused may also
present evidence in his behalf.
In People vs. Salvador, 224 SCRA 819, to be liable for murder, an
accused must be proven to have committed the killing of another
CONSTI LAW II I ACJUCO 557
person under the attendant circumstances specified in Article 248
of the Revised Penal Code.
In People vs. Jocson, 163 SCRA 525, Accused's plea of guilty which
was freely and voluntarily made added to the evidence adduced by
the prosecution sufficiently established his culpability.
With the plea of guilty, appellant had admitted the commission of
the unlawful act. Hence, the presumption is that the act was done
with an unlawful intent unless accused rebuts this presumption.
People vs. Verona, 163 SCRA 614.
Assessing the evidence on record, particularly considering the
admission made in open Court by the herein accused despite
having been duly informed by his counsel of the consequences of
his testimony, this Court finds without an iota of doubt that he alone
committed the abominable act of killing his aunt and later on
hideously dismembering her body in his attempt to hide the corpus
of his crime. Truly unspeakable is the manner by which accused
Murillo disposed of the body of the victim first by cutting her body
parts and hiding them in a septic tank and then throwing away the
victim's head in a canal or drainage along the service road near the
South Superhighway.28
The transcript of how the defense counsel, Atty. Dante O. Garin of
the Public Attorney's Office, supposedly informed the accused of his
rights also merely read as follows:
ATTY. GARIN:
Your Honor please the accused already pleaded guilty to the
offense charged and the only reason we have to the motion of
presenting evidence is that the guilt of the accused must be proven
by the prosecution notwithstanding the plea of guilty entered into
during his arraignment. This representation your Honor finds it
necessary to inform the accused of his constitutional rights. And with
the Court's permission, before he will testify as hostile witness, I
would like to inform the accused for the record.
Q. Mr. Freddie Murillo, ikaw ang akusado dito sa kasong ito. Ang
proseso natin ay kung sino man ang nagbibintang ay siyang dapat
magpatunay ng kasalanang ibinibintang. Sa sitwasyong ito, ikaw ay
pinagbibintangan ng kasong murder. At ang ebidensiyang
gagamitin ay dapat manggagaling sa kung sino man ang
nagbibintang sa iyo na ikaw ay nakapatay ng tao. Ngayon ikaw ay
uupo ngayon sa silyang iyan para magsalita tungkol doon sa
pangyayari. Meron kang karapatan na hindi pumayag na magsalita
ng ano'ng bagay na maaaring ikapahamak mo. Maaari mong hindi
sagutin iyong tanong, maaring hindi ka umupo riyan, nasa sa iyo
ang desisyon. Naiintindihan mo ba?
A. Opo.
Q. Ngayong naipaliwanag ko na sa iyo ikaw ba ay handang
magsalita tungkol sa kasong ito?
A. Opo.
That's all for the witness, your Honor.29
Clearly, the proceedings taken by the trial court was short of being
satisfactory. Appellant was never asked about the circumstances of
his arrest and detention, not even when SPO2 Nieves himself in his
testimony mentioned that he ordered that the two brothers be
brought to "Block 6" for questioning without the presence of counsel.
Where or what kind of place "Block 6" is, was not even explained by
the witness neither did the court nor the defense counsel ask the
witness to clarify said point. The Court also did not ask appellant
about the circumstances of his arraignment as well as his age and
educational attainment. He was also neither apprised of the
consequences of his plea nor was it explained to him that the
 CONSTI LAW II I ACJUCO 558

penalty imposable for the crime attended by its qualifying

circumstances as alleged in the Information is death regardless of
the presence of mitigating circumstances.
The failure of the defense counsel to faithfully protect the rights of
appellant also cannot go unnoticed. Records show that defense
counsel Atty. Dante O. Garin, never cross-examined three of the
four witnesses of the prosecution, namely Sancho Fereras,30
Ramon Saraos,31 and Dr. Ludivino Lagat.32 The only prosecution
witness he cross-examined was SPO2 Nieves to whom he asked
four questions pertaining only as to how the police came to the
conclusion that the body parts belong to Paz Abiera.33 Apart from
these, no other questions were ever offered.
WHEREFORE, the decision dated June 1, 1998 of the Regional
Trial Court, Branch 259, Parañaque, finding appellant Freddie
Murillo guilty beyond reasonable doubt of Murder in Criminal Case
No. 97-502 is ANNULLED and SET ASIDE. Let the records be
REMANDED to the court of origin for further proceedings as
indicated in the text of herein decision, to be conducted with
deliberate speed in accordance with this decision.
SO ORDERED.

There is also no record anywhere that the defense counsel

presented evidence for the accused nor that the trial court even
inform him of his right to do so if he so desires.

For these reasons, it cannot be said that the appellant's rights were
observed in the proceedings a quo.

It is well established that the due process requirement is part of a

person's basic rights and is not a mere formality that may be
dispensed with or performed perfunctorily. An accused needs the
aid of counsel lest he be the victim of overzealous prosecutors, of
the law's complexity or of his own ignorance and bewilderment.
Indeed, the right to counsel springs from the fundamental principle
of due process.34 The right to counsel, however, means more than
just the presence of a lawyer in the courtroom or the mere
propounding of standard questions and objections. The right to
counsel means that the accused is sufficiently accorded legal
assistance extended by a counsel who commits himself to the cause
for the defense and acts accordingly. This right necessitates an
active involvement by the lawyer in the proceedings, particularly at
the trial of the case, his bearing constantly in mind of the basic rights
of the accused, his being well-versed on the case and his knowing
the fundamental procedures, essential laws and existing
jurisprudence. Indeed, the right of an accused to counsel finds
meaning only in the performance by the lawyer of his sworn duty of
fidelity to his client and an efficient and truly decisive legal
assistance which is not just a simple perfunctory representation.35

Atty. Garin, had the duty to defend his client and protect his rights,
no matter how guilty or evil he perceives appellant to be. The
performance of this duty was all the more imperative since the life
of appellant hangs in the balance. As a defense counsel, he should
have performed his duty with all the zeal and vigor at his command
to protect and safeguard appellant's fundamental rights.36

While our jurisdiction does not subscribe to a per se rule that once
a plea of guilty is found improvidently he is at once entitled to a
remand, the circumstances of this case warrant that a remand to the
trial court be made. To warrant a remand of the criminal case, the
Court has held that it must be shown that as a result of such
irregularity there was inadequate representation of facts by either
the prosecution or the defense during the trial.37 Where the
improvident plea of guilty was followed by an abbreviated
proceeding with practically no role at all played by the defense, we
have ruled that this procedure was just too meager to accept as
being the standard constitutional due process at work enough to
forfeit a human life.38 What justifies the remand of the criminal case
to the trial court is the unfairness or complete miscarriage of justice
in the handling of the proceedings a quo as occasioned by the
improvident plea of guilt.39 In this case, apart from the testimony of
appellant, the prosecution does not have any other evidence to hold
him liable for the crime charged.

In view of the foregoing, we find that it is imperative to remand the

case for the proper arraignment and trial of the accused, considering
not only the accused's improvident plea of guilt but also his lawyer's
neglect in representing his cause.

[G.R. No. 139180. July 31, 2001]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
ROLANDO RIVERA, accused- appellant.
DECISION
MENDOZA, J.:
This is a review pursuant to Rule 122, 10 of the Rules of Criminal
Procedure of the decision,[1] dated June 22, 1999, of the Regional
Trial Court, Branch 49, Guagua, Pampanga, finding accused-
appellant Rolando Rivera guilty of rape and sentencing him to suffer
the penalty of death and to pay the offended party, Erlanie Rivera,
the sum of P75,000.00 as compensatory damages and P50,000.00
as moral damages.
The information against accused-appellant charged
That sometime in the month of March 1997, in barangay Santiago,
municipality of Lubao, province of Pampanga, Philippines, and
within the jurisdiction of this Honorable Court, the above-named
accused ROLANDO RIVERA, by means of violence, threat and
intimidation, did then and there willfully, unlawfully and feloniously,
and maliciously succeeded in having carnal knowledge [of] his 13
year old daughter, Erlanie D. Rivera, against the latters will and
without her consent.
Contrary to law.[2]
When the information was read to him in the local dialect
(Pampango) during his arraignment on September 30, 1997,
accused-appellant, duly assisted by counsel de oficio, pleaded not
guilty to the crime charged,[3] whereupon trial was held.
The prosecution presented as its witnesses complainant Erlanie
Rivera, her aunt, Marietta Pagtalunan, and Dr. Demetria Barin, who
conducted the physical examination of complainant.
Complainant Erlanie Rivera testified that sometime in March 1997,
her younger sister, Zaira,[4] was taken by their parents to the
Escolastica Romero Memorial Hospital in Lubao, Pampanga.
Complainants mother stayed with her sister in the hospital, but her
father, herein accused-appellant, went back home to Santiago,
Lubao, Pampanga. At around 11 oclock in the evening of the same
day, complainant was awakened as accused-appellant started
kissing her and fondling her breasts. Complainant tried to resist by
kicking and pushing accused-appellant, but her efforts were to no
avail. Accused-appellant removed her shorts and panty, touched
her private parts, and then had sexual intercourse with her. After he
was through with her, accused-appellant told complainant not to tell
anyone what had happened or he would kill complainants mother
and sister. Hence, when her mother came home the following day,
Erlanie did not tell her what had happened because she was afraid
of accused-appellant.
On April 9, 1997, however, Erlanie, in the presence of her mother,
told her aunt, Marietta Pagtalunan, and her grandmother, Maxima
Payumo, that she had been raped by accused-appellant. For this
reason, she was referred to Dr. Barin for physical examination. She
also executed a sworn statement before the police of Lubao,
Pampanga.[5]
Erlanie testified that she became pregnant as a result of the rape
committed against her by accused-appellant, but the pregnancy was
aborted.[6] On cross-examination, she said she was 13 years old at
the time of her testimony, the second child in the family. She said
that her parents were not on good terms with each other and that
she knew that her father had a mistress. Atty. Mangalindan, then
defense counsel, questioned Erlanie about other supposed acts of
molestation committed by accused-appellant against her previous
CONSTI LAW II I ACJUCO 559
to the rape subject of the present case, but, upon objection of the
prosecution, the trial court disallowed the question on the ground
that it concerned matters not covered by her direct examination.[7]
Erlanie testified that her mother, grandmother, aunt, and a certain
Nora Baluyut were present when she made her sworn statement
before the police. She said that her father raped her only once,
sometime in March 1997. She could not remember the exact date
when she was raped by accused-appellant, but she did remember
that the same took place in March as her sister, Zaira, was
hospitalized at the time. When the rape occurred, her younger
brother and sister were in their house asleep. She did not tell her
mother after the latter had returned home that she had been raped
by accused-appellant because she was afraid of her father who had
threatened her. After the rape, accused-appellant would only come
home on Sundays.[8]
Questioned further on cross-examination, Erlanie said that she gave
her sworn statement before the police and that her answers to
questions asked during her direct examination were freely given
without coaching by anyone. She could understand Tagalog, the
language used in her sworn statement. She told the court that she
struggled against accused-appellant, kicking and pushing him, but
she was overpowered by her father. At that time, Erlanies younger
sister, Corazon, was lying beside her, but Erlanie did not shout even
when her father succeeded in penetrating her. Erlanie could not
remember how long the sexual act took place, but she felt
something like urine come out of her fathers penis after he was
finished with her. Erlanie testified that she was 12 years old when
she was raped by her father.[9]
On re-direct examination, when asked about the discrepancy
between her testimony that her mother returned home only the day
after the rape and her statement in her affidavit that accused-
appellant slept beside her mother after the rape, Erlanie replied that
she made a mistake as the incident narrated in her affidavit referred
to a different occasion when no rape was committed against her by
accused-appellant.[10]
The next witness for the prosecution was Marietta Pagtalunan,
complainants aunt and the sister of complainants mother,
Evangeline. Marietta corroborated Erlanies testimony that the latter
told her sometime in April 1997 that she had been raped by
accused-appellant. Marietta said she took complainant to Dr. Barin,
who examined complainant.[11]
Dr. Demetria Barin was Chief Physician of the Escolastica Romero
District Hospital. Her findings are as follows:
P.E. FINDINGS:
- No signs of external Physical Injuries
I.E. FINDINGS:
HYMEN - healed laceration at 3:00 oclock
VAGINA - Admits one finger with ease two fingers with difficulty
UTERUS - not enlarged
LMP - March 3, 1997
Pregnancy Test (+)[12]
Dr. Barin testified that on April 10, 1997, she examined complainant
Erlanie Rivera and found that the victim had an injury in the hymen
at the 3 oclock position which could possibly have been caused by
the insertion of a hard object, such as a male organ. Dr. Barin
testified that complainant Erlanie went back to see her on May 2,
1997 because she suffered from vaginal bleeding indicative of a

threatened abortion. She said that she found that complainant was
then pregnant. Upon examination of the patient at that time, Dr.
Barin found that abortion had not yet taken place and prescribed
medicines for the complainant. Erlanie was subjected to another
pregnancy test on May 13, 1997, but the result was negative. Dr.
Barin stated that the vaginal bleeding suffered by complainant could
have caused the abortion of the fetus.[13]
Thereafter, the defense presented its evidence. Accused-appellant,
his sister, Concepcion Sayo, and Natividad Pinlac, Records Officer
of the Escolastica Romero District Hospital, were presented as
witnesses.
Accused-appellant denied that he raped Erlanie Rivera. He alleged
that the rape charge was filed against him because his wife,
Evangeline, had a paramour and resented him because he hurt her.
He explained that he saw his wife talking with another man in their
house and beat her up on April 1, 1997 because he heard that she
had a lover. He also said that his wife was angry with him because
he had a mistress who stayed in their house for three weeks. He
further stated that his wifes relatives were likewise angry with him
because he caused the lot owned by his father-in-law in Santiago,
Lubao, Pampanga to be registered in his name. He said that he was
compelled to sign a waiver of his rights over the land owned by his
parents-in-law.[14] The defense presented a letter to accused-
appellant written by his wife, who was asking him to sign a document
so that she could attend to it before he got out of prison.[15]
The defense also offered as evidence a document, designated as
Waiver of Rights,[16] signed by accused-appellant, in which he
acknowledged that he was a tenant of a parcel of land and that he
waived and voluntarily surrendered his right over the said
landholding to the SMPCI, recommending that a certain Ponciano
Miguel be given the land to work on the same. The document was
identified by accused-appellant in open court. He said that Ponciano
Miguel was a first cousin of his wife and that he signed the document
because his wifes relatives promised him that he would get out of
prison after signing the document.[17]
Another witness for the defense was Concepcion Sayo, accused-
appellants sister, who testified that in March 1997, accused-
appellant lived with her family in Malawak, Bustos, Bulacan, to help
her husband operate a fishpond. She said that accused-appellant
stayed in their house during the entire month of March, except in
March 19, 1997 when he stayed with their sister, Perla, in Tibagan,
Bustos, Bulacan.[18]
The last defense witness was Natividad Pinlac, Records Officer of
the Escolastica Romero District Hospital, who identified[19] a
certification, dated April 29, 1999, in which it was stated that Zaira
Rivera was confined at that hospital from March 1 to March 2,
1997.[20]
On June 22, 1999, the trial court rendered a decision, the dispositive
portion of which stated:
WHEREFORE, the court finding the accused guilty beyond
reasonable doubt of the crime of rape as charged. For having
violated Article 335 of the Revised Penal Code, as amended by
Republic Act 7659, with the attendant circumstances that the victim
is under eighteen (18) years of age and the offender is the father of
the victim and absent any circumstance that could mitigate the
commission thereof, accused is hereby sentenced to suffer the
supreme penalty of death by lethal injection.
In line with established jurisprudence, said accused is also ordered
to indemnify the offended party Erlanie Rivera in the sum of
P75,000.00 as compensatory damages and P50,000.00 as moral
damages.
SO ORDERED.[21]
CONSTI LAW II I ACJUCO 560
Hence, this appeal. Accused-appellant contends that:
1. The lower court failed to observe the constitutional right of the
Accused-Appellant to due process and right to counsel;
2. The lower court failed to consider the evidence of the Accused-
Appellant.[22]
I. Accused-appellant invokes his right to due process of law. He
claims that he was denied the same because: (a) the trial judge
disallowed his lawyer from cross-examining Erlanie Rivera
concerning the latters sworn statements on the ground of
irrelevance and immateriality; (b) the trial court denied the motion
made by accused-appellants counsel de oficio to postpone the
cross-examination of Dr. Barin, the examining physician, because
of which the said counsel consequently waived the cross-
examination of Dr. Barin; (c) the judge propounded numerous
questions to accused-appellant during his cross-examination by the
prosecutor; and (d) the trial courts decision was promulgated just
one day after accused-appellant submitted his memorandum.
Procedural due process simply means that a person must be heard
before he is condemned. The due process requirement is a part of
a persons basic rights, not a mere formality that may be dispensed
with or performed perfunctorily.[23] Considering both the evidence
and the law applicable to this case, we hold that accused-appellant
has been accorded his right to due process.
A. One basis for accused-appellants contention that he was denied
due process is the refusal of the trial judge to allow Atty.
Mangalindans questions concerning the other alleged acts of
molestation committed by accused-appellant against complainant.
Accused-appellant argues that no legal ground exists for the trial
courts ruling.
The transcript of stenographic notes concerning this incident shows
the following:
ATTY. MANGALINDAN:
Q You mentioned in your testimony that you were molested by your
father since 1996.
COURT:
Are you referring to a chain of events because police station you are
referring is something there are two places this girl testified that she
was raped, you referred to us Acts of Lasciviousness and she did
not testified about that, that is another case with another Court, we
are only trying here a rape case that is only they you never mention.
Only on the matters that she testified (sic).
ATTY. MANGALINDAN:
But this is also related to the rape case your Honor because I will
confront it with another form of a question.
ATTY. MANGALINDAN:
Q Prior to this incident, were you molested by your father?
PROSECUTOR SANTOS:
Immaterial, your Honor, whatever acts w[ere] done by the accused
is not a subject of the case at bar.
COURT:
Let us confine [questioning] to the complaint at bar which is a rape
case.

ATTY. MANGALINDAN:
This is related to the incident because we are here your Honor to
prove, we are trying to discredit her testimony. We will just direct our
question touching on the direct examination.
COURT:
Only on the matters that she only testified that is only thing you can
cross-examine. Only matters testified which is only a rape case let
us not dwell the Court knows there are other cases Acts of
Lasciviousness pending in the lower Court at the proper Court
otherwise if I will allow you to ask questions on other matters
specially I know you are pinpointing the Acts of Lasciviousness you
are prolonging this case here (sic).
ATTY. MANGALINDAN:
I am trying to discredit the witness as one where the credibility as
witness here your Honor is very important. I stated before our main
cross-examination is the accused is not a plan in such case,
although I do sympathize (sic). We would like to propound question
that will discredit her as witness and a complainant not with her
testimony alone. Our center of cross-examination is to discredit her
as complaining witness that is why our question may not be limited
to be accepted under the rule of cross-examination your Honor the
cross-examination your Honor the cross-examiner is not limited on
the direct-testimony of the witness but he can propound questions
which may petition or destroy the credibility of the witness that is our
view point (sic).
PROSECUTOR SANTOS:
We cannot dispute the right of accused to discredit or to adopt our
credibility of our witness, but it should be done in the proper way,
not to ask immaterial questions which are not related.
ATTY. MANGALINDAN:
The rule for cross-examination insofar as to destroy the credibility of
the witness is not only limited to what the Honorable Fiscal we came
approach of so many cross-examinations goes allow your Honor
under the rules of Court insofar as this case is related to the present
case we are trying, this is very related because even the witness I
have transcript in my hand, testified not only the rape case your
Honor she had testified by direct-examination the preparatory acts
before the testimony of rape that she was been molested early,
finger of the father, this were testified through by the witness, it is
here direct-testimony it is not limited (sic).
PROSECUTOR SANTOS:
Prior to this incident were you molested by your father, obviously
your Honor the question is not relevant.
ATTY. MANGALINDAN:
Your Honor please Im very disagreeable (sic), I have not with me
the transcript but I have read that you [can] ask questions
concerning the rape case.
COURT:
A question referring to events prior to the complaint at bar.[24]
The trial court later issued an order, dated December 9, 1997, the
pertinent parts of which provided:
After private complainant testified on direct-examination, counsel for
accused attempted to cross-examine her on matters relevant to the
CONSTI LAW II I ACJUCO 561
complaint for Acts of Lasciviousness which was objected to by Asst.
Provincial Prosecutor Arturo G. Santos on the ground that private
complainant did not testify on that matter but limited her testimony
on the rape case only. Counsel for the accused argued that although
that is correct nonetheless because [of] the sworn statement
executed by private complainant identified by said witness in her
direct examination and marked as Exhibit C for the prosecution, he
is at liberty to cross-examine the witness on all matters stated in her
sworn statement including that portion touching on the acts of
lasciviousness subject matter of another case before another court.
The Court sustained the objection. Section 6, Rule 132, Revised
Rules on Evidence provides that the witness may be cross-
examined by the adverse party as to any matters stated in the direct
examination, or connected therewith, with sufficient fullness and
freedom to test his accuracy and truthfulness and freedom from
interest or bias or the reverse, and to elicit all important facts bearing
upon the issue.
The witness testified only on the rape case. She did not testify
anything about acts of lasciviousness committed upon her person.
She may not therefore be questioned on this matter because it is
not connected with her direct testimony or has any bearing upon the
issue. To allow adverse party to cross-examine the witness on the
acts of lasciviousness which is pending trial in another court and
which the witness did not testify is improper.
Questions concerning acts of lasciviousness will not in any way test
the accuracy and truthfulness and freedom from interest or bias or
the reverse. On the contrary such questions, if allowed, will unduly
burden the court with immaterial testimonies.[25]
In another order, dated January 13, 1998, the trial court gave
accused-appellants counsel 20 days within which to elevate its
ruling to the appellate court.[26] The records reveal, however, that
no such petition was filed by Atty. Mangalindan as regards this
particular matter.
The question, therefore, is whether the trial court correctly
disallowed accused-appellants counsel from questioning
complainant as regards the other supposed acts of lasciviousness
contained in her sworn statement. On this point, Rule 132, 6 of the
Revised Rules on Evidence provides:
Upon the termination of the direct examination, the witness may be
cross-examined by the adverse party as to any matters stated in the
direct examination, or connected therewith, with sufficient fullness
and freedom to test his accuracy and truthfulness and freedom from
interest, bias or the reverse and to elicit all important facts bearing
upon the issue.
The right of a party to cross-examine a witness is embodied in Art.
III, 14(2) of the Constitution which provides that the accused shall
have the right to meet the witnesses face to face and in Rule 115,
1(f) of the Revised Rules of Criminal Procedure which states that, in
all criminal prosecutions, the accused shall have the right to confront
and cross-examine the witnesses against him.[27] The cross-
examination of a witness is essential to test his or her credibility,
expose falsehoods or half-truths, uncover the truth which rehearsed
direct examination testimonies may successfully suppress, and
demonstrate inconsistencies in substantial matters which create
reasonable doubt as to the guilt of the accused and thus give
substance to the constitutional right of the accused to confront the
witnesses against him.[28]
The right of the accused to cross-examine a witness is, however,
not without limits but is subject to the rules on the admissibility and
relevance of evidence. Thus, in People v. Zheng Bai Hui,[29] this
Court upheld the ruling of the trial judge disallowing the questions
propounded by the accuseds counsel on the ability of the arresting
officer to distinguish between tawas and shabu without a laboratory

examination, the academic degree of his training instructor, and the
officers authorship of books on drug identity and analysis for being
irrelevant, improper, and impertinent.
In this case, accused-appellants counsel argued that his questions
to Erlanie on the other acts of lasciviousness supposedly committed
by accused-appellant against her were for the purpose of testing her
credibility. There was, however, no showing on his part how these
questions had any bearing on complainants credibility or on the truth
of her claims. One is led to suspect that the purpose of these
questions was to confuse complainant into committing mistakes in
her answers during cross-examination that accused-appellants
counsel could later use to possibly put complainants credibility, not
to mention her character, in question.
Accused-appellant insists that his counsel should have been
allowed to ask questions in relation to the sworn statement executed
by complainant. He cites Rule 132, 17 of the Revised Rules of
Evidence which provides that:
When part of an act, declaration, conversation, writing or record is
given in evidence by one party, the whole of the same subject matter
may be inquired into by the other.
Neither can this rule be invoked to justify the questioning of
complainant which the trial court did not allow. As the above
provision states, this rule applies to parts of an act, declaration,
conversation, writing or record which is given in evidence.
Indeed, the records show that after Erlanie had finished with her
direct examination on November 25, 1997, the trial judge granted
the motion made by Atty. Anselmo Mangalindan, accused-
appellants private counsel, to postpone Erlanie Riveras cross-
examination to allow him time to secure copies of the transcript of
stenographic notes of Erlanies testimony and thus enable him to
fully question complainant.[30] Erlanie was first cross-examined on
December 2, 1997, but several postponements, namely, on January
13, 1998,[31] February 10, 1998,[32] March 12, 1998,[33] March 31,
1998,[34] April 7, 1998,[35] May 12, 1998,[36] May 26, 1998,[37]
May 28, 1998,[38] and June 11, 1998,[39] on Erlanies cross-
examination took place because of the failure of Atty. Mangalindan
to appear on the said trial dates. Erlanies cross-examination was
continued on July 14, 1998 and July 23, 1998. Her cross-
examination by accused-appellants counsel was thorough and
covered various subjects, such as the nature of the relationship
between her parents, who were present during the execution of her
sworn statement, whether the same had been executed by her
voluntarily, the date when she was raped by accused-appellant the
reason for her delay in reporting the rape committed by accused-
appellant, her understanding of Tagalog, who were with her in the
house at the time of the rape, the details surrounding the rape
committed against her, and her age. It is evident that accused-
appellant and his counsel were given ample opportunity to conduct
the cross-examination of Erlanie Rivera in order to test her
truthfulness.
B. The record shows that because accused-appellants private
counsel was not present when Dr. Barin testified, Atty. Eddie Bansil
was appointed by the trial court as accused-appellants counsel de
oficio for that particular hearing. Atty. Bansil moved for the
postponement of the witness cross-examination, but the trial court
denied his request because, on the one hand, accused-appellant
was a detention prisoner and Dr. Barin was a very busy person,
while, on the other hand, Atty. Bansil had heard the testimony of the
said witness. Atty. Bansil then decided not to cross-examine Dr.
Barin.[40]
Accused-appellant now contends that the trial judge denied the
motion of Atty. Bansil for postponement because he was biased
against him. Accused-appellant claims that the counsel de oficio
CONSTI LAW II I ACJUCO 562
was not familiar with the facts of his case and was thus in no position
to cross-examine Dr. Barin.
While the Constitution recognizes the accuseds right to competent
and independent counsel of his own choice, his option to secure the
services of a private counsel is not absolute. For considering the
States and the offended partys right to speedy and adequate justice,
the court may restrict the accuseds option to retain a private counsel
if the accused insists on an attorney he cannot afford, or if the
chosen counsel is not a member of the bar, or if the attorney
declines to represent the accused for a valid reason.[41]
The trial court appointed Atty. Bansil a counsel de oficio to represent
accused-appellant on October 6, 1998 because his regular counsel,
Atty. Anselmo Mangalindan, was absent without any explanation.
Atty. Mangalindan had previously been granted several
postponements. As this Court ruled in another case:
. . . Courts are not required to wait indefinitely the pleasure and
convenience of the accused as they are also mandated to promote
the speedy and orderly administration of justice. Nor should they
countenance such an obvious trifling with the rules. Indeed, public
policy requires that the trial continue as scheduled, considering that
appellant was adequately represented by counsels who were not
shown to be negligent, incompetent or otherwise unable to
represent him.[42]
Atty. Bansil was present and heard the testimony of Dr. Barin, the
prosecution witness, on that day. Dr. Barins testimony on direct
examination was simple, containing primarily a discussion of her
findings on the hymenal laceration sustained by complainant. Her
testimony did not require considerable study and extraordinary
preparation on the part of defense counsel for the purpose of cross-
examination. It seems Atty. Bansil no longer found it necessary to
cross-examine Dr. Barin.
Moreover, beyond stating that Dr. Barin was a vital witness,
accused-appellant has not indicated what questions his counsel
wanted to ask from Dr. Barin. It may well be that these questions do
not exist at all and that the importance given by accused-appellant
to counsel de oficios failure to cross-examine the witness is
exaggerated. Indeed, a medical examination of the victim, together
with the medical certificate, is merely corroborative and is not an
indispensable element of rape.[43] The primordial issue in this case
remains to be whether the complainants testimony, not Dr. Barins,
established beyond reasonable doubt the crime of rape.
C. Accused-appellant likewise points to the trial judges questions
propounded to him during his cross-examination as an indication of
the latters partiality for the prosecution.
We find no merit in this contention. Where the trial court is judge
both of the law and of the facts, it is oftentimes necessary in the due
and faithful administration of justice for the presiding judge to re-
examine a witness so that his judgment, when rendered, may rest
upon a full and clear understanding of the facts.[44] Our reading of
the transcript of stenographic notes in this case shows that the trial
judge merely wanted to clarify certain points relating to the defense
of accused-appellant and not to establish his guilt. It is a judges
prerogative to ask questions to ferret out the truth.[45] It cannot be
taken against him if the questions he propounds reveals certain
truths which, in turn, tend to destroy the theory of one party.[46] As
this Court held:
In any case, a severe examination by a trial judge of some of the
witness for the defense in an effort to develop the truth and to get at
the real facts affords no justification for a charge that he has assisted
the prosecution with an evident desire to secure a conviction, or that
he had intimidated the witnesses for the defense. The trial judge
must be accorded a reasonable leeway in putting such questions to
witnesses as may be essential to elicit relevant facts to make the

record speak the truth. Trial judges in this jurisdiction are judges of
both the law and the facts, and they would be negligent in the
performance of their duties if they permitted a miscarriage of justice
as a result of a failure to propound a proper question to a witness
which might develop some material bearing upon the outcome. In
the exercise of sound discretion, he may put such question to the
witness as will enable him to formulate a sound opinion as to the
ability or the willingness of the witness to tell the truth. A judge may
examine or cross-examine a witness. He may propound clarificatory
questions to test the credibility of the witness and to extract the truth.
He may seek to draw out relevant and material testimony though
that testimony may tend to support or rebut the position taken by
one or the other party. . .[47]
D. We also find no merit in accused-appellants argument that he
was denied due process considering the speed with which the trial
court rendered judgment against him, which judgment was
promulgated one day after he filed his memorandum.
The decision rendered by the trial court gives a clear account of the
facts and the law on which it is based. It discusses in full the courts
findings on the credibility of both the prosecution and defense
witnesses and its evaluation of the evidence of both parties. What
we said in the analogous case of People v. Mercado[48] applies to
this case:
. . . A review of the trial courts decision shows that its findings were
based on the records of this case and the transcripts of stenographic
notes during the trial. The speed with which the trial court disposed
of the case cannot thus be attributed to the injudicious performance
of its function. Indeed, a judge is not supposed to study a case only
after all the pertinent pleadings have been filed. It is a mark of
diligence and devotion to duty that a judge studies a case long
before the deadline set for the promulgation of his decision has
arrived. The one-day period between the filing of accused-
appellants memorandum and the promulgation of the decision was
sufficient time to consider their arguments and to incorporate these
in the decision. As long as the trial judge does not sacrifice the
orderly administration of justice in favor of a speedy but reckless
disposition of a case, he cannot be taken to task for rendering his
decision with due dispatch. . .
II. Coming now to the merits of this case, we find that the evidence
proves beyond reasonable doubt the guilt of accused-appellant. In
reviewing rape cases, we have been guided by the following
principles: (a) An accusation for rape is easy to make, difficult to
prove, and even more difficult to disprove; (b) In view of the intrinsic
nature of the crime, the testimony of the complainant must be
scrutinized with extreme caution; and (c) The evidence for the
prosecution must stand on its own merits and cannot draw strength
from the weakness of the evidence for the defense.[49]
A. Well-settled is the rule that the lone testimony of a rape victim, by
itself, is sufficient to warrant a judgment of conviction if found to be
credible. It has likewise been established that when a woman
declares that she has been raped she says in effect all that is
necessary to mean that she has been raped, and where her
testimony passes the test of credibility the accused can be convicted
on the basis thereof. This is because from the nature of the offense,
the sole evidence that can usually be offered to establish the guilt of
the accused is the complainants testimony.[50]
Considering complainants tender age, her shy demeanor, and
manner of testifying in court, the trial court found Erlanies testimony
to be straightforward, natural, and convincing and accorded the
same full faith and credit.[51]
Complainant told the court how she was awakened because
accused-appellant kissed her and fondled her breasts. She narrated
that she tried to resist accused-appellants advances by pushing and
kicking him, but the latter succeeded in ravishing her. She told of
CONSTI LAW II I ACJUCO 563
how her father threatened to kill her mother and her siblings if she
reported the incident. Despite the lengthy cross-examination of
accused-appellants counsel, she remained firm and steadfast in her
story of how she was raped by her father. Her narration not only
rings true and sincere but is consistent and unshaken on its material
points. Complainants testimony is fully corroborated by the medical
findings of Dr. Barin who examined complainant shortly after she
had been raped. She found complainant to have suffered a hymenal
laceration at the 3 oclock position which could have been caused by
the penetration of a hard object, such as a male organ.
Complainants failure to remember the date of the commission of the
rape cannot be taken against her. The exact date when complainant
was sexually abused is not an essential element of the crime of
rape.[52] Nor does the fact that complainant was sleeping beside
her sister when the rape occurred detract from her credibility. The
possibility of rape is not negated by the fact that the presence of
even the whole family of the accused inside the same room
produced the possibility of discovery. For rape to be committed, it is
not necessary for the place to be ideal, for rapists respect neither
time nor place for carrying out their evil designs.[53]
In sum, accused-appellant failed to show any reason why this Court
should disbelieve complainants testimony. Indeed, the gravity of
filing a case for incestuous rape is of such a nature that a daughters
accusation must be taken seriously. It is against human experience
for a girl to fabricate a story which would drag herself and her family
to a lifetime of dishonor, unless it is the truth. More so when her
charge could mean the execution of her own father, as in this
case.[54]
Accused-appellants counsel on cross-examination made much of
the discrepancy between complainants sworn statement where she
stated that accused-appellant slept beside her mother after the
rape[55] and her testimony that her mother returned home from the
hospital only the day after the rape took place.[56] It must be pointed
out, however, that discrepancies between a witness affidavit and his
testimony in open court does not necessarily impair his credibility.
Affidavits, which are taken ex parte, are often incomplete or
inaccurate for lack of or absence of searching inquiries by the
investigating officer.[57]
Moreover, whether accused-appellant slept alone or with
complainants mother after committing the rape of complainant is of
no moment as it is a minor point that does not reflect on the
commission of the crime itself. The rule is that discrepancies and
inconsistencies on minor matters neither impair the essential
integrity of the prosecution evidence as a whole nor reflect on the
witness honesty. Such inconsistencies may in fact strengthen rather
than weaken the credibility of the witness as they erase any
suspicion of rehearsed testimony.[58]
Accused-appellant contends that complainant could not have been
raped on March 1 or 2, 1997, the dates when her sister Zaira was
hospitalized, because she had her last menstrual period on March
3, 1998 and thus she could not have gotten pregnant as a result of
the rape. He argues that a woman who had her monthly period
cannot be impregnated as a result of sexual intercourse five days
before or five days after her last menstruation.[59]
Accused-appellant does not, however, cite any legal or medical
authority for his thesis, except what he claims to be common
knowledge. On the other hand, we have previously held that it is
hard to ascertain the exact date of fertilization inasmuch as more
than two weeks is considered to be the life span of the spermatozoa
in the vaginal canal.[60] Hence, even granting that complainant
could not have been impregnated by accused-appellant during the
period alleged by him, it remains possible for complainant to have
gotten pregnant afterwards. More importantly, it must be
emphasized that pregnancy is not an element of the crime of rape
and is, therefore, totally immaterial to the question of accused-

appellants guilt.[61] In other words, accused-appellant being the
cause of complainants pregnancy is a non-issue in the prosecution
of the crime of rape. What should not be lost sight of is the fact that
complainants testimony constitutes proof beyond reasonable doubt
that accused-appellant had carnal knowledge of her without her
consent, and such fully established the crime of rape.
B. Accused-appellant imputes ill motive on the part of complainants
mother and her relatives for bringing charges against him. He claims
that complainants mother resented the fact that he used to beat her
up out of jealousy and that he had several paramours in the past.
He further asserts that his wifes relatives were angry with him
because of the land which he caused to be registered in his name
to the prejudice of the latter.
This allegation is without merit. Accused-appellant makes it appear
that complainants mother was responsible for the filing of this case
against him. This is not so. For that matter, his wife did not testify
against him. It was his daughter, complainant, alone who
denounced him in court.
Accused-appellants claim that the motivation for the filing of this
case was the animosity of his wifes relatives towards him caused by
his land-grabbing of their land is likewise without any basis. It may
be that his wifes relatives took advantage of his incarceration and
made him sign his waiver of rights over the land.[62] But this does
not necessarily mean they conspired to persecute him. It is
noteworthy that accused-appellant never claimed that the document
which he signed (Exh. 3) existed before the filing of the criminal
complaint against him or that his wifes relatives fabricated the
charge against him because of his failure to sign the same.
Indeed, what accused-appellants defense cannot explain is the
hymenal laceration sustained by complainant or the steadfastness
she has exhibited in pursuing the charge against her own father. It
is doubtful that complainant would let herself be embroiled in a petty
family dispute in exchange for her honor and dignity. We cannot
believe that a young girl, like complainant, would invent a sordid tale
of sexual abuse by accused-appellant unless it was the truth.[63]
Where there is no evidence to show a doubtful reason or improper
motive why a prosecution witness should testify against the accused
or falsely implicate him in a crime, her testimony is trustworthy.[64]
Accused-appellant also raises the defense of denial and alibi. But
the bare denial of accused-appellant cannot overcome the positive
declarations of complainant. Denial, when unsubstantiated by clear
and convincing evidence, constitutes negative self-serving evidence
which deserves no greater evidentiary value than the testimony of a
credible witness who testified on affirmative matters.[65]
Accused-appellants sister, Concepcion Sayo, testified that
accused-appellant lived with her family in Bulacan at the time of the
rape. No other witness not related to accused-appellant, however,
was called to corroborate her claim. We have already held that the
defense of alibi cannot prosper if it is established mainly by the
accused and his relatives, and not by credible persons. It is not
improbable that these witnesses would freely perjure themselves for
the sake of their loved ones.[66] Accused-appellants defense thus
fails to convince this Court.
C. The foregoing discussion notwithstanding, we think that the
imposition of the death penalty by the trial court is erroneous. It is
settled that to justify the imposition of the death penalty, both the
relationship of the victim and her age must be alleged and
proved.[67] Thus, in People v. Javier,[68] where the victim was
alleged to be 16 years old at the time of the commission of the rapes,
it was held:
. . . Although the victims age was not contested by the defense,
proof of age of the victim is particularly necessary in this case
considering that the victims age which was then 16 years old is just
CONSTI LAW II I ACJUCO 564
two years less than the majority age of 18. In this age of modernism,
there is hardly any difference between a 16-year old girl and an 18-
year old one insofar as physical features and attributes are
concerned. A physically developed 16-year old lass may be
mistaken for an 18-year old young woman, in the same manner that
a frail and young-looking 18-year old lady may pass as a 16-year
old minor. Thus, it is in this context that independent proof of the
actual age of a rape victim becomes vital and essential so as to
remove an iota of doubt that the victim is indeed under 18 years of
age as to fall under the qualifying circumstances enumerated in
Republic Act No. 7659. In a criminal prosecution especially of cases
involving the extreme penalty of death, nothing but proof beyond
reasonable doubt of every fact necessary to constitute the crime
with which an accused is charged must be established by the
prosecution in order for said penalty to be upheld.
A duly certified certificate of live birth showing complainants age, or
some other official document on record, such as a school record,
has been recognized as competent evidence.[69]
In this case, although complainants minority has been alleged in the
information, no independent evidence was presented by the
prosecution to prove the same. Complainant did not even state her
age at the time of the rape during direct examination; it was only
during her cross-examination when she stated that she was 12
years old at the time she was raped by her father.[70]
Nor was her birth certificate or baptismal certificate or any school
record presented by the prosecution to prove the age of Erlanie at
the time of the rape. Not even her mother, whose testimony could
have been sufficient to prove the age of complainant,[71] testified in
this case. What was relied upon by the trial court was that fact that
the age of the victim was undisputed by the defense.[72] It also took
judicial notice of the victims minority on account of her
appearance.[73]
We do not agree with this conclusion. The trial court can only take
judicial notice of the victims minority when the latter is, for example,
10 years old or below. Otherwise, the prosecution has the burden of
proving the victims age at the time of the rape and the absence of
denial on the part of accused-appellant does not excuse the
prosecution from discharging its burden.[74] In a similar case,
People v. Tundag,[75] in which the trial court took judicial notice of
the minority of the victim who was alleged to be 13 years old, we
ruled:
In this case, judicial notice of the age of the victim is improper,
despite the defense counsels admission, thereof acceding to the
prosecutions motion. As required by Section 3 of Rule 129, as to
any other matters such as age, a hearing is required before courts
can take judicial notice of such fact. Generally, the age of the victim
may be proven by the birth or baptismal certificate of the victim, or
in the absence thereof, upon showing that said documents were lost
or destroyed, by other documentary or oral evidence sufficient for
the purpose.
The prosecution having failed to present evidence as to
complainants age, accused-appellant can be convicted only of
simple rape, for which the penalty is reclusion perpetua.
Consequently, the award of civil indemnity in the amount of
P75,000.00 made by the trial court cannot be sustained. Such
amount can only be awarded if the crime of rape was effectively
qualified by any of the circumstances under which the death penalty
is authorized by the applicable amendatory laws.[76] Accordingly,
the civil indemnity awarded to complainant must be reduced to
P50,000.00 in consonance with current rulings.[77]
The award of moral damages in the amount of P50,000.00 to
complainant is correct. Moral damages is awarded in rape cases
without need of showing that the victim suffered from mental,
 CONSTI LAW II I ACJUCO 565

physical, and psychological trauma as these are too obvious to

require recital by the victim during trial.[78]

In addition to the damages given by the trial court, exemplary

damages in the amount of P25,000.00 should likewise be awarded
in favor of complainant. Accused-appellant being the father of
complainant, such relationship can be appreciated as a generic
aggravating circumstance warranting the award of exemplary
damages. In rapes committed by fathers against their daughters,
such award may be imposed to serve as a deterrent to other parents
similarly disposed to commit the same crime.[79]

WHEREFORE, the decision of the Regional Trial Court, Branch 49,

Guagua, Pampanga, finding accused-appellant guilty of the crime
of rape is AFFIRMED with the modification that accused-appellant
is sentenced to suffer the penalty of reclusion perpetua and to pay
complainant Erlanie Rivera the amount of P50,000.00 as civil
indemnity, P50,000.00 as moral damages, and P25,000.00 as
exemplary damages.

SO ORDERED.

A.M. No. 01-4-03-SC September 13, 2001
RE: REQUEST FOR LIVE RADIO-TV COVERAGE OF THE
TRIAL IN THE SANDIGANBAYAN OF THE PLUNDER CASES
AGAINST 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,
vs.
JOSEPH E. ESTRADA and INTEGRATED BAR OF THE
PHILIPPINES, oppositors.
RESOLUTION
MENDOZA, J.:
This is a motion for reconsideration of the decision denying
petitioners' request for permission to televise and broadcast live the
trial of former President Estrada before the Sandiganbayan. The
motion was filed by the Secretary of Justice, as one of the
petitioners, who argues that there is really no conflict between the
right of the people to public information and the freedom of the
press, on the one hand, and, on the other, the right of the accused
to a fair trial; that if there is a clash between these rights, it must be
resolved in favor of the right of the people and the press because
the people, as the repository of sovereignty, are entitled to
information; and that live media coverage is a safeguard against
attempts by any party to use the courts as instruments for the pursuit
of selfish interests.
On the other hand, former President Joseph E. Estrada reiterates
his objection to the live TV and radio coverage of his trial on the
ground that its allowance will violate the sub judice rule and that,
based on his experience with the impeachment trial, live media
coverage will only pave the way for so-called "expert commentary"
which can trigger massive demonstrations aimed at pressuring the
Sandiganbayan to render a decision one way or the other. Mr.
Estrada contends that the right of the people to information may be
served through other means less distracting, degrading, and
prejudicial than live TV and radio coverage.1âwphi1.nêt
The Court has considered the arguments of the parties on this
important issue and, after due deliberation, finds no reason to alter
or in any way modify its decision prohibiting live or real time
broadcast by radio or television of the trial of the former president.
By a vote of nine (9) to six (6) of its members,1 the Court denies the
motion for reconsideration of the Secretary of Justice.
In lieu of live TV and radio coverage of the trial, the Court, by the
vote of eight (8) Justices,2 has resolved to order the audio-visual
recording of the trial.
What follows is the opinion of the majority.lawphil.net
Considering the significance of the trial before the Sandiganbayan
of former President Estrada and the importance of preserving the
records thereof, the Court believes that there should be an audio-
visual recording of the proceedings. The recordings will not be for
live or real time broadcast but for documentary purposes. Only later
will they be available for public showing, after the Sandiganbayan
shall have promulgated its decision in every case to which the
recording pertains. The master film shall be deposited in the
National Museum and the Records Management and Archives
Office for historical preservation and exhibition pursuant to law.4
For the purpose of recording the proceedings, cameras will be
inconspicuously installed in the courtroom and the movement of TV
crews will be regulated, consistent with the dignity and solemnity of
the proceedings. The trial shall be recorded in its entirety, except
CONSTI LAW II I ACJUCO 566
such portions thereof as the Sandiganbayan may decide should not
be held public pursuant to Rule 119, §21 of the Revised Rules of
Criminal Procedure. No comment shall be included in the
documentary except annotations which may be necessary to
explain certain scenes which are depicted. The audio-visual
recordings shall be made under the supervision and control of the
Sandiganbayan or its Division as the case may be.
There are several reasons for such televised recording.1awphil.net
First, the hearings are of historic significance. They are an
affirmation of our commitment to the rule that "the King is under no
man, but he is under God and the law." (Quod Rex non debet esse
sub homine, sed sub Deo et Lege.) Second, the Estrada cases
involve matters of vital concern to our people who have a
fundamental right to know how their government is conducted. This
right can be enhanced by audio visual presentation. Third, audio-
visual presentation is essential for the education and civic training
of the people.
Above all, there is the need to keep audio-visual records of the
hearings for documentary purposes. The recordings will be useful in
preserving the essence of the proceedings in a way that the cold
print cannot quite do because it cannot capture the sights and
sounds of events. They will be primarily for the use of appellate
courts in the event a review of the proceedings, rulings, or decisions
of the Sandiganbayan is sought or becomes necessary. The
accuracy of the transcripts of stenographic notes taken during the
trial can be checked by reference to the tapes.
On the other hand, by delaying the release of the tapes for
broadcast, concerns that those taking part in the proceedings will be
playing to the cameras and will thus be distracted from the proper
performance of their roles -- whether as counsel, witnesses, court
personnel, or judges -- will be allayed. The possibility that parallel
trials before the bar of justice and the bar of public opinion may
jeopardize, or even prevent, the just determination of the cases can
be minimized. The possibility that judgment will be rendered by the
popular tribunal before the court of justice can render its own will be
avoided.
At the same time, concerns about the regularity and fairness of the
trial -- which, it may be assumed, is the concern of those opposed
to, as much as of those in favor of, televised trials - will be addressed
since the tapes will not be released for public showing until after the
decision of the cases by the Sandiganbayan. By delaying the
release of the tapes, much of the problem posed by real time TV
and radio broadcast will be avoided.
Thus, many important purposes for preserving the record of the trial
can be served by audio-visual recordings without impairing the right
of the accused to a fair trial.
Nor is the right of privacy of the accused a bar to the production of
such documentary. In Ayer Productions Pty. Ltd. V. Capulong,5 this
Court set aside a lower court's injunction restraining the filming of
"Four Day Revolution," a documentary film depicting, among other
things, the role of then Minister of National Defense Juan Ponce
Enrile in the 1986 EDSA people power. This Court held: "A limited
intrusion into a person's privacy has long been regarded as
permissible where that person is a public figure and the information
sought to be elicited from him or to be published about him
constitute matters of a public character."6
No one can prevent the making of a movie based on the trial. But,
at least, if a documentary record is made of the proceedings, any
movie that may later be produced can be checked for its accuracy
against such documentary and any attempt to distort the truth can
thus be averted.
Indeed, a somewhat similar proposal for documentary recording of
celebrated cases or causes célèbres was made was made way
 CONSTI LAW II I ACJUCO 567

back in 1971 by Paul Freund of the Harvard Law School. As he

explained:

In fairness let me refer to an American experience many of my lay

friends found similarly moving. An educational television network
filmed a trial in Denver of a Black Panther leader on charges of
resisting arrest, and broadcast the document in full, in four
installments, several months after the case was concluded --
concluded incidentally, with a verdict of acquittal.

No one could witness the trial without a feeling of profound respect

for the painstaking way in which the truth was searched for, for the
ways whereby law copes with uncertainties and ambiguities through
presumptions and burden of proof, and the sense of gravity with
which judge and jury carried out their responsibilities.

I agree in general with the exclusion of television from the

courtroom, for the familiar good reasons. And yet the use of
television at a trial for documentary purposes, not for the broadcast
of live news, and with the safeguards of completeness and consent,
is an educational experiment that I would be prepared to welcome.
Properly safeguarded and with suitable commentary, the depiction
of an actual trial is an agency of enlightenment that could have few
equals in its impact on the public understanding.

Understanding of our legal process, so rarely provided by our

educational system, is now a desperate need.7

Professor Freund's observation is as valid today as when it was

made thirty years ago. It is perceptive for its recognition of the
serious risks posed to the fair administration of justice by live TV
and radio broadcasts, especially when emotions are running high
on the issues stirred by a case, while at the same time
acknowledging the necessity of keeping audio-visual recordings of
the proceedings of celebrated cases, for public information and
exhibition, after passions have subsided.

WHEREFORE, an audio-visual recording of the trial of former

President Estrada before the Sandiganbayan is hereby ordered to
be made, for the account of the Sandiganbayan, under the following
conditions: (a) the trial shall be recorded in its entirety, excepting
such portions thereof as the Sandiganbayan may determine should
not be held public under Rule 119, §21 of the Rules of Criminal
Procedure; (b) cameras shall be installed inconspicuously inside the
courtroom and the movement of TV crews shall be regulated
consistent with the dignity and solemnity of the proceedings; (c) the
audio-visual recordings shall be made for documentary purposes
only and shall be made without comment except such annotations
of scenes depicted therein as may be necessary to explain them;
(d) the live broadcast of the recordings before the Sandiganbayan
shall have rendered its decision in all the cases against the former
President shall be prohibited under pain of contempt of court and
other sanctions in case of violations of the prohibition; (e) to ensure
that the conditions are observed, the audio-visual recording of the
proceedings shall be made under the supervision and control of the
Sandiganbayan or its Division concerned and shall be made
pursuant to rules promulgated by it; and (f) simultaneously with the
release of the audio-visual recordings for public broadcast, the
original thereof shall be deposited in the National Museum and the
Records Management and Archives Office for preservation and
exhibition in accordance with law.

SO ORDERED.

WRITS OF HABEAS CORPUS AND AMPARO
[G.R. No. 139789. May 12, 2000]
ERLINDA K. ILUSORIO, petitioner, vs. ERLINDA I. BILDNER
and SYLVIA K. ILUSORIO, JOHN DOE and JANE DOE,
respondents. Mesm
[G.R. No. 139808. May 12, 2000]
POTENCIANO ILUSORIO, MA. ERLINDA I. BILDNER, and
SYLVIA ILUSORIO, petitioners, vs. COURT OF APPEALS and
ERLINDA K. ILUSORIO, respondents.
DECISION
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] Slx
"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: Scslx
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).
CONSTI LAW II I ACJUCO 568
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. Slxsc
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:
"WHEREFORE, in the light of the foregoing disquisitions, judgment
is hereby rendered:
"(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; xxx
"(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] Jksm
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]
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
 CONSTI LAW II I ACJUCO 569

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.

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. Es m

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.

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.

[G.R. No. 158802. November 17, 2004]
IN RE: THE WRIT OF HABEAS CORPUS FOR REYNALDO DE
VILLA (detained at the New Bilibid Prisons, Muntinlupa City)
REYNALDO DE VILLA, petitioner, JUNE DE VILLA, petitioner-
relator, vs. THE DIRECTOR, NEW BILIBID PRISONS,
respondent.
DECISION
YNARES-SANTIAGO, J.:
This is a petition for the issuance of a writ of habeas corpus under
Rule 102 of the Rules of Court. Petitioner Reynaldo de Villa, joined
by his son, petitioner-relator June de Villa, seeks a two-fold relief:
First, that respondent Director of Prisons justify the basis for the
imprisonment of petitioner Reynaldo de Villa; and second, that
petitioner be granted a new trial.[1] These reliefs are sought on the
basis of purportedly exculpatory evidence, gathered after
performing deoxyribonucleic acid (DNA) testing on samples
allegedly collected from the petitioner and a child born to the victim
of the rape.
By final judgment dated February 1, 2001, in People of the
Philippines v. Reynaldo de Villa,[2] we found petitioner guilty of the
rape of Aileen Mendoza, his niece by affinity; sentenced him to
suffer the penalty of reclusin perpetua; and ordered him to pay the
offended party civil indemnity, moral damages, costs of the suit, and
support for Leahlyn Corales Mendoza, the putative child born of the
rape. Petitioner is currently serving his sentence at the New Bilibid
Prison, Muntinlupa City.
As summarized in our Decision dated February 1, 2001, Aileen
Mendoza charged petitioner Reynaldo de Villa with rape in an
information dated January 9, 1995, filed with the Regional Trial
Court of Pasig City. When arraigned on January 26, 1995, petitioner
entered a plea of not guilty.[3]
During the trial, the prosecution established that sometime in the
third week of April 1994, at about 10:00 in the morning, Aileen
Mendoza woke up in her familys rented room in Sagad, Pasig, Metro
Manila, to find petitioner on top of her. Aileen was then aged 12
years and ten months. She was unable to shout for help because
petitioner covered her mouth with a pillow and threatened to kill her.
Aileen could not do anything but cry. Petitioner succeeded in
inserting his penis inside her vagina. After making thrusting motions
with his body, petitioner ejaculated. This encounter allegedly
resulted in Aileens pregnancy, which was noticed by her mother,
Leonila Mendoza, sometime in November 1994. When confronted
by her mother, Aileen revealed that petitioner raped her. Aileens
parents then brought her to the Pasig Police Station, where they
lodged a criminal complaint against petitioner.[4]
Dr. Rosaline Cosidon, who examined Aileen, confirmed that she
was eight months pregnant and found in her hymen healed
lacerations at the 5:00 and 8:00 positions. On December 19, 1994,
Aileen gave birth to a baby girl whom she named Leahlyn
Mendoza.[5]
In his defense, petitioner alleged that, at the time of the alleged rape,
he was already 67 years old. Old age and sickness had rendered
him incapable of having an erection. He further averred that Aileens
family had been holding a grudge against him, which accounted for
the criminal charges. Finally, he interposed the defense of alibi,
claiming that at the time of the incident, he was in his hometown of
San Luis, Batangas.[6]
The trial court found petitioner guilty beyond reasonable doubt of the
crime of qualified rape, and sentenced him to death, to indemnify
the victim in the amount of P50,000.00, to pay the costs of the suit
and to support the child, Leahlyn Mendoza.[7]
CONSTI LAW II I ACJUCO 570
On automatic review,[8] we found that the date of birth of Aileens
child was medically consistent with the time of the rape. Since it was
never alleged that Aileen gave birth to a full-term nine-month old
baby, we gave credence to the prosecutions contention that she
prematurely gave birth to an eight-month old baby by normal
delivery.[9] Thus, we affirmed petitioners conviction for rape, in a
Decision the dispositive portion of which reads:
WHEREFORE, the judgment of the Regional Trial Court, finding
accused-appellant guilty beyond reasonable doubt of the crime of
rape, is AFFIRMED with the MODIFICATIONS that he is sentenced
to suffer the penalty of reclusin perpetua and ordered to pay the
offended party P50,000.00 as civil indemnity; P50,000.00 as moral
damages; costs of the suit and to provide support for the child
Leahlyn Corales Mendoza.
SO ORDERED.[10]
Three years after the promulgation of our Decision, we are once
more faced with the question of Reynaldo de Villas guilt or
innocence.
Petitioner-relator in this case, June de Villa, is the son of Reynaldo.
He alleges that during the trial of the case, he was unaware that
there was a scientific test that could determine once and for all if
Reynaldo was the father of the victims child, Leahlyn. Petitioner-
relator was only informed during the pendency of the automatic
review of petitioners case that DNA testing could resolve the issue
of paternity.[11] This information was apparently furnished by the
Free Legal Assistance Group (FLAG) Anti-Death Penalty Task
Force, which took over as counsel for petitioner.
Thus, petitioners brief in People v. de Villa sought the conduct of a
blood type test and DNA test in order to determine the paternity of
the child allegedly conceived as a result of the rape.[12] This relief
was implicitly denied in our Decision of February 21, 2001.
On March 16, 2001, Reynaldo de Villa filed a Motion for Partial
Reconsideration of the Decision, wherein he once more prayed that
DNA tests be conducted.[13] The Motion was denied with finality in
a Resolution dated November 20, 2001.[14] Hence, the Decision
became final and executory on January 16, 2002.[15]
Petitioner-relator was undaunted by these challenges. Having been
informed that DNA tests required a sample that could be extracted
from saliva, petitioner-relator asked Billy Joe de Villa, a grandson of
Reynaldo de Villa and a classmate of Leahlyn Mendoza, to ask
Leahlyn to spit into a new, sterile cup.[16] Leahlyn readily agreed
and did so. Billy Joe took the sample home and gave it to the
petitioner-relator, who immediately labeled the cup as Container A.
Petitioner-relator then gathered samples from four grandchildren of
Reynaldo de Villa. These samples were placed in separate
containers with distinguishing labels and temporarily stored in a
refrigerator prior to transport to the DNA Analysis Laboratory at the
National Science Research Institute (NSRI).[17] During transport,
the containers containing the saliva samples were kept on ice.
Petitioner-relator requested the NSRI to conduct DNA testing on the
sample given by Leahlyn Mendoza, those given by the
grandchildren of Reynaldo de Villa, and that given by Reynaldo de
Villa himself. The identities of the donors of the samples, save for
the sample given by Reynaldo de Villa, were not made known to the
DNA Analysis Laboratory.[18]
After testing, the DNA Laboratory rendered a preliminary report on
March 21, 2003, which showed that Reynaldo de Villa could not
have sired any of the children whose samples were tested, due to
the absence of a match between the pertinent genetic markers in

petitioners sample and those of any of the other samples, including
Leahlyns.[19]
Hence, in the instant petition for habeas corpus, petitioner argues
as follows:
DNA ANALYSIS ON PATERNITY SHOWS CONCLUSIVELY THAT
PETITIONER DE VILLA IS NOT THE FATHER OF LEAHLYN
MENDOZA; HIS CONVICTION FOR RAPE, BASED ON THE FACT
THAT LEAHLYN WAS SIRED AS A RESULT OF THE ALLEGED
RAPE, CANNOT STAND AND MUST BE SET ASIDE.[20]
xxxxxxxxx
A NEW TRIAL TO CONSIDER NEWLY DISCOVERED EVIDENCE
IS PROPER AND MAY BE ORDERED BY THIS COURT IN VIEW
OF THE RESULTS OF THE DNA TESTS CONDUCTED.[21]
Considering that the issues are inter-twined, they shall be discussed
together.
In brief, petitioner relies upon the DNA evidence gathered
subsequent to the trial in order to re-litigate the factual issue of the
paternity of the child Leahlyn Mendoza. Petitioner alleges that this
issue is crucial, considering that his conviction in 2001 was based
on the factual finding that he sired the said child. Since this paternity
is now conclusively disproved, he argues that the 2001 conviction
must be overturned.
In essence, petitioner invokes the remedy of the writ of habeas
corpus to collaterally attack the 2001 Decision. The ancillary remedy
of a motion for new trial is resorted to solely to allow the presentation
of what is alleged to be newly-discovered evidence. This Court is
thus tasked to determine, first, the propriety of the issuance of a writ
of habeas corpus to release an individual already convicted and
serving sentence by virtue of a final and executory judgment; and
second, the propriety of granting a new trial under the same factual
scenario.
The extraordinary writ of habeas corpus has long been a haven of
relief for those seeking liberty from any unwarranted denial of
freedom of movement. Very broadly, the writ applies to all cases of
illegal confinement or detention by which a person has been
deprived of his liberty, or by which the rightful custody of any person
has been withheld from the person entitled thereto.[22] Issuance of
the writ necessitates that a person be illegally deprived of his liberty.
In the celebrated case of Villavicencio v. Lukban,[23] we stated that
[a]ny restraint which will preclude freedom of action is sufficient.[24]
The most basic criterion for the issuance of the writ, therefore, is
that the individual seeking such relief be illegally deprived of his
freedom of movement or placed under some form of illegal restraint.
If an individuals liberty is restrained via some legal process, the writ
of habeas corpus is unavailing. Concomitant to this principle, the
writ of habeas corpus cannot be used to directly assail a judgment
rendered by a competent court or tribunal which, having duly
acquired jurisdiction, was not deprived or ousted of this jurisdiction
through some anomaly in the conduct of the proceedings.
Thus, notwithstanding its historic function as the great writ of liberty,
the writ of habeas corpus has very limited availability as a post-
conviction remedy. In the recent case of Feria v. Court of
Appeals,[25] we ruled that review of a judgment of conviction is
allowed in a petition for the issuance of the writ of habeas corpus
only in very specific instances, such as when, 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.[26]
CONSTI LAW II I ACJUCO 571
In this instance, petitioner invokes the writ of habeas corpus to assail
a final judgment of conviction, without, however, providing a legal
ground on which to anchor his petition. In fine, petitioner alleges
neither the deprivation of a constitutional right, the absence of
jurisdiction of the court imposing the sentence, or that an excessive
penalty has been imposed upon him.
In fine, petitioner invokes the remedy of habeas corpus in order to
seek the review of findings of fact long passed upon with finality.
This relief is far outside the scope of habeas corpus proceedings. In
the early case of Abriol v. Homeres,[27] for example, this Court
stated the general rule that the writ of habeas corpus is not a writ of
error, and should not be thus used. The writ of habeas corpus,
whereas permitting a collateral challenge of the jurisdiction of the
court or tribunal issuing the process or judgment by which an
individual is deprived of his liberty, cannot be distorted by extending
the inquiry to mere errors of trial courts acting squarely within their
jurisdiction.[28] The reason for this is explained very simply in the
case of Velasco v. Court of Appeals:[29] a habeas corpus petition
reaches the body, but not the record of the case. [30] A record must
be allowed to remain extant, and cannot be revised, modified,
altered or amended by the simple expedient of resort to habeas
corpus proceedings.
Clearly, mere errors of fact or law, which did not have the effect of
depriving the trial court of its jurisdiction over the case and the
person of the defendant, are not correctible in a petition for the
issuance of the writ of habeas corpus; if at all, these errors must be
corrected on certiorari or on appeal, in the form and manner
prescribed by law.[31] In the past, this Court has disallowed the
review of a courts appreciation of the evidence in a petition for the
issuance of a writ of habeas corpus, as this is not the function of
said writ.[32] A survey of our decisions in habeas corpus cases
demonstrates that, in general, the writ of habeas corpus is a high
prerogative writ which furnishes an extraordinary remedy; it may
thus be invoked only under extraordinary circumstances.[33] We
have been categorical in our pronouncements that the writ of
habeas corpus is not to be used as a substitute for another, more
proper remedy. Resort to the writ of habeas corpus is available only
in the limited instances when a judgment is rendered by a court or
tribunal devoid of jurisdiction. If, for instance, it can be demonstrated
that there was a deprivation of a constitutional right, the writ can be
granted even after an individual has been meted a sentence by final
judgment.
Thus, in the case of Chavez v. Court of Appeals,[34] the writ of
habeas corpus was held to be available where an accused was
deprived of the constitutional right against self-incrimination. A
defect so pronounced as the denial of an accuseds constitutional
rights results in the absence or loss of jurisdiction, and therefore
invalidates the trial and the consequent conviction of the accused.
That void judgment of conviction may be challenged by collateral
attack, which precisely is the function of habeas corpus.[35] Later,
in Gumabon v. Director of the Bureau of Prisons,[36] this Court ruled
that, 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.[37] Although in Feria v. Court of
Appeals[38] this Court was inclined to allow the presentation of new
evidence in a petition for the issuance of a writ of habeas corpus,
this was an exceptional situation. In that case, we laid down the
general rule, which states that the burden of proving illegal restraint
by the respondent rests on the petitioner who attacks such restraint.
Where the return is not subject to exception, that is, where it sets
forth a 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.[39]
In the recent case of Calvan v. Court of Appeals,[40] we
summarized the scope of review allowable in a petition for the

issuance of the writ of habeas corpus. We ruled that the writ of
habeas corpus, although not designed to interrupt the orderly
administration of justice, can be invoked by the attendance of a
special circumstance that requires immediate action. In such
situations, the inquiry on a writ of habeas corpus would be
addressed, not to errors committed by a court within its jurisdiction,
but to the question of whether the proceeding or judgment under
which a person has been restrained is a complete nullity. The probe
may thus proceed to check on the power and authority, itself an
equivalent test of jurisdiction, of the court or the judge to render the
order that so serves as the basis of imprisonment or detention.[41]
It is the nullity of an assailed judgment of conviction which makes it
susceptible to collateral attack through the filing of a petition for the
issuance of the writ of habeas corpus.
Upon a perusal of the records not merely of this case but of People
v. de Villa, we find that the remedy of the writ of habeas corpus is
unavailing.
First, the denial of a constitutional right has not been alleged by
petitioner. As such, this Court is hard-pressed to find legal basis on
which to anchor the grant of a writ of habeas corpus. Much as this
Court sympathizes with petitioners plea, a careful scrutiny of the
records does not reveal any constitutional right of which the
petitioner was unduly deprived.
We are aware that other jurisdictions have seen fit to grant the writ
of habeas corpus in order to test claims that a defendant was denied
effective aid of counsel.[42] In this instance, we note that the record
is replete with errors committed by counsel, and it can be alleged
that the petitioner was, at trial, denied the effective aid of counsel.
The United States Supreme Court requires a defendant alleging
incompetent counsel to show that the attorneys performance was
deficient under a reasonable standard, and additionally to show that
the outcome of the trial would have been different with competent
counsel.[43] The purpose of the right to effective assistance of
counsel is to ensure that the defendant receives a fair trial.[44]
The U.S. Supreme Court asserts that in judging any claim of
ineffective assistance of counsel, one must examine whether
counsels conduct undermined the proper functioning of the
adversarial process to such an extent that the trial did not produce
a fair and just result.[45] The proper measure of attorney
performance is reasonable under the prevailing professional norms,
and the defendant must show that the representation received fell
below the objective standard of reasonableness.[46] For the petition
to succeed, the strong presumption that the counsels conduct falls
within the wide range or reasonable professional assistance must
be overcome.[47]
In the case at bar, it appears that in the middle of the appeal, the
petitioners counsel of record, a certain Atty. Alfonso G. Salvador,
suddenly and inexplicably withdrew his appearance as counsel,
giving the sole explanation that he was leaving for the United States
for an indefinite period of time by virtue of a petition filed in his
favor.[48] In the face of this abandonment, petitioner made an
impassioned plea that his lawyer be prevented from this withdrawal
in a handwritten Urgent Motion for Reconsideration and Opposition
of Counsels Withdrawal of Appearance with Leave of Court received
by this Court on September 14, 1999.[49] Petitioner alleged that his
counsels withdrawal is an untimely and heartbreaking event,
considering that he had placed all [his] trust and confidence on [his
counsels] unquestionable integrity and dignity.[50]
While we are sympathetic to petitioners plight, we do not, however,
find that there was such negligence committed by his earlier counsel
so as to amount to a denial of a constitutional right. There is likewise
no showing that the proceedings were tainted with any other
jurisdictional defect.
CONSTI LAW II I ACJUCO 572
In fine, we find that petitioner invokes the remedy of the petition for
a writ of habeas corpus to seek a re-examination of the records of
People v. de Villa, without asserting any legal grounds therefor. For
all intents and purposes, petitioner seeks a reevaluation of the
evidentiary basis for his conviction. We are being asked to
reexamine the weight and sufficiency of the evidence in this case,
not on its own, but in light of the new DNA evidence that the
petitioner seeks to present to this Court. This relief is outside the
scope of a habeas corpus petition. The petition for habeas corpus
must, therefore, fail.
Coupled with the prayer for the issuance of a writ of habeas corpus,
petitioner seeks a new trial to re-litigate the issue of the paternity of
the child Leahlyn Mendoza.
It must be stressed that the issue of Leahlyn Mendozas paternity is
not central to the issue of petitioners guilt or innocence. The rape of
the victim Aileen Mendoza is an entirely different question, separate
and distinct from the question of the father of her child. Recently, in
the case of People v. Alberio,[51] we ruled that the fact or not of the
victims pregnancy and resultant childbirth are irrelevant in
determining whether or not she was raped. Pregnancy is not an
essential element of the crime of rape. Whether the child which the
victim bore was fathered by the purported rapist, or by some
unknown individual, is of no moment in determining an individuals
guilt.
In the instant case, however, we note that the grant of child support
to Leahlyn Mendoza indicates that our Decision was based, at least
in small measure, on the victims claim that the petitioner fathered
her child. This claim was given credence by the trial court, and, as
a finding of fact, was affirmed by this Court on automatic review.
The fact of the childs paternity is now in issue, centrally relevant to
the civil award of child support. It is only tangentially related to the
issue of petitioners guilt. However, if it can be conclusively
determined that the petitioner did not sire Leahlyn Mendoza, this
may cast the shadow of reasonable doubt, and allow the acquittal
of the petitioner on this basis.
Be that as it may, it appears that the petitioner once more relies
upon erroneous legal grounds in resorting to the remedy of a motion
for new trial. A motion for new trial, under the Revised Rules of
Criminal Procedure, is available only for a limited period of time, and
for very limited grounds. Under Section 1, Rule 121, of the Revised
Rules of Criminal Procedure, a motion for new trial may be filed at
any time before a judgment of conviction becomes final, that is,
within fifteen (15) days from its promulgation or notice. Upon finality
of the judgment, therefore, a motion for new trial is no longer an
available remedy. Section 2 of Rule 121 enumerates the grounds
for a new trial:
SEC. 2. Grounds for a new trial.The court shall grant a new trial on
any of the following grounds:
(a) That errors of law or irregularities prejudicial to the substantial
rights of the accused have been committed during the trial;
(b) That new and material evidence has been discovered which the
accused could not with reasonable diligence have discovered and
produced at the trial and which if introduced and admitted would
probably change the judgment.
In the case at bar, petitioner anchors his plea on the basis of
purportedly newly-discovered evidence, i.e., the DNA test
subsequently conducted, allegedly excluding petitioner from the
child purportedly fathered as a result of the rape.
The decision sought to be reviewed in this petition for the issuance
of a writ of habeas corpus has long attained finality, and entry of
judgment was made as far back as January 16, 2002. Moreover,
 CONSTI LAW II I ACJUCO 573

upon an examination of the evidence presented by the petitioner,

we do not find that the DNA evidence falls within the statutory or
jurisprudential definition of newly- discovered evidence.

A motion for new trial based on newly-discovered evidence may be

granted only if the following requisites are met: (a) that the evidence
was discovered after trial; (b) that said evidence could not have
been discovered and produced at the trial even with the exercise of
reasonable diligence; (c) that it is material, not merely cumulative,
corroborative or impeaching; and (d) that the evidence is of such
weight that that, if admitted, it would probably change the
judgment.[52] It is essential that the offering party exercised
reasonable diligence in seeking to locate the evidence before or
during trial but nonetheless failed to secure it.[53]

In this instance, although the DNA evidence was undoubtedly

discovered after the trial, we nonetheless find that it does not meet
the criteria for newly-discovered evidence that would merit a new
trial. Such evidence disproving paternity could have been
discovered and produced at trial with the exercise of reasonable
diligence.

Petitioner-relators claim that he was unaware of the existence of

DNA testing until the trial was concluded carries no weight with this
Court. Lack of knowledge of the existence of DNA testing speaks of
negligence, either on the part of petitioner, or on the part of
petitioners counsel. In either instance, however, this negligence is
binding upon petitioner. It is a settled rule that a party cannot blame
his counsel for negligence when he himself was guilty of neglect.[54]
A client is bound by the acts of his counsel, including the latters
mistakes and negligence.[55] It is likewise settled that relief will not
be granted to a party who seeks to be relieved from the effects of
the judgment when the loss of the remedy at law was due to his own
negligence, or to a mistaken mode of procedure.[56]

Even with all of the compelling and persuasive scientific evidence

presented by petitioner and his counsel, we are not convinced that
Reynaldo de Villa is entitled to outright acquittal. As correctly
pointed out by the Solicitor General, even if it is conclusively proven
that Reynaldo de Villa is not the father of Leahlyn Mendoza, his
conviction could, in theory, still stand, with Aileen Mendozas
testimony and positive identification as its bases.[57] The Solicitor
General reiterates, and correctly so, that the pregnancy of the victim
has never been an element of the crime of rape.[58] Therefore, the
DNA evidence has failed to conclusively prove to this Court that
Reynaldo de Villa should be discharged. Although petitioner claims
that conviction was based solely on a finding of paternity of the child
Leahlyn, this is not the case. Our conviction was based on the clear
and convincing testimonial evidence of the victim, which, given
credence by the trial court, was affirmed on appeal.

WHEREFORE, in view of the foregoing, the instant petition for

habeas corpus and new trial is DISMISSED for lack of merit.

No costs.

SO ORDERED.

WRIT OF AMPARO
G.R. No. 180906 October 7, 2008
THE SECRETARY OF NATIONAL DEFENSE, THE CHIEF OF
STAFF, ARMED FORCES OF THE PHILIPPINES, petitioners,
vs.
RAYMOND MANALO and REYNALDO MANALO, respondents.
DECISION
PUNO, C.J.:
While victims of enforced disappearances are separated from the
rest of the world behind secret walls, they are not separated from
the constitutional protection of their basic rights. The constitution is
an overarching sky that covers all in its protection. The case at bar
involves the rights to life, liberty and security in the first petition for
a writ of Amparo filed before this Court.
This is an appeal via Petition for Review under Rule 45 of the Rules
of Court in relation to Section 191 of the Rule on the Writ of Amparo,
seeking to reverse and set aside on both questions of fact and law,
the Decision promulgated by the Court of Appeals in C.A. G.R.
AMPARO No. 00001, entitled "Raymond Manalo and Reynaldo
Manalo, petitioners, versus The Secretary of National Defense, the
Chief of Staff, Armed Forces of the Philippines, respondents."
This case was originally a Petition for Prohibition, Injunction, and
Temporary Restraining Order (TRO)2 filed before this Court by
herein respondents (therein petitioners) on August 23, 2007 to stop
herein petitioners (therein respondents) and/or their officers and
agents from depriving them of their right to liberty and other basic
rights. Therein petitioners also sought ancillary remedies, Protective
Custody Orders, Appointment of Commissioner, Inspection and
Access Orders, and all other legal and equitable reliefs under Article
VIII, Section 5(5)3 of the 1987 Constitution and Rule 135, Section 6
of the Rules of Court. In our Resolution dated August 24, 2007, we
(1) ordered the Secretary of the Department of National Defense
and the Chief of Staff of the AFP, their agents, representatives, or
persons acting in their stead, including but not limited to the Citizens
Armed Forces Geographical Unit (CAFGU) to submit their
Comment; and (2) enjoined them from causing the arrest of therein
petitioners, or otherwise restricting, curtailing, abridging, or
depriving them of their right to life, liberty, and other basic rights as
guaranteed under Article III, Section 14 of the 1987 Constitution.5
While the August 23, 2007 Petition was pending, the Rule on the
Writ of Amparo took effect on October 24, 2007. Forthwith, therein
petitioners filed a Manifestation and Omnibus Motion to Treat
Existing Petition as Amparo Petition, to Admit Supporting Affidavits,
and to Grant Interim and Final Amparo Reliefs. They prayed that:
(1) the petition be considered a Petition for the Writ of Amparo under
Sec. 266 of the Amparo Rule; (2) the Court issue the writ
commanding therein respondents to make a verified return within
the period provided by law and containing the specific matter
required by law; (3) they be granted the interim reliefs allowed by
the Amparo Rule and all other reliefs prayed for in the petition but
not covered by the Amparo Rule; (4) the Court, after hearing, render
judgment as required in Sec. 187 of the Amparo Rule; and (5) all
other just and equitable reliefs.8
On October 25, 2007, the Court resolved to treat the August 23,
2007 Petition as a petition under the Amparo Rule and further
resolved, viz:
WHEREFORE, let a WRIT OF AMPARO be issued to respondents
requiring them to file with the CA (Court of Appeals) a verified written
return within five (5) working days from service of the writ. We
REMAND the petition to the CA and designate the Division of
Associate Justice Lucas P. Bersamin to conduct the summary
CONSTI LAW II I ACJUCO 574
hearing on the petition on November 8, 2007 at 2:00 p.m. and
decide the petition in accordance with the Rule on the Writ of
Amparo.9
On December 26, 2007, the Court of Appeals rendered a decision
in favor of therein petitioners (herein respondents), the dispositive
portion of which reads, viz:
ACCORDINGLY, the PRIVILEGE OF THE WRIT OF AMPARO is
GRANTED.
The respondents SECRETARY OF NATIONAL DEFENSE and AFP
CHIEF OF STAFF are hereby REQUIRED:
1. To furnish to the petitioners and to this Court within five days from
notice of this decision all official and unofficial reports of the
investigation undertaken in connection with their case, except those
already on file herein;
2. To confirm in writing the present places of official assignment of
M/Sgt Hilario aka Rollie Castillo and Donald Caigas within five days
from notice of this decision.
3. To cause to be produced to this Court all medical reports, records
and charts, reports of any treatment given or recommended and
medicines prescribed, if any, to the petitioners, to include a list of
medical and (sic) personnel (military and civilian) who attended to
them from February 14, 2006 until August 12, 2007 within five days
from notice of this decision.
The compliance with this decision shall be made under the signature
and oath of respondent AFP Chief of Staff or his duly authorized
deputy, the latter's authority to be express and made apparent on
the face of the sworn compliance with this directive.
SO ORDERED.10
Hence, this appeal. In resolving this appeal, we first unfurl the facts
as alleged by herein respondents:
Respondent Raymond Manalo recounted that about one or two
weeks before February 14, 2006, several uniformed and armed
soldiers and members of the CAFGU summoned to a meeting all
the residents of their barangay in San Idelfonso, Bulacan.
Respondents were not able to attend as they were not informed of
the gathering, but Raymond saw some of the soldiers when he
passed by the barangay hall.11
On February 14, 2006, Raymond was sleeping in their house in
Buhol na Mangga, San Ildefonso, Bulacan. At past noon, several
armed soldiers wearing white shirts, fatigue pants and army boots,
entered their house and roused him. They asked him if he was
Bestre, but his mother, Ester Manalo, replied that he was Raymond,
not Bestre. The armed soldier slapped him on both cheeks and
nudged him in the stomach. He was then handcuffed, brought to the
rear of his house, and forced to the ground face down. He was
kicked on the hip, ordered to stand and face up to the light, then
forcibly brought near the road. He told his mother to follow him, but
three soldiers stopped her and told her to stay.12
Among the men who came to take him, Raymond recognized
brothers Michael de la Cruz, Madning de la Cruz, "Puti" de la Cruz,
and "Pula" de la Cruz, who all acted as lookout. They were all
members of the CAFGU and residing in Manuzon, San Ildefonso,
Bulacan. He also recognized brothers Randy Mendoza and Rudy
Mendoza, also members of the CAFGU. While he was being forcibly
taken, he also saw outside of his house two barangay councilors,
Pablo Cunanan and Bernardo Lingasa, with some soldiers and
armed men.13

The men forced Raymond into a white L300 van. Once inside, he
was blindfolded. Before being blindfolded, he saw the faces of the
soldiers who took him. Later, in his 18 months of captivity, he
learned their names. The one who drove the van was Rizal Hilario
alias Rollie Castillo, whom he estimated was about 40 years of age
or older. The leader of the team who entered his house and
abducted him was "Ganata." He was tall, thin, curly-haired and a bit
old. Another one of his abductors was "George" who was tall, thin,
white-skinned and about 30 years old.14
The van drove off, then came to a stop. A person was brought inside
the van and made to sit beside Raymond. Both of them were beaten
up. On the road, he recognized the voice of the person beside him
as his brother Reynaldo's. The van stopped several times until they
finally arrived at a house. Raymond and Reynaldo were each
brought to a different room. With the doors of their rooms left open,
Raymond saw several soldiers continuously hitting his brother
Reynaldo on the head and other parts of his body with the butt of
their guns for about 15 minutes. After which, Reynaldo was brought
to his (Raymond's) room and it was his (Raymond's) turn to be
beaten up in the other room. The soldiers asked him if he was a
member of the New People's Army. Each time he said he was not,
he was hit with the butt of their guns. He was questioned where his
comrades were, how many soldiers he had killed, and how many
NPA members he had helped. Each time he answered none, they
hit him.15
In the next days, Raymond's interrogators appeared to be high
officials as the soldiers who beat him up would salute them, call
them "sir," and treat them with respect. He was in blindfolds when
interrogated by the high officials, but he saw their faces when they
arrived and before the blindfold was put on. He noticed that the
uniform of the high officials was different from those of the other
soldiers. One of those officials was tall and thin, wore white pants,
tie, and leather shoes, instead of combat boots. He spoke in
Tagalog and knew much about his parents and family, and a habeas
corpus case filed in connection with the respondents' abduction.16
While these officials interrogated him, Raymond was not
manhandled. But once they had left, the soldier guards beat him up.
When the guards got drunk, they also manhandled respondents.
During this time, Raymond was fed only at night, usually with left-
over and rotten food.17
On the third week of respondents' detention, two men arrived while
Raymond was sleeping and beat him up. They doused him with
urine and hot water, hit his stomach with a piece of wood, slapped
his forehead twice with a .45 pistol, punched him on the mouth, and
burnt some parts of his body with a burning wood. When he could
no longer endure the torture and could hardly breathe, they stopped.
They then subjected Reynaldo to the same ordeal in another room.
Before their torturers left, they warned Raymond that they would
come back the next day and kill him.18
The following night, Raymond attempted to escape. He waited for
the guards to get drunk, then made noise with the chains put on him
to see if they were still awake. When none of them came to check
on him, he managed to free his hand from the chains and jumped
through the window. He passed through a helipad and firing range
and stopped near a fishpond where he used stones to break his
chains. After walking through a forested area, he came near a river
and an Iglesia ni Kristo church. He talked to some women who were
doing the laundry, asked where he was and the road to Gapan. He
was told that he was in Fort Magsaysay.19 He reached the highway,
but some soldiers spotted him, forcing him to run away. The soldiers
chased him and caught up with him. They brought him to another
place near the entrance of what he saw was Fort Magsaysay. He
was boxed repeatedly, kicked, and hit with chains until his back bled.
They poured gasoline on him. Then a so-called "Mam" or "Madam"
suddenly called, saying that she wanted to see Raymond before he
was killed. The soldiers ceased the torture and he was returned
inside Fort Magsaysay where Reynaldo was detained.20
CONSTI LAW II I ACJUCO 575
For some weeks, the respondents had a respite from all the torture.
Their wounds were treated. When the wounds were almost healed,
the torture resumed, particularly when respondents' guards got
drunk.21
Raymond recalled that sometime in April until May 2006, he was
detained in a room enclosed by steel bars. He stayed all the time in
that small room measuring 1 x 2 meters, and did everything there,
including urinating, removing his bowels, bathing, eating and
sleeping. He counted that eighteen people22 had been detained in
that bartolina, including his brother Reynaldo and himself.23
For about three and a half months, the respondents were detained
in Fort Magsaysay. They were kept in a small house with two rooms
and a kitchen. One room was made into the bartolina. The house
was near the firing range, helipad and mango trees. At dawn,
soldiers marched by their house. They were also sometimes
detained in what he only knew as the "DTU."24
At the DTU, a male doctor came to examine respondents. He
checked their body and eyes, took their urine samples and marked
them. When asked how they were feeling, they replied that they had
a hard time urinating, their stomachs were aching, and they felt other
pains in their body. The next day, two ladies in white arrived. They
also examined respondents and gave them medicines, including
orasol, amoxicillin and mefenamic acid. They brought with them the
results of respondents' urine test and advised them to drink plenty
of water and take their medicine. The two ladies returned a few more
times. Thereafter, medicines were sent through the "master" of the
DTU, "Master" Del Rosario alias Carinyoso at Puti. Respondents
were kept in the DTU for about two weeks. While there, he met a
soldier named Efren who said that Gen. Palparan ordered him to
monitor and take care of them.25
One day, Rizal Hilario fetched respondents in a Revo vehicle. They,
along with Efren and several other armed men wearing fatigue suits,
went to a detachment in Pinaud, San Ildefonso, Bulacan.
Respondents were detained for one or two weeks in a big two-storey
house. Hilario and Efren stayed with them. While there, Raymond
was beaten up by Hilario's men.26
From Pinaud, Hilario and Efren brought respondents to Sapang,
San Miguel, Bulacan on board the Revo. They were detained in a
big unfinished house inside the compound of "Kapitan" for about
three months. When they arrived in Sapang, Gen. Palparan talked
to them. They were brought out of the house to a basketball court in
the center of the compound and made to sit. Gen. Palparan was
already waiting, seated. He was about two arms' length away from
respondents. He began by asking if respondents felt well already, to
which Raymond replied in the affirmative. He asked Raymond if he
knew him. Raymond lied that he did not. He then asked Raymond if
he would be scared if he were made to face Gen. Palparan.
Raymond responded that he would not be because he did not
believe that Gen. Palparan was an evil man.27
Raymond narrated his conversation with Gen. Palparan in his
affidavit, viz:
Tinanong ako ni Gen. Palparan, "Ngayon na kaharap mo na ako, di
ka ba natatakot sa akin?"
Sumagot akong, "Siyempre po, natatakot din..."
Sabi ni Gen. Palparan: "Sige, bibigyan ko kayo ng isang
pagkakataon na mabuhay, basta't sundin n'yo ang lahat ng
sasabihin ko... sabihin mo sa magulang mo - huwag pumunta sa
mga rali, sa hearing, sa Karapatan at sa Human Right dahil niloloko
lang kayo. Sabihin sa magulang at lahat sa bahay na huwag paloko
doon. Tulungan kami na kausapin si Bestre na sumuko na sa
gobyerno."28

Respondents agreed to do as Gen. Palparan told them as they felt
they could not do otherwise. At about 3:00 in the morning, Hilario,
Efren and the former's men - the same group that abducted them -
brought them to their parents' house. Raymond was shown to his
parents while Reynaldo stayed in the Revo because he still could
not walk. In the presence of Hilario and other soldiers, Raymond
relayed to his parents what Gen. Palparan told him. As they were
afraid, Raymond's parents acceded. Hilario threatened Raymond's
parents that if they continued to join human rights rallies, they would
never see their children again. The respondents were then brought
back to Sapang.29
When respondents arrived back in Sapang, Gen. Palparan was
about to leave. He was talking with the four "masters" who were
there: Arman, Ganata, Hilario and Cabalse.30 When Gen. Palparan
saw Raymond, he called for him. He was in a big white vehicle.
Raymond stood outside the vehicle as Gen. Palparan told him to
gain back his strength and be healthy and to take the medicine he
left for him and Reynaldo. He said the medicine was expensive at
Php35.00 each, and would make them strong. He also said that they
should prove that they are on the side of the military and warned
that they would not be given another chance.31 During his
testimony, Raymond identified Gen. Palparan by his picture.32
One of the soldiers named Arman made Raymond take the
medicine left by Gen. Palparan. The medicine, named "Alive," was
green and yellow. Raymond and Reynaldo were each given a box
of this medicine and instructed to take one capsule a day. Arman
checked if they were getting their dose of the medicine. The "Alive"
made them sleep each time they took it, and they felt heavy upon
waking up.33
After a few days, Hilario arrived again. He took Reynaldo and left
Raymond at Sapang. Arman instructed Raymond that while in
Sapang, he should introduce himself as "Oscar," a military trainee
from Sariaya, Quezon, assigned in Bulacan. While there, he saw
again Ganata, one of the men who abducted him from his house,
and got acquainted with other military men and civilians.34
After about three months in Sapang, Raymond was brought to
Camp Tecson under the 24th Infantry Battalion. He was fetched by
three unidentified men in a big white vehicle. Efren went with them.
Raymond was then blindfolded. After a 30-minute ride, his blindfold
was removed. Chains were put on him and he was kept in the
barracks.35
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.36
After a week, Reynaldo was also brought to Camp Tecson. Two
days from his arrival, two other captives, Karen Empeño 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.37
CONSTI LAW II I ACJUCO 576
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.38
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.39
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.40 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.41
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 2007.42
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:
Isang gabi, sinabihan kami ni Donald (Caigas) na matulog na kami.
Nakita ko si Donald na inaayos ang kanyang baril, at nilagyan ng
silenser. Sabi ni Donald na kung mayroon man kaming makita o
marinig, walang nangyari. Kinaumagahan, nakita naming ang
bangkay ng isa sa mga bihag na dinala sa kampo. Mayroong
binuhos sa kanyang katawan at ito'y sinunog. Masansang ang
amoy.
Makaraan ang isang lingo, dalawang bangkay and ibinaba ng mga
unipormadong sundalo mula sa 6 x 6 na trak at dinala sa loob ng
kampo. May naiwang mga bakas ng dugo habang hinihila nila ang
mga bangkay. Naamoy ko iyon nang nililinis ang bakas.
Makalipas ang isa o dalawang lingo, may dinukot sila na dalawang
Ita. Itinali sila sa labas ng kubo, piniringan, ikinadena at labis na
binugbog. Nakita kong nakatakas ang isa sa kanila at binaril siya ng
sundalo ngunit hindi siya tinamaan. Iyong gabi nakita kong pinatay
nila iyong isang Ita malapit sa Post 3; sinilaban ang bangkay at
ibinaon ito.
Pagkalipas ng halos 1 buwan, 2 pang bangkay ang dinala sa
kampo. Ibinaba ang mga bangkay mula sa pick up trak, dinala ang
mga bangkay sa labas ng bakod. Kinaumagahan nakita kong
mayroong sinilaban, at napakamasangsang ang amoy.

May nakilala rin akong 1 retiradong koronel at 1 kasama niya.
Pinakain ko sila. Sabi nila sa akin na dinukot sila sa Bataan. Iyong
gabi, inilabas sila at hindi ko na sila nakita.
xxx xxx xxx
Ikinadena kami ng 3 araw. Sa ikatlong araw, nilabas ni Lat si Manuel
dahil kakausapin daw siya ni Gen. Palparan. Nakapiring si Manuel,
wala siyang suot pang-itaas, pinosasan. Nilakasan ng mga sundalo
ang tunog na galing sa istiryo ng sasakyan. Di nagtagal, narinig ko
ang hiyaw o ungol ni Manuel. Sumilip ako sa isang haligi ng kamalig
at nakita kong sinisilaban si Manuel.
Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena
mga 3 o 4 na araw pagkalipas. Sinabi sa amin na kaya kami
nakakadena ay dahil pinagdedesisyunan pa ng mga sundalo kung
papatayin kami o hindi.
Tinanggal ang aming kadena. Kinausap kami ni Donald. Tinanong
kami kung ano ang sabi ni Manuel sa amin. Sabi ni Donald huwag
na raw naming hanapin ang dalawang babae at si Manuel, dahil
magkakasama na yung tatlo. Sabi pa ni Donald na kami ni Reynaldo
ay magbagong buhay at ituloy namin ni Reynaldo ang trabaho. Sa
gabi, hindi na kami kinakadena.43
On or about June 13, 2007, Raymond and Reynaldo were brought
to Pangasinan, ostensibly to raise poultry for Donald (Caigas).
Caigas told respondents to also farm his land, in exchange for
which, he would take care of the food of their family. They were also
told that they could farm a small plot adjoining his land and sell their
produce. They were no longer put in chains and were instructed to
use the names Rommel (for Raymond) and Rod (for Reynaldo) and
represent themselves as cousins from Rizal, Laguna.44
Respondents started to plan their escape. They could see the
highway from where they stayed. They helped farm adjoining lands
for which they were paid Php200.00 or Php400.00 and they saved
their earnings. When they had saved Php1,000.00 each, Raymond
asked a neighbor how he could get a cellular phone as he wanted
to exchange text messages with a girl who lived nearby. A phone
was pawned to him, but he kept it first and did not use it. They
earned some more until they had saved Php1,400.00 between
them.
There were four houses in the compound. Raymond and Reynaldo
were housed in one of them while their guards lived in the other
three. Caigas entrusted respondents to Nonong, the head of the
guards. Respondents' house did not have electricity. They used a
lamp. There was no television, but they had a radio. In the evening
of August 13, 2007, Nonong and his cohorts had a drinking session.
At about 1:00 a.m., Raymond turned up the volume of the radio.
When none of the guards awoke and took notice, Raymond and
Reynaldo proceeded towards the highway, leaving behind their
sleeping guards and barking dogs. They boarded a bus bound for
Manila and were thus freed from captivity.45
Reynaldo also executed an affidavit affirming the contents of
Raymond's affidavit insofar as they related to matters they
witnessed together. Reynaldo added that when they were taken
from their house on February 14, 2006, he saw the faces of his
abductors before he was blindfolded with his shirt. He also named
the soldiers he got acquainted with in the 18 months he was
detained. When Raymond attempted to escape from Fort
Magsaysay, Reynaldo was severely beaten up and told that they
were indeed members of the NPA because Raymond escaped. With
a .45 caliber pistol, Reynaldo was hit on the back and punched in
the face until he could no longer bear the pain.
At one point during their detention, when Raymond and Reynaldo
were in Sapang, Reynaldo was separated from Raymond and
brought to Pinaud by Rizal Hilario. He was kept in the house of
CONSTI LAW II I ACJUCO 577
Kapitan, a friend of Hilario, in a mountainous area. He was
instructed to use the name "Rodel" and to represent himself as a
military trainee from Meycauayan, Bulacan. Sometimes, Hilario
brought along Reynaldo in his trips. One time, he was brought to a
market in San Jose, del Monte, Bulacan and made to wait in the
vehicle while Hilario was buying. He was also brought to Tondo,
Manila where Hilario delivered boxes of "Alive" in different houses.
In these trips, Hilario drove a black and red vehicle. Reynaldo was
blindfolded while still in Bulacan, but allowed to remove the blindfold
once outside the province. In one of their trips, they passed by Fort
Magsaysay and Camp Tecson where Reynaldo saw the sign board,
"Welcome to Camp Tecson."46
Dr. Benito Molino, M.D., corroborated the accounts of respondents
Raymond and Reynaldo Manalo. Dr. Molino specialized in forensic
medicine and was connected with the Medical Action Group, an
organization handling cases of human rights violations, particularly
cases where torture was involved. He was requested by an NGO to
conduct medical examinations on the respondents after their
escape. He first asked them about their ordeal, then proceeded with
the physical examination. His findings showed that the scars borne
by respondents were consistent with their account of physical
injuries inflicted upon them. The examination was conducted on
August 15, 2007, two days after respondents' escape, and the
results thereof were reduced into writing. Dr. Molino took
photographs of the scars. He testified that he followed the Istanbul
Protocol in conducting the examination.47
Petitioners dispute respondents' account of their alleged abduction
and torture. In compliance with the October 25, 2007 Resolution of
the Court, they filed a Return of the Writ of Amparo admitting the
abduction but denying any involvement therein, viz:
13. Petitioners Raymond and Reynaldo Manalo were not at any time
arrested, forcibly abducted, detained, held incommunicado,
disappeared or under the custody by the military. This is a settled
issue laid to rest in the habeas corpus case filed in their behalf by
petitioners' parents before the Court of Appeals in C.A.-G.R. SP No.
94431 against M/Sgt. Rizal Hilario aka Rollie Castillo, as head of the
24th Infantry Battalion; Maj. Gen. Jovito Palparan, as Commander
of the 7th Infantry Division in Luzon; Lt. Gen. Hermogenes Esperon,
in his capacity as the Commanding General of the Philippine Army,
and members of the Citizens Armed Forces Geographical Unit
(CAFGU), namely: Michael dela Cruz, Puti dela Cruz, Madning dela
Cruz, Pula dela Cruz, Randy Mendoza and Rudy Mendoza. The
respondents therein submitted a return of the writ... On July 4, 2006,
the Court of Appeals dropped as party respondents Lt. Gen.
Hermogenes C. Esperon, Jr., then Commanding General of the
Philippine Army, and on September 19, 2006, Maj. (sic) Jovito S.
Palparan, then Commanding General, 7th Infantry Division,
Philippine Army, stationed at Fort Magsaysay, Palayan City, Nueva
Ecija, upon a finding that no evidence was introduced to establish
their personal involvement in the taking of the Manalo brothers. In a
Decision dated June 27, 2007..., it exonerated M/Sgt. Rizal Hilario
aka Rollie Castillo for lack of evidence establishing his involvement
in any capacity in the disappearance of the Manalo brothers,
although it held that the remaining respondents were illegally
detaining the Manalo brothers and ordered them to release the
latter.48
Attached to the Return of the Writ was the affidavit of therein
respondent (herein petitioner) Secretary of National Defense, which
attested that he assumed office only on August 8, 2007 and was
thus unaware of the Manalo brothers' alleged abduction. He also
claimed that:
7. The Secretary of National Defense does not engage in actual
military directional operations, neither does he undertake command
directions of the AFP units in the field, nor in any way micromanage
the AFP operations. The principal responsibility of the Secretary of
National Defense is focused in providing strategic policy direction to

the Department (bureaus and agencies) including the Armed Forces
of the Philippines;
8. In connection with the Writ of Amparo issued by the Honorable
Supreme Court in this case, I have directed the Chief of Staff, AFP
to institute immediate action in compliance with Section 9(d) of the
Amparo Rule and to submit report of such compliance... Likewise,
in a Memorandum Directive also dated October 31, 2007, I have
issued a policy directive addressed to the Chief of Staff, AFP that
the AFP should adopt the following rules of action in the event the
Writ of Amparo is issued by a competent court against any members
of the AFP:
(1) to verify the identity of the aggrieved party;
(2) to recover and preserve evidence related to the death or
disappearance of the person identified in the petition which may aid
in the prosecution of the person or persons responsible;
(3) to identify witnesses and obtain statements from them
concerning the death or disappearance;
(4) to 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;
(5) to identify and apprehend the person or persons involved in the
death or disappearance; and
(6) to bring the suspected offenders before a competent court.49
Therein respondent AFP Chief of Staff also submitted his own
affidavit, attached to the Return of the Writ, attesting that he
received the above directive of therein respondent Secretary of
National Defense and that acting on this directive, he did the
following:
3.1. As currently designated Chief of Staff, Armed Forces of the
Philippines (AFP), I have caused to be issued directive to the units
of the AFP for the purpose of establishing the circumstances of the
alleged disappearance and the recent reappearance of the
petitioners.
3.2. I have caused the immediate investigation and submission of
the result thereof to Higher headquarters and/or direct the
immediate conduct of the investigation on the matter by the
concerned unit/s, dispatching Radio Message on November 05,
2007, addressed to the Commanding General, Philippine Army
(Info: COMNOLCOM, CG, 71D PA and CO 24 IB PA). A Copy of the
Radio Message is attached as ANNEX "3" of this Affidavit.
3.3. We undertake to provide result of the investigations conducted
or to be conducted by the concerned unit relative to the
circumstances of the alleged disappearance of the persons in
whose favor the Writ of Amparo has been sought for as soon as the
same has been furnished Higher headquarters.
3.4. A parallel investigation has been directed to the same units
relative to another Petition for the Writ of Amparo (G.R. No. 179994)
filed at the instance of relatives of a certain Cadapan and Empeño
pending before the Supreme Court.
3.5. On the part of the Armed Forces, this respondent will exert
earnest efforts to establish the surrounding circumstances of the
disappearances of the petitioners and to bring those responsible,
including any military personnel if shown to have participated or had
complicity in the commission of the complained acts, to the bar of
justice, when warranted by the findings and the competent evidence
that may be gathered in the process.50
CONSTI LAW II I ACJUCO 578
Also attached to the Return of the Writ was the affidavit of Lt. Col.
Felipe Anontado, INF (GSC) PA, earlier filed in G.R. No. 179994,
another Amparo case in this Court, involving Cadapan, Empeño and
Merino, which averred among others, viz:
10) Upon reading the allegations in the Petition implicating the 24th
Infantry Batallion detachment as detention area, I immediately went
to the 24th IB detachment in Limay, Bataan and found no untoward
incidents in the area nor any detainees by the name of Sherlyn
Cadapan, Karen Empeño and Manuel Merino being held captive;
11) There was neither any reports of any death of Manuel Merino in
the 24th IB in Limay, Bataan;
12) After going to the 24th IB in Limay, Bataan, we made further
inquiries with the Philippine National Police, Limay, Bataan
regarding the alleged detentions or deaths and were informed that
none was reported to their good office;
13) I also directed Company Commander 1st Lt. Romeo Publico to
inquire into the alleged beachhouse in Iba, Zambales also alleged
to be a detention place where Sherlyn Cadapan, Karen Empeño and
Manuel Merino were detained. As per the inquiry, however, no such
beachhouse was used as a detention place found to have been
used by armed men to detain Cadapan, Empeño and Merino.51
It was explained in the Return of the Writ that for lack of sufficient
time, the affidavits of Maj. Gen Jovito S. Palparan (Ret.), M/Sgt.
Rizal Hilario aka Rollie Castillo, and other persons implicated by
therein petitioners could not be secured in time for the submission
of the Return and would be subsequently submitted.52
Herein petitioners presented a lone witness in the summary
hearings, Lt. Col. Ruben U. Jimenez, Provost Marshall, 7th Infantry
Division, Philippine Army, based in Fort Magsaysay, Palayan City,
Nueva Ecija. The territorial jurisdiction of this Division covers Nueva
Ecija, Aurora, Bataan, Bulacan, Pampanga, Tarlac and a portion of
Pangasinan.53 The 24th Infantry Battalion is part of the 7th Infantry
Division.54
On May 26, 2006, Lt. Col. Jimenez was directed by the
Commanding General of the 7th Infantry Division, Maj. Gen. Jovito
Palaran,55 through his Assistant Chief of Staff,56 to investigate the
alleged abduction of the respondents by CAFGU auxiliaries under
his unit, namely: CAA Michael de la Cruz; CAA Roman de la Cruz,
aka Puti; CAA Maximo de la Cruz, aka Pula; CAA Randy Mendoza;
ex-CAA Marcelo de la Cruz aka Madning; and a civilian named Rudy
Mendoza. He was directed to determine: (1) the veracity of the
abduction of Raymond and Reynaldo Manalo by the alleged
elements of the CAFGU auxiliaries; and (2) the administrative
liability of said auxiliaries, if any.57 Jimenez testified that this
particular investigation was initiated not by a complaint as was the
usual procedure, but because the Commanding General saw news
about the abduction of the Manalo brothers on the television, and
he was concerned about what was happening within his territorial
jurisdiction.58
Jimenez summoned all six implicated persons for the purpose of
having them execute sworn statements and conducting an
investigation on May 29, 2006.59 The investigation started at 8:00
in the morning and finished at 10:00 in the evening.60 The
investigating officer, Technical Sgt. Eduardo Lingad, took the
individual sworn statements of all six persons on that day. There
were no other sworn statements taken, not even of the Manalo
family, nor were there other witnesses summoned and
investigated61 as according to Jimenez, the directive to him was
only to investigate the six persons.62
Jimenez was beside Lingad when the latter took the statements.63
The six persons were not known to Jimenez as it was in fact his first
time to meet them.64 During the entire time that he was beside

Lingad, a subordinate of his in the Office of the Provost Marshall,
Jimenez did not propound a single question to the six persons.65
Jimenez testified that all six statements were taken on May 29,
2006, but Marcelo Mendoza and Rudy Mendoza had to come back
the next day to sign their statements as the printing of their
statements was interrupted by a power failure. Jimenez testified that
the two signed on May 30, 2006, but the jurats of their statements
indicated that they were signed on May 29, 2006.66 When the
Sworn Statements were turned over to Jimenez, he personally
wrote his investigation report. He began writing it in the afternoon of
May 30, 2006 and finished it on June 1, 2006.67 He then gave his
report to the Office of the Chief of Personnel.68
As petitioners largely rely on Jimenez's Investigation Report dated
June 1, 2006 for their evidence, the report is herein substantially
quoted:
III. BACKGROUND OF THE CASE
4. This pertains to the abduction of RAYMOND MANALO and
REYNALDO MANALO who were forcibly taken from their respective
homes in Brgy. Buhol na Mangga, San Ildefonso, Bulacan on 14
February 2006 by unidentified armed men and thereafter were
forcibly disappeared. After the said incident, relatives of the victims
filed a case for Abduction in the civil court against the herein
suspects: Michael dela Cruz, Madning dela Cruz, Puti Dela Cruz,
Pula Dela Cruz, Randy Mendoza and Rudy Mendoza as alleged
members of the Citizen Armed Forces Geographical Unit (CAFGU).
a) Sworn statement of CAA Maximo F. dela Cruz, aka Pula dated
29 May 2006 in (Exhibit "B") states that he was at Sitio Mozon, Brgy.
Bohol na Mangga, San Ildefonso, Bulacan doing the concrete
building of a church located nearby his residence, together with
some neighbor thereat. He claims that on 15 February 2006, he was
being informed by Brgy. Kagawad Pablo Umayan about the
abduction of the brothers Raymond and Reynaldo Manalo. As to the
allegation that he was one of the suspects, he claims that they only
implicated him because he was a CAFGU and that they claimed that
those who abducted the Manalo brothers are members of the
Military and CAFGU. Subject vehemently denied any participation
or involvement on the abduction of said victims.
b) Sworn statement of CAA Roman dela Cruz y Faustino Aka Puti
dtd 29 May 2006 in (Exhibit "C") states that he is a resident of Sitio
Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan and a CAA
member based at Biak na Bato Detachment, San Miguel, Bulacan.
He claims that Raymond and Reynaldo Manalo being his neighbors
are active members/sympathizers of the CPP/NPA and he also
knows their elder Rolando Manalo @ KA BESTRE of being an NPA
Leader operating in their province. That at the time of the alleged
abduction of the two (2) brothers and for accusing him to be one of
the suspects, he claims that on February 14, 2006, he was one of
those working at the concrete chapel being constructed nearby his
residence. He claims further that he just came only to know about
the incident on other day (15 Feb 06) when he was being informed
by Kagawad Pablo Kunanan. That subject CAA vehemently denied
any participation about the incident and claimed that they only
implicated him because he is a member of the CAFGU.
c) Sworn Statement of CAA Randy Mendoza y Lingas dated 29 May
2006 in (Exhibit "O") states that he is a resident of Brgy. Buhol na
Mangga, San Ildefonso, Bulacan and a member of CAFGU based
at Biak na Bato Detachment. That being a neighbor, he was very
much aware about the background of the two (2) brothers Raymond
and Reynaldo as active supporters of the CPP NPA in their Brgy.
and he also knew their elder brother "KUMANDER BESTRE" TN:
Rolando Manalo. Being one of the accused, he claims that on 14
February 2006, he was at Brgy. Magmarate, San Miguel, Bulacan
in the house of his aunt and he learned only about the incident when
he arrived home in their place. He claims further that the only reason
CONSTI LAW II I ACJUCO 579
why they implicated him was due to the fact that his mother has filed
a criminal charge against their brother Rolando Manalo @ KA
BESTRE who is an NPA Commander who killed his father and for
that reason they implicated him in support of their brother. Subject
CAA vehemently denied any involvement on the abduction of said
Manalo brothers.
d) Sworn Statement of Rudy Mendoza y Lingasa dated May 29,
2006 in (Exhibit "E") states that he is a resident of Brgy. Marungko,
Angat, Bulacan. He claims that Raymond and Reynaldo Manalo are
familiar to him being his barriomate when he was still unmarried and
he knew them since childhood. Being one of the accused, he claims
that on 14 February 2006, he was at his residence in Brgy.
Marungko, Angat, Bulacan. He claims that he was being informed
only about the incident lately and he was not aware of any reason
why the two (2) brothers were being abducted by alleged members
of the military and CAFGU. The only reason he knows why they
implicated him was because there are those people who are angry
with their family particularly victims of summary execution (killing)
done by their brother @ KA Bestre Rolando Manalo who is an NPA
leader. He claims further that it was their brother @ KA BESTRE
who killed his father and he was living witness to that incident.
Subject civilian vehemently denied any involvement on the
abduction of the Manalo brothers.
e) Sworn statement of Ex-CAA Marcelo dala Cruz dated 29 May
2006 in (Exhibit "F") states that he is a resident of Sitio Muzon, Brgy.
Buhol na Mangga, San Ildefonso, Bulacan, a farmer and a former
CAA based at Biak na Bato, San Miguel, Bulacan. He claims that
Raymond and Reynaldo Manalo are familiar to him being their barrio
mate. He claims further that they are active supporters of CPP/NPA
and that their brother Rolando Manalo @ KA BESTRE is an NPA
leader. Being one of the accused, he claims that on 14 February
2006, he was in his residence at Sitio Muzon, Brgy. Buhol na
Mangga, San Ildefonso, Bulacan. That he vehemently denied any
participation of the alleged abduction of the two (2) brothers and
learned only about the incident when rumors reached him by his
barrio mates. He claims that his implication is merely fabricated
because of his relationship to Roman and Maximo who are his
brothers.
f) Sworn statement of Michael dela Cruz y Faustino dated 29 May
2006 in (Exhibit "G") states that he is a resident of Sitio Muzon, Brgy.
Buhol na Mangga, San Ildefonso, Bulacan, the Chief of Brgy. Tanod
and a CAFGU member based at Biak na Bato Detachment, San
Miguel, Bulacan. He claims that he knew very well the brothers
Raymond and Reynaldo Manalo in their barangay for having been
the Tanod Chief for twenty (20) years. He alleged further that they
are active supporters or sympathizers of the CPP/NPA and whose
elder brother Rolando Manalo @ KA BESTRE is an NPA leader
operating within the area. Being one of the accused, he claims that
on 14 Feb 2006 he was helping in the construction of their concrete
chapel in their place and he learned only about the incident which is
the abduction of Raymond and Reynaldo Manalo when one of the
Brgy. Kagawad in the person of Pablo Cunanan informed him about
the matter. He claims further that he is truly innocent of the
allegation against him as being one of the abductors and he
considers everything fabricated in order to destroy his name that
remains loyal to his service to the government as a CAA member.
IV. DISCUSSION
5. Based on the foregoing statements of respondents in this
particular case, the proof of linking them to the alleged abduction
and disappearance of Raymond and Reynaldo Manalo that
transpired on 14 February 2006 at Sitio Muzon, Brgy. Buhol na
Mangga, San Ildefonso, Bulacan, is unsubstantiated. Their alleged
involvement theretofore to that incident is considered doubtful,
hence, no basis to indict them as charged in this investigation.

Though there are previous grudges between each families (sic) in
the past to quote: the killing of the father of Randy and Rudy
Mendoza by @ KA BESTRE TN: Rolando Manalo, this will not
suffice to establish a fact that they were the ones who did the
abduction as a form of revenge. As it was also stated in the
testimony of other accused claiming that the Manalos are active
sympathizers/supporters of the CPP/NPA, this would not also mean,
however, that in the first place, they were in connivance with the
abductors. Being their neighbors and as members of CAFGU's, they
ought to be vigilant in protecting their village from any intervention
by the leftist group, hence inside their village, they were fully aware
of the activities of Raymond and Reynaldo Manalo in so far as their
connection with the CPP/NPA is concerned.
V. CONCLUSION
6. Premises considered surrounding this case shows that the
alleged charges of abduction committed by the above named
respondents has not been established in this investigation. Hence,
it lacks merit to indict them for any administrative punishment and/or
criminal liability. It is therefore concluded that they are innocent of
the charge.
VI. RECOMMENDATIONS
7. That CAAs Michael F. dela Cruz, Maximo F. Dela Cruz, Roman
dela Cruz, Randy Mendoza, and two (2) civilians Maximo F. Dela
Cruz and Rudy L. Mendoza be exonerated from the case.
8. Upon approval, this case can be dropped and closed.69
In this appeal under Rule 45, petitioners question the appellate
court's assessment of the foregoing evidence and assail the
December 26, 2007 Decision on the following grounds, viz:
I.
THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY
ERRED IN BELIEVING AND GIVING FULL FAITH AND CREDIT
TO THE INCREDIBLE, UNCORROBORATED, CONTRADICTED,
AND OBVIOUSLY SCRIPTED, REHEARSED AND SELF-
SERVING AFFIDAVIT/TESTIMONY OF HEREIN RESPONDENT
RAYMOND MANALO.
II.
THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY
ERRED IN REQUIRING RESPONDENTS (HEREIN
PETITIONERS) TO: (A) FURNISH TO THE MANALO
BROTHER(S) AND TO THE COURT OF APPEALS ALL OFFICIAL
AND UNOFFICIAL REPORTS OF THE INVESTIGATION
UNDERTAKEN IN CONNECTION WITH THEIR CASE, EXCEPT
THOSE ALREADY IN FILE WITH THE COURT; (B) CONFIRM IN
WRITING THE PRESENT PLACES OF OFFICIAL ASSIGNMENT
OF M/SGT. HILARIO aka ROLLIE CASTILLO AND DONALD
CAIGAS; AND (C) CAUSE TO BE PRODUCED TO THE COURT
OF APPEALS ALL MEDICAL REPORTS, RECORDS AND
CHARTS, AND REPORTS OF ANY TREATMENT GIVEN OR
RECOMMENDED AND MEDICINES PRESCRIBED, IF ANY, TO
THE MANALO BROTHERS, TO INCLUDE A LIST OF MEDICAL
PERSONNEL (MILITARY AND CIVILIAN) WHO ATTENDED TO
THEM FROM FEBRUARY 14, 2006 UNTIL AUGUST 12, 2007.70
The case at bar is the first decision on the application of the Rule on
the Writ of Amparo (Amparo Rule). Let us hearken to its beginning.
The adoption of the Amparo Rule surfaced as a recurring
proposition in the recommendations that resulted from a two-day
National Consultative Summit on Extrajudicial Killings and Enforced
Disappearances sponsored by the Court on July 16-17, 2007. The
Summit was "envisioned to provide a broad and fact-based
CONSTI LAW II I ACJUCO 580
perspective on the issue of extrajudicial killings and enforced
disappearances,"71 hence "representatives from all sides of the
political and social spectrum, as well as all the stakeholders in the
justice system"72 participated in mapping out ways to resolve the
crisis.
On October 24, 2007, the Court promulgated the Amparo Rule "in
light of the prevalence of extralegal killing and enforced
disappearances."73 It was an exercise for the first time of the
Court's expanded power to promulgate rules to protect our people's
constitutional rights, which made its maiden appearance in the 1987
Constitution in response to the Filipino experience of the martial law
regime.74 As the Amparo Rule was intended to address the
intractable problem of "extralegal killings" and "enforced
disappearances," its coverage, in its present form, is confined to
these two instances or to threats thereof. "Extralegal killings" are
"killings committed without due process of law, i.e., without legal
safeguards or judicial proceedings."75 On the other hand, "enforced
disappearances" are "attended by the following characteristics: an
arrest, detention or abduction of a person by a government official
or organized groups or private individuals acting with the direct or
indirect acquiescence of the government; the refusal of the State to
disclose the fate or whereabouts of the person concerned or a
refusal to acknowledge the deprivation of liberty which places such
persons outside the protection of law."76
The writ of Amparo originated in Mexico. "Amparo" literally means
"protection" in Spanish.77 In 1837, de Tocqueville's Democracy in
America became available in Mexico and stirred great interest. Its
description of the practice of judicial review in the U.S. appealed to
many Mexican jurists.78 One of them, Manuel Crescencio Rejón,
drafted a constitutional provision for his native state, Yucatan,79
which granted judges the power to protect all persons in the
enjoyment of their constitutional and legal rights. This idea was
incorporated into the national constitution in 1847, viz:
The federal courts shall protect any inhabitant of the Republic in the
exercise and preservation of those rights granted to him by this
Constitution and by laws enacted pursuant hereto, against attacks
by the Legislative and Executive powers of the federal or state
governments, limiting themselves to granting protection in the
specific case in litigation, making no general declaration concerning
the statute or regulation that motivated the violation.80
Since then, the protection has been an important part of Mexican
constitutionalism.81 If, after hearing, the judge determines that a
constitutional right of the petitioner is being violated, he orders the
official, or the official's superiors, to cease the violation and to take
the necessary measures to restore the petitioner to the full
enjoyment of the right in question. Amparo thus combines the
principles of judicial review derived from the U.S. with the limitations
on judicial power characteristic of the civil law tradition which
prevails in Mexico. It enables courts to enforce the constitution by
protecting individual rights in particular cases, but prevents them
from using this power to make law for the entire nation.82
The writ of Amparo then spread throughout the Western
Hemisphere, gradually evolving into various forms, in response to
the particular needs of each country.83 It became, in the words of a
justice of the Mexican Federal Supreme Court, one piece of
Mexico's self-attributed "task of conveying to the world's legal
heritage that institution which, as a shield of human dignity, her own
painful history conceived."84 What began as a protection against
acts or omissions of public authorities in violation of constitutional
rights later evolved for several purposes: (1) Amparo libertad for the
protection of personal freedom, equivalent to the habeas corpus
writ; (2) Amparo contra leyes for the judicial review of the
constitutionality of statutes; (3) Amparo casacion for the judicial
review of the constitutionality and legality of a judicial decision; (4)
Amparo administrativo for the judicial review of administrative

actions; and (5) Amparo agrario for the protection of peasants' rights
derived from the agrarian reform process.85
In Latin American countries, except Cuba, the writ of Amparo has
been constitutionally adopted to protect against human rights
abuses especially committed in countries under military juntas. In
general, these countries adopted an all-encompassing writ to
protect the whole gamut of constitutional rights, including socio-
economic rights.86 Other countries like Colombia, Chile, Germany
and Spain, however, have chosen to limit the protection of the writ
of Amparo only to some constitutional guarantees or fundamental
rights.87
In the Philippines, while the 1987 Constitution does not explicitly
provide for the writ of Amparo, several of the above Amparo
protections are guaranteed by our charter. The second paragraph
of Article VIII, Section 1 of the 1987 Constitution, the Grave Abuse
Clause, provides for the judicial power "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." The Clause accords a similar general protection
to human rights extended by the Amparo contra leyes, Amparo
casacion, and Amparo administrativo. Amparo libertad is
comparable to the remedy of habeas corpus found in several
provisions of the 1987 Constitution.88 The Clause is an offspring of
the U.S. common law tradition of judicial review, which finds its roots
in the 1803 case of Marbury v. Madison.89
While constitutional rights can be protected under the Grave Abuse
Clause through remedies of injunction or prohibition under Rule 65
of the Rules of Court and a petition for habeas corpus under Rule
102,90 these remedies may not be adequate to address the
pestering problem of extralegal killings and enforced
disappearances. However, with the swiftness required to resolve a
petition for a writ of Amparo through summary proceedings and the
availability of appropriate interim and permanent reliefs under the
Amparo Rule, this hybrid writ of the common law and civil law
traditions - borne out of the Latin American and Philippine
experience of human rights abuses - offers a better remedy to
extralegal killings and enforced disappearances and threats thereof.
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.91
The writ of Amparo serves both preventive and curative roles in
addressing the problem of extralegal killings and enforced
disappearances. It is preventive in that it breaks the expectation of
impunity in the commission of these offenses; it is curative in that it
facilitates the subsequent punishment of perpetrators as it will
inevitably yield leads to subsequent investigation and action. In the
long run, the goal of both the preventive and curative roles is to deter
the further commission of extralegal killings and enforced
disappearances.
In the case at bar, respondents initially filed an action for
"Prohibition, Injunction, and Temporary Restraining Order"92 to
stop petitioners and/or their officers and agents from depriving the
respondents of their right to liberty and other basic rights on August
23, 2007,93 prior to the promulgation of the Amparo Rule. They also
sought ancillary remedies including Protective Custody Orders,
Appointment of Commissioner, Inspection and Access Orders and
other legal and equitable remedies under Article VIII, Section 5(5)
of the 1987 Constitution and Rule 135, Section 6 of the Rules of
Court. When the Amparo Rule came into effect on October 24, 2007,
they moved to have their petition treated as an Amparo petition as
it would be more effective and suitable to the circumstances of the
CONSTI LAW II I ACJUCO 581
Manalo brothers' enforced disappearance. The Court granted their
motion.
With this backdrop, we now come to the arguments of the petitioner.
Petitioners' first argument in disputing the Decision of the Court of
Appeals states, viz:
The Court of Appeals seriously and grievously erred in believing and
giving full faith and credit to the incredible uncorroborated,
contradicted, and obviously scripted, rehearsed and self-serving
affidavit/testimony of herein respondent Raymond Manalo.94
In delving into the veracity of the evidence, we need to mine and
refine the ore of petitioners' cause of action, to determine whether
the evidence presented is metal-strong to satisfy the degree of proof
required.
Section 1 of the Rule on the Writ of Amparo provides for the
following causes of action, viz:
Section 1. Petition. - The petition for a writ of Amparo is a remedy
available to any person whose right to life, liberty and security is
violated or threatened with violation by an unlawful act or omission
of a public official or employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances
or threats thereof. (emphasis supplied)
Sections 17 and 18, on the other hand, provide for the degree of
proof required, viz:
Sec. 17. Burden of Proof and Standard of Diligence Required. - The
parties shall establish their claims by substantial evidence.
xxx xxx xxx
Sec. 18. Judgment. - ... 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. (emphases supplied)
Substantial evidence has been defined as such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.95
After careful perusal of the evidence presented, we affirm the
findings of the Court of Appeals that respondents were abducted
from their houses in Sito Muzon, Brgy. Buhol na Mangga, San
Ildefonso, Bulacan on February 14, 2006 and were continuously
detained until they escaped on August 13, 2007. The abduction,
detention, torture, and escape of the respondents were narrated by
respondent Raymond Manalo in a clear and convincing manner. His
account is dotted with countless candid details of respondents'
harrowing experience and tenacious will to escape, captured
through his different senses and etched in his memory. A few
examples are the following: "Sumilip ako sa isang haligi ng kamalig
at nakita kong sinisilaban si Manuel."96 "(N)ilakasan ng mga
sundalo ang tunog na galing sa istiryo ng sasakyan. Di nagtagal,
narinig ko ang hiyaw o ungol ni Manuel."97 "May naiwang mga
bakas ng dugo habang hinihila nila ang mga bangkay. Naamoy ko
iyon nang nililinis ang bakas."98 "Tumigil ako sa may palaisdaan
kung saan ginamit ko ang bato para tanggalin ang mga kadena."99
"Tinanong ko sa isang kapit-bahay kung paano ako makakakuha ng
cell phone; sabi ko gusto kong i-text ang isang babae na nakatira
sa malapit na lugar."100
We affirm the factual findings of the appellate court, largely based
on respondent Raymond Manalo's affidavit and testimony, viz:
...the abduction was perpetrated by armed men who were
sufficiently identified by the petitioners (herein respondents) to be

military personnel and CAFGU auxiliaries. Raymond recalled that
the six armed men who barged into his house through the rear door
were military men based on their attire of fatigue pants and army
boots, and the CAFGU auxiliaries, namely: Michael de la Cruz,
Madning de la Cruz, Puti de la Cruz and Pula de la Cruz, all
members of the CAFGU and residents of Muzon, San Ildefonso,
Bulacan, and the brothers Randy Mendoza and Rudy Mendoza,
also CAFGU members, served as lookouts during the abduction.
Raymond was sure that three of the six military men were Ganata,
who headed the abducting team, Hilario, who drove the van, and
George. Subsequent incidents of their long captivity, as narrated by
the petitioners, validated their assertion of the participation of the
elements of the 7th Infantry Division, Philippine Army, and their
CAFGU auxiliaries.
We are convinced, too, that the reason for the abduction was the
suspicion that the petitioners were either members or sympathizers
of the NPA, considering that the abductors were looking for Ka
Bestre, who turned out to be Rolando, the brother of petitioners.
The efforts exerted by the Military Command to look into the
abduction were, at best, merely superficial. The investigation of the
Provost Marshall of the 7th Infantry Division focused on the one-
sided version of the CAFGU auxiliaries involved. This one-
sidedness might be due to the fact that the Provost Marshall could
delve only into the participation of military personnel, but even then
the Provost Marshall should have refrained from outrightly
exculpating the CAFGU auxiliaries he perfunctorily investigated...
Gen. Palparan's participation in the abduction was also established.
At the very least, he was aware of the petitioners' captivity at the
hands of men in uniform assigned to his command. In fact, he or
any other officer tendered no controversion to the firm claim of
Raymond that he (Gen. Palparan) met them in person in a
safehouse in Bulacan and told them what he wanted them and their
parents to do or not to be doing. Gen. Palparan's direct and personal
role in the abduction might not have been shown but his knowledge
of the dire situation of the petitioners during their long captivity at
the hands of military personnel under his command bespoke of his
indubitable command policy that unavoidably encouraged and not
merely tolerated the abduction of civilians without due process of
law and without probable cause.
In the habeas proceedings, the Court, through the Former Special
Sixth Division (Justices Buzon, chairman; Santiago-Lagman, Sr.,
member; and Romilla-Lontok, Jr., member/ponente.) found no clear
and convincing evidence to establish that M/Sgt. Rizal Hilario had
anything to do with the abduction or the detention. Hilario's
involvement could not, indeed, be then established after Evangeline
Francisco, who allegedly saw Hilario drive the van in which the
petitioners were boarded and ferried following the abduction, did not
testify. (See the decision of the habeas proceedings at rollo, p. 52)
However, in this case, Raymond attested that Hilario drove the white
L-300 van in which the petitioners were brought away from their
houses on February 14, 2006. Raymond also attested that Hilario
participated in subsequent incidents during the captivity of the
petitioners, one of which was when Hilario fetched them from Fort
Magsaysay on board a Revo and conveyed them to a detachment
in Pinaud, San Ildefonso, Bulacan where they were detained for at
least a week in a house of strong materials (Exhibit D, rollo, p. 205)
and then Hilario (along with Efren) brought them to Sapang, San
Miguel, Bulacan on board the Revo, to an unfinished house inside
the compound of Kapitan where they were kept for more or less
three months. (Exhibit D, rollo, p. 205) It was there where the
petitioners came face to face with Gen. Palparan. Hilario and Efren
also brought the petitioners one early morning to the house of the
petitioners' parents, where only Raymond was presented to the
parents to relay the message from Gen. Palparan not to join
anymore rallies. On that occasion, Hilario warned the parents that
they would not again see their sons should they join any rallies to
CONSTI LAW II I ACJUCO 582
denounce human rights violations. (Exhibit D, rollo, pp. 205-206)
Hilario was also among four Master Sergeants (the others being
Arman, Ganata and Cabalse) with whom Gen. Palparan conversed
on the occasion when Gen. Palparan required Raymond to take the
medicines for his health. (Exhibit D, rollo, p. 206) There were other
occasions when the petitioners saw that Hilario had a direct hand in
their torture.
It is clear, therefore, that the participation of Hilario in the abduction
and forced disappearance of the petitioners was established. The
participation of other military personnel like Arman, Ganata,
Cabalse and Caigas, among others, was similarly established.
xxx xxx xxx
As to the CAFGU auxiliaries, the habeas Court found them
personally involved in the abduction. We also do, for, indeed, the
evidence of their participation is overwhelming.101
We reject the claim of petitioners that respondent Raymond
Manalo's statements were not corroborated by other independent
and credible pieces of evidence.102 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,103 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,"104 firms up respondents' story that they were
detained for some time in said military facility.
In Ortiz v. Guatemala,105 a case decided by the Inter-American
Commission on Human Rights, the Commission considered similar
evidence, among others, in finding that complainant Sister Diana
Ortiz was abducted and tortured by agents of the Guatemalan
government. In this case, Sister Ortiz was kidnapped and tortured
in early November 1989. The Commission's findings of fact were
mostly based on the consistent and credible statements, written and
oral, made by Sister Ortiz regarding her ordeal.106 These
statements were supported by her recognition of portions of the
route they took when she was being driven out of the military
installation where she was detained.107 She was also examined by
a medical doctor whose findings showed that the 111 circular
second degree burns on her back and abrasions on her cheek
coincided with her account of cigarette burning and torture she
suffered while in detention.108
With the secret nature of an enforced disappearance and the torture
perpetrated on the victim during detention, it logically holds that
much of the information and evidence of the ordeal will come from
the victims themselves, and the veracity of their account will depend
on their credibility and candidness in their written and/or oral
statements. Their statements can be corroborated by other
evidence such as physical evidence left by the torture they suffered
or landmarks they can identify in the places where they were
detained. Where powerful military officers are implicated, the
hesitation of witnesses to surface and testify against them comes
as no surprise.
We now come to the right of the respondents to the privilege of the
writ of Amparo. There is no quarrel that the enforced disappearance
of both respondents Raymond and Reynaldo Manalo has now
passed as they have escaped from captivity and surfaced. But while
respondents admit that they are no longer in detention and are
physically free, they assert that they are not "free in every sense of
the word"109 as their "movements continue to be restricted for fear
that people they have named in their Judicial Affidavits and testified
against (in the case of Raymond) are still at large and have not been
held accountable in any way. These people are directly connected

to the Armed Forces of the Philippines and are, thus, in a position
to threaten respondents' rights to life, liberty and security."110
(emphasis supplied) Respondents claim that they are under threat
of being once again abducted, kept captive or even killed, which
constitute a direct violation of their right to security of person.111
Elaborating on the "right to security, in general," respondents point
out that this right is "often associated with liberty;" it is also seen as
an "expansion of rights based on the prohibition against torture and
cruel and unusual punishment." Conceding that there is no right to
security expressly mentioned in Article III of the 1987 Constitution,
they submit that their rights "to be kept free from torture and from
incommunicado detention and solitary detention places112 fall
under the general coverage of the right to security of person under
the writ of Amparo." They submit that the Court ought to give an
expansive recognition of the right to security of person in view of the
State Policy under Article II of the 1987 Constitution which
enunciates that, "The State values the dignity of every human
person and guarantees full respect for human rights." Finally, to
justify a liberal interpretation of the right to security of person,
respondents cite the teaching in Moncupa v. Enrile113 that "the right
to liberty may be made more meaningful only if there is no undue
restraint by the State on the exercise of that liberty"114 such as a
requirement to "report under unreasonable restrictions that
amounted to a deprivation of liberty"115 or being put under
"monitoring and surveillance."116
In sum, respondents assert that their cause of action consists in the
threat to their right to life and liberty, and a violation of their right to
security.
Let us put this right to security under the lens to determine if it has
indeed been violated as respondents assert. The right to security or
the right to security of person finds a textual hook in Article III,
Section 2 of the 1987 Constitution which provides, viz:
Sec. 2. The right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge...
At the core of this guarantee is the immunity of one's person,
including the extensions of his/her person - houses, papers, and
effects - against government intrusion. Section 2 not only limits the
state's power over a person's home and possessions, but more
importantly, protects the privacy and sanctity of the person
himself.117 The purpose of this provision was enunciated by the
Court in People v. CFI of Rizal, Branch IX, Quezon City, viz: 118
The purpose of the constitutional guarantee against unreasonable
searches and seizures is to prevent violations of private security in
person and property and unlawful invasion of the security of the
home by officers of the law acting under legislative or judicial
sanction and to give remedy against such usurpation when
attempted. (Adams v. New York, 192 U.S. 858; Alvero v. Dizon, 76
Phil. 637 [1946]). The right to privacy is an essential condition to the
dignity and happiness and to the peace and security of every
individual, whether it be of home or of persons and correspondence.
(Tañada and Carreon, Political Law of the Philippines, Vol. 2, 139
[1962]). The constitutional inviolability of this great fundamental right
against unreasonable searches and seizures must be deemed
absolute as nothing is closer to a man's soul than the serenity of his
privacy and the assurance of his personal security. Any interference
allowable can only be for the best causes and reasons.119
(emphases supplied)
While the right to life under Article III, Section 1120 guarantees
essentially the right to be alive121 - upon which the enjoyment of all
other rights is preconditioned - the right to security of person is a
guarantee of the secure quality of this life, viz: "The life to which
CONSTI LAW II I ACJUCO 583
each person has a right is not a life lived in fear that his person and
property may be unreasonably violated by a powerful ruler. Rather,
it is a life lived with the assurance that the government he
established and consented to, will protect the security of his person
and property. The ideal of security in life and property... pervades
the whole history of man. It touches every aspect of man's
existence."122 In a broad sense, the right to security of person
"emanates in a person's legal and uninterrupted enjoyment of his
life, his limbs, his body, his health, and his reputation. It includes the
right to exist, and the right to enjoyment of life while existing, and it
is invaded not only by a deprivation of life but also of those things
which are necessary to the enjoyment of life according to the nature,
temperament, and lawful desires of the individual."123
A closer look at the right to security of person would yield various
permutations of the exercise of this right.
First, the right to security of person is "freedom from fear." In its
"whereas" clauses, the Universal Declaration of Human Rights
(UDHR) enunciates that "a world in which human beings shall enjoy
freedom of speech and belief and freedom from fear and want has
been proclaimed as the highest aspiration of the common people."
(emphasis supplied) Some scholars postulate that "freedom from
fear" is not only an aspirational principle, but essentially an
individual international human right.124 It is the "right to security of
person" as the word "security" itself means "freedom from fear."125
Article 3 of the UDHR provides, viz:
Everyone has the right to life, liberty and security of person.126
(emphasis supplied)
In furtherance of this right declared in the UDHR, Article 9(1) of the
International Covenant on Civil and Political Rights (ICCPR) also
provides for the right to security of person, viz:
1. Everyone has the right to liberty and security of person. No one
shall be subjected to arbitrary arrest or detention. No one shall be
deprived of his liberty except on such grounds and in accordance
with such procedure as are established by law. (emphasis supplied)
The Philippines is a signatory to both the UDHR and the ICCPR.
In the context of Section 1 of the Amparo Rule, "freedom from fear"
is the right and any threat to the rights to life, liberty or security is
the actionable wrong. Fear is a state of mind, a reaction; threat is a
stimulus, a cause of action. Fear caused by the same stimulus can
range from being baseless to well-founded as people react
differently. The degree of fear can vary from one person to another
with the variation of the prolificacy of their imagination, strength of
character or past experience with the stimulus. Thus, in the Amparo
context, it is more correct to say that the "right to security" is actually
the "freedom from threat." Viewed in this light, the "threatened with
violation" Clause in the latter part of Section 1 of the Amparo Rule
is a form of violation of the right to security mentioned in the earlier
part of the provision.127
Second, the right to security of person is a guarantee of bodily and
psychological integrity or security. Article III, Section II of the 1987
Constitution guarantees that, as a general rule, one's body cannot
be searched or invaded without a search warrant.128 Physical
injuries inflicted in the context of extralegal killings and enforced
disappearances constitute more than a search or invasion of the
body. It may constitute dismemberment, physical disabilities, and
painful physical intrusion. As the degree of physical injury increases,
the danger to life itself escalates. Notably, in criminal law, physical
injuries constitute a crime against persons because they are an
affront to the bodily integrity or security of a person.129
Physical torture, force, and violence are a severe invasion of bodily
integrity. When employed to vitiate the free will such as to force the
victim to admit, reveal or fabricate incriminating information, it

constitutes an invasion of both bodily and psychological integrity as
the dignity of the human person includes the exercise of free will.
Article III, Section 12 of the 1987 Constitution more specifically
proscribes bodily and psychological invasion, viz:
(2) No torture, force, violence, threat or intimidation, or any other
means which vitiate the free will shall be used against him (any
person under investigation for the commission of an offense). Secret
detention places, solitary, incommunicado or other similar forms of
detention are prohibited.
Parenthetically, under this provision, threat and intimidation that
vitiate the free will - although not involving invasion of bodily integrity
- nevertheless constitute a violation of the right to security in the
sense of "freedom from threat" as afore-discussed.
Article III, Section 12 guarantees freedom from dehumanizing
abuses of persons under investigation for the commission of an
offense. Victims of enforced disappearances who are not even
under such investigation should all the more be protected from
these degradations.
An overture to an interpretation of the right to security of person as
a right against torture was made by the European Court of Human
Rights (ECHR) in the recent case of Popov v. Russia.130 In this
case, the claimant, who was lawfully detained, alleged that the state
authorities had physically abused him in prison, thereby violating his
right to security of person. Article 5(1) of the European Convention
on Human Rights provides, viz: "Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure
prescribed by law ..." (emphases supplied) Article 3, on the other
hand, provides that "(n)o one shall be subjected to torture or to
inhuman or degrading treatment or punishment." Although the
application failed on the facts as the alleged ill-treatment was found
baseless, the ECHR relied heavily on the concept of security in
holding, viz:
...the applicant did not bring his allegations to the attention of
domestic authorities at the time when they could reasonably have
been expected to take measures in order to ensure his security and
to investigate the circumstances in question.
xxx xxx xxx
... the authorities failed to ensure his security in custody or to comply
with the procedural obligation under Art.3 to conduct an effective
investigation into his allegations.131 (emphasis supplied)
The U.N. Committee on the Elimination of Discrimination against
Women has also made a statement that the protection of the bodily
integrity of women may also be related to the right to security and
liberty, viz:
...gender-based violence which impairs or nullifies the enjoyment by
women of human rights and fundamental freedoms under general
international law or under specific human rights conventions is
discrimination within the meaning of article 1 of the Convention (on
the Elimination of All Forms of Discrimination Against Women).
These rights and freedoms include . . . the right to liberty and
security of person.132
Third, the right to security of person is a guarantee of protection of
one's rights by the government. In the context of the writ of Amparo,
this right is built into the guarantees of the right to life and liberty
under Article III, Section 1 of the 1987 Constitution and the right to
security of person (as freedom from threat and guarantee of bodily
and psychological integrity) under Article III, Section 2. The right to
security of person in this third sense is a corollary of the policy that
the State "guarantees full respect for human rights" under Article II,
Section 11 of the 1987 Constitution.133 As the government is the
CONSTI LAW II I ACJUCO 584
chief guarantor of order and security, the Constitutional guarantee
of the rights to life, liberty and security of person is rendered
ineffective if government does not afford protection to these rights
especially when they are under threat. Protection includes
conducting effective investigations, organization of the government
apparatus to extend protection to victims of extralegal killings or
enforced disappearances (or threats thereof) and/or their families,
and bringing offenders to the bar of justice. The Inter-American
Court of Human Rights stressed the importance of investigation in
the Velasquez Rodriguez Case,134 viz:
(The duty to investigate) must be undertaken in a serious manner
and not as a mere formality preordained to be ineffective. An
investigation must have an objective and be assumed by the State
as its own legal duty, not as a step taken by private interests that
depends upon the initiative of the victim or his family or upon their
offer of proof, without an effective search for the truth by the
government.135
This third sense of the right to security of person as a guarantee of
government protection has been interpreted by the United Nations'
Human Rights Committee136 in not a few cases involving Article
9137 of the ICCPR. While the right to security of person appears in
conjunction with the right to liberty under Article 9, the Committee
has ruled that the right to security of person can exist independently
of the right to liberty. In other words, there need not necessarily be
a deprivation of liberty for the right to security of person to be
invoked. In Delgado Paez v. Colombia,138 a case involving death
threats to a religion teacher at a secondary school in Leticia,
Colombia, whose social views differed from those of the Apostolic
Prefect of Leticia, the Committee held, viz:
The first sentence of article 9 does not stand as a separate
paragraph. Its location as a part of paragraph one could lead to the
view that the right to security arises only in the context of arrest and
detention. The travaux préparatoires indicate that the discussions of
the first sentence did indeed focus on matters dealt with in the other
provisions of article 9. The Universal Declaration of Human Rights,
in article 3, refers to the right to life, the right to liberty and the right
to security of the person. These elements have been dealt with in
separate clauses in the Covenant. Although in the Covenant the
only reference to the right of security of person is to be found in
article 9, there is no evidence that it was intended to narrow the
concept of the right to security only to situations of formal deprivation
of liberty. At the same time, States parties have undertaken to
guarantee the rights enshrined in the Covenant. It cannot be the
case that, as a matter of law, States can ignore known threats to the
life of persons under their jurisdiction, just because that he or she is
not arrested or otherwise detained. States parties are under an
obligation to take reasonable and appropriate measures to protect
them. An interpretation of article 9 which would allow a State party
to ignore threats to the personal security of non-detained persons
within its jurisdiction would render totally ineffective the guarantees
of the Covenant.139 (emphasis supplied)
The Paez ruling was reiterated in Bwalya v. Zambia,140 which
involved a political activist and prisoner of conscience who
continued to be intimidated, harassed, and restricted in his
movements following his release from detention. In a catena of
cases, the ruling of the Committee was of a similar import:
Bahamonde v. Equatorial Guinea,141 involving discrimination,
intimidation and persecution of opponents of the ruling party in that
state; Tshishimbi v. Zaire,142 involving the abduction of the
complainant's husband who was a supporter of democratic reform
in Zaire; Dias v. Angola,143 involving the murder of the
complainant's partner and the harassment he (complainant)
suffered because of his investigation of the murder; and Chongwe
v. Zambia,144 involving an assassination attempt on the chairman
of an opposition alliance.

Similarly, the European Court of Human Rights (ECHR) has
interpreted the "right to security" not only as prohibiting the State
from arbitrarily depriving liberty, but imposing a positive duty on the
State to afford protection of the right to liberty.145 The ECHR
interpreted the "right to security of person" under Article 5(1) of the
European Convention of Human Rights in the leading case on
disappearance of persons, Kurt v. Turkey.146 In this case, the
claimant's son had been arrested by state authorities and had not
been seen since. The family's requests for information and
investigation regarding his whereabouts proved futile. The claimant
suggested that this was a violation of her son's right to security of
person. The ECHR ruled, viz:
... any deprivation of liberty must not only have been effected in
conformity with the substantive and procedural rules of national law
but must equally be in keeping with the very purpose of Article 5,
namely to protect the individual from arbitrariness... Having
assumed control over that individual it is incumbent on the
authorities to account for his or her whereabouts. For this reason,
Article 5 must be seen as requiring the authorities to take effective
measures to safeguard against the risk of disappearance and to
conduct a prompt effective investigation into an arguable claim that
a person has been taken into custody and has not been seen
since.147 (emphasis supplied)
Applying the foregoing concept of the right to security of person to
the case at bar, we now determine whether there is a continuing
violation of respondents' right to security.
First, the violation of the right to security as freedom from threat to
respondents' life, liberty and security.
While respondents were detained, they were threatened that if they
escaped, their families, including them, would be killed. In
Raymond's narration, he was tortured and poured with gasoline
after he was caught the first time he attempted to escape from Fort
Magsaysay. A call from a certain "Mam," who wanted to see him
before he was killed, spared him.
This time, respondents have finally escaped. The condition of the
threat to be killed has come to pass. It should be stressed that they
are now free from captivity not because they were released by virtue
of a lawful order or voluntarily freed by their abductors. It ought to
be recalled that towards the end of their ordeal, sometime in June
2007 when respondents were detained in a camp in Limay, Bataan,
respondents' captors even told them that they were still deciding
whether they should be executed. Respondent Raymond Manalo
attested in his affidavit, viz:
Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena
mga 3 o 4 na araw pagkalipas. Sinabi sa amin na kaya kami
nakakadena ay dahil pinagdedesisyunan pa ng mga sundalo kung
papatayin kami o hindi.148
The possibility of respondents being executed stared them in the
eye while they were in detention. With their escape, this continuing
threat to their life is apparent, moreso now that they have surfaced
and implicated specific officers in the military not only in their own
abduction and torture, but also in those of other persons known to
have disappeared such as Sherlyn Cadapan, Karen Empeño, and
Manuel Merino, among others.
Understandably, since their escape, respondents have been under
concealment and protection by private citizens because of the threat
to their life, liberty and security. The threat vitiates their free will as
they are forced to limit their movements or activities.149 Precisely
because respondents are being shielded from the perpetrators of
their abduction, they cannot be expected to show evidence of overt
acts of threat such as face-to-face intimidation or written threats to
their life, liberty and security. Nonetheless, the circumstances of
respondents' abduction, detention, torture and escape reasonably
CONSTI LAW II I ACJUCO 585
support a conclusion that there is an apparent threat that they will
again be abducted, tortured, and this time, even executed. These
constitute threats to their liberty, security, and life, actionable
through a petition for a writ of Amparo.
Next, the violation of the right to security as protection by the
government. Apart from the failure of military elements to provide
protection to respondents by themselves perpetrating the abduction,
detention, and torture, they also miserably failed in conducting an
effective investigation of respondents' abduction as revealed by the
testimony and investigation report of petitioners' own witness, Lt.
Col. Ruben Jimenez, Provost Marshall of the 7th Infantry Division.
The one-day investigation conducted by Jimenez was very limited,
superficial, and one-sided. He merely relied on the Sworn
Statements of the six implicated members of the CAFGU and
civilians whom he met in the investigation for the first time. He was
present at the investigation when his subordinate Lingad was taking
the sworn statements, but he did not propound a single question to
ascertain the veracity of their statements or their credibility. He did
not call for other witnesses to test the alibis given by the six
implicated persons nor for the family or neighbors of the
respondents.
In his affidavit, petitioner Secretary of National Defense attested that
in a Memorandum Directive dated October 31, 2007, he issued a
policy directive addressed to the AFP Chief of Staff, that the AFP
should adopt rules of action in the event the writ of Amparo is issued
by a competent court against any members of the AFP, which
should essentially include verification of the identity of the aggrieved
party; recovery and preservation of relevant evidence; identification
of witnesses and securing statements from them; determination of
the cause, manner, location and time of death or disappearance;
identification and apprehension of the person or persons involved in
the death or disappearance; and bringing of the suspected
offenders before a competent court.150 Petitioner AFP Chief of
Staff also submitted his own affidavit attesting that he received the
above directive of respondent Secretary of National Defense and
that acting on this directive, he immediately caused to be issued a
directive to the units of the AFP for the purpose of establishing the
circumstances of the alleged disappearance and the recent
reappearance of the respondents, and undertook to provide results
of the investigations to respondents.151 To this day, however,
almost a year after the policy directive was issued by petitioner
Secretary of National Defense on October 31, 2007, respondents
have not been furnished the results of the investigation which they
now seek through the instant petition for a writ of Amparo.
Under these circumstances, there is substantial evidence to warrant
the conclusion that there is a violation of respondents' right to
security as a guarantee of protection by the government.
In sum, we conclude that respondents' right to security as "freedom
from threat" is violated by the apparent threat to their life, liberty and
security of person. Their right to security as a guarantee of
protection by the government is likewise violated by the ineffective
investigation and protection on the part of the military.
Finally, we come to the reliefs granted by the Court of Appeals,
which petitioners question.
First, that petitioners furnish respondents all official and unofficial
reports of the investigation undertaken in connection with their case,
except those already in file with the court.
Second, that petitioners confirm in writing the present places of
official assignment of M/Sgt. Hilario aka Rollie Castillo and Donald
Caigas.
Third, that petitioners cause to be produced to the Court of Appeals
all medical reports, records and charts, and reports of any treatment
 CONSTI LAW II I ACJUCO 586

given or recommended and medicines prescribed, if any, to the
Manalo brothers, to include a list of medical personnel (military and
civilian) who attended to them from February 14, 2006 until August
12, 2007.
With respect to the first and second reliefs, petitioners argue that the
production order sought by respondents partakes of the
characteristics of a search warrant. Thus, they claim that the
requisites for the issuance of a search warrant must be complied
with prior to the grant of the production order, namely: (1) the
application must be under oath or affirmation; (2) the search warrant
must particularly describe the place to be searched and the things
to be seized; (3) there exists probable cause with one specific
offense; and (4) the probable cause must be personally determined
by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce.152 In the case at
bar, however, petitioners point out that other than the bare, self-
serving and vague allegations made by respondent Raymond
Manalo in his unverified declaration and affidavit, the documents
respondents seek to be produced are only mentioned generally by
name, with no other supporting details. They also argue that the
relevancy of the documents to be produced must be apparent, but
this is not true in the present case as the involvement of petitioners
in the abduction has not been shown.
Petitioners' arguments do not hold water. The production order
under the Amparo Rule should not be confused with a search
warrant for law enforcement under Article III, Section 2 of the 1987
Constitution. This Constitutional provision is a protection of the
people from the unreasonable intrusion of the government, not a
protection of the government from the demand of the people such
as respondents.
exercise of official functions and duties of military officers and even
unwittingly and unnecessarily expose them to threat of personal
injury or even death.
On the contrary, the disclosure of the present places of assignment
of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas, whom
respondents both directly implicated as perpetrators behind their
abduction and detention, is relevant in ensuring the safety of
respondents by avoiding their areas of territorial jurisdiction. Such
disclosure would also help ensure that these military officers can be
served with notices and court processes in relation to any
investigation and action for violation of the respondents' rights. The
list of medical personnel is also relevant in securing information to
create the medical history of respondents and make appropriate
medical interventions, when applicable and necessary.
In blatant violation of our hard-won guarantees to life, liberty and
security, these rights are snuffed out from victims of extralegal
killings and enforced disappearances. The writ of Amparo is a tool
that gives voice to preys of silent guns and prisoners behind secret
walls.
WHEREFORE, premises considered, the petition is DISMISSED.
The Decision of the Court of Appeals dated December 26, 2007 is
affirmed.
SO ORDERED.

Instead, the Amparo production order may be likened to the

production of documents or things under Section 1, Rule 27 of the
Rules of Civil Procedure which provides in relevant part, viz:

Section 1. Motion for production or inspection order.

Upon motion of any party showing good cause therefor, the court in
which an action is pending may (a) order any party to produce and
permit the inspection and copying or photographing, by or on behalf
of the moving party, of any designated documents, papers, books
of accounts, letters, photographs, objects or tangible things, not
privileged, which constitute or contain evidence material to any
matter involved in the action and which are in his possession,
custody or control...

In Material Distributors (Phil.) Inc. v. Judge Natividad,153 the

respondent judge, under authority of Rule 27, issued a subpoena
duces tecum for the production and inspection of among others, the
books and papers of Material Distributors (Phil.) Inc. The company
questioned the issuance of the subpoena on the ground that it
violated the search and seizure clause. The Court struck down the
argument and held that the subpoena pertained to a civil procedure
that "cannot be identified or confused with unreasonable searches
prohibited by the Constitution..."

Moreover, in his affidavit, petitioner AFP Chief of Staff himself

undertook "to provide results of the investigations conducted or to
be conducted by the concerned unit relative to the circumstances of
the alleged disappearance of the persons in whose favor the Writ of
Amparo has been sought for as soon as the same has been
furnished Higher headquarters."

With respect to the second and third reliefs, petitioners assert that
the disclosure of the present places of assignment of M/Sgt. Hilario
aka Rollie Castillo and Donald Caigas, as well as the submission of
a list of medical personnel, is irrelevant, improper, immaterial, and
unnecessary in the resolution of the petition for a writ of Amparo.
They add that it will unnecessarily compromise and jeopardize the

G.R. Nos. 184379-80 April 24, 2012
RODOLFO NOEL LOZADA, JR., VIOLETA LOZADA and
ARTURO LOZADA, Petitioners,
vs.
PRESIDENT GLORIA MACAPAGAL ARROYO, EDUARDO
ERMITA, AVELINO RAZON, ANGEL ATUTUBO and SPO4
ROGER VALEROSO,* Respondents.
DECISION
SERENO, J.:
What the Court decides today has nothing to do with the substance
or merits surrounding the aborted deal of the Philippine government
with the National Broadband Network and ZTE Corporation, or any
allegation of petitioner Rodolfo Noel "June" Lozada, Jr., (Lozada)
regarding the same. There is only one issue that we decide today –
whether circumstances are adequately alleged and proven by
petitioner Lozada to entitle him to the protection of the writ of
amparo. Before us is a Petition for Review on Certiorari of the
Decision dated 12 September 2008 of the Court of Appeals (CA),
dismissing the Petition for the Issuance of a Writ of Amparo.1
Petitioner Lozada was the former President and Chief Executive
Officer of the Philippine Forest Corporation (PFC), a government-
owned- and -controlled corporation under the Department of
Environment and Natural Resources (DENR).2 Petitioner Violeta
Lozada (Violeta) is his wife, while petitioner Arturo Lozada (Arturo)
is his brother.
At the time the Petition for the Writ of Amparo was filed, respondent
former President Gloria Macapagal Arroyo (former President
Arroyo) was the incumbent President of the Philippines. Meanwhile,
Eduardo Ermita (ES Ermita) was then the Executive Secretary;
Avelino Razon (Razon), the Director General of the Philippine
National Police (PNP); Angel Atutubo (Atutubo), the Assistant
General Manager for Security and Emergency Services of the
Manila International Airport Authority; and Rodolfo Valeroso
(Valeroso), an agent of the Aviation Security Group (ASG) of the
PNP.
Antecedent Facts
The instant Petition stems from the alleged corruption scandal
precipitated by a transaction between the Philippine government,
represented by the National Broadband Network (NBN), and ZTE
Corporation (ZTE), a Chinese manufacturer of telecommunications
equipment.3 Former National Economic Development Authority
(NEDA) Secretary Romulo Neri (Sec. Neri) sought the services of
Lozada as an unofficial consultant in the ZTE-NBN deal.4 The latter
avers that during the course of his engagement, he discovered
several anomalies in the said transaction involving certain public
officials.5 These events impelled the Senate of the Philippines Blue
Ribbon Committee (Blue Ribbon Committee) to conduct an
investigation thereon,6 for which it issued a subpoena directing
Lozada to appear and testify on 30 January 2008.7
On that date, instead of appearing before the Blue Ribbon
Committee, Lozada left the country for a purported official trip to
London, as announced by then DENR Secretary Lito Atienza (Sec.
Atienza).8 In the Petition, Lozada alleged that his failure to appear
at the scheduled hearing was upon the instructions of then
Executive Assistant Undersecretary Manuel Gaite (Usec. Gaite).9
Consequently, the Senate issued an Order dated 30 January 2008:
(a) citing Lozada for contempt; (b) ordering his arrest and detention;
and (c) directing the Senate Sergeant-at-Arms to implement the
Order and make a return thereon.10
While overseas, Lozada asked Sec. Atienza whether the former
could be allowed to go back to the Philippines.11 Upon the approval
CONSTI LAW II I ACJUCO 587
of Sec. Atienza, Lozada informed his family that he was returning
from Hong Kong on 5 February 2008 on board Cathay Pacific Flight
No. 919, bound to arrive in Manila at 4:40 p.m. on the same day.12
In the Petition, Lozada claims that, upon disembarking from the
aircraft, several men held his arms and took his bag. Although he
allegedly insisted on meeting with his family, he later realized that it
was wiser to just follow them, especially when he overheard from
their handheld radio: "[H]wag kayong dumaan diyan sir nandyan
ang mga taga senado."13
Lozada asked if he could go to the comfort room, an opportunity he
used to call up his brother, petitioner Arturo, and inform him of his
situation.14 The men thereafter led him through the departure area
of the airport and into a car waiting for them.15 They made him sit
alone at the back of the vehicle, while a man, whom he later
discovered to be respondent Valeroso, took the passenger seat and
was always in contact with other individuals.16 Lozada observed
that other cars tailed their vehicle.17
Sec. Atienza then phoned Lozada, assuring the latter that he was
with people from the government, and that the former was going to
confer with "ES and Ma’[a]m." Lozada surmised that these
individuals referred to ES Ermita and former President Arroyo,
respectively.18 Sec. Atienza also purportedly instructed Lozada to
pacify his wife, petitioner Violeta, who was making public statements
asking for her husband’s return.19
The vehicle traversed the South Luzon Expressway and drove
towards the direction of Laguna.20 Along the way, the men asked
Lozada to draft an antedated letter requesting police protection.21
Lozada requested that he be brought home to Pasig, but the men
were allegedly compelled to deny his request on account of
unidentified security risks.22 Eventually, however, the vehicle
turned around and drove to Libis, Quezon City. The group stopped
at The Outback restaurant to meet with certain individuals, who
turned out to be Atty. Antonio Bautista (Atty. Bautista) and Colonel
Paul Mascarinas (Col. Mascarinas) of the Police Special Protection
Office (PSPO). At the restaurant, Lozada claimed that he was made
to fill in the blanks of a prepared affidavit.23
After the meeting, the men informed Lozada that they were going to
billet him in a hotel for a night, but he suggested that they take him
to La Salle Green Hills instead. The men acquiesced.24
Upon arriving in La Salle Green Hills, Lozada was met by Violeta
and his sister, Carmen Lozada (Carmen).25 He observed that the
perimeter was guarded by policemen, purportedly restraining his
liberty and threatening not only his security, but also that of his
family and the De La Salle brothers.26
On 6 February 2008, at around 10:00 a.m., Col. Mascarinas
supposedly brought Lozada to the office of Atty. Bautista to finalize
and sign an affidavit.27
At about 1:00 p.m., Violeta filed before this Court a Petition for
Habeas Corpus, docketed as G.R. No. 181342 (the Habeas Corpus
case).28 Arturo likewise filed before this Court a Petition for a Writ
of Amparo, docketed as G.R. No. 181356 (the Amparo case), and
prayed for the issuance of (a) the writ of amparo; (b) a Temporary
Protection Order (TPO); and (c) Inspection and Production Orders
as regards documents related to the authority ordering custody over
Lozada, as well as any other document that would show
responsibility for his alleged abduction.29
At around the same time that Arturo filed the Petition for a Writ of
Amparo, Col. Mascarinas drove Lozada back to La Salle Green
Hills.30 Lozada was then made to sign a typewritten, antedated
letter requesting police protection.31 Thereafter, former Presidential
Spokesperson Michael Defensor (Sec. Defensor) supposedly came

and requested Lozada to refute reports that the latter was
kidnapped and to deny knowledge of alleged anomalies in the NBN-
ZTE deal. Sec. Defensor then purportedly gave Lozada ₱50,000 for
the latter’s expenses.32
On 7 February 2008, Lozada decided to hold a press conference
and contact the Senate Sergeant-at-Arms, who served the warrant
of arrest on him.33 Lozada claimed that after his press conference
and testimony in the Senate, he and his family were since then
harassed, stalked and threatened.34
On the same day, this Court issued a Resolution (a) consolidating
the Habeas Corpus case and the Amparo case; (b) requiring
respondents in the Habeas Corpus case to comment on the Petition;
(c) issuing a Writ of Amparo; (d) ordering respondents in the Amparo
case to file their verified Return; (e) referring the consolidated
Petitions to the CA; and (f) directing the CA to set the cases for
hearing on 14 February 2008.35 Accordingly, the court a quo set
both cases for hearing on 14 February 2008.36
On 12 February 2008, respondents filed before the CA a
Manifestation and Motion, praying for the dismissal of the Habeas
Corpus case.37 They asserted that Lozada was never illegally
deprived of his liberty and was, at that time, no longer in their
custody. They likewise averred that, beginning 8 February 2008,
Lozada had already been under the supervision of the Senate and,
from then on, had been testifying before it.38
In their verified Return, respondents claimed that Sec. Atienza had
arranged for the provision of a security team to be assigned to
Lozada, who was then fearful for his safety.39 In effect, respondents
asserted that Lozada had knowledge and control of the events that
took place on 5 February 2008, voluntarily entrusted himself to their
company, and was never deprived of his liberty. Hence,
respondents prayed for the denial of the interim reliefs and the
dismissal of the Petition.40
During the initial hearing on 14 February 2008, Lozada and Violeta
ratified the Petition in the Amparo case41 to comply with Section 2
of the Rule on the Writ of Amparo,42 which imposes an order to be
followed by those who can sue for the writ.43 The CA also dismissed
the Habeas Corpus case in open court for being moot and
academic, as Lozada was physically present and was not confined
or detained by any of the respondents.44 Considering that
petitioners failed to question the dismissal of the Habeas Corpus
case, the said dismissal had lapsed into finality, leaving only the
Amparo case open for disposition.
Thereafter, Lozada filed a Motion for Temporary Protection Order
and Production of Documents,45 while Arturo filed a Motion for
Production of Documents.46 Additionally, Arturo also filed a Motion
for the Issuance of Subpoena Ad Testificandum and Presentation of
Hostile Witnesses and Adverse Parties Romulo Neri, Benjamin
Abalos, [Sr.], Rodolfo Valeroso, "Jaime" the Driver and Other
Respondents. Respondents opposed these motions.47 The CA
denied the Motion for the Issuance of Subpoena on the ground that
the alleged acts and statements attributed to Sec. Neri and
Benjamin Abalos (Abalos) were irrelevant to the Amparo case, and
that to require them to testify would only result in a fishing
expedition.48 The CA likewise denied Arturo’s subsequent Motion
for Reconsideration.49
In its Resolution dated 5 March 2008, the CA dropped former
President Arroyo as a respondent on the ground that at the time the
Petition in the Amparo case was filed, she was still the incumbent
President enjoying immunity from suit.50 Arturo filed a Motion for
Reconsideration,51 which the CA denied in its Resolution dated 25
March 2008.52
On 12 September 2008, the CA rendered its Decision denying
petitioners the privilege of the Writ of Amparo and dismissing the
CONSTI LAW II I ACJUCO 588
Petition.53 The CA found that petitioners were unable to prove
through substantial evidence that respondents violated, or
threatened with violation, the right to life, liberty and security of
Lozada.
Petitioners thus filed the instant Petition, praying for: (a) the reversal
of the assailed CA Decision; (b) the issuance of the TPO; and (c)
the accreditation of the Association of Major Religious Superiors of
the Philippines and the De La Salle Brothers as the sanctuaries of
Lozada and his family.54 In the alternative, petitioners pray that this
Court remand the case to the CA for further hearings and reverse
the latter’s Orders: (a) denying the Motion to Issue a Subpoena Ad
Testificandum and (b) dropping former President Arroyo as a
respondent. Petitioners raise the following issues:
(1) Whether the Court a [q]uo erred in ruling to dismiss the petition
for a writ of amparo and deny Petitioners’ prayer for a Temporary
Protection Order, inter alia, because there is no substantial
evidence to prove that the right to life, liberty or security of Jun
Lozada was violated or threatened with violation. This rule is not in
accord with the rule on the writ of amparo and Supreme Court
jurisprudence on substantial evidence[.]
(2) Whether the Ponencia erred and gravely abused its discretion
by prematurely ruling that the testimony of witnesses which
Petitioners sought to present and who are subject of the Motion for
Issuance of Subpoena ad testificandum were irrelevant to the
Petition for a Writ of Amparo in a way not in accord with the Rules
of Court and Supreme Court decisions.
(3) Whether the Court a quo erred in using and considering the
affidavits of respondents in coming up with the questioned decision
when these were not offered as evidence and were not subjected to
cross-examination. This ruling is not in accord with the Rules of
Court and jurisprudence.
(4) Whether the Court a [q]uo erred in dropping as respondent Pres.
Gloria Arroyo despite her failure to submit a verified return and
personally claim presidential immunity in a way not in accord with
the Rule on the Writ of Amparo.55
The Office of the Solicitor General (OSG) asserts that petitioners
failed to adduce substantial evidence, as the allegations they
propounded in support of their Petition were largely hearsay.56 The
OSG also maintains that it was proper for the CA to have dropped
former President Arroyo as respondent on account of her
presidential immunity from suit.57
Respondent Atutubo also alleges, among others, that: (a) Lozada
voluntarily asked for security and protection; (b) Lozada willingly
submitted himself to the company of the police escorts; (c) Atutubo
merely accompanied him to pass through the contingency route
customarily provided to VIP passengers, public figures, foreign
dignitaries, and the like; and (d) Atutubo only performed his job to
ensure security and maintain order at the airport upon the arrival of
Lozada.58
In the face of these assertions by respondents, petitioners
nevertheless insist that while they have sufficiently established that
Lozada was taken against his will and was put under restraint,
respondents have failed to discharge their own burden to prove that
they exercised extraordinary diligence as public officials.59
Petitioners also maintain that it was erroneous for the CA to have
denied their motion for subpoena ad testificandum for being
irrelevant, given that the relevancy of evidence must be examined
after it is offered, and not before.60 Finally, petitioners contend that
the presidential immunity from suit cannot be invoked in amparo
actions.61
Issues

In ruling on whether the CA committed reversible error in issuing its
assailed Decision, three issues must be discussed:
I. Whether the CA committed an error in dropping former President
Arroyo as a respondent in the Amparo case.
II. Whether the CA committed an error in denying petitioners’ Motion
for the Issuance of a Subpoena Ad Testificandum.
III. Whether petitioners should be granted the privilege of the writ of
amparo.
Discussion
The writ of amparo is an independent and summary remedy that
provides rapid judicial relief to protect the people’s right to life, liberty
and security.62 Having been originally intended as a response to
the alarming cases of extrajudicial killings and enforced
disappearances in the country, it serves both preventive and
curative roles to address the said human rights violations. It is
preventive in that it breaks the expectation of impunity in the
commission of these offenses, and it is curative in that it facilitates
the subsequent punishment of perpetrators by inevitably leading to
subsequent investigation and action.63
As it stands, the writ of amparo is confined only to cases of
extrajudicial killings and enforced disappearances, or to threats
thereof.64 Considering that this remedy is aimed at addressing
these serious violations of or threats to the right to life, liberty and
security, it cannot be issued on amorphous and uncertain
grounds,65 or in cases where the alleged threat has ceased and is
no longer imminent or continuing.66 Instead, it must be granted
judiciously so as not to dilute the extraordinary and remedial
character of the writ, thus:
The privilege of the writ of amparo is envisioned basically to protect
and guarantee the rights to life, liberty, and security of persons, free
from fears and threats that vitiate the quality of this life. It is an
extraordinary writ conceptualized and adopted in light of and in
response to the prevalence of extra-legal killings and enforced
disappearances. Accordingly, the remedy ought to be resorted to
and granted judiciously, lest the ideal sought by the Amparo Rule
be diluted and undermined by the indiscriminate filing of amparo
petitions for purposes less than the desire to secure amparo reliefs
and protection and/or on the basis of unsubstantiated allegations.67
(Emphasis supplied.)
Using this perspective as the working framework for evaluating the
assailed CA decision and the evidence adduced by the parties, this
Court denies the Petition.
First issue: Presidential immunity from suit
It is settled in jurisprudence that the President enjoys immunity from
suit during his or her tenure of office or actual incumbency.68
Conversely, this presidential privilege of immunity cannot be
invoked by a non-sitting president even for acts committed during
his or her tenure.69
In the case at bar, the events that gave rise to the present action,
as well as the filing of the original Petition and the issuance of the
CA Decision, occurred during the incumbency of former President
Arroyo. In that respect, it was proper for the court a quo to have
dropped her as a respondent on account of her presidential
immunity from suit.
It must be underscored, however, that since her tenure of office has
already ended, former President Arroyo can no longer invoke the
privilege of presidential immunity as a defense to evade judicial
determination of her responsibility or accountability for the alleged
CONSTI LAW II I ACJUCO 589
violation or threatened violation of the right to life, liberty and security
of Lozada.
Nonetheless, examining the merits of the case still results in the
denial of the Petition on the issue of former President Arroyo’s
alleged responsibility or accountability. A thorough examination of
the allegations postulated and the evidence adduced by petitioners
reveals their failure to sufficiently establish any unlawful act or
omission on her part that violated, or threatened with violation, the
right to life, liberty and security of Lozada. Except for the bare claims
that: (a) Sec. Atienza mentioned a certain "Ma’[a]m,"70 whom
Lozada speculated to have referred to her, and (b) Sec. Defensor
told Lozada that "the President was ‘hurting’ from all the media
frenzy,"71 there is nothing in the records that would sufficiently
establish the link of former President Arroyo to the events that
transpired on 5-6 February 2010, as well as to the subsequent
threats that Lozada and his family purportedly received.
Second issue: Denial of the issuance of a subpoena ad
testificandum
This Court, in Roco v. Contreras,72 ruled that for a subpoena to
issue, it must first appear that the person or documents sought to
be presented are prima facie relevant to the issue subject of the
controversy, to wit:
A subpoena is a process directed to a person requiring him to attend
and to testify at the hearing or trial of an action or at any investigation
conducted under the laws of the Philippines, or for the taking of his
deposition.
In this jurisdiction, there are two (2) kinds of subpoena, to wit:
subpoena ad testificandum and subpoena duces tecum. The first is
used to compel a person to testify, while the second is used to
compel the production of books, records, things or documents
therein specified. As characterized in H.C. Liebenow vs. The
Philippine Vegetable Oil Company:
The subpoena duces tecum is, in all respects, like the ordinary
subpoena ad testificandum with the exception that it concludes with
an injunction that the witness shall bring with him and produce at
the examination the books, documents, or things described in the
subpoena.
Well-settled is the rule that before a subpoena duces tecum may
issue, the court must first be satisfied that the following requisites
are present: (1) the books, documents or other things requested
must appear prima facie relevant to the issue subject of the
controversy (test of relevancy); and (2) such books must be
reasonably described by the parties to be readily identified (test of
definiteness).73 (Emphasis supplied.)
In the present case, the CA correctly denied petitioners’ Motion for
the Issuance of Subpoena Ad Testificandum on the ground that the
testimonies of the witnesses sought to be presented during trial
were prima facie irrelevant to the issues of the case. The court a
quo aptly ruled in this manner:
The alleged acts and statements attributed by the petitioner to Neri
and Abalos are not relevant to the instant Amparo Petition where
the issue involved is whether or not Lozada’s right to life, liberty and
security was threatened or continues to be threatened with violation
by the unlawful act/s of the respondents. Evidence, to be relevant,
must have such a relation to the fact in issue as to induce belief in
its existence or nonexistence. Further, Neri, Abalos and a certain
driver "Jaime" are not respondents in this Amparo Petition and the
vague allegations averred in the Motion with respect to them do not
pass the test of relevancy. To Our mind, petitioner appears to be
embarking on a "fishing expedition". Petitioner should present the
aggrieved party [Lozada], who has been regularly attending the
hearings, to prove the allegations in the Amparo Petition, instead of

dragging the names of other people into the picture. We have
repeatedly reminded the parties, in the course of the proceedings,
that the instant Amparo Petition does not involve the investigation
of the ZTE-[NBN] contract. Petitioner should focus on the fact in
issue and not embroil this Court into said ZTE-NBN contract, which
is now being investigated by the Senate Blue Ribbon Committee
and the Office of the Ombudsman.74 (Emphasis supplied.)
All the references of petitioners to either Sec. Neri or Abalos were
solely with respect to the ZTE-NBN deal, and not to the events that
transpired on 5-6 February 2008, or to the ensuing threats that
petitioners purportedly received. Although the present action is
rooted from the involvement of Lozada in the said government
transaction, the testimonies of Sec. Neri or Abalos are nevertheless
not prima facie relevant to the main issue of whether there was an
unlawful act or omission on the part of respondents that violated the
right to life, liberty and security of Lozada. Thus, the CA did not
commit any reversible error in denying the Motion for the Issuance
of Subpoena Ad Testificandum.
Third issue: Grant of the privilege of the writ of amparo
A. Alleged violation of or threat to the right to life, liberty and security
of Lozada
Sections 17 and 18 of the Rule on the Writ of Amparo requires the
parties to establish their claims by substantial evidence,75 or such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.76 The use of this evidentiary threshold
reveals the clear intent of the framers of the Rule on the Writ of
Amparo to have the equivalent of an administrative proceeding,
albeit judicially conducted, in addressing amparo situations.77
In cases where the violation of the right to life, liberty or security has
already ceased, it is necessary for the petitioner in an amparo action
to prove the existence of a continuing threat.78 Thus, this Court held
in its Resolution in Razon v. Tagitis:79
Manalo is different from Tagitis in terms of their factual settings, as
enforced disappearance was no longer a problem in that case. The
enforced disappearance of the brothers Raymond and Reynaldo
Manalo effectively ended when they escaped from captivity and
surfaced, while Tagitis is still nowhere to be found and remains
missing more than two years after his reported disappearance. An
Amparo situation subsisted in Manalo, however, because of the
continuing threat to the brothers’ right to security; the brothers
claimed that since the persons responsible for their enforced
disappearance were still at large and had not been held
accountable, the former were still under the threat of being once
again abducted, kept captive or even killed, which threat constituted
a direct violation of their right to security of person.80 (Emphasis
supplied.)
In the present case, the totality of the evidence adduced by
petitioners failed to meet the threshold of substantial evidence.
Sifting through all the evidence and allegations presented, the crux
of the case boils down to assessing the veracity and credibility of
the parties’ diverging claims as to what actually transpired on 5-6
February 2008. In this regard, this Court is in agreement with the
factual findings of the CA to the extent that Lozada was not illegally
deprived of his liberty from the point when he disembarked from the
aircraft up to the time he was led to the departure area of the
airport,81 as he voluntarily submitted himself to the custody of
respondents:
[Lozada] was one of the first few passengers to get off the plane
because he was instructed by Secretary Atienza, th[r]ough a phone
call on the night of 04 February 2008, while he was still in Hong
Kong, to proceed directly to the Bureau of Immigration so that few
people would notice him and he could be facilitated in going out of
the airport without any hassle from the people of the Senate
CONSTI LAW II I ACJUCO 590
Sergeant-at-Arms. Again, [Lozada] stated that he wanted to get
away from the Senate people. [Lozada] even went to the men’s
room of the airport, after he was allegedly "grabbed", where he
made a call to his brother Arturo, using his Globe phone, and he
was not prevented from making said call, and was simply advised
by the person who met him at the tube to (sic) "sir, bilisan mo na".
When they proceeded out of the tube and while walking, [Lozada]
heard from the radio track down, "wag kayo dyan, sir, nandyan yong
mga taga Senado", so they took a detour and went up to the
departure area, did not go out of the normal arrival area, and
proceeded towards the elevator near the Duty Free Shop and then
down towards the tarmac. Since [Lozada] was avoiding the people
from the Office of the Senate Sergeant-at-Arms, said detour
appears to explain why they did not get out at the arrival area, where
[Lozada] could have passed through immigration so that his
passport could be properly stamped.
This Court does not find any evidence on record that [Lozada]
struggled or made an outcry for help when he was allegedly
"grabbed" or "abducted" at the airport. [Lozada] even testified that
nobody held him, and they were not hostile to him nor shouted at
him. With noon day clarity, this Court finds that the reason why
[Lozada] was fetched at the airport was to help him avoid the Senate
contingent, who would arrest and detain him at the Office of the
Senate Sergeant-at-Arms, until such time that he would appear and
give his testimony, pursuant to the Order of the Senate on the NBN-
ZTE Project. [Lozada] clearly knew this because at that time, it was
still his decision not to testify before the Senate. He agreed with that
plan.82 (Emphases supplied.)
The foregoing statements show that Lozada personally sought the
help of Sec. Atienza to avoid the Senate personnel, and thus knew
that the men who met him at the airport were there to aid him in such
objective. Surely, the actions of Lozada evinced knowledge and
voluntariness, uncharacteristic of someone who claims to have
been forcibly abducted.
However, these men’s subsequent acts of directing Lozada to board
the vehicle and driving him around, without disclosing the exact
purpose thereof, appear to be beyond what he had consented to
and requested from Sec. Atienza. These men neither informed him
of where he was being transported nor provided him complete
liberty to contact his family members to assure them of his safety.
These acts demonstrated that he lacked absolute control over the
situation, as well as an effective capacity to challenge their
instructions.
Nevertheless, it must be emphasized that if Lozada had in fact been
illegally restrained, so much so that his right to liberty and security
had been violated, the acts that manifested this restraint had already
ceased and has consequently rendered the grant of the privilege of
the writ of amparo moot. Whether or not Lozada was deprived of his
liberty from the point when he was led inside the vehicle waiting for
him at the airport up to the time he was taken to La Salle Green
Hills, petitioners’ assertions that Lozada and his family continue to
suffer various threats from respondents remain unproven. The CA
correctly found as follows:
The supposed announcement of General Razon over the radio that
[Lozada] was in the custody of the PNP can neither be construed as
a threat to [Lozada’s] life, liberty and security. Certainly, no person
in his right mind would make that kind of media announcement if his
intent was indeed to threaten somebody’s life, liberty and security.
xxx xxx xxx
He claims that he is threatened by the alleged presence of armed
men riding in motorcycle passing outside the De La Salle premises
where he and his family are staying and by alleged threats of armed
men around him at places where he went to. Again, these alleged

threats were not proven by any evidence at all, as having originated
from any of the respondents.
[Lozada] also considers the installation of the surveillance camera
at the De La Salle and at St. Scholastica as indirect threat to his
right to life, liberty and security. He claims that these are spy
cameras. However, save for [Lozada’s] self-serving claim, he simply
failed to prove that they were installed or ordered installed by the
respondents for the purpose of threatening his right to life, liberty
and security.
[Lozada] further maintains that there is an alleged trend, i.e.,
wherever he goes, there is a bomb threat. There were bomb threats
in the places where he went to like in [the Polytechnic University of
the Philippines], Dagupan, Cebu and Bohol. However, [Lozada]
himself testified that he did not try to ascertain where the bomb
threats emanated. Plainly, there is no evidence on record that the
bomb threats were made by the respondents or done upon their
instigation.
Moreover, [Lozada] views the pronouncement of the Secretary of
Justice that he was put on the watch list of the Bureau of Immigration
as a threat to his life, liberty and security. This alleged threat is again
unsupported by evidence, as in fact, [Lozada] testified that he did
not ascertain from the Bureau of Immigration whether his name was
actually in the official watch list of the Bureau. At any rate, the
Secretary of Justice is not one of the respondents in the amparo
petition, and there is no showing in the record that it was the
respondents who ordered the same for the purpose of threatening
him.
[Lozada] harps on the filing of alleged frivolous cases against him
and his family as threat to his life, liberty and security. xxx However,
[Lozada] himself testified that he does not know whether the
respondents or any of the respondents ordered the filing of these
cases against him. In any event, said purported cases are to be
determined based on their own merits and are clearly beyond the
realm of the instant amparo petition filed against the respondents.83
(Emphasis supplied.)
Finally, petitioners insist that while they were able to sufficiently
establish their case by the required evidentiary standard,
respondents failed to discharge their burden to prove their defenses
by substantial evidence and to show that respondents exercised
extraordinary diligence as required by the Rule on the Writ of
Amparo.84 This Court has squarely passed upon this contention in
Yano v. Sanchez,85 to wit:
The failure to establish that the public official observed extraordinary
diligence in the performance of duty does not result in the automatic
grant of the privilege of the amparo writ. It does not relieve the
petitioner from establishing his or her claim by substantial evidence.
Thus, in amparo actions, petitioners must establish their claims by
substantial evidence, and they cannot merely rely on the supposed
failure of respondents to prove either their defenses or their exercise
of extraordinary diligence. In this case, the totality of the evidence
presented by petitioners fails to meet the requisite evidentiary
threshold, and the privilege of the writ of amparo has already been
rendered moot and academic by the cessation of the restraint to
Lozada’s liberty.
B. Propriety of the privilege of the writ of amparo and its interim
reliefs
As previously discussed, there is no basis to grant Lozada the
privilege of the writ of amparo, considering that the illegal restraint
alleged in this case had already ceased and there is no imminent or
continuing restriction on his liberty. In Castillo v. Cruz,86 this Court
held as follows:
CONSTI LAW II I ACJUCO 591
Although respondents’ release from confinement does not
necessarily hinder supplication for the writ of amparo, absent any
evidence or even an allegation in the petition that there is undue and
continuing restraint on their liberty, and/or that there exists threat or
intimidation that destroys the efficacy of their right to be secure in
their persons, the issuance of the writ cannot be justified. (Emphasis
supplied.)1âwphi1
Further, it appears that Lozada had already filed before the
Department of Justice (DOJ) a Complaint charging respondents
with kidnapping and attempted murder, docketed as I.S. No. 2008-
467.87 In this regard, this Court’s ruling in Rubrico v. Arroyo88 is
worth considering:
First, a criminal complaint for kidnapping and, alternatively, for
arbitrary detention rooted in the same acts and incidents leading to
the filing of the subject amparo petition has been instituted with the
OMB, docketed as OMB-P-C-O7-0602-E. The usual initial steps to
determine the existence of a prima facie case against the five (5)
impleaded individuals suspected to be actually involved in the
detention of Lourdes have been set in motion. It must be pointed
out, though, that the filing of the OMB complaint came before the
effectivity of the Amparo Rule on October 24, 2007.
Second, Sec. 22 of the Amparo Rule proscribes the filing of an
amparo petition should a criminal action have, in the meanwhile,
been commenced. The succeeding Sec. 23, on the other hand,
provides that when the criminal suit is filed subsequent to a petition
for amparo, the petition shall be consolidated with the criminal action
where the Amparo Rule shall nonetheless govern the disposition of
the relief under the Rule. Under the terms of said Sec. 22, the
present petition ought to have been dismissed at the outset. But as
things stand, the outright dismissal of the petition by force of that
section is no longer technically feasible in light of the interplay of the
following factual mix: (1) the Court has, pursuant to Sec. 6 of the
Rule, already issued ex parte the writ of amparo; (2) the CA, after a
summary hearing, has dismissed the petition, but not on the basis
of Sec. 22; and (3) the complaint in OMB-P-C-O7-0602-E named as
respondents only those believed to be the actual abductors of
Lourdes, while the instant petition impleaded, in addition, those
tasked to investigate the kidnapping and detention incidents and
their superiors at the top. Yet, the acts and/or omissions subject of
the criminal complaint and the amparo petition are so linked as to
call for the consolidation of both proceedings to obviate the mischief
inherent in a multiplicity-of-suits situation.
Given the above perspective and to fully apply the beneficial nature
of the writ of amparo as an inexpensive and effective tool to protect
certain rights violated or threatened to be violated, the Court hereby
adjusts to a degree the literal application of Secs. 22 and 23 of the
Amparo Rule to fittingly address the situation obtaining under the
premises. Towards this end, two things are at once indicated: (1)
the consolidation of the probe and fact-finding aspects of the instant
petition with the investigation of the criminal complaint before the
OMB; and (2) the incorporation in the same criminal complaint of the
allegations in this petition bearing on the threats to the right to
security. Withal, the OMB should be furnished copies of the
investigation reports to aid that body in its own investigation and
eventual resolution of OMB-P-C-O7-0602-E. Then, too, the OMB
shall be given easy access to all pertinent documents and evidence,
if any, adduced before the CA. Necessarily, Lourdes, as
complainant in OMB-P-C-O7-0602-E, should be allowed, if so
minded, to amend her basic criminal complaint if the consolidation
of cases is to be fully effective. (Emphasis supplied.)
Thus, if the Complaint filed before the DOJ had already progressed
into a criminal case, then the latter action can more adequately
dispose of the allegations made by petitioners. After all, one of the
ultimate objectives of the writ of amparo as a curative remedy is to
facilitate the subsequent punishment of perpetrators.89 On the
other hand, if there is no actual criminal case lodged before the
 CONSTI LAW II I ACJUCO 592

courts, then the denial of the Petition is without prejudice to the filing
of the appropriate administrative, civil or criminal case, if applicable,
against those individuals whom Lozada deems to have unduly
restrained his liberty.

Finally, with respect to the interim reliefs sought by petitioners, this

Court, in Yano v. Sanchez,90 declined to grant the prayer for the
issuance of a TPO, as well as Inspection and Production Orders,
upon a finding that the implicated public officials were not
accountable for the disappearance subject of that case.
Analogously, it would be incongruous to grant herein petitioners’
prayer for a TPO and Inspection and Production Orders and at the
same time rule that there no longer exists any imminent or
continuing threat to Lozada’s right to life, liberty and security. Thus,
there is no basis on which a prayer for the issuance of these interim
reliefs can be anchored.

WHEREFORE, the instant petition is DENIED for being moot and

academic. The Court of Appeals’ denial of the privilege of the writ of
amparo is hereby AFFIRMED.

SO ORDERED.

G.R. No. 184467 June 19, 2012
EDGARDO NAVIA,1 RUBEN DIO,2 and ANDREW BUISING,
Petitioners,
vs.
VIRGINIA PARDICO, for and in behalf and in representation of
BENHUR V. PARDICO Respondent.
DECISION
DEL CASTILLO, J.:
For the protective writ of amparo to issue in enforced disappearance
cases, allegation and proof that the persons subject thereof are
missing are not enough. It must also be shown by the required
quantum of proof that their disappearance was carried out by, "or
with the authorization, support or acquiescence of, [the government]
or a political organization, followed by a refusal to acknowledge [the
same or] give information on the fate or whereabouts of [said
missing] persons."3
This petition for review on certiorari4 filed in relation to Section 19
of A.M. No. 07-9-12-SC5 challenges the July 24, 2008 Decision6 of
the Regional Trial Court (RTC), Branch 20, Malolos City which
granted the Petition for Writ of Amparo7 filed by herein respondent
against the petitioners.
Factual Antecedents
On March 31, 2008, at around 8:30 p.m., a vehicle of Asian Land
Strategies Corporation8 (Asian Land) arrived at the house of Lolita
M. Lapore (Lolita) located at 7A Lot 9, Block 54, Grand Royale
Subdivision, Barangay Lugam, Malolos City. The arrival of the
vehicle awakened Lolita’s son, Enrique Lapore (Bong), and Benhur
Pardico (Ben), who were then both staying in her house. When
Lolita went out to investigate, she saw two uniformed guards
disembarking from the vehicle. One of them immediately asked
Lolita where they could find her son Bong. Before Lolita could
answer, the guard saw Bong and told him that he and Ben should
go with them to the security office of Asian Land because a
complaint was lodged against them for theft of electric wires and
lamps in the subdivision.9
Shortly thereafter, Bong, Lolita and Ben were in the office of the
security department of Asian Land also located in Grand Royale
Subdivision.10 The supervisor of the security guards, petitioner
Edgardo Navia (Navia), also arrived thereat.
As to what transpired next, the parties’ respective versions diverge.
Version of the Petitioners
Petitioners alleged that they invited Bong and Ben to their office
because they received a report from a certain Mrs. Emphasis, a
resident of Grand Royale Subdivision, that she saw Bong and Ben
removing a lamp from a post in said subdivision.11 The reported
unauthorized taking of the lamp was relayed thru radio to petitioners
Ruben Dio (Dio) and Andrew Buising (Buising), who both work as
security guards at the Asian Land security department. Following
their department’s standard operating procedure, Dio and Buising
entered the report in their logbook and proceeded to the house of
Mrs. Emphasis. It was there where Dio and Buising were able to
confirm who the suspects were. They thus repaired to the house of
Lolita where Bong and Ben were staying to invite the two suspects
to their office. Bong and Ben voluntarily went with them.
At the security office, Dio and Buising interviewed Bong and Ben.
The suspects admitted that they took the lamp but clarified that they
were only transferring it to a post nearer to the house of Lolita.12
Soon, Navia arrived and Buising informed him that the complainant
was not keen in participating in the investigation. Since there was
CONSTI LAW II I ACJUCO 593
no complainant, Navia ordered the release of Bong and Ben. Bong
then signed a statement to the effect that the guards released him
without inflicting any harm or injury to him.13 His mother Lolita also
signed the logbook below an entry which states that she will never
again harbor or entertain Ben in her house. Thereafter, Lolita and
Bong left the security office.
Ben was left behind as Navia was still talking to him about those
who might be involved in the reported loss of electric wires and
lamps within the subdivision. After a brief discussion though, Navia
allowed Ben to leave. Ben also affixed his signature on the logbook
to affirm the statements entered by the guards that he was released
unharmed and without any injury.14
Upon Navia’s instructions, Dio and Buising went back to the house
of Lolita to make her sign the logbook as witness that they indeed
released Ben from their custody. Lolita asked Buising to read aloud
that entry in the logbook where she was being asked to sign, to
which Buising obliged. Not contented, Lolita put on her reading
glasses and read the entry in the logbook herself before affixing her
signature therein. After which, the guards left.
Subsequently, petitioners received an invitation15 from the Malolos
City Police Station requesting them to appear thereat on April 17,
2008 relative to the complaint of Virginia Pardico (Virginia) about her
missing husband Ben. In compliance with the invitation, all three
petitioners appeared at the Malolos City Police Station. However,
since Virginia was not present despite having received the same
invitation, the meeting was reset to April 22, 2008.16
On April 22, 2008, Virginia attended the investigation. Petitioners
informed her that they released Ben and that they have no
information as to his present whereabouts.17 They assured Virginia
though that they will cooperate and help in the investigation of her
missing husband.18
Version of the Respondent
According to respondent, Bong and Ben were not merely invited.
They were unlawfully arrested, shoved into the Asian Land vehicle
and brought to the security office for investigation. Upon seeing Ben
at the security office, Navia lividly grumbled "Ikaw na naman?"19
and slapped him while he was still seated. Ben begged for mercy,
but his pleas were met with a flurry of punches coming from Navia
hitting him on different parts of his body.20 Navia then took hold of
his gun, looked at Bong, and said, "Wala kang nakita at wala kang
narinig, papatayin ko na si Ben."21
Bong admitted that he and Ben attempted to take the lamp. He
explained that the area where their house is located is very dark and
his father had long been asking the administrator of Grand Royale
Subdivision to install a lamp to illumine their area. But since nothing
happened, he took it upon himself to take a lamp from one of the
posts in the subdivision and transfer it to a post near their house.
However, the lamp Bong got was no longer working. Thus, he
reinstalled it on the post from which he took it and no longer pursued
his plan. 22
Later on, Lolita was instructed to sign an entry in the guard’s logbook
where she undertook not to allow Ben to stay in her house
anymore.23 Thereafter, Navia again asked Lolita to sign the
logbook. Upon Lolita’s inquiry as to why she had to sign again, Navia
explained that they needed proof that they released her son Bong
unharmed but that Ben had to stay as the latter’s case will be
forwarded to the barangay. Since she has poor eyesight, Lolita
obligingly signed the logbook without reading it and then left with
Bong.24 At that juncture, Ben grabbed Bong and pleaded not to be
left alone. However, since they were afraid of Navia, Lolita and Bong
left the security office at once leaving Ben behind.25

Moments after Lolita and Bong reached their house, Buising arrived
and asked Lolita to sign the logbook again. Lolita asked Buising why
she had to sign again when she already twice signed the logbook at
the headquarters. Buising assured her that what she was about to
sign only pertains to Bong’s release. Since it was dark and she has
poor eyesight, Lolita took Buising’s word and signed the logbook
without, again, reading what was written in it. 26
The following morning, Virginia went to the Asian Land security
office to visit her husband Ben, but only to be told that petitioners
had already released him together with Bong the night before. She
then looked for Ben, asked around, and went to the barangay. Since
she could not still find her husband, Virginia reported the matter to
the police.
In the course of the investigation on Ben’s disappearance, it dawned
upon Lolita that petitioners took advantage of her poor eyesight and
naivete. They made her sign the logbook as a witness that they
already released Ben when in truth and in fact she never witnessed
his actual release. The last time she saw Ben was when she left him
in petitioners’ custody at the security office.27
Exasperated with the mysterious disappearance of her husband,
Virginia filed a Petition for Writ of Amparo28 before the RTC of
Malolos City. Finding the petition sufficient in form and substance,
the amparo court issued an Order29 dated June 26, 2008 directing,
among others, the issuance of a writ of amparo and the production
of the body of Ben before it on June 30, 2008. Thus:
WHEREFORE, conformably with Section 6 of the Supreme Court
Resolution [in] A.M. No. 07-[9]-12-SC, also known as "The Rule On
The Writ Of Amparo", let a writ of amparo be issued, as follows:
(1) ORDERING [petitioners] Edgardo Navia, Ruben Dio and Andrew
Buising of the Asian Land Security Agency to produce before the
Court the body of aggrieved party Benhur Pardico, on Monday, June
30, 2008, at 10:30 a.m.;
(2) ORDERING the holding of a summary hearing of the petition on
the aforementioned date and time, and DIRECTING the [petitioners]
to personally appear thereat;
(3) COMMANDING [petitioners] Edgardo Navia, Ruben Dio and
Andrew Buising to file, within a non-extendible period of seventy-
two (72) hours from service of the writ, a verified written return with
supporting affidavits which shall, among other things, contain the
following:
a) The lawful defenses to show that the [petitioners] did not violate
or threaten with violation the right to life, liberty and security of the
aggrieved party, through any act or omission;
b) The steps or actions taken by the [petitioners] to determine the
fate or whereabouts of the aggrieved party and the person or
persons responsible for the threat, act or omission; and
c) All relevant information in the possession of the [petitioners]
pertaining to the threat, act or omission against the aggrieved party.
(4) GRANTING, motu proprio, a Temporary Protection Order
prohibiting the [petitioners], or any persons acting for and in their
behalf, under pain of contempt, from threatening, harassing or
inflicting any harm to [respondent], his immediate family and any
[member] of his household.
The Branch Sheriff is directed to immediately serve personally on
the [petitioners], at their address indicated in the petition, copies of
the writ as well as this order, together with copies of the petition and
its annexes.30
CONSTI LAW II I ACJUCO 594
A Writ of Amparo31 was accordingly issued and served on the
petitioners on June 27, 2008.32 On June 30, 2008, petitioners filed
their Compliance33 praying for the denial of the petition for lack of
merit.
A summary hearing was thereafter conducted. Petitioners
presented the testimony of Buising, while Virginia submitted the
sworn statements34 of Lolita and Enrique which the two affirmed on
the witness stand.
Ruling of the Regional Trial Court
On July 24, 2008, the trial court issued the challenged Decision35
granting the petition. It disposed as follows:
WHEREFORE, the Court hereby grants the privilege of the writ of
amparo, and deems it proper and appropriate, as follows:
(a) To hereby direct the National Bureau of Investigation (NBI) to
immediately conduct a deep and thorough investigation of the
[petitioners] Edgardo Navia, Ruben Dio and Andrew Buising in
connection with the circumstances surrounding the disappearance
of [Benhur] Pardico, utilizing in the process, as part of the
investigation, the documents forming part of the records of this case;
(b) To hereby direct the NBI to extend to the family of [Benhur]
Pardico and the witnesses who testified in this case protection as it
may deem necessary to secure their safety and security; and
(c) To hereby direct the Office of the Provincial Prosecutor of
Bulacan to investigate the circumstances concerning the legality of
the arrest of [Benhur] Pardico by the [petitioners] in this case,
utilizing in the process, as part of said investigation, the pertinent
documents and admissions forming part of the record of this case,
and take whatever course/s of action as may be warranted.
Furnish immediately copies of this decision to the NBI, through the
Office of Director Nestor Mantaring, and to the Provincial Prosecutor
of Bulacan.
SO ORDERED.36
Petitioners filed a Motion for Reconsideration37 which was denied
by the trial court in an Order38 dated August 29, 2008.
Hence, this petition raising the following issues for our
consideration:
4.1. WHETHER X X X THE HONORABLE TRIAL COURT
GRAVELY ERRED IN RULING THAT RESPONDENT IS
ENTITLED TO THE PRIVILEGE OF THE WRIT OF AMPARO.
4.1.1. WHETHER X X X RESPONDENT WAS ABLE TO
ESTABLISH THAT PETITIONERS HAVE COMMITTED OR ARE
COMMITTING ACTS IN VIOLATION OF HER HUSBAND’S RIGHT
TO LIFE, LIBERTY, OR SECURITY.
4.1.2. WHETHER X X X RESPONDENT SUFFICIENTLY
ESTABLISHED THE FACT OF THE DISAPPEARANCE OF
BENHUR PARDICO.
4.1.3. WHETHER X X X RESPONDENT WAS ABLE TO
ESTABLISH THAT THE ALLEGED DISAPPEARANCE OF
BENHUR PARDICO WAS AT THE INSTANCE OF HEREIN
PETITIONERS.39
Petitioners’ Arguments
Petitioners essentially assail the sufficiency of the amparo petition.
They contend that the writ of amparo is available only in cases
where the factual and legal bases of the violation or threatened

violation of the aggrieved party’s right to life, liberty and security are
clear. Petitioners assert that in the case at bench, Virginia miserably
failed to establish all these. First, the petition is wanting on its face
as it failed to state with some degree of specificity the alleged
unlawful act or omission of the petitioners constituting a violation of
or a threat to Ben’s right to life, liberty and security. And second, it
cannot be deduced from the evidence Virginia adduced that Ben is
missing; or that petitioners had a hand in his alleged disappearance.
On the other hand, the entries in the logbook which bear the
signatures of Ben and Lolita are eloquent proof that petitioners
released Ben on March 31, 2008 at around 10:30 p.m. Petitioners
thus posit that the trial court erred in issuing the writ and in holding
them responsible for Ben’s disappearance.
Our Ruling
Virginia’s Petition for Writ of Amparo is fatally defective and must
perforce be dismissed, but not for the reasons adverted to by the
petitioners.
A.M. No. 07-9-12-SC or The Rule on the Writ of Amparo was
promulgated to arrest the rampant extralegal killings and enforced
disappearances in the country. Its purpose is to provide an
expeditious and effective relief "to any person whose right to life,
liberty and security is violated or threatened with violation by an
unlawful act or omission of a public official or employee, or of a
private individual or entity." 40
Here, Ben’s right to life, liberty and security is firmly settled as the
parties do not dispute his identity as the same person summoned
and questioned at petitioners’ security office on the night of March
31, 2008. Such uncontroverted fact ipso facto established Ben’s
inherent and constitutionally enshrined right to life, liberty and
security. Article 641 of the International Covenant on Civil and
Political Rights42 recognizes every human being’s inherent right to
life, while Article 943 thereof ordains that everyone has the right to
liberty and security. The right to life must be protected by law while
the right to liberty and security cannot be impaired except on
grounds provided by and in accordance with law. This overarching
command against deprivation of life, liberty and security without due
process of law is also embodied in our fundamental law.44
The pivotal question now that confronts us is whether Ben’s
disappearance as alleged in Virginia’s petition and proved during
the summary proceedings conducted before the court a quo, falls
within the ambit of A.M. No. 07-9-12-SC and relevant laws.
It does not. Section 1 of A.M. No. 07-9-12-SC provides:
SECTION 1. Petition. – The petition for a writ of amparo is a remedy
available to any person whose right to life, liberty and security is
violated or threatened with violation by an unlawful act or omission
of a public official or employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances
or threats thereof. (Emphasis ours.)
While Section 1 provides A.M. No. 07-9-12-SC’s coverage, said
Rules does not, however, define extralegal killings and enforced
disappearances. This omission was intentional as the Committee on
Revision of the Rules of Court which drafted A.M. No. 07-9-12-SC
chose to allow it to evolve through time and jurisprudence and
through substantive laws as may be promulgated by Congress.45
Then, the budding jurisprudence on amparo blossomed in Razon,
Jr. v. Tagitis46 when this Court defined enforced disappearances.
The Court in that case applied the generally accepted principles of
international law and adopted the International Convention for the
Protection of All Persons from Enforced Disappearance’s definition
of enforced disappearances, as "the arrest, detention, abduction or
any other form of deprivation of liberty by agents of the State or by
persons or groups of persons acting with the authorization, support
CONSTI LAW II I ACJUCO 595
or acquiescence of the State, followed by a refusal to acknowledge
the deprivation of liberty or by concealment of the fate or
whereabouts of the disappeared person, which place such a person
outside the protection of the law."47
Not long thereafter, another significant development affecting A.M.
No. 07-9-12-SC came about after Congress enacted Republic Act
(RA) No. 985148 on December 11, 2009. Section 3(g) thereof
defines enforced or involuntary disappearances as follows:
(g) "Enforced or involuntary disappearance of persons" means the
arrest, detention, or abduction of persons by, or with the
authorization, support or acquiescence of, a State or a political
organization followed by a refusal to acknowledge that deprivation
of freedom or to give information on the fate or whereabouts of those
persons, with the intention of removing from the protection of the
law for a prolonged period of time.
Then came Rubrico v. Macapagal-Arroyo49 where Justice Arturo D.
Brion wrote in his Separate Opinion that with the enactment of RA
No. 9851, "the Rule on the Writ of Amparo is now a procedural law
anchored, not only on the constitutional rights to the rights to life,
liberty and security, but on a concrete statutory definition as well of
what an ‘enforced or involuntary disappearance’ is."50 Therefore,
A.M. No. 07-9-12-SC’s reference to enforced disappearances
should be construed to mean the enforced or involuntary
disappearance of persons contemplated in Section 3(g) of RA No.
9851. Meaning, in probing enforced disappearance cases, courts
should read A.M. No. 07-9-12-SC in relation to RA No. 9851.
From the statutory definition of enforced disappearance, thus, we
can derive the following elements that constitute it:
(a) that there be an arrest, detention, abduction or any form of
deprivation of liberty;
(b) that it be carried out by, or with the authorization, support or
acquiescence of, the State or a political organization;
(c) that it be followed by the State or political organization’s refusal
to acknowledge or give information on the fate or whereabouts of
the person subject of the amparo petition; and,
(d) that the intention for such refusal is to remove subject person
from the protection of the law for a prolonged period of time.
As thus dissected, it is now clear that for the protective writ of
amparo to issue, allegation and proof that the persons subject
thereof are missing are not enough. It must also be shown and
proved by substantial evidence that the disappearance was carried
out by, or with the authorization, support or acquiescence of, the
State or a political organization, followed by a refusal to
acknowledge the same or give information on the fate or
whereabouts of said missing persons, with the intention of removing
them from the protection of the law for a prolonged period of time.
Simply put, the petitioner in an amparo case has the burden of
proving by substantial evidence the indispensable element of
government participation.
In the present case, we do not doubt Bong’s testimony that Navia
had a menacing attitude towards Ben and that he slapped and
inflicted fistic blows upon him. Given the circumstances and the
pugnacious character of Navia at that time, his threatening
statement, "Wala kang nakita at wala kang narinig, papatayin ko na
si Ben," cannot be taken lightly. It unambiguously showed his
predisposition at that time. In addition, there is nothing on record
which would support petitioners’ assertion that they released Ben
on the night of March 31, 2008 unscathed from their wrath. Lolita
sufficiently explained how she was prodded into affixing her
signatures in the logbook without reading the entries therein. And
so far, the information petitioners volunteered are sketchy at best,
 CONSTI LAW II I ACJUCO 596

like the alleged complaint of Mrs. Emphasis who was never

identified or presented in court and whose complaint was never
reduced in writing.1âwphi1

But lest it be overlooked, in an amparo petition, proof of

disappearance alone is not enough. It is likewise essential to
establish that such disappearance was carried out with the direct or
indirect authorization, support or acquiescence of the government.
This indispensable element of State participation is not present in
this case. The petition does not contain any allegation of State
complicity, and none of the evidence presented tend to show that
the government or any of its agents orchestrated Ben’s
disappearance. In fact, none of its agents, officials, or employees
were impleaded or implicated in Virginia’s amparo petition whether
as responsible or accountable persons.51 Thus, in the absence of
an allegation or proof that the government or its agents had a hand
in Ben’s disappearance or that they failed to exercise extraordinary
diligence in investigating his case, the Court will definitely not hold
the government or its agents either as responsible or accountable
persons.

We are aware that under Section 1 of A.M. No. 07-9-12-SC a writ of

amparo may lie against a private individual or entity. But even if the
person sought to be held accountable or responsible in an amparo
petition is a private individual or entity, still, government involvement
in the disappearance remains an indispensable element. Here,
petitioners are mere security guards at Grand Royale Subdivision in
Brgy. Lugam, Malolos City and their principal, the Asian Land, is a
private entity. They do not work for the government and nothing has
been presented that would link or connect them to some covert
police, military or governmental operation. As discussed above, to
fall within the ambit of A.M. No. 07-9-12-SC in relation to RA No.
9851, the disappearance must be attended by some governmental
involvement. This hallmark of State participation differentiates an
enforced disappearance case from an ordinary case of a missing
person.

WHEREFORE, the July 24, 2008 Decision of the Regional Trial

Court, Branch 20, Malolos City, is REVERSED and SET ASIDE.
The Petition for Writ of Amparo filed by Virginia Pardico is hereby
DISMISSED.

SO ORDERED.

G.R. No. 193652 August 5, 2014
Infant JULIAN YUSA Y CARAM, represented by his mother,
MA. CHRISTINA YUSAY CARAM, Petitioner,
vs.
Atty. MARIJOY D. SEGUI, Atty. SALLY D. ESCUTIN, VILMA B.
CABRERA, and CELIA C. YANGCO, Respondents.
DECISION
VILLARAMA, JR., J.:
Before us is a petition for review on certiorari under Rule 45 of the
1997 Rules of Civil Procedure, as amended, and Section 191 of the
Rule on the Writ of Amparo2 seeking to set aside the August 17,
20103 and September 6, 20104 Orders of the Regional Trial Court
(RTC), Branch 106 of Quezon City, in Sp. Proc. Case No. Q-10-
67604. The RTC had dismissed petitioner’s petition for the issuance
ofa writ of amparo which petitioner filed in order for her to regain
parental authority and custody of Julian Yusay Caram (Baby Julian),
her biological child, from the respondent officers of the Department
of Social Welfare and Development (DSWD). The factual
antecedents as gleaned from the records follow:
Petitioner Ma. Christina Yusay Caram(Christina) had an amorous
relationship with Marcelino Gicano Constantino III (Marcelino) and
eventually became pregnant with the latter’s child without the benefit
of marriage. After getting pregnant, Christina mislead Marcelino into
believing that she had an abortion when in fact she proceeded to
complete the term of her pregnancy. During this time, she intended
to have the child adopted through Sun and Moon Home for Children
(Sun and Moon) in Parañaque City to avoid placing her family ina
potentially embarrassing situation for having a second illegitimate
son.5
On July 26, 2009, Christina gavebirth to Baby Julian at Amang
Rodriguez Memorial MedicalCenter, Marikina City.6 Sun and Moon
shouldered all the hospital and medical expenses. On August 13,
2009, Christina voluntarily surrendered Baby Julian by way of a
Deed of Voluntary Commitment7 to the DSWD.
On November 26, 2009, Marcelino suffered a heart attack and died8
without knowing about the birth of his son. Thereafter, during the
wake, Christina disclosed to Marcelino’s family that she and the
deceased had a son that she gave up for adoption due to financial
distress and initial embarrassment. Marcelino’s family was taken
aback by the revelation and sympathized with Christina. After the
emotional revelation, they vowed to help her recover and raise the
baby.9 On November 27, 2009, the DSWD, through Secretary
Esperanza I. Cabral issued a certificate10 declaring Baby Julian as
"Legally Available for Adoption." A local matching conference was
held on January 27, 2010 and on February 5, 2010, Baby Julian was
"matched" with the spouses Vergel and Filomina Medina (Medina
Spouses) of the Kaisahang Bahay Foundation. Supervised trial
custody then commenced.11
On May 5, 2010, Christina who had changed her mind about the
adoption, wrote a letter to the DSWDasking for the suspension of
Baby Julian’s adoption proceedings. She alsosaid she wanted her
family back together.12
On May 28, 2010, the DSWD, through respondent Atty. Marijoy D.
Segui, sent a Memorandum13 to DSWD Assistant Secretary Vilma
B. Cabrera informing her that the certificate declaring Baby Julian
legally available for adoption had attained finality on November 13,
2009, or three months after Christina signed the Deed of Voluntary
Commitment which terminated her parental authority and effectively
made Baby Julian a ward of the State. The said Memorandum was
noted by respondent Atty. Sally D. Escutin, Director IV of the Legal
Service, DSWD.
CONSTI LAW II I ACJUCO 597
On July 12, 2010, Noel Gicano Constantino, Marcelino’s brother,
sent a letter to Atty. Escutin informing her that a DNA testing was
scheduled on July 16, 2010 at the DNA Analysis Laboratory at the
University of the Philippines.14
On July 16, 2010, Assistant Secretary Cabrera sent a letter15 to
Noel Constantino stating that it would not allow Baby Julian to
undergo DNA testing. Assistant Secretary Cabrera informed Noel
Constantino that the procedures followed relative to the certification
on the availability of the child for adoption and the child’s
subsequent placement to prospective adoptive parents were proper,
and that the DSWD was no longer in the position to stop the
adoption process. Assistant Secretary Cabrera further stated that
should Christina wish to reacquire her parental authority over Baby
Julian or halt the adoption process, she may bring the matter to the
regular courts as the reglementary period for her to regain her
parental rights had already lapsed under Section 7 of Republic Act
(R.A.) No. 9523.16
On July 27, 2010, Christina filed a petition17 for the issuance of a
writ of amparo before the RTC of Quezon City seeking to obtain
custody of Baby Julian from Atty. Segui, Atty. Escutin, Assistant
Secretary Cabrera and Acting Secretary Celia C. Yangco, all of the
DSWD.
In her petition, Christina accused respondents of "blackmailing" her
into surrendering custody of her childto the DSWD utilizing what she
claims to be an invalid certificate of availability for adoption which
respondents allegedly used as basis to misrepresent that all legal
requisites for adoption of the minor child had been complied with.
Christina argued that by making these misrepresentations, the
respondents had acted beyond the scope of their legal authority
thereby causing the enforced disappearance of the said child and
depriving her of her custodial rights and parental authority over him.
On the basis of the said petition,the RTC, Branch 106 of Quezon
City, through its Presiding Judge, the Honorable Angelene Mary W.
Quimpo-Sale, issued a Writ of Amparo18 on July 28, 2010
commanding the four respondents to produce the body of Baby
Julian at a hearing scheduled on August 4, 2010. Respondents were
alsorequired to file their verified written return to the writ pursuant to
Section 919 of the Amparo Rule, within five working days from the
service of the writ.
The respondents complied with the writ and filed their Return20 on
August 2, 2010 praying that the petition be denied for being the
improper remedy to avail of in a case relating toa biological parent’s
custodial rights over her child.
On August 4, 2010, respondents appeared before the RTC but
respondents did not bring the child, stating that threats of kidnapping
were made on the child and his caregivers. To give respondents
another chance, the RTC reset the hearing to August 5, 2010.
At the August 5, 2010 hearing, the Office of the Solicitor General
(OSG) entered its appearance as representative of the State and
prayed that its lawyers be given time to file their memorandum or
position paper in this case. In turn, the RTC acknowledged the
appearance of the OSG and allowed its representatives to actively
participate in the arguments raised during the said hearing. Relative
to the matter of the parties submitting additional pleadings, Judge
Sale narrowed the issues to be discussed by providing for the
following guidelines, thus:
To abbreviate the proceedings, in view of all the manifestations and
counter-manifestations made by the counsels, the court enjoined
the parties to file their respective position papers on the following
issues:
1. Whether or not this court has jurisdiction over the instant case;

2. Whether or not this petition isthe proper remedy based on the
facts of the case and prayer in the petition; and
3. Whether or not the prayer in the petition should be granted and
custody of the child be given to his biological mother.
The parties were given five (5) days from today to file their
respective position papers based on these three main issues. They
may include other related issues they deem essential for the
resolution of this case. Set this case for further hearing, if necessary,
on August 18, 2010 at 9:00 a.m.21
In the same order, Judge Sale alsoacknowledged that the child
subject of the case was brought before the court and the petitioner
was allowed to see him and take photographs of him.
On August 17, 2010, the RTC dismissed the petition for issuance of
a writ of amparo without prejudice to the filing of the appropriate
action in court. The RTC held that Christina availed of the wrong
remedy to regain custody of her child Baby Julian.22 The RTC
further stated that Christina should have filed a civil case for custody
of her child as laid down in the Family Code and the Rule on
Custody of Minors and Writ of Habeas Corpus in Relation to
Custody of Minors. If there is extreme urgency to secure custody of
a minor who has been illegallydetained by another, a petition for the
issuance of a writ of habeas corpus may be availed of, either as a
principal or ancillary remedy, pursuant to the Rule on Custody of
Minors and Writ of Habeas Corpus inRelation to Custody of
Minors.23
On August 20, 2010, Christina filed a motion for reconsideration24
arguing that since the RTC assumed jurisdiction of the petition for
the issuance of a writ of amparo, the latter is duty-bound to dispose
the case on the merits.25 The RTC, however, deniedChristina’s
motion for reconsideration on September 6, 2010 maintaining that
the latter availed of the wrong remedy and that the Supreme Court
intended the writ of amparo to address the problem of extrajudicial
killings and enforced disappearances.26
On September 28, 2010, Christina directly elevated the case before
this Court, via a petition for review on certiorari under Rule 45 of the
1997 Rules of Civil Procedure, as amended, in relation to Section
19 of the Rule on the Writ of Amparo. In her petition, Christina
prayed that the Court (1) set aside the August 17, 2010 and
September 6, 2010 Orders of the RTC, (2) declare R.A. No. 9523
unconstitutional for being contrary to A.M. No. 02-6-02-SC,27 which
was promulgated by the Supreme Court, and for violating the
doctrine of separation of powers, (3) declare the "enforced
separation" between her and Baby Julian as violative of her rights
to life, liberty and security, and (4) grant her the privilege of availing
the benefits of a writ of amparo so she could be reunited with her
son.28
The only relevant issue presented before the Court worthy of
attention is whether a petition for a writ of amparo is the proper
recourse for obtaining parental authority and custody of a minor
child. This Court will not belabor to discuss Christina’s
argumentsrelating to the supposedunconstitutionality or R.A. No.
9523 as Congress has the plenary power to repeal, alter and modify
existing laws29 and A.M. No. 02-6-02-SC functions only as a means
to enforce the provisions of all adoption and adoption-related
statutes before the courts.
Now, in her petition, Christina argues that the life, liberty and
security of Baby Julian is being violated or threatened by the
respondent DSWD officers’ enforcement of an illegal Deed of
Voluntary Commitment between her and Sun and Moon. She claims
thatshe had been "blackmailed" through the said Deed by the
DSWD officers and Sun and Moon’s representatives into
surrendering her child thereby causing the "forced separation" of the
CONSTI LAW II I ACJUCO 598
said infant from his mother. Furthermore, she also reiterates that the
respondent DSWD officers acted beyond the scope of their authority
when they deprived her of Baby Julian’s custody.30
The Court rejects petitioner’s contentions and denies the petition.
Section 1 of the Rule on the Writ of Amparo provides as follows:
SECTION 1. Petition. – The petition for a writ of amparois a remedy
available to any person whose right to life, liberty and security is
violated or threatened with violation by an unlawful actor omission
of a public official or employee, or of a private individual or entity.
The writ shall cover extralegal killings and enforced disappearances
or threats thereof.
In the landmark case of Secretary of National Defense, et al. v.
Manalo, et al.,31 this Court held:
[T]he AmparoRule was intended to address the intractable problem
of "extralegal killings" and "enforced disappearances," its coverage,
in its present form, is confined to these two instances or to threats
thereof. "Extralegal killings" are "killings committed without due
process of law, i.e., without legal safeguards or judicial
proceedings." On the other hand, "enforced disappearances" are
"attended by the following characteristics: an arrest, detention or
abduction of a person by a government official or organized
groupsor private individuals acting with the direct or indirect
acquiescence of the government; the refusal of the State to disclose
the fate or whereabouts of the person concerned or a refusal to
acknowledge the deprivation of liberty which places such persons
outside the protection of law.
This pronouncement on the coverage of the writ was further
cemented in the latter case of Lozada, Jr. v. Macapagal-Arroyo32
where this Court explicitly declared that as it stands, the writ of
amparo is confined only to cases of extrajudicial killings and
enforced disappearances, or to threats thereof. As to what
constitutes "enforced disappearance," the Court in Navia v.
Pardico33 enumerated the elementsconstituting "enforced
disappearances" as the term is statutorily defined in Section 3(g) of
R.A. No. 985134 to wit:
(a) that there be an arrest, detention, abduction or any form of
deprivation of liberty;
(b) that it be carried out by, or with the authorization, support or
acquiescence of, the State ora political organization;
(c) that it be followed by the State or political organization’s refusal
to acknowledge or give information on the fate or whereabouts of
the person subject of the amparopetition; and,
(d) that the intention for such refusal isto remove subject person
from the protection of the law for a prolonged period of time.1âwphi1
In this case, Christina alleged that the respondent DSWD officers
caused her "enforced separation" from Baby Julian and that their
action amounted to an "enforced disappearance" within the context
of the Amparo rule. Contrary to her position, however, the
respondent DSWD officers never concealed Baby Julian's
whereabouts. In fact, Christina obtained a copy of the DSWD's May
28, 2010 Memorandum35 explicitly stating that Baby Julian was in
the custody of the Medina Spouses when she filed her petition
before the RTC. Besides, she even admitted in her petition for
review on certiorari that the respondent DSWD officers presented
Baby Julian before the RTC during the hearing held in the afternoon
of August 5, 2010.36 There is therefore, no "enforced
disappearance" as used in the context of the Amparo rule as the
third and fourth elements are missing.
 CONSTI LAW II I ACJUCO 599

Christina's directly accusing the respondents of forcibly separating

her from her child and placing the latter up for adoption, supposedly
without complying with the necessary legal requisites to qualify the
child for adoption, clearly indicates that she is not searching for a
lost child but asserting her parental authority over the child and
contesting custody over him.37 Since it is extant from the pleadings
filed that what is involved is the issue of child custody and the
exercise of parental rights over a child, who, for all intents and
purposes, has been legally considered a ward of the State, the
Amparo rule cannot be properly applied.

To reiterate, the privilege of the writ of amparo is a remedy available

to victims of extra-judicial killings and enforced disappearances or
threats of a similar nature, regardless of whether the perpetrator of
the unlawful act or omission is a public official or employee or a
private individual. It is envisioned basically to protect and guarantee
the right to life, liberty and security of persons, free from fears and
threats that vitiate the quality of life.

WHEREFORE, the petition is DENIED. The August 17, 2010 and

September 6, 2010 Orders of the Regional Trial Court, Branch 106,
Quezon City in Sp. Proc. Case No. Q-10-67604 are AFFIRMED
without prejudice to petitioner's right to avail of proper legal
remedies afforded to her by law and related rules.

No costs.

SO ORDERED.

SPEEDY DISPOSITION OF CASES
G.R. Nos. 146368-69 October 18, 2004
MADELEINE MENDOZA-ONG, petitioner,
vs.
HON. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES,
respondents.
RESOLUTION
QUISUMBING, J.:
In this Motion for Reconsideration,1 petitioner Madeleine Mendoza-
Ong seeks a reversal of this Court’s October 23, 2003, Resolution
dismissing her petition for certiorari and upholding the
Sandiganbayan’s denial of her motion to quash. She contends that
the Court erred in:
I the value of the five drums of fuel petitioner received as gift in
…holding that the information filed against [her] in Criminal Case
No. 23848 has alleged the essential ingredients of the offense
charged [and in]
II
…failing to resolve the fundamental issue of whether the excessive
or inordinate delay in the conduct of the preliminary investigation
and filing of the informations after three (3) years had deprived [her]
of her Constitutional and statutory right to due process and speedy
determinations and disposition of the cases against her warranting
dismissal thereof.2
Concerning the first ground abovecited, the Court notes that the
motion contains merely a reiteration or rehash of arguments already
submitted to the Court and found to be without merit. Petitioner fails
to raise any new and substantial arguments, and no cogent reason
exists to warrant a reconsideration of the Court’s Resolution. It
would be a useless ritual for the Court to reiterate itself.3
As to the second ground, we find it raises arguments that have
already been passed upon. Reconsideration on that ground may
also be denied summarily. Nevertheless, we shall take time to
explain why her motion must be set aside for lack of merit, if only to
clear any lingering doubt on the matter.
Petitioner laments that although the complaint was filed with the
Office of the Deputy Ombudsman for the Visayas as early as
December 13, 1994, the informations were filed with the
Sandiganbayan only on August 1, 1997, and the amended
informations, on October 27, 1998. According to her, the delay of
nearly three years to finish the preliminary investigation violated her
constitutional rights to due process and speedy disposition of cases.
The established facts of this case, however, show no such violation.
The right to speedy disposition of cases, like the right to speedy trial,
is violated only when the proceedings are attended by vexatious,
capricious and oppressive delays.4 In the determination of whether
said right has been violated, particular regard must be taken of the
facts and circumstances peculiar to each case.5 The conduct of
both the prosecution and the defendant, the length of the delay, the
reasons for such delay, the assertion or failure to assert such right
by the accused, and the prejudice caused by the delay are the
factors to consider and balance.6 A mere mathematical reckoning
of time involved would not be sufficient.7
In this case, the Graft Investigation Officer released his resolution
finding probable cause against petitioner on August 16, 1995, less
than six months from the time petitioner and her co-accused
submitted their counter-affidavits. On October 30, 1995, only two
CONSTI LAW II I ACJUCO 600
and a half months later, Ombudsman Aniano Desierto had reviewed
the case and had approved the resolution. Contrary to petitioner’s
contention, the lapse of only ten months from the filing of the
complaint on December 13, 1994, to the approval of the resolution
on October 30, 1995, is by no means oppressive. "Speedy
disposition of cases" is consistent with reasonable delays. 8 The
Court takes judicial notice of the fact that the nature of the Office of
the Ombudsman encourages individuals who clamor for efficient
government service to lodge freely their complaints against alleged
wrongdoing of government personnel.9 A steady stream of cases
reaching the Ombudsman inevitably results.10 Naturally,
disposition of those cases would take some time. Moreover,
petitioner herself had contributed to the alleged delay when she
asked for extension of time to file her counter-affidavit.
That the informations were filed only on August 1, 1997, also did not
violate petitioner’s constitutional rights. The delay was not without
valid reasons. The Special Prosecutor in charge of preparing the
informations felt a genuine need to specify in the informations (1)
violation of the anti-graft law and (2) the amount of the subsistence
allowance of heavy-equipment operators that the municipality of
Laoang, Northern Samar, paid for when petitioner used heavy
equipment rented by the municipality to develop her private
property. The recommendation to specify these two amounts then
had to undergo levels of review and was approved by Ombudsman
Desierto only on January 29, 1996. Unfortunately, the needed
information was not in the records, so the Deputy Special
Prosecutor sought it from the Office of the Deputy Ombudsman for
the Visayas. As that office also did not possess the needed
information, it issued an Order on June 10, 1996, directing petitioner
to supply the needed information.
When petitioner received a copy of the Order, however, she sought
additional time to comply with the Order. She waited for two months
before filing on August 23, 1996, a verified statement supplying
none of the information required of her. She claimed that the five
drums of fuel were merely donated to her and that she did not know
their value. She also alleged that it was she and her husband, and
not the government, who spent for the subsistence allowance of the
heavy-equipment operator in the development of her private
property. She did not object to the delay in the termination of the
proceedings against her, nor did she seek at that time to expedite
its resolution.
Petitioner’s refusal to supply the information prompted the handling
investigator at the Office of the Deputy Ombudsman for the Visayas
to recommend on August 28, 1996, that the price of the five drums
of fuel be estimated instead. Notably, the Office of the Special
Prosecutor could have filed the informations then, but petitioner had
filed with the said office a motion for reassessment of evidence on
June 25, 1996, and a supplemental motion on August 20, 1996.
These motions, which incidentally also failed to raise the issue of
delay, effectively suspended the filing of the informations.
Subsequently, the case had to be reassigned to another Special
Prosecutor because the original handling prosecutor was appointed
Resident Ombudsman for the Bureau of Internal Revenue.
Petitioner’s motion for reassessment was resolved only on June 27,
1997. The resolution again went up for further review.
Considering the number of times that the case had to be reviewed,
the levels of review that the case had to undergo, and petitioner’s
own motions for additional time, the period that lapsed -- roughly two
years and five months (from the time petitioner and her co-accused
submitted their counter-affidavits on March 29, 1995, to the time the
informations were filed on August 1, 1997) to terminate the
proceedings against petitioner -- could not be considered vexatious,
capricious, and oppressive delay. They were necessitated by
exigency of the actions taken on the case. The period to terminate
the proceedings, in our view, had not violated petitioner’s
 CONSTI LAW II I ACJUCO 601

constitutionally guaranteed rights to due process and to a speedy

disposition of cases.11

Neither could the delay be said to have been prejudicial to her

considering that she herself is guilty of delay.12 The Court has held
that if the long delay in the termination of the preliminary
investigation was not solely the prosecution’s fault, but was also due
to incidents attributable to the accused and his counsel, the right of
the accused to speedy disposition of cases is not violated.13
Petitioner cannot now seek the protection of the law to benefit from
what she now considers the adverse effects of her own conduct in
this case.

Petitioner’s reliance on the doctrines in Tatad v. Sandiganbayan,14

Duterte v. Sandiganbayan,15 and Angchangco, Jr. v.
Ombudsman16 is misplaced.

In Tatad v. Sandiganbayan, the cases against petitioner remained

dormant for almost three years. In ruling that the long delay violated
not only Tatad’s constitutional right to due process but also his right
to speedy disposition of the cases against him, the Court considered
three factors. First, political motivation played a vital role in
activating and propelling the prosecutorial process. Second, there
was a blatant departure from established procedures prescribed by
law for the conduct of a preliminary investigation. And third, the long
delay in resolving the preliminary investigation could not be justified
on the basis of the records.17

Worth noting, in Duterte v. Sandiganbayan, petitioners were denied

the right to a preliminary investigation altogether. They were not
served copies of the complaint-affidavits and were not given the
chance to file counter-affidavits. The Graft Investigator merely
required them to comment on a civil complaint against them and on
a Special Audit Report of the Commission on Audit, both of which
were not equivalent to the complaint-affidavits required by the
applicable administrative rules. In fact, the petitioners were unaware
and were never informed that a preliminary investigation was being
conducted against them. The recommendations in the COA Special
Audit Report were already accepted even before the report came
out, and the civil complaint had already long been dismissed before
the Graft Investigator required petitioner’s comment on it.

Additionally, in Duterte, although the petitioners had filed the

manifestation in lieu of the required comment on February 18, 1992,
it was only on February 22, 1996, or four years later, that they
received the resolution recommending the filing of informations
against them. Then, also, informations were filed against petitioners
in that case even in the absence of sufficient ground to hold them
liable for the crime charged.

In Angchangco, Jr. v. Ombudsman, the delay lasted for six years

despite the fact that Angchangco, Jr., had filed several omnibus
motions for early resolution. Angchangco, Jr., even filed a motion to
dismiss. Sadly, however, the Office of the Ombudsman failed to act
on said motion.18

Unlike in the Tatad, Duterte, and Angchangco, Jr., cases where the
delays were manifestly oppressive, the facts of this case do not
evince vexatious, capricious and oppressive delay in the conduct of
the preliminary investigation. There appears, therefore, no
persuasive much less compelling reason to grant in this case the
same radical relief granted in those three cases that petitioner
cited.19

WHEREFORE, petitioner’s Motion for Reconsideration is hereby

DENIED for lack of merit.

SO ORDERED.

[G.R. No. 108595. May 18, 1999]
ELPIDIO C. CERVANTES, petitioner, vs. THE
SANDIGANBAYAN, FIRST DIVISION, THE SPECIAL
PROSECUTOR, and PEDRO ALMENDRAS, respondents.
DECISION
PARDO, J.:
The case before the Court is a special civil action for certiorari and
prohibition with preliminary injunction seeking to annul and set aside
the resolution of the Sandiganbayan, First Division,[1] that denied
petitioner's motion to quash the information against him for violation
of Section 3 (e), Republic Act 3019, and to restrain or enjoin the
Sandiganbayan from proceeding with his arraignment and trial. The
motion is based on the ground that the filing of the information
against petitioner over six (6) years after the initial complaint with
the Tanodbayan (predecessor of the Ombudsman) violated his right
to speedy disposition of the case, and that the acts charged in the
information do not constitute an offense.
We grant the petition.
The facts are as follows:
On March 6, 1986, one Pedro Almendras filed with the Office of the
Tanodbayan (predecessor of the Ombudsman) a sworn
complaint[2] against Alejandro Tapang for falsification of
complainant's "salaysay" alleging that Alejandro Tapang made
complainant sign a piece of paper in blank on which paper a
"salaysay" was later inscribed stating that complainant had been
paid his claim in the amount of P17,594.00, which was not true. In
the said complaint, Pedro Almendras mentioned that he sought the
help of petitioner Elpidio C. Cervantes who worked as analyst in the
office of labor arbiter Teodorico L. Ruiz.[3]
On October 2, 1986, Alejandro Tapang submitted to the Office of
the Tanodbayan a counter-affidavit stating that the letter complaint
of Almendras was the subject of a labor case decided by Arbiter
Teodorico L. Ruiz; that the letter "is full of lies and improbabilities"
and "that it is vague."[4]
On October 16, 1986, petitioner Elpidio C. Cervantes filed with the
office of the Tanodbayan an affidavit stating that he had nothing to
do with the blank paper that Almendras signed, as admitted by the
latter in a confrontation in the presence of National Labor Relations
Commission (NLRC) vice chairman Diego Atienza.[5]
On May 18, 1992, more than six (6) years after the filing of the
initiatory complaint with the Tanodbayan, Special Prosecution
Officer II, Office of the Special Prosecutor Luz L. Quinones-Marcos
filed with the Sandiganbayan, assigned to the First Division, an
Information charging petitioner Elpidio C. Cervantes, together with
Teodorico L. Ruiz and Alejandro Tapang with violation of Section 3
(e), Republic Act 3019, committed as follows:
That on or about June 16, 1984, or for sometime subsequent
thereto, in Manila, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused Teodorico L. Ruiz, a
public officer, being then a Labor Arbiter, National Labor Relations
Commission, NCR, Department of Labor and Elpidio Cervantes,
also a public officer, being then a Labor Analyst, National Labor
Relations Commission, NCR, Department of Labor, in the exercise
of their official and administrative functions, conspiring,
confederating and conniving with private respondent Alejandro
Tapang, did then and there, wilfully, unlawfully and criminally with
evident bad faith and manifest partiality cause undue injury to one
Pedro Almendras by then and there inducing Pedro Almendras to
sign a blank paper, on which a statement was later typed and
attributed as his (Almendras) statement in which statement
CONSTI LAW II I ACJUCO 602
Almendras allegedly acknowledged that the whole amount awarded
to him by the NLRC in a decision in NCR Case No. 10-731-81 had
been paid by Alejandro Tapang and therefore, he is no longer
pursuing any claim against Tapang, thereby giving said Alejandro
Tapang unwarranted benefits and advantage to the damage and
prejudice of Pedro Almendras.
CONTRARY TO LAW.[6]
On May 28, 1992, petitioner filed a motion for reconsideration with
the Office of the Special Prosecutor reiterating that he never met
complainant Almendras on June 29, 1984, that complainant filed a
case before the City Fiscal of Quezon City, claiming that his counsel
together with Tapang conspired to deprive him of his monetary
award and that the case was dismissed.[7]
On October 2, 1992, petitioner filed with the Sandiganbayan,
Manila, a "motion to defer arraignment due to pendency of
reinvestigation or motion to quash and motion to recall warrant of
arrest" on the ground that (a) petitioner filed with the office of the
Special Prosecutor a motion for reinvestigation; (b) that the case
against Cervantes "has prescribed" due to unreasonable delay in
the resolution of the preliminary investigation, and (c) that the acts
charged in the information do not constitute an offense.[8]
On October 2, 1992, the Ombudsman denied petitioners motion for
reconsideration,[9] and simultaneously filed with the
Sandiganbayan an amended information. The amendment
consisted of the insertion of the total amount involved.[10]
By minute resolution dated December 24, 1992, the Sandiganbayan
denied petitioner's motion, ruling that there was no "unwarranted
postponement nor any denial by the Tanodbayan or of the
Ombudsman of any step taken by the accused to accelerate the
disposition on the matter."[11]
Hence, this petition.
On February 22, 1993, the Court required respondents to comment
on the petition (not to file a motion to dismiss) within ten (10) days
from notice, and issued a temporary restraining order enjoining
respondent Sandiganbayan from continuing with the arraignment
and trial or from further proceeding with Criminal Case No. 17673.
On December 14, 1993, respondents filed their comment. On March
10, 1994, petitioner filed a reply to comment. On November 22,
1994, respondents filed a rejoinder.
We resolve to give due course to the petition and decide the case.
The issues raised are (a) whether the acts charged in the
information filed against petitioner for violation of Section 3 (e), R.
A. 3019 do not constitute an offense; and (b) whether the
Sandiganbayan acted with grave abuse of discretion in denying his
motion to quash for violation of the right to speedy disposition of the
case.
We shall first resolve the second issue. We find petitioner's
contention meritorious. He was deprived of his right to a speedy
disposition of the case, a right guaranteed by the Constitution.[12] It
took the Special Prosecutor (succeeding the Tanodbayan) six (6)
years from the filing of the initiatory complaint before he decided to
file an information for the offense with the Sandiganbayan. The letter
complaint was filed with the Tanodbayan on March 6, 1986. The
affidavit of the petitioner was filed therein on October 16, 1986. The
Special Prosecutor resolved the case on May 18, 1992. In their
comment to the petition at bar,[13] the Sandiganbayan and the
Special Prosecutor try to justify the inordinate delay in the resolution
of the complaint by stating that no political motivation appears to
have tainted the prosecution of the case in apparent reference to
the case of Tatad vs. Sandiganbayan, (footote: 159 SCRA 70, 81-
82.) where the Court ruled that the long delay (three years) in the
 CONSTI LAW II I ACJUCO 603

termination of the preliminary investigation by the Tanodbayan" was

violative of the Constitutional right of speedy disposition of cases
because political motivations played a vital role in activating and
propelling the prosecutorial process in this case.

The Special Prosecutor also cited Alvizo vs. Sandiganbayan

(footnote 220 SCRA 55, 64) alleging that, as in Alvizo, the petitioner
herein was insensitive to the implications and contingencies thereof
by not taking any step whatsoever to accelerate the disposition of
the matter.

We cannot accept the Special Prosecutors ratiocination. It is the

duty of the prosecutor to speedily resolve the complaint, as
mandated by the Constitution, regardless of whether the petitioner
did not object to the delay or that the delay was with his
acquiescence provided that it was not due to causes directly
attributable to him.

Consequently, we rule that the Sandiganbayan gravely abused its

discretion in not quashing the information for violation of petitioners
Constitutional right to the speedy disposition of the case in the level
of the Special Prosecutor, Office of the Ombudsman.[14]

We deem it unnecessary to resolve the first issue in view of the

foregoing ruling.

WHEREFORE, the Court hereby GRANTS the petition and

ANNULS the minute resolution of the Sandiganbayan, dated
December 24, 1992, in Criminal Case No. 17673. The Court directs
the Sandiganbayan to dismiss the case, with costs de oficio.

The temporary restraining order heretofore issued is made

permanent.

No costs in this instance.

SO ORDERED.

GR No. 218040, Apr 17, 2017 ]
JUANITO VICTOR C. REMULLA v. SANDIGANBAYAN
DECISION
MENDOZA, J.:
This is a petition for certiorari seeking to annul and set aside the
February 2, 2015[1] and March 20, 2015[2] Resolutions of the
Sandiganbayan Second Division in Criminal Case No. SB-14-CRM-
0432, which dismissed the case filed by Juanito Victor C. Remulla
(Remulla) against respondent Erineo S. Maliksi (Maliksi) for
violation of Section 3 (e) of Republic Act (R.A.) No. 3019 or the Anti-
Graft and Corrupt Practices Act.
On August 12, 2005, Remulla filed a criminal complaint against
Maliksi before the Office of the Ombudsman (Ombudsman) for
violation of Section 3 (e) of R.A. No. 3019. He alleged that Maliksi,
as governor of Cavite, caused the purchase of certain medical
supplies from Allied Medical Laboratories Corporation in November
2002 without conducting any public bidding, thereby giving
unwarranted benefit or preference to it. On December 15, 2005,
Maliksi filed his counter-affidavit.[3]
The Ombudsman Ruling
After almost nine (9) years, in a resolution, dated August 27, 2014,
the Ombudsman found probable cause against Maliksi for violation
of Section 3 (e) of R.A. No. 3019.[4]
Maliksi filed his motion for reconsideration, arguing that there was
no probable cause and that there was a violation of his right to a
speedy disposition of his case.[5] In its order, dated October 22,
2014, the Ombudsman denied the said motion for
reconsideration.[6]
In November 2014, the Ombudsman filed an information for
violation of Section 3 (e) of R.A. No. 3019 against Maliksi before the
Sandiganbayan. Maliksi then filed his Motion to Dismiss,[7] dated
November 20, 2014, alleging that the finding of probable cause
against him was null and void, and that his constitutional right to a
speedy disposition of his case was violated. According to him, the
9-year delay in the proceedings caused him undue prejudice.
The Sandiganbayan Ruling
In its February 2, 2015 Resolution, the Sandiganbayan found that
Maliksi's right to a speedy disposition of his case was violated. Thus,
it dismissed the case against him. It stated that the explanation
provided by the Ombudsman, through the Office of the Special
Prosecutor (OSP), was insufficient to justify its 9-year delay in the
resolution of Maliksi's case. The Sandiganbayan noted that the
interval was caused by the delay in the routing or transmission of
the records of the case, which was unacceptable. Citing Coscolluela
v. Sandiganbayan,[8] (Coscolluela), it wrote that it was
inconsequential to determine whether an accused had followed up
on his case because it was not his duty to do so. The
Sandiganbayan opined that it was the Ombudsman's responsibility
to expedite the resolution of the case within a reasonable time.
On February 12, 2015, the OSP filed a Motion for Partial
Reconsideration[9] arguing that the delay in the preliminary
investigation was neither whimsical nor capricious, considering that
Maliksi did not complain on the delay.
In its assailed resolution, dated March 20, 2015, the Sandiganbayan
denied the motion for partial reconsideration. It reiterated that the
fact-finding of the case, which lasted for three (3) years, and the
preliminary investigation, which lasted for six (6) years, were due to
mechanical routing and avoidable delay. The Sandiganbayan found
that such delays were unnecessary and unacceptable. It also
CONSTI LAW II I ACJUCO 604
echoed Coscolluela that it was not the duty of the respondent in a
preliminary investigation to follow up on the prosecution of his case.
Hence, this petition.
Issue
WHETHER THE SANDIGANBAYAN COMMITTED GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION IN DISMISSING THE CRIMINAL CASE
AGAINST RESPONDENT.[10]
Remulla argues that the Sandiganbayan should not have dismissed
the case as there was a finding of probable cause; that there was
no violation of Maliksi's right to a speedy disposition of his case
because he did not promptly assert his right; that mere
mathematical reckoning of the time involved is not sufficient to
invoke inordinate delay; that in Tilendo v. Ombudsman[11]
(Tilendo), there must be an active assertion of the right to a speedy
disposition of cases before the Ombudsman; and that Coscolluela
is inapplicable because the petitioner therein was completely
unaware of his pending case.
In his Comment,[12] Maliksi countered that the petition was
defective because it was filed by Remulla, a private party. He
underscored that only the Office of the Solicitor General (OSG), or,
in certain instances, the OSP, may bring or defend actions for or on
behalf of the Republic of the Philippines. Maliksi also pointed out
that the delay of nine (9) years in the preliminary investigation of his
case was clearly an inordinate delay. He cited the cases of Tatad v.
Tanodbayan[13] and People v. Sandiganbayan,[14] where even
delays of even shorter period of years were considered violations of
the right to speedy disposition of cases. Finally, Maliksi argued that
the petition was a violation of his constitutional right against double
jeopardy because a dismissal of criminal case due to the right to
speedy disposition of a case is tantamount to an acquittal.
In his Reply,[15] Remulla averred that he had the legal standing to
file this subject petition as a taxpayer or a citizen because public
funds were illegally disbursed. He contended that the length of delay
was not the only factor that must be considered in determining
inordinate delay. Remulla invoked the cases of Guerrero v. CA[16]
(Guerrero), Bernat v. Sandiganbayan[17] (Bernat) and Tello v.
People[18] (Tello), where the failure of the accused to assert his
right to a speedy disposition of his case was deemed a waiver for
such right. He pointed out that Maliksi knew that there was a
pending case against him but he never asserted his right to a
speedy disposition of his case during the preliminary investigation.
Finally, Remulla claimed that there was no violation of the right
against double jeopardy as the dismissal of Maliksi's case was
tainted with grave abuse of discretion.
In its Comment,[19] the Ombudsman, through the OSP, argued that
Court must provide a definitive ruling on the concept of inordinate
delay because the current model was still in a state of perpetual flux.
It opined that Coscolluela was inapplicable in the present case as
Maliksi was aware of the pending case against him before the
Ombudsman. The OSP also emphasized that the Sandiganbayan
merely dismissed the case against Maliksi by considering the sole
factor of length of delay. It cited the case of Barker v. Wingo,[20]
where the defendant's assertion of, or failure to assert, his right to a
speedy trial was one of the factors to be considered in an inquiry
whether there was deprivation of such right. The OSP echoed the
argument of Remulla that an accused who does not take any step
whatsoever to accelerate the disposition of the case was deemed to
have slept on his right and have given acquiesces to the
supervening delays.
The Court's Ruling
The petition is bereft of merit.
The petition was filed by a private party

Procedural law mandates that all criminal actions, commenced by a
complaint or an information, shall be prosecuted under the direction
and control, of a public prosecutor. In appeals of criminal cases
before the Court of Appeals (CA) and before this Court, the OSG is
the appellate counsel of the People, pursuant to Section 35 (l),
Chapter 12, Title III, Book IV of the 1987 Administrative Code.[21]
In certain instances, the OSP represented the People, when it
involved criminal cases within the jurisdiction of the
Sandiganbayan.[22]
The present case challenges the dismissal of a criminal case due to
the violation of the right to speedy disposition of cases. The petition
filed before this Court was initiated by Remulla in his capacity as a
private complainant without the intervention of either the OSG or the
OSP. Although he claims that he has legal standing as a taxpayer,
the present case is criminal in nature and the People is the real party
in interest.[23] Remulla captioned his petition as "People of the
Philippines v. Sandiganbayan (Second Division) and Erineo S.
Maliksi"[24] but it is clear that he does not represent the People.
Only on rare occasions when the offended party may be allowed to
pursue the criminal action on his own behalf such as when there is
a denial of due process,[25] or where the dismissal of the case is
capricious shall certiorari lie.[26] As will be discussed later, Remulla
failed to qualify in any of these exceptional circumstances.
Accordingly, he has no legal personality to assail the dismissal of
the criminal case against Maliksi on the ground of violation of the
right to a speedy disposition of his case.
The right to a speedy disposition of cases is a relative concept
The right to a speedy disposition of a case, like the right to a speedy
trial,[27] is deemed violated only when the proceeding is attended
by vexatious, capricious, and oppressive delays; or when unjustified
postponements of the trial are asked for and secured, or when
without cause or justifiable motive, a long period of time is allowed
to elapse without the party having his case tried. Equally applicable
is the balancing test used to determine whether a defendant has
been denied his right to a speedy trial, or a speedy disposition of a
case for that matter, in which the conduct of both the prosecution
and the defendant are weighed.[28]
More than a decade after the 1972 leading U.S. case of Barker v.
Wingo[29] was promulgated, this Court, in Martin v. Ver,[30] began
adopting the "balancing test" to determine whether a defendant's
right to a speedy trial and a speedy disposition of cases has been
violated. As this test necessarily compels the courts to approach
such cases on an ad hoc basis, the conduct of both the prosecution
and defendant are weighed apropos the four-fold factors, to wit: (1)
length of the delay; (2) reason for the delay; (3) defendant's
assertion or non-assertion of his right; and (4) prejudice to
defendant resulting from the delay. None of these elements,
however, is either a necessary or sufficient condition; they are
related and must be considered together with other relevant
circumstances. These factors have no talismanic qualities as courts
must still engage in.a difficult and sensitive balancing process.[31]
In this case, Remulla argues that the cases of Tilendo, Guerrero,
Bernat, and Tello dictate that it is mandatory for a respondent or
accused to actively assert his right to a speedy disposition of his
case before it may be dismissed on the said ground. He insists that
Maliksi failed to follow up on his case during the preliminary
investigation, hence, he cannot invoke his right to a speedy
disposition of his case. Further, he avers that the doctrine in
Coscolluela, where the Court held that there was no need for the
respondent to follow up his case, is not controlling and it is only
applicable when the respondent is completely unaware of the
preliminary investigation against him.
CONSTI LAW II I ACJUCO 605
To resolve these issues, the first set of cases cited by Remulla must
be examined to determine whether it is mandatory for a respondent
or accused to assert his right to a speedy disposition of his case.
Also, the case of Coscolluela and its related cases must be
evaluated whether the respondent or accused has the obligation to
follow up his case.
Tilendo, Guerrero, Bernat, and Tello cases
In Tilendo, the petitioner therein invoked his right to a speedy
disposition of his case because the preliminary investigation by the
NBI lasted for three (3) years before it filed a complaint before the
Ombudsman. In denying his petition, the Court held that there was
no unreasonable delay to speak of because the preliminary
investigation stage only began after the NBI filed its complaint
against Tilendo. Even assuming there was delay in the termination
of the preliminary investigation, Tilendo did not do anything to
accelerate the disposition of his case.
In Guerrero, the last pleading before the Court of First Instance was
filed on December 21, 1979. The case was later re-assigned to two
other judges, and on March 14, 1990, the last judge found out that
the transcript of stenographic notes (TSN) was incomplete and
ordered the parties to have the same completed. The petitioner
therein filed a motion to dismiss on the ground that his right to a
speedy trial had been violated. The Court ruled that there was no
such violation because it was only after the new judge reset the
retaking of the testimonies that the petitioner asserted his right. It
was also held that a judge could hardly be faulted for the delay
because he could not have rendered the decision without the TSN.
The Court observed that the conduct of the case could have a
different dimension had the petitioner made some overt act to assert
his right.
Later, in Bernat, the criminal case against the petitioner therein was
submitted for resolution before the Sandiganbayan on August 23,
1994. It was reassigned to Justice Ma. Cristina G. Cortez-Estrada
upon her assumption of office on November 3, 1998; and sometime
in 2002, she found out that some of the TSN were missing. Thus,
the parties were ordered to attend a conference to discuss the
matter. Instead of attending the conference, the petitioner therein
filed a motion asserting his right to a speedy trial. In dismissing his
argument, the Court cited the case of Guerrero where the TSN were
also lost and the judge had to retake the testimonies. It noted that
the petitioner failed to assert his rights. The Court also reiterated the
ruling in Guerrero that the case could have taken a different
dimension had the petitioner actively asserted his right to a speedy
trial.
Similarly, Tello echoed the doctrine in Bernat because the petitioner
therein did not take any step to accelerate the disposition of his
case. He only invoked his right to speedy trial after the
Sandiganbayan promulgated its decision convicting him for
malversation of public funds.
Coscolluela and its related cases
In Coscolluela, the petitioners therein were investigated for violation
of Section 3(e) of R.A. No. 3019. In a resolution, dated March 27,
2003, the assigned graft investigator found probable cause against
the petitioners. The Ombudsman, however, only approved the said
resolution on May 21, 2009 and filed the information on June 19,
2009. The petitioners sought to dismiss the case as the delay of six
(6) years violated their right to a speedy disposition of their case. In
upholding the position of the petitioners, the Court ruled that there
was unjustified delay in the preliminary investigation of the case.
The Ombudsman could not give a sufficient justification why it took
six (6) years before it approved the resolution of the graft
investigator. The Court also held that it was not the petitioners' duty
to follow up on the prosecution of their case. The petitioners therein

were not informed of the ongoing preliminary investigation against
them.
Coscolluela relied on the case of Duterte v. Sandiganbayan[32]
(Duterte) to justify that there was no requirement to follow up a case.
In the said case, the petitioners were required to file a comment,
instead of a counter-affidavit. The preliminary investigation was
delayed for four (4) years. They could not have urged the speedy
resolution of their case because they were completely unaware that
the investigation was still ongoing. The Court also noted therein that
the Ombudsman failed to present any plausible, special or even
novel reason which could justify the 4-year delay in terminating its
investigation and the incident did not involve complicated factual
and legal issues.
Earlier, in Cervantes v. Sandiganbayan[33] (Cervantes), a
complaint for violation of Section 3(e) of R.A. No. 3019 was filed
before the Tanodbayan. On October 16, 1986, the petitioner therein
filed an affidavit to answer the allegations against him. On May 18,
1992, or after almost six (6) years, an information was filed by the
OSP with the Sandiganbayan. The petitioner asserted his right to a
speedy disposition of his case. The Court upheld his right because
the OSP's explanation that no political motivation appeared to have
tainted the prosecution of the case was insufficient reason to excuse
the inordinate delay. It was also ruled therein that "[i]t is the duty of
the prosecutor to speedily resolve the complaint, as mandated by
the Constitution, regardless of whether the petitioner did not object
to the delay or that the delay was with his acquiescence provided
that it was not due to causes directly attributable to him."[34]
More recently, in People v. Sandiganbayan[35] (People), a
complaint was filed against the private respondents therein on
December 28, 1994 before the Ombudsman. The last counter-
affidavit was filed by the private respondents on March 11, 1996. On
July 10, 1996, the special prosecution officer issued a memorandum
recommending the filing of violation of Section 3 (e) of R.A. 3019
and was approved by the Deputy Ombudsman. Instead of filing the
information, however, the case was subjected to several "thorough
review and reevaluation." It was only on October 6, 2009 that the
criminal informations were filed before the Sandiganbayan.
Eventually, the private respondents implored their right to speedy
disposition of their case.
It was held therein that there was inordinate delay of twelve (12)
years from the time that the last counter-affidavit was filed until the
informations were lodged before the court. The explanation of the
OSP that the case was subjected to a painstaking review and that
the Ombudsman had to transfer to its new building Were not given
credence by the Court. It emphasized that the Ombudsman simply
failed to timely exercise its discretion as to whether or not to file
criminal cases against the private respondents. The Court did not
sustain the OSP's argument that the respondents must be blamed
for not taking any step whatsoever to accelerate the disposition of
the matter. Citing Cervantes, the Court reiterated that it was the duty
of the prosecutor to expedite the prosecution of the case regardless
of the fact that the accused did not object to the delay.
Finally, in Inocentes v. People[36] (Inocentes), a complaint for
violation of Section 3 (e) was filed before the Ombudsman against
the petitioner therein. Following the denial of his motion for
reconsideration on November 14, 2005, the prosecution filed the
informations with the Regional Trial Court (RTC) Tarlac City. On
March 14, 2006, however, the Ombudsman ordered the withdrawal
of the informations. From this point, it took almost six (6) years, or
only on May 2, 2012, before the informations were filed with the
Sandiganbayan. The Court opined that there was inordinate delay
in the disposition of the petitioner's case because it took six (6) years
before his case and the records thereof was transferred from the
RTC to the Sandiganbayan. The argument of the OSP that the
petitioner had no right to complain about the delay because he failed
to seasonably invoke his right was not upheld by the Court. It
CONSTI LAW II I ACJUCO 606
reiterated the doctrine of Coscolluela that it was not the petitioners'
duty to follow up on the prosecution of their case.
Harmonizing the two sets of cases
The first set of cases shows that the criminal cases were not
dismissed because of the non-assertion of the accused of their right
to a speedy disposition of cases or speedy trial. Other factors in the
balancing test were also considered by the Court, particularly, the
reason for the delay in the proceedings and the prejudice caused by
the delay.
In Guerrero and Bernat, it was held that the delay was acceptable
because there was a necessity to retake the testimonies of the
witnesses due to the lost TSN. The courts could not have
adjudicated the case without the TSN. On the other hand, in Tilendo,
the Court accepted the explanation of the OSP that there was no
inordinate delay because the NBFs inquiry was not part of the
preliminary investigation. Hence, as the length of delay in these
cases were properly justified by the prosecution and the accused
therein failed to take steps to accelerate their cases, the Court found
that the there was no prejudice caused, which would warrant the
assertion of their right to a speedy disposition of cases.
In the second set of cases, the lengthy delay in the proceeding
against the accused therein was not satisfactorily explained. In
Cervantes, the prosecution provided a lackluster excuse that there
was no inordinate delay because the case was not politically
motivated, in People, the filing of the case in court was drastically
delayed because it was subjected to unnecessary reviews, and the
Ombudsman basically failed to decide whether to file the case or
not. In Inocentes, there was an unwarranted delay in the filing of the
case due to the lethargic transfer of the records from the RTC to the
Sandiganbayan. Finally, in Coscolluela, the Ombudsman could not
give an explanation why the preliminary investigation was delayed
for six years.
Essentially, the Court found in those cases that the State miserably
failed to give an acceptable reason for the extensive delay. Due to
the manifest prejudice caused to the accused therein, the Court no
longer gave weighty consideration to their lack of objection during
the period of delay. It was emphasized in those cases that it was the
duty of the prosecutor to expedite the prosecution of the case
regardless if the accused failed to object to the delay.
Based on the foregoing, there is no conflict between the first and the
second set of cases. In the first set, the Court did not solely rely on
the failure of the accused to assert his right; rather, the proper
explanation on the delay and the lack of prejudice to the accused
were also considered therein. In the same manner, the Court in the
second set of cases took into account several factors in sustaining
the right of the accused to a speedy disposition of cases, such as
the length of delay, the failure of the prosecution to justify the period
of delay, and the prejudice caused to the accused. The utter failure
of the prosecution to explain the delay of the proceedings
outweighed the lack of follow ups from the accused.
Accordingly, both sets of cases only show that "[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."[37] To reiterate, none of the factors in the balancing test is
either a necessary or sufficient condition; they are related and must
be considered together with other relevant circumstances. Corpus
v. Sandiganbayan[38] thoroughly explained how the factors of the
balancing test should be weighed, particularly the prejudiced
caused by the delay, to wit:
xxx Prejudice should be assessed in the light of the interest of the
defendant that the speedy trial was designed to protect, namely: to
prevent oppressive pre-trial incarceration; to minimize anxiety and
concerns of the accused to trial; and to limit the possibility that his
defense will be impaired. Of these, the most serious is the last,

because the inability of a defendant adequately to prepare his case
skews the fairness of the entire system. There is also prejudice if
the defense witnesses are unable to recall accurately the events of
the distant past. Even if the accused is not imprisoned prior to trial,
he is still disadvantaged by restraints on his liberty and by living
under a cloud of anxiety, suspicion and often, hostility. His financial
resources may be drained, his association is curtailed, and he is
subjected to public obloquy.
Delay is a two-edge sword. It is the government that bears the
burden of proving its case beyond reasonable doubt. The passage
of time may make it difficult or impossible for the government to
carry its burden. The Constitution and the Rules do not require
impossibilities or extraordinary efforts, diligence or exertion from
courts or the prosecutor, nor contemplate that such right shall
deprive the State of a reasonable opportunity of fairly prosecuting
criminals. As held in Williams v. United States, for the government
to sustain its right to try the accused despite a delay, it must show
two things: (a) that the accused suffered no serious prejudice
beyond that which ensued from the ordinary and inevitable delay;
and (b) that there was no more delay than is reasonably attributable
to the ordinary processes of justice.
Closely related to the length of delay is the reason or justification of
the State for such delay. Different weights should be assigned to
different reasons or justifications invoked by the State. For instance,
a deliberate attempt to delay the trial in order to hamper or prejudice
the defense should be weighted heavily against the State. Also, it is
improper for the prosecutor to intentionally delay to gain some
tactical advantage over the defendant or to harass or prejudice him.
On the other hand, the heavy case load of the prosecution or a
missing witness should be weighted less heavily against the State.
Corollarily, Section 4, Rule 119 of the Revised Rules of Criminal
Procedure enumerates the factors for granting a continuance.[39]
[Emphases supplied]
Remulla argues that the assertion or non-assertion of the right to a
speedy disposition of cases determines whether the court must
dismiss the case for inordinate delay or continue the proceedings.
Such argument, however, fails to persuade. It must be emphasized
that the balancing test is a relative and flexible concept. The factors
therein must be weighed according to the different facts and
circumstances of each case. The courts' are given wide judicial
discretion in analyzing the context of the case, bearing in mind the
prejudice caused by the delay both to the accused and the State.
In addition, there is no constitutional or legal provision which states
that it is mandatory for the accused to follow up his case before his
right to its speedy disposition can be recognized. To rule otherwise
would promote judicial, legislation where the Court would provide a
compulsory requisite .not specified by the constitutional provision. It
simply cannot be done, thus, the ad hoc characteristic of the
balancing test must be upheld.
Likewise, contrary to the argument of the OSP, the U.S. case of
Barker v. Wingo,[40] from which the balancing test originated,
recognizes that a respondent in a criminal case has no compulsory
obligation to follow up on his case. It was held therein that "[a]
defendant has ho duty to bring himself to trial; the State has that
duty as well as the duty of insuring that the trial is consistent with
due process."[41]
Finally, Remulla argues that the doctrine in Coscolluela - that the
accused has no duty to follow up on the prosecution of their case -
only applies to cases where the accused is unaware of the
preliminary investigation. A review of related and subsequent cases,
however, validates the said doctrine that it is applicable even if the
accused was fully informed and had participated in the investigation.
In Cervantes, the petitioner filed his affidavit before the Tanodbayan
to answer the allegations against him. In People, the respondents
therein were able to file their counter-affidavit with the Ombudsman.
In Inocentes, the petitioner filed a motion for reconsideration before
CONSTI LAW II I ACJUCO 607
the Ombudsman. In all these cases, the accused were completely
informed of the preliminary investigation against them and they were
able to participate in the proceedings before the delays were
incurred. In spite of this, the Court applied the doctrine in
Coscolluela because it was the Ombudsman's responsibility to
expedite the proceedings within the bounds of reasonable
timeliness in view of its mandate to promptly act on all complaints
lodged before it.
In fine, it has been settled that the factors in the balancing test must
be given different consideration and weight based on the factual
circumstances of each case. Applying such principle in this case,
the Court can now determine whether or not the Ombudsman
committed inordinate delay and violated Maliksi's right to a speedy
disposition of his case.
The Ombudsman failed to justify the delay in the proceedings
As indicated in the resolution, dated February 2, 2015, of the
Sandiganbayan, the OSP gave the following explanation regarding
the delay in the proceedings against Maliksi as follows:
In justifying the length of time that it took the OMB to resolve the
case, the prosecution meticulously explains that three different
cases were filed against the accused, two of which were from the
complaint of Juan (sic) Victor C. Remulla for Violation of the Anti-
Graft Law and for Grave Misconduct, which was received by the
Office of the Deputy Ombudsman for Luzon on August 7, 2005
(Remulla complaints). The third case was through the Feedback
Report of PCSO Fund Allocation Department Manager Teresita
Brazil regarding the "Approved Financial Assistance of P10M to
province of Cavite c/o Gov. Ayong Maliksi," which was transmitted
to the Ombudsman Central Office in 2005 (PCSO complaint). This
was allegedly assigned for fact-finding investigation in July 3, 2006
under CPL-C-05-0188. Upon completion of the investigation, the
complete record of the third case was said to have been forwarded
to the Office of the Deputy Ombudsman for Luzon on September
26, 2008 for consolidation with the two cases initiated by
complainant Remulla.
Since the complete records of the Remulla cases, including the
proposed Resolution and Decision, had already been submitted to
the Ombudsman Proper for approval on January 9, 2007, through
the Central Record Division, the Deputy Ombudsman for Luzon sent
a Memorandum dated October 24, 2008 to the Ombudsman
requesting that the third PCSO case be incorporated with the two
Remulla cases already resolved. This Memorandum Request was
allegedly received by the Ombudsman Proper on June 4, 2009 and
approved by then Ombudsman Merceditas N. Gutierrez. On April 6,
2010, the Chief Administrative Officer of the Office of the Deputy
Ombudsman for Luzon forwarded the complete record of the third
PCSO case to the Chief of the Central Records Division for
incorporation with the two Remulla cases.
Continuing to the recital of events, the prosecution states that the
cases against the accused were resolved by the Office of the Deputy
Ombudsman for Luzon as early as 2007 and were forwarded in the
same year to the Ombudsman Proper for final approval.
Unfortunately, final action on the Resolution was allegedly
overtaken by disruptive incidents and political events like the 2010
hostage-taking at the Quirino Grandstand and the impeachment of
Ombudsman Gutierrez that led to her resignation in April 2011.[42]
[Emphases supplied]
The length of delay in the proceedings of Maliksi's case must first
be determined. In People v. Sandiganbayan,[43] it was held that
inordinate delay should be computed from the time of the fact-
finding investigation until the completion of the preliminary
investigation by the Ombudsman. The Court expounded that "[t]he
guarantee of speedy disposition under Section 16 of Article III of the
Constitution applies to all cases pending before all judicial, quasi-
judicial or administrative bodies. The guarantee would be defeated
or rendered inutile if the hair-splitting distinction by the State is

accepted. Whether or not the fact-finding investigation was separate
from the preliminary investigation conducted by the Office of the
Ombudsman should not matter for purposes of determining if the
respondents' right to the speedy disposition of their cases had been
violated."[44]
Applying the foregoing rule, the delay in Maliksi's case started from
the fact-finding investigation of the Ombudsman when he filed his
counter-affidavit in Remulla cases on December 15, 2005 until the
completion of the PCSO case on October 24, 2008, or a span of
three (3) years. At that point, the preliminary investigation began,
until it was terminated on August 27, 2014 and the information was
filed before the court.in November 2014, or a period of six (6) years.
Thus, the Sandiganbayan observed that the delay incurred in the
proceedings lasted for a total period of nine (9) years. Even if the
Court excludes the fact-finding stage of three (3) years, there was
still six (6) years of inordinate delay.
As to the reason for the delay, the Court is of the view that the
explanation provided by the OSP fails to justify the delay of six (6)
years in the resolution of the case against Maliksi because, first,
there was a delay in the approval of the Remulla complaints by the
Ombudsman. These complaints were filed in 2005 and Maliksi filed
his counter-affidavit in the same year, on December 15, 2005.
According to the OSP, the proposed resolution and decision for the
Remulla cases were submitted to the Ombudsman as early as
January 9, 2007 for approval. The resolution and decision, however,
remained unacted by the Ombudsman so much so that it was only
after one (1) year and nine (9) months that the Deputy Ombudsman
for Luzon was able to send a memorandum, dated October 24,
2008, for their consolidation with the PCSO case. No explanation
for the Ombudsman's inaction on the Remulla cases was advanced
by the OSP.
Second, while the memorandum for consolidation of the Remulla
and PCSO cases was dated October 24, 2008, it was only received
by the Ombudsman on June 4, 2009. Evidently, the mere routing or
transfer of the memorandum from the Deputy Ombudsman for
Luzon to the Ombudsman took almost eight (8) months. Then
Ombudsman Gutierrez approved the memorandum for
consolidation on an unspecified date,
Third, notwithstanding the approval of' the consolidation by the
Ombudsman, it was only on April 6, 2010 when the Chief
Administrative Officer of the Deputy Ombudsman for Luzon
forwarded the complete record of the third PCSO case to the Chief
of the Central Records Division. As the approval of the
memorandum on consolidation was undated, the Sandiganbayan
assumed that the cause of delay was either the Ombudsman's
belated approval or the Chief Administrative Officer of the Deputy
Ombudsman's delay in the transmittal of the case records. In either
case, a delay of ten (10) months for the implementation of a
memorandum for consolidation is unacceptable.
Noticeably, the transfer of these memoranda and records are
ministerial in nature and does not require the exercise of discretion.
Thus, the Court is baffled on how these routine acts could take so
long to be accomplished, As properly observed by the
Sandiganbayan, routine matters could have been exercised at a
faster pace in order to avoid unnecessary delay that expectedly
bears heavily on litigants.[45]
Fourth, from the time that the consolidation of the Remulla and
PCSO cases were approved on April 6, 2010, it took four (4) years,
or until July 8, 2014, before the joint resolution finding probable
cause against Maliksi was issued by the Ombudsman. There is a
void of account as to what exactly happened to the case during this
4-year period. Even more baffling was that although the cases were
consolidated, the information filed in November 2014 only involved
the Remulla case.
CONSTI LAW II I ACJUCO 608
Lastly, the OSP sought the understanding of the Sandiganbayan
and explained that the resolution of the consolidated cases was
overtaken by disruptive events such as the 2010 hostage-taking at
the Quirino Grandstand and the impeachment complaint against the
Ombudsman Gutierrez. These excuses, however, could hardly be
considered as enough reason to warrant the delay in the
proceedings. Obviously, these events have no direct relation to the
Remulla and PCSO cases to affect their speedy resolution. The
functions of the Ombudsman under the Constitution are not
suspended by the occurrence of unrelated events to its mandate,
whether political or not. Moreover, to sustain the argument of the
OSP would set a perilous precedent as the delayed cases pending
before the Ombudsman from 2010 to 2014 can simply be
overlooked by citing these occasions.
Based on the foregoing, the explanation provided by the OSP falls
short of the reasonable justification to authorize delay in the
proceedings. It was downright unnecessary to prolong the
proceedings for a period of nine (9) years. To summarize, the initial
delay began when the Ombudsman did not act with dispatch on the
approval or disapproval of the proposed resolution and decision in
the Remulla. Due to its delay, the Deputy Ombudsman for Luzon
was able to send a memorandum for consolidation with the PCSO
case. The mere routing or transfer of the memorandum to the
Ombudsman incurred eight (8) months of delay. Then, when the
memorandum was approved, it took ten (10) months before the
records could be transferred from the Deputy Ombudsman for
Luzon to the Ombudsman. Finally, for a period of four (4) years, the
consolidated cases sat at the Ombudsman. As the OSP did not
submit an explanation as to the status of the case in that 4-year
period, the Court can only conduct guesswork on the cause of its
delay.
Had the Ombudsman immediately approved or disapproved the
proposed resolution and decision submitted to its office on January
9, 2007, then the case would have been promptly acted upon. If filed
before the Sandiganbayan, the prosecution and the defense could
have timely presented their case. Instead, the Ombudsman chose
inaction which led to a chain of delays lasting until July 8, 2014. After
the lapse of nine (9) years of being kept in the dark, Maliksi could
not have had the opportunity to timely present, his case in court due
to the extensive delay in the preliminary investigation. Certainly, this
protracted period of uncertainty over his criminal case caused him
prejudice, living under a cloud of anxiety, suspicion and even,
hostility.
Further, in light of the circumstances of this case, the Court does
not give great weight to Maliksi's lack of objection over the delay
because the OSP miserably failed to defend the Ombudsman's
inaction. The prosecution could not give an acceptable reason to
justify the 9-year interval before the case was filed in court. The
proceedings were marred by the delay in the mechanical transfer of
documents and records. No steps were taken by the Ombudsman
to ensure that the preliminary investigation would be resolved in a
timely manner. Clearly, the failure of the prosecution to justify the 9-
year interval before the case was filed in court far outweighs
Maliksi's own inaction over the delay. As articulated in Coscolluela,
Duterte, Cervantes, People, and Inocentes, the Court reiterates that
it is the duty of the prosecutor to expedite the prosecution of the
case regardless of whether or not the accused objects to the delay.
Likewise, Remulla's argument that the Sandiganbayan only took
into account the length of delay in the proceedings deserves scant
consideration. Aside from the length of delay, the anti-graft court
thoroughly discussed the Ombudsman's failure to give a suitable
reason for the delay and the prejudice it had caused to Maliksi. The
latter's lack of follow up with his case was not given much weight
because of the prosecution's manifest failure to justify the protracted
lull in the proceedings. The Sandiganbayan, after properly taking
into consideration all the relevant factors in the balancing test and
gave different weight on each factor based on the particular
 CONSTI LAW II I ACJUCO 609

circumstances of this case, came to a conclusion that the

Ombudsman committed inordinate delay. The case underwent the
intricate and difficult balancing test before Maliksi's right to a speedy
disposition of his case was sustained. Thus, the Court rules that the
Sandiganbayan did not commit a grave abuse of discretion in
dismissing the criminal case against Maliksi.

To conclude, the Court finds it proper to reiterate the underlying

principle of the constitutional right to a speedy disposition of cases
in the landmark case of Tatad v. Sandiganbayan:[46]
xxx Substantial adherence to the requirements of the law governing
the conduct of preliminary investigation, including substantial
compliance with the time limitation prescribed by the law for the
resolution of the case by the prosecutor, is part of the procedural
due process constitutionally guaranteed by the fundamental law.
Not only under the broad umbrella of the due process clause, but
under the constitutional guarantee of "speedy disposition" of cases
as embodied in Section 16 of the Bill of Right (both in the 1973 and
the 1987 Constitutions), the inordinate delay is violative of the
petitioner's constitutional rights. xxx

It has been suggested that the long delay in terminating the

preliminary investigation should not be deemed fatal, for even the
complete absence of a preliminary investigation does not warrant
dismissal of the information. True — but the absence of a
preliminary investigation can be corrected by giving the accused
such investigation. But an undue delay in the conduct of a
preliminary investigation cannot be corrected for now, until man has
not yet invented a device for setting back time.[47]
WHEREFORE, the petition is DENIED. The February 2, 2015 and
March 20, 2015 Resolutions of the Sandiganbayan Second Division
in SB-14-CRM-0432 are AFFIRMED in toto.

SO ORDERED.

RIGHT AGAINST SELF-INCRIMINATION
G.R. No. 85215 July 7, 1989
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. JUDGE RUBEN AYSON, Presiding over Branch 6,
Regional Trial Court, First Judicial Region, Baguio City, and
FELIPE RAMOS, respondents.
Nelson Lidua for private respondent.
NARVASA, J.:
What has given rise to the controversy at bar is the equation by the
respondent Judge of the right of an individual not to "be compelled
to be a witness against himself" accorded by Section 20, Article III
of the Constitution, with the right of any person "under investigation
for the commission of an offense . . . to remain silent and to counsel,
and to be informed of such right," granted by the same provision.
The relevant facts are not disputed.
Private respondent Felipe Ramos was a ticket freight clerk of the
Philippine Airlines (PAL), assigned at its Baguio City station. It
having allegedly come to light that he was involved in irregularities
in the sales of plane tickets, 1 the PAL management notified him of
an investigation to be conducted into the matter of February 9, 1986.
That investigation was scheduled in accordance with PAL's Code of
Conduct and Discipline, and the Collective Bargaining Agreement
signed by it with the Philippine Airlines Employees' Association
(PALEA) to which Ramos pertained.2
On the day before the investigation, February 8,1986, Ramos gave
to his superiors a handwritten notes 3 reading as follows:
2-8-86
TO WHOM IT MAY CONCERN:
THE UNDERSIGNED WOULD LIKE TO STATE THAT HE IS
WILLING TO SETTLE IRREGULARITIES ALLEGEDLY CHARGED
VS. HIM IN THE AMT. OF P 76,000 (APPROX.) SUBJECT TO
CONDITIONS AS MAY BE IMPOSED BY PAL ON OR BEFORE
1700/9 FEB 86.
(s) Felipe Ramos
(Printed) F. Ramos
At the investigation of February 9, 1986, conducted by the PAL
Branch Manager in Baguio City, Edgardo R. Cruz, in the presence
of Station Agent Antonio Ocampo, Ticket Freight Clerk Rodolfo
Quitasol, and PALEA Shop Steward Cristeta Domingo, Felipe
Ramos was informed "of the finding of the Audit Team." Thereafter,
his answers in response to questions by Cruz, were taken down in
writing. Ramos' answers were to the effect inter alia that he had not
indeed made disclosure of the tickets mentioned in the Audit Team's
findings, that the proceeds had been "misused" by him, that
although he had planned on paying back the money, he had been
prevented from doing so, "perhaps (by) shame," that he was still
willing to settle his obligation, and proferred a "compromise x x to
pay on staggered basis, (and) the amount would be known in the
next investigation;" that he desired the next investigation to be at the
same place, "Baguio CTO," and that he should be represented
therein by "Shop stewardees ITR Nieves Blanco;" and that he was
willing to sign his statement (as he in fact afterwards did). 4 How the
investigation turned out is not dealt with the parties at all; but it would
seem that no compromise agreement was reached much less
consummated.
CONSTI LAW II I ACJUCO 610
About two (2) months later, an information was filed against Felipe
Ramos charging him with the crime of estafa allegedly committed in
Baguio City during the period from March 12, 1986 to January 29,
1987. In that place and during that time, according to the indictment,
5 he (Ramos) —
.. with unfaithfulness and/or abuse of confidence, did then and there
willfully ... defraud the Philippine Airlines, Inc., Baguio Branch, ... in
the following manner, to wit: said accused ... having been entrusted
with and received in trust fare tickets of passengers for one-way trip
and round-trip in the total amount of P76,700.65, with the express
obligation to remit all the proceeds of the sale, account for it and/or
to return those unsold, ... once in possession thereof and instead of
complying with his obligation, with intent to defraud, did then and
there ... misappropriate, misapply and convert the value of the
tickets in the sum of P76,700.65 and in spite of repeated demands,
... failed and refused to make good his obligation, to the damage
and prejudice of the offended party .. .
On arraignment on this charge, Felipe Ramos entered a plea of "Not
Guilty," and trial thereafter ensued. The prosecution of the case was
undertaken by lawyers of PAL under the direction and supervision
of the Fiscal.
At the close of the people's case, the private prosecutors made a
written offer of evidence dated June 21, 1988,6 which included "the
(above mentioned) statement of accused Felipe J. Ramos taken on
February 9, 1986 at PAL Baguio City Ticket Office," which had been
marked as Exhibit A, as well as his "handwritten admission x x given
on February 8, 1986," also above referred to, which had been
marked as Exhibit K.
The defendant's attorneys filed "Objections/Comments to Plaintiff s
Evidence."7 Particularly as regards the peoples' Exhibit A, the
objection was that "said document, which appears to be a
confession, was taken without the accused being represented by a
lawyer." Exhibit K was objected to "for the same reasons interposed
under Exhibits 'A' and 'J.'
By Order dated August 9, 1988, 8 the respondent judge admitted all
the exhibits "as part of the testimony of the witnesses who testified
in connection therewith and for whatever they are worth," except
Exhibits A and K, which it rejected. His Honor declared Exhibit A
"inadmissible in evidence, it appearing that it is the statement of
accused Felipe Ramos taken on February 9, 1986 at PAL Baguio
City Ticket Office, in an investigation conducted by the Branch
Manager x x since it does not appear that the accused was
reminded of this constitutional rights to remain silent and to have
counsel, and that when he waived the same and gave his statement,
it was with the assistance actually of a counsel." He also declared
inadmissible "Exhibit K, the handwritten admission made by
accused Felipe J. Ramos, given on February 8, 1986 x x for the
same reason stated in the exclusion of Exhibit 'A' since it does not
appear that the accused was assisted by counsel when he made
said admission."
The private prosecutors filed a motion for reconsideration. 9 It was
denied, by Order dated September 14, 1988. 10 In justification of
said Order, respondent Judge invoked this Court's rulings in
Morales, Jr. v. Juan Ponce Enrile, et al., 121 SCRA 538, People v.
Galit, 135 SCRA 467, People. v. Sison, 142 SCRA 219, and People
v. Decierdo, 149 SCRA 496, among others, to the effect that "in
custodial investigations the right to counsel may be waived but the
waiver shall not be valid unless made with the assistance of
counsel," and the explicit precept in the present Constitution that the
rights in custodial investigation "cannot be waived except in writing
and in the presence of counsel." He pointed out that the
investigation of Felipe Ramos at the PAL Baguio Station was one
"for the offense of allegedly misappropriating the proceeds of the
tickets issued to him' and therefore clearly fell "within the coverage
of the constitutional provisions;" and the fact that Ramos was not

detained at the time, or the investigation was administrative in
character could not operate to except the case "from the ambit of
the constitutional provision cited."
These Orders, of August 9, 1988 and September 14, 1988 are now
assailed in the petition for certiorari and prohibition at bar, filed in
this Court by the private prosecutors in the name of the People of
the Philippines. By Resolution dated October 26, 1988, the Court
required Judge Ayson and Felipe Ramos to comment on the
petition, and directed issuance of a "TEMPORARY RESTRAINING
ORDER . . . ENJOINING the respondents from proceeding further
with the trial and/or hearing of Criminal Case No. 3488-R (People ...
vs. Felipe Ramos), including the issuance of any order, decision or
judgment in the aforesaid case or on any matter in relation to the
same case, now pending before the Regional Trial Court of Baguio
City, Br. 6, First Judicial Region." The Court also subsequently
required the Solicitor General to comment on the petition. The
comments of Judge Ayson, Felipe Ramos, and the Solicitor General
have all been filed. The Solicitor General has made common cause
with the petitioner and prays "that the petition be given due course
and thereafter judgment be rendered setting aside respondent
Judge's Orders . . . and ordering him to admit Exhibits 'A' and 'K' of
the prosecution." The Solicitor General has thereby removed
whatever impropriety might have attended the institution of the
instant action in the name of the People of the Philippines by lawyers
de parte of the offended party in the criminal action in question.
The Court deems that there has been full ventilation of the issue —
of whether or not it was grave abuse of discretion for respondent
Judge to have excluded the People's Exhibits A and K. It will now
proceed to resolve it.
At the core of the controversy is Section 20, Article IV of the 1973
Constitution, 11 to which respondent Judge has given a construction
that is disputed by the People. The section reads as follows:
SEC. 20. 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.
It should at once be apparent that there are two (2) rights, or sets of
rights, dealt with in the section, namely:
1) the right against self-incrimination — i.e., the right of a person not
to be compelled to be a witness against himself — set out in the first
sentence, which is a verbatim reproduction of Section 18, Article III
of the 1935 Constitution, and is similar to that accorded by the Fifth
Amendment of the American Constitution, 12 and
2) the rights of a person in custodial interrogation, i.e., the rights of
every suspect "under investigation for the commission of an
offense."
Parenthetically, the 1987 Constitution indicates much more clearly
the individuality and disparateness of these rights. It has placed the
rights in separate sections. The right against self- incrimination, "No
person shall be compelled to be a witness against himself," is now
embodied in Section 17, Article III of the 1987 Constitution. The
lights of a person in custodial interrogation, which have been made
more explicit, are now contained in Section 12 of the same Article
III.13
Right Against Self-Incrimination
The first right, against self-incrimination, mentioned in Section 20,
Article IV of the 1973 Constitution, is accorded to every person who
gives evidence, whether voluntarily or under compulsion of
CONSTI LAW II I ACJUCO 611
subpoena, in any civil, criminal, or administrative proceeding. 14
The right is NOT to "be compelled to be a witness against himself"
The precept set out in that first sentence has a settled meaning. 15
It prescribes an "option of refusal to answer incriminating questions
and not a prohibition of inquiry." 16 It simply secures to a witness,
whether he be a party or not, the right to refue to answer any
particular incriminatory question, i.e., one the answer to which has
a tendency to incriminate him for some crime. However, the right
can be claimed only when the specific question, incriminatory in
character, is actually put to the witness. It cannot be claimed at any
other time. It does not give a witness the right to disregard a
subpoena, to decline to appear before the court at the time
appointed, or to refuse to testify altogether. The witness receiving a
subpoena must obey it, appear as required, take the stand, be
sworn and answer questions. It is only when a particular question is
addressed to him, the answer to which may incriminate him for some
offense, that he may refuse to answer on the strength of the
constitutional guaranty.
That first sentence of Section 20, Article IV of the 1973 Constitution
does not impose on the judge, or other officer presiding over a trial,
hearing or investigation, any affirmative obligation to advise a
witness of his right against self-incrimination. It is a right that a
witness knows or should know, in accordance with the well known
axiom that every one is presumed to know the law, that ignorance
of the law excuses no one. Furthermore, in the very nature of things,
neither the judge nor the witness can be expected to know in
advance the character or effect of a question to be put to the latter.
17
The right against self-incrimination is not self- executing or
automatically operational. It must be claimed. If not claimed by or in
behalf of the witness, the protection does not come into play. It
follows that the right may be waived, expressly, or impliedly, as by
a failure to claim it at the appropriate time. 18
Rights in Custodial Interrogation
Section 20, Article IV of the 1973 Constitution also treats of a second
right, or better said, group of rights. These rights apply to persons
"under investigation for the commission of an offense," i.e.,
"suspects" under investigation by police authorities; and this is what
makes these rights different from that embodied in the first
sentence, that against self-incrimination which, as aforestated,
indiscriminately applies to any person testifying in any proceeding,
civil, criminal, or administrative.
This provision granting explicit rights to persons under investigation
for an offense was not in the 1935 Constitution. It is avowedly
derived from the decision of the U.S. Supreme Court in Miranda v.
Arizona, 19 a decision described as an "earthquake in the world of
law enforcement." 20
Section 20 states that whenever any person is "under investigation
for the commission of an offense"--
1) he shall have the right to remain silent and to counsel, and
to be informed of such right, 21
2) nor force, violence, threat, intimidation, or any other
means which vitiates the free will shall be used against him; 22 and
3) any confession obtained in violation of x x (these rights
shall be inadmissible in evidence. 23
In Miranda, Chief Justice Warren summarized the procedural
safeguards laid down for a person in police custody, "in-custody
interrogation" being regarded as the commencement of an
adversary proceeding against the suspect. 24

He must be warned prior to any questioning that he has the right to
remain silent, that anything he says can be used against him in a
court of law, that he has the right to the presence of an attorney, and
that if he cannot afford an attorney one will be appointed for him
prior to any questioning if he so desires. Opportunity to exercise
those rights must be afforded to him throughout the interrogation.
After such warnings have been given, such opportunity afforded
him, the individual may knowingly and intelligently waive these
rights and agree to answer or make a statement. But unless and
until such warnings and waivers are demonstrated by the
prosecution at the trial, no evidence obtained as a result of
interrogation can be used against him.
The objective is to prohibit "incommunicado interrogation of
individuals in a police-dominated atmosphere, resulting in self-
incriminating statement without full warnings of constitutional
rights." 25
The rights above specified, to repeat, exist only in "custodial
interrogations," or "in-custody interrogation of accused persons." 26
And, as this Court has already stated, by custodial interrogation is
meant "questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his
freedom of action in any significant way." 27 The situation
contemplated has also been more precisely described by this
Court." 28
.. . After a person is arrested and his custodial investigation begins
a confrontation arises which at best may be tanned unequal. The
detainee is brought to an army camp or police headquarters and
there questioned and "cross-examined" not only by one but as many
investigators as may be necessary to break down his morale. He
finds himself in strange and unfamiliar surroundings, and every
person he meets he considers hostile to him. The investigators are
well-trained and seasoned in their work. They employ all the
methods and means that experience and study have taught them to
extract the truth, or what may pass for it, out of the detainee. Most
detainees are unlettered and are not aware of their constitutional
rights. And even if they were, the intimidating and coercive presence
of the officers of the law in such an atmosphere overwhelms them
into silence. Section 20 of the Bill of Rights seeks to remedy this
imbalance.
Not every statement made to the police by a person involved in
some crime is within the scope of the constitutional protection. If not
made "under custodial interrogation," or "under investigation for the
commission of an offense," the statement is not protected. Thus, in
one case, 29 where a person went to a police precinct and before
any sort of investigation could be initiated, declared that he was
giving himself up for the killing of an old woman because she was
threatening to kill him by barang, or witchcraft, this Court ruled that
such a statement was admissible, compliance with the constitutional
procedure on custodial interrogation not being exigible under the
circumstances.
Rights of Defendant in Criminal Case
As Regards Giving of Testimony
It is pertinent at this point to inquire whether the rights just
discussed, i.e., (1) that against self-incrimination and (2) those
during custodial interrogation apply to persons under preliminary
investigation or already charged in court for a crime.
It seems quite evident that a defendant on trial or under preliminary
investigation is not under custodial interrogation. His interrogation
by the police, if any there had been would already have been ended
at the time of the filing of the criminal case in court (or the public
prosecutors' office). Hence, with respect to a defendant in a criminal
case already pending in court (or the public prosecutor's office),
there is no occasion to speak of his right while under "custodial
CONSTI LAW II I ACJUCO 612
interrogation" laid down by the second and subsequent sentences
of Section 20, Article IV of the 1973 Constitution, for the obvious
reason that he is no longer under "custodial interrogation."
But unquestionably, the accused in court (or undergoing preliminary
investigation before the public prosecutor), in common with all other
persons, possesses the right against self- incrimination set out in
the first sentence of Section 20 Article IV of the 1973 Constitution,
i.e., the right to refuse to answer a specific incriminatory question at
the time that it is put to him. 30
Additionally, the accused in a criminal case in court has other rights
in the matter of giving testimony or refusing to do so. An accused
"occupies a different tier of protection from an ordinary witness."
Under the Rules of Court, in all criminal prosecutions the defendant
is entitled among others-
1) to be exempt from being a witness against himself, 31 and
2) to testify as witness in his own behalf; but if he offers himself as
a witness he may be cross-examined as any other witness;
however, his neglect or refusal to be a witness shall not in any
manner prejudice or be used against him. 32
The right of the defendant in a criminal case "to be exempt from
being a witness against himself' signifies that he cannot be
compelled to testify or produce evidence in the criminal case in
which he is the accused, or one of the accused. He cannot be
compelled to do so even by subpoena or other process or order of
the Court. He cannot be required to be a witness either for the
prosecution, or for a co-accused, or even for himself. 33 In other
words — unlike an ordinary witness (or a party in a civil action) who
may be compelled to testify by subpoena, having only the right to
refuse to answer a particular incriminatory question at the time it is
put to him-the defendant in a criminal action can refuse to testify
altogether. He can refuse to take the witness stand, be sworn,
answer any question. 34 And, as the law categorically states, "his
neglect or refusal to be a witness shall not in any manner prejudice
or be used against him." 35
If he should wish to testify in his own behalf, however, he may do
so. This is his right. But if he does testify, then he "may be cross-
examined as any other witness." He may be cross-examined as to
any matters stated in his direct examination, or connected therewith
. 36 He may not on cross-examination refuse to answer any
question on the ground that the answer that he will give, or the
evidence he will produce, would have a tendency to incriminate him
for the crime with which he is charged.
It must however be made clear that if the defendant in a criminal
action be asked a question which might incriminate him, not for the
crime with which he is charged, but for some other crime, distinct
from that of which he is accused, he may decline to answer that
specific question, on the strength of the right against self-
incrimination granted by the first sentence of Section 20, Article IV
of the 1973 Constitution (now Section 17 of the 1987 Constitution).
Thus, assuming that in a prosecution for murder, the accused
should testify in his behalf, he may not on cross-examination refuse
to answer any question on the ground that he might be implicated in
that crime of murder; but he may decline to answer any particular
question which might implicate him for a different and distinct
offense, say, estafa.
In fine, a person suspected of having committed a crime and
subsequently charged with its commission in court, has the following
rights in the matter of his testifying or producing evidence, to wit:
1) BEFORE THE CASE IS FILED IN COURT (or with the
public prosecutor, for preliminary investigation), but after having
been taken into custody or otherwise deprived of his liberty in some
significant way, and on being interrogated by the police: the
continuing right to remain silent and to counsel, and to be informed
 CONSTI LAW II I ACJUCO 613

thereof, not to be subjected to force, violence, threat, intimidation or course, refuse to submit any statement at the investigation, that is
any other means which vitiates the free will; and to have evidence his privilege. But if he should opt to do so, in his defense to the
obtained in violation of these rights rejected; and accusation against him, it would be absurd to reject his statements,
whether at the administrative investigation, or at a subsequent
2) AFTER THE CASE IS FILED IN COURT — 37 criminal action brought against him, because he had not been
accorded, prior to his making and presenting them, his "Miranda
a) to refuse to be a witness; rights" (to silence and to counsel and to be informed thereof, etc.)
which, to repeat, are relevant only in custodial investigations.
b) not to have any prejudice whatsoever result to him by such Indeed, it is self-evident that the employee's statements, whether
refusal; called "position paper," "answer," etc., are submitted by him
precisely so that they may be admitted and duly considered by the
c) to testify in his own behalf, subject to cross-examination investigating officer or committee, in negation or mitigation of his
by the prosecution; liability.

d) WHILE TESTIFYING, to refuse to answer a specific Of course the possibility cannot be discounted that in certain
question which tends to incriminate him for some crime other than instances the judge's expressed apprehensions may be realized,
that for which he is then prosecuted. that violence or intimidation, undue pressure or influence be brought
to bear on an employee under investigation — or for that matter, on
It should by now be abundantly apparent that respondent Judge has a person being interrogated by another whom he has supposedly
misapprehended the nature and import of the disparate rights set offended. In such an event, any admission or confession wrung from
forth in Section 20, Article IV of the 1973 Constitution. He has taken the person under interrogation would be inadmissible in evidence,
them as applying to the same juridical situation, equating one with on proof of the vice or defect vitiating consent, not because of a
the other. In so doing, he has grossly erred. To be sure, His Honor violation of Section 20, Article IV of the 1973 Constitution, but simply
sought to substantiate his thesis by arguments he took to be cogent on the general, incontestable proposition that involuntary or coerced
and logical. The thesis was however so far divorced from the actual statements may not in justice be received against the makers
and correct state of the constitutional and legal principles involved thereof, and really should not be accorded any evidentiary value at
as to make application of said thesis to the case before him all.
tantamount to totally unfounded, whimsical or capricious exercise of
power. His Orders were thus rendered with grave abuse of WHEREFORE, the writ of certiorari is granted annulling and setting
discretion. They should be as they are hereby, annulled and set aside the Orders of the respondent Judge in Criminal Case No.
aside. 3488-R, dated August 9, 1988 and September 14, 1988, and he is
hereby ordered to admit in evidence Exhibits "A" and "K" of the
It is clear from the undisputed facts of this case that Felipe Ramos prosecution in said Criminal Case No. 3488-R, and thereafter
was not in any sense under custodial interrogation, as the term proceed with the trial and adjudgment thereof. The temporary
should be properly understood, prior to and during the restraining order of October 26, 1988 having become functus officio,
administrative inquiry into the discovered irregularities in ticket sales is now declared of no further force and effect.
in which he appeared to have had a hand. The constitutional rights
of a person under custodial interrogation under Section 20, Article
IV of the 1973 Constitution did not therefore come into play, were of
no relevance to the inquiry. It is also clear, too, that Ramos had
voluntarily answered questions posed to him on the first day of the
administrative investigation, February 9, 1986 and agreed that the
proceedings should be recorded, the record having thereafter been
marked during the trial of the criminal action subsequently filed
against him as Exhibit A, just as it is obvious that the note (later
marked as Exhibit K) that he sent to his superiors on February
8,1986, the day before the investigation, offering to compromise his
liability in the alleged irregularities, was a free and even
spontaneous act on his part. They may not be excluded on the
ground that the so-called "Miranda rights" had not been accorded to
Ramos.

His Honor adverts to what he perceives to be the "greater danger x

x (of) the violation of the right of any person against self-
incrimination when the investigation is conducted by the
complaining parties, complaining companies, or complaining
employers because being interested parties, unlike the police
agencies who have no propriety or pecuniary interest to protect,
they may in their over-eagerness or zealousness bear heavily on
their hapless suspects, whether employees or not, to give
statements under an atmosphere of moral coercion, undue
ascendancy and undue influence." It suffices to draw attention to the
specific and peremptory requirement of the law that disciplinary
sanctions may not be imposed on any employee by his employer
until and unless the employee has been accorded due process, by
which is meant that the latter must be informed of the offenses
ascribed to him and afforded adequate time and opportunity to
explain his side. The requirement entails the making of statements,
oral or written, by the employee under such administrative
investigation in his defense, with opportunity to solicit the assistance
of counsel, or his colleagues and friends. The employee may, of

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.
Estanislao E. Fernandez and Fausto Arce for petitioner.
Office of the Solicitor General for 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.1äwphï1.ñët
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:
CONSTI LAW II I ACJUCO 614
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 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.
xxx xxx xxx
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.
xxx xxx xxx
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.
I did not know until this morning that one of the accused will testify
as witness for 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
CONSTI LAW II I ACJUCO 615
And so did the trial proceed. It began with the "direct examination"
of Roger Chavez by "Fiscal Grecia".
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. 1äwphï1.ñët
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.
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
CONSTI LAW II I ACJUCO 616
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 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
CONSTI LAW II I ACJUCO 617
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. Tañada 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 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". 1äwphï1.ñët
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.
CONSTI LAW II I ACJUCO 618
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. 1äwphï1.ñët
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
 CONSTI LAW II I ACJUCO 619

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.

G.R. No. 16444 September 8, 1920
EMETERIA VILLAFLOR, petitioner,
vs.
RICARDO SUMMERS, sheriff of the City of Manila,
respondent.
Alfredo Calupitan, and Gibbs, McDonough & Johnson for
petitioner.
Assistant City of Fiscal Felix for respondent.
MALCOLM, J.:
The petitioner prays that a writ of habeas corpus issue to restore her
to her liberty.
The facts are not dispute. In a criminal case pending before the
Court of First Instance of the city of Manila, Emeteria Villaflor and
Florentino Souingco are charged with the crime of adultery. On this
case coming on for trial before the Hon. Pedro Concepcion, Judge
of First Instance, upon the petitioner of the assistant fiscal for the
city of Manila, the court ordered the defendant Emeteria Villaflor, nor
become the petitioner herein, to submit her body to the examination
of one or two competent doctors to determine if she was pregnant
or not. The accused refused to obey the order on the ground that
such examination of her person was a violation of the constitutional
provision relating to self-incrimination. Thereupon she was found in
contempt of court and was ordered to be committed to Bilibid Prison
until she should permit the medical examination required by the
court.
The sole legal issue from the admitted facts is whether the
compelling of a woman to permit her body to be examined by
physicians to determine if she is pregnant, violates that portion of
the Philippine Bill of Rights and that portion of our Code of Criminal
Procedure which find their origin in the Constitution of the United
States and practically all state constitutions and in the common law
rules of evidence, providing that no person shall be compelled in
any criminal case to be a witness against himself. (President's
Instructions to the Philippine Commission; Act of Congress of July
1, 1902, section 5, paragraph 3; Act of Congress of August 29, 1916,
section 3; paragraph 3; Code of Criminal Procedure, section 15 [4];
United States Constitution, fifth amendment.) Counsel for petitioner
argues that such bodily exhibition is an infringement of the
constitutional provision; the representative of the city fiscal contends
that it is not an infringement of the constitutional provision. The trial
judge in the instant case has held with the fiscal; while it is brought
to our notice that a judge of the same court has held on an identical
question as contended for by the attorney for the accused and
petitioner.
The authorities are abundant but conflicting. What may be termed
the conservative courts emphasize greatly the humanitarianism of
the constitutional provisions and are pleased to extend the privilege
in order that its mantle may cover any fact by which the accused is
compelled to make evidence against himself. (Compare State vs.
Jacobs [1858], 50 N. C., 259 with State vs. Ah Chuey [1879], 14
Nev., 79. See further State vs. Ah Nordstrom [1893], 7 Wash., 506;
State vs. Height [1902]. 117 Iowa., 650; Thornton vs. State [1903],
117 Wis., 338.) A case concordant with this view and almost directly
in point is People vs. McCoy ([1873], 45 How. Pr., 216). A woman
was charged with the crime of infanticide. The corner directed two
physicians to go to the jail and examine her private parts to
determine whether she had recently been delivered of a child. She
objected to the examination, but being threatened with force,
yielded, and the examination was had. The evidence of these
physicians was offered at the trial and ruled out. The court said that
the proceeding was in violation of the spirit and meaning of the
Constitution, which declares that "no person shall be compelled in
any criminal case to be a witness against himself." Continuing, the
court said: "They might as well have sworn the prisoner, and
CONSTI LAW II I ACJUCO 620
compelled her, by threats, to testify that she had been pregnant, and
had been delivered of a child, as to have compelled her, by threats,
to allow them to look into her person, with the aid of a speculum, to
ascertain whether she had been pregnant and been delivered of a
child. . . . Has this court the right to compel the prisoner now to
submit to an examination they are of the opinion she is not a virgin,
and has had a child? It is not possible that this court has that right;
and it is too clear to admit of argument that evidence thus obtained
would be inadmissible against the prisoner."
It may be revealing a judicial secret, but nevertheless we cannot
refrain from saying that, greatly impressed with the weight of these
decisions, especially the one written by Mr. Justice McClain, in State
vs. Height, supra, the instant case was reported by the writer with
the tentative recommendation that the court should lay down the
general rule that a defendant can be compelled to disclose only
those parts of the body which are not usually covered. Buth having
disabused our minds of a too sensitive appreciation of the rights of
accused persons, and having been able, as we think, to penetrate
through the maze of law reports to the policy which lies behind the
constitutional guaranty and the common law principle, we have
come finally to take our stand with what we believe to be the reason
of the case.
In contradistinction to the cases above-mentioned are others which
seem to us more progressive in nature. Among these can be
prominently mentioned decisions of the United States Supreme
Court, and the Supreme Court of these Islands. Thus, the always
forward looking jurist, Mr. Justice Holmes, in the late case of Holt
vs. United States ([1910], 218 U. S., 245), in resolving an objection
based upon what he termed "an extravagant extension of the Fifth
Amendment," said: "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." (See also, of same general tenor, decision of Mr. Justice
Day in Adams vs. New York [1903], 192 U. S., 585.) The Supreme
Court of the Philippine Islands, in two decisions, has seemed to limit
the protection to a prohibition against compulsory testimonial self-
incrimination. The constitutional limitation was said to be "simply a
prohibition against legal process to extract from the defendant's own
lips, against his will, an admission of his guilt." (U. S. vs. Tan Teng
[1912], 23 Phil., 145; U. S. vs. Ong Siu Hong [1917], 36 Phil., 735,
and the derivatory principle announced in 16 Corpus Juris, 567, 568,
citing the United States Supreme Court and the Supreme Court of
the Philippine Islands as authority.)
Although we have stated s proposition previously announced by this
court and by the highest tribunal in the United States, we cannot
unconcernedly leave the subject without further consideration. Even
in the opinion Mr. Justice Holmes, to which we have alluded, there
was inserted the careful proviso that "we need not consider how far
a court would go in compelling a man to exhibit himself." Other
courts have likewise avoided any attempt to determine the exact
location of the dividing line between what is proper and what is
improper in this very broad constitutional field. But here before us is
presented what would seem to be the most extreme case which
could be imagined. While the United States Supreme Court could
nonchalantly decree that testimony that an accused person put on
a blouse and it fitted him is not a violation of the constitutional
provision, while the Supreme Court of Nuevada could go so far as
to require the defendant to roll up his sleeve in order to disclose
tattoo marks, and while the Supreme Court of the Philippine Islands
could permit substances taken from the person of an accused to be
offered in evidence, none of these even approach in apparent
harshness an order to make a woman, possibly innocent, to disclose
her body in all of its sanctity to the gaze of strangers. We can only
consistently consent to the retention of a principle which would
permit of such a result by adhering steadfastly to the proposition that
the purpose of the constitutional provision was and is merely to
prohibit testimonial compulsion.
 CONSTI LAW II I ACJUCO 621

fascinated spectators. Against such a loose extension of

So much for the authorities. For the nonce we would prefer to forget constitutional guaranties we are here prepared to voice our protest.
them entirely, and here in the Philippines, being in the agrreable
state of breaking new ground, would rather desire our decision to Fully conscious that we are resolving a most extreme case in a
rest on a strong foundation of reason and justice than on a weak sense, which on first impression is a shock to one's sensibilities, we
one blind adherence to tradition and precedent. Moreover, we must nevertheless enforce the constitutional provision in this
believe that an unbiased consideration of the history of the jurisdiction in accord with the policy and reason thereof, undeterred
constitutional provisions will disclose that our conclusion is in exact by merely sentimental influences. Once again we lay down the rule
accord with the causes which led to its adoption. that the constitutional guaranty, that no person shall be compelled
in any criminal case to be a witness against himself, is limited to a
The maxim of the common law, Nemo tenetur seipsum accusare, prohibition against compulsory testimonial self-incrimination. The
was recognized in England in early days, but not in the other legal corollary to the proposition is that, an ocular inspection of the body
systems of the world, in a revolt against the thumbscrew and the of the accused is permissible. The proviso is that torture of force
rack. A legal shield was raised against odious inquisitorial methods shall be avoided. Whether facts fall within or without the rule with its
of interrogating an accused person by which to extort unwilling corollary and proviso must, of course, be decided as cases arise.
confessions with the ever present temptation to commit the crime of
perjury. The kernel of the privilege as disclosed by the textwriters It is a reasonable presumption that in an examination by reputable
was testimonial compulsion. As forcing a man to be a witness and disinterested physicians due care will be taken not to use
against himself was deemed contrary to the fundamentals of violence and not to embarass the patient any more than is
republican government, the principle was taken into the American absolutely necessary. Indeed, no objection to the physical
Constitutions, and from the United States was brought to the examination being made by the family doctor of the accused or by
Philippine Islands, in exactly as wide — but no wider — a scope as doctor of the same sex can be seen.
it existed in old English days. The provision should here be
approached in no blindly worshipful spirit, but with a judicious and a Although the order of the trial judge, acceding to the request of the
judicial appreciation of both its benefits and its abuses. (Read the assistant fiscal for an examination of the person of the defendant by
scholarly articles of Prof. Wigmore in 5 Harvard L. R. [1891], p. 71, physicians was phrased in absolute terms, it should, nevertheless,
and 15 Harvard L. R., 1902, p. 610 found in 4 Wigmore on Evidence, be understood as subject to the limitations herein mentioned, and
pp. 3069 et seq., and U. S. vs. Navarro [1904], Phil., 143.) therefore legal. The writ of habeas corpus prayed for is hereby
denied. The costs shall be taxed against the petitioner. So ordered.
Perhaps the best way to test the correctness of our position is to go
back once more to elements and ponder on what is the prime
purpose of a criminal trial. As we view it, the object of having criminal
laws is to purgue the community of persons who violate the laws to
the great prejudice of their fellow men. Criminal procedure, the rules
of evidence, and constitutional provisions, are then provided, not to
protect the guilty but to protect the innocent. No rule is intemended
to be so rigid as to embarrass the administration of justice in its
endeavor to ascertain the truth. No accused person should be afraid
of the use of any method which will tend to establish the truth. For
instance, under the facts before us, to use torture to make the
defendant admit her guilt might only result in including her to tell a
falsehood. But no evidence of physical facts can for any substantial
reason be held to be detrimental to the accused except in so far as
the truth is to be avoided in order to acquit a guilty person.

Obviously a stirring plea can be made showing that under the due
process of law cause of the Constitution every person has a natural
and inherent right to the possession and control of his own body. It
is extremely abhorrent to one's sense of decency and propriety to
have the decide that such inviolability of the person, particularly of
a woman, can be invaded by exposure to another's gaze. As Mr.
Justice Gray in Union Pacific Railway Co. vs. Botsford ([1891], 141
U. S., 250) said, "To compel any one, and especially a woman, to
lay bare the body, or to submit to the touch of a stranger, without
lawful authority, is an indignity, an assault, and a trespass."
Conceded, and yet, as well suggested by the same court, even
superior to the complete immunity of a person to be let alone is the
inherent which the public has in the orderly administration of justice.
Unfortunately, all too frequently the modesty of witnesses is
shocked by forcing them to answer, without any mental evasion,
questions which are put to them; and such a tendency to degrade
the witness in public estimation does not exempt him from the duty
of disclosure. Between a sacrifice of the ascertainment of truth to
personal considerations, between a disregard of the public welfare
for refined notions of delicacy, law and justice cannot hesitate.

The protection of accused persons has been carried to such an

unwarranted extent that criminal trials have sometimes seemed to
be like a game of shuttlecocks, with the judge as referee, the
lawyers as players, the criminal as guest of honor, and the public as

G.R. No. 32025 September 23, 1929
FRANCISCO BELTRAN, petitioner,
vs.
FELIX SAMSON, Judge of the Second Judicial District, and
FRANCISCO JOSE, Provincial Fiscal of Isabela, respondents.
Gregorio P. Formoso and Vicente Formoso for petitioner.
The respondents in their own behalf.
ROMUALDEZ, J.:
This is a petition for a writ of prohibition, wherein the petitioner
complains that the respondent judge ordered him to appear before
the provincial fiscal to take dictation in his own handwriting from the
latter.
The order was given upon petition of said fiscal for the purpose of
comparing the petitioner's handwriting and determining whether or
not it is he who wrote certain documents supposed to be falsified.
There is no question as to the facts alleged in the complaint filed in
these proceedings; but the respondents contend that the petitioner
is not entitled to the remedy applied for, inasmuch as the order
prayed for by the provincial fiscal and later granted by the court
below, and again which the instant action was brought, is based on
the provisions of section 1687 of the Administrative Code and on
the doctrine laid down in the cases of People vs. Badilla (48 Phil.,
718); United States vs. Tan Teng (23 Phil., 145); United States vs.
Ong Siu Hong (36 Phil., 735), cited by counsel for the respondents,
and in the case of Villaflor vs. Summers (41 Phil., 62) cited by the
judge in the order in question.
Of course, the fiscal under section 1687 of the Administrative Code,
and the proper judge, upon motion of the fiscal, may compel
witnesses to be present at the investigation of any crime or
misdemeanor. But this power must be exercised without prejudice
to the constitutional rights of persons cited to appear.
And the petitioner, in refusing to perform what the fiscal demanded,
seeks refuge in the constitutional provision contained in the Jones
Law and incorporated in General Orders, No. 58.
Therefore, the question raised is to be decided by examining
whether the constitutional provision invoked by the petitioner
prohibits compulsion to execute what is enjoined upon him by the
order against which these proceedings were taken.
Said provision is found in paragraph 3, section 3 of the Jones Law
which (in Spanish) reads: "Ni se le obligara a declarar en contra
suya en ningun proceso criminal" and has been incorporated in our
Criminal Procedure (General Orders, No. 58) in section 15 (No. 4 )
and section 56.
As to the extent of the privilege, it should be noted first of all, that
the English text of the Jones Law, which is the original one, reads
as follows: "Nor shall be compelled in any criminal case to be a
witness against himself."
This text is not limited to declaracion but says "to be a witness."
Moreover, as we are concerned with a principle contained both in
the Federal constitution and in the constitutions of several states of
the United States, but expressed differently, we should take it that
these various phrasings have a common conception.
In the interpretation of the principle, nothing turns upon the
variations of wording in the constitutional clauses; this much is
conceded (ante, par. 2252). It is therefore immaterial that the
witness is protected by one constitution from 'testifying', or by
another from 'furnishing evidence', or by another from 'giving
evidence,' or by still another from 'being a witness.' These various
CONSTI LAW II I ACJUCO 622
phrasings have a common conception, in respect to the form of the
protected disclosure. What is that conception? (4 Wigmore on
Evidence, p. 863, 1923 ed.)
As to its scope, this privilege is not limited precisely to testimony,
but extends to all giving or furnishing of evidence.
The rights intended to be protected by the constitutional provision
that no man accused of crime shall be compelled to be a witness
against himself is so sacred, and the pressure toward their
relaxation so great when the suspicion of guilt is strong and the
evidence obscure, that is the duty of courts liberally to construe the
prohibition in favor of personal rights, and to refuse to permit any
steps tending toward their invasion. Hence, there is the well-
established doctrine that the constitutional inhibition is directed not
merely to giving of oral testimony, but embraces as well the
furnishing of evidence by other means than by word of mouth, the
divulging, in short, of any fact which the accused has a right to hold
secret. (28 R. C. L., paragraph 20, page 434 and notes.) (Emphasis
ours.)
The question, then, is reduced to a determination of whether the
writing from the fiscal's dictation by the petitioner for the purpose of
comparing the latter's handwriting and determining whether he
wrote certain documents supposed to be falsified, constitutes
evidence against himself within the scope and meaning of the
constitutional provision under examination.
Whenever the defendant, at the trial of his case, testifying in his own
behalf, denies that a certain writing or signature is in his own hand,
he may on cross-examination be compelled to write in open court in
order that the jury maybe able to compare his handwriting with the
one in question.
It was so held in the case of Bradford vs. People (43 Pacific
Reporter, 1013) inasmuch as the defendant, in offering himself as
witness in his own behalf, waived his personal privileges.
Of like character is the case of Sprouse vs. Com. (81 Va., 374,378),
where the judge asked the defendant to write his name during the
hearing, and the latter did so voluntarily.
But the cases so resolved cannot be compared to the one now
before us. We are not concerned here with the defendant, for it does
not appear that any information was filed against the petitioner for
the supposed falsification, and still less as it a question of the
defendant on trial testifying and under cross-examination. This is
only an investigation prior to the information and with a view to filing
it. And let it further be noted that in the case of Sprouse vs. Com.,
the defendant performed the act voluntarily.
We have also come upon a case wherein the handwriting or the
form of writing of the defendant was obtained before the criminal
action was instituted against him. We refer to the case of People vs.
Molineux (61 Northeastern Reporter, 286).
Neither may it be applied to the instant case, because there, as in
the aforesaid case of Sprouse vs. Com., the defendant voluntarily
offered to write, to furnish a specimen of his handwriting.
We cite this case particularly because the court there gives
prominence to the defendant's right to decline to write, and to the
fact that he voluntarily wrote. The following appears in the body of
said decision referred to (page 307 of the volume cited):
The defendant had the legal right to refuse to write for Kinsley. He
preferred to accede to the latter's request, and we can discover no
ground upon which the writings thus produced can be excluded from
the case. (Emphasis ours.)

For the reason it was held in the case of First National Bank vs.
Robert (41 Mich., 709; 3 N. W., 199), that the defendant could not
be compelled to write his name, the doctrine being stated as follows:
The defendant being sworn in his own behalf denied the
endorsement.
He was then cross-examined the question in regard to his having
signed papers not in the case, and was asked in particular whether
he would not produce signatures made prior to the note in suit, and
whether he would not write his name there in the court. The judge
excluded all these inquiries, on objection, and it is of these rulings
that complaint is made. The object of the questions was to bring into
the case extrinsic signatures, for the purpose of comparison by the
jury, and we think that the judge was correct in ruling against it.
It is true that the eminent Professor Wigmore, in his work cited
(volume 4, page 878), says:
Measuring or photographing the party is not within the privilege. Nor
it is the removal or replacement of his garments or shoes. Nor is the
requirement that the party move his body to enable the foregoing
things to be done. Requiring him to make specimens of handwriting
is no more than requiring him to move his body . . ." but he cites no
case in support of his last assertion on specimens of handwriting.
We note that in the same paragraph 2265, where said authors treats
of "Bodily Exhibition." and under preposition "1. A great variety of
concrete illustrations have been ruled upon," he cites many cases,
among them that of People vs. Molineux (61 N. E., 286) which, as
we have seen, has no application to the case at bar because there
the defendant voluntary gave specimens of his handwriting, while
here the petitioner refuses to do so and has even instituted these
prohibition proceedings that he may not be compelled to do so.
Furthermore, in the case before us, writing is something more than
moving the body, or the hands, or the fingers; writing is not a purely
mechanical act, because it requires the application of intelligence
and attention; and in the case at bar writing means that the petitioner
herein is to furnish a means to determine whether or not he is the
falsifier, as the petition of the respondent fiscal clearly states. Except
that it is more serious, we believe the present case is similar to that
of producing documents or chattels in one's possession. And as to
such production of documents or chattels. which to our mind is not
so serious as the case now before us, the same eminent Professor
Wigmore, in his work cited, says (volume 4, page 864):
. . . 2264. Production or Inspection of Documents and Chattels. —
1. It follows that the production of documents or chattels by a person
(whether ordinary witness or party-witness) in response to a
subpoena, or to a motion to order production, or to other form of
process treating him as a witness ( i.e. as a person appearing before
a tribunal to furnish testimony on his moral responsibility for
truthtelling), may be refused under the protection of the privilege;
and this is universally conceded. (And he cites the case of People
vs. Gardner, 144 N. Y., 119; 38 N.E., 1003)
We say that, for the purposes of the constitutional privilege, there is
a similarity between one who is compelled to produce a document,
and one who is compelled to furnish a specimen of his handwriting,
for in both cases, the witness is required to furnish evidence against
himself.
And we say that the present case is more serious than that of
compelling the production of documents or chattels, because here
the witness is compelled to write and create, by means of the act of
writing, evidence which does not exist, and which may identify him
as the falsifier. And for this reason the same eminent author,
Professor Wigmore, explaining the matter of the production of
documents and chattels, in the passage cited, adds:
CONSTI LAW II I ACJUCO 623
For though the disclosure thus sought be not oral in form, and
though the documents or chattels be already in existence and not
desired to be first written and created by testimonial act or utterance
of the person in response to the process, still no line can be drawn
short of any process which treats him as a witness; because in virtue
it would be at any time liable to make oath to the identity or
authenticity or origin of the articles produced. (Ibid., pp. 864-865.)
(Emphasis ours.)
It cannot be contended in the present case that if permission to
obtain a specimen of the petitioner's handwriting is not granted, the
crime would go unpunished. Considering the circumstance that the
petitioner is a municipal treasurer, according to Exhibit A, it should
not be a difficult matter for the fiscal to obtained genuine specimens
of his handwriting. But even supposing it is impossible to obtain
specimen or specimens without resorting to the means complained
herein, that is no reason for trampling upon a personal right
guaranteed by the constitution. It might be true that in some cases
criminals may succeed in evading the hand of justice, but such
cases are accidental and do not constitute the raison d' etre of the
privilege. This constitutional privilege exists for the protection of
innocent persons.
With respect to the judgments rendered by this court and cited on
behalf of the respondents, it should be remembered that in the case
of People vs. Badilla (48 Phil., 718), it does not appear that the
defendants and other witnesses were questioned by the fiscal
against their will, and if they did not refuse to answer, they must be
understood to have waived their constitutional privilege, as they
could certainly do.
The privilege not to give self-incriminating evidence, while absolute
when claimed, maybe waived by any one entitled to invoke it. (28 R.
C. L., paragraph 29, page 442, and cases noted.)
The same holds good in the case of United States vs. Tan Teng (23
Phil., 145), were the defendant did not oppose the extraction from
his body of the substance later used as evidence against him.
In the case of Villaflor vs. Summers (41 Phil., 62), it was plainly
stated that the court preferred to rest its decision on the reason of
the case rather than on blind adherence to tradition. The said reason
of the case there consisted in that it was the case of the examination
of the body by physicians, which could be and doubtless was
interpreted by this court, as being no compulsion of the petitioner
therein to furnish evidence by means of testimonial act. In reality
she was not compelled to execute any positive act, much less a
testimonial act; she was only enjoined from something preventing
the examination; all of which is very different from what is required
of the petitioner of the present case, where it is sought to compel
him to perform a positive, testimonial act, to write and give a
specimen of his handwriting for the purpose of comparison.
Besides, in the case of Villamor vs. Summers, it was sought to
exhibit something already in existence, while in the case at bar, the
question deals with something not yet in existence, and it is
precisely sought to compel the petitioner to make, prepare, or
produce by this means, evidence not yet in existence; in short, to
create this evidence which may seriously incriminate him.
Similar considerations suggest themselves to us with regard to the
case of United States vs. Ong Siu Hong (36 Phil., 735), wherein the
defendant was not compelled to perform any testimonial act, but to
take out of his mouth the morphine he had there. It was not
compelling him to testify or to be a witness or to furnish, much less
make, prepare, or create through a testimonial act, evidence for his
own condemnation.
Wherefore, we find the present action well taken, and it is ordered
that the respondents and those under their orders desist and abstain
absolutely and forever from compelling the petitioner to take down
 CONSTI LAW II I ACJUCO 624

dictation in his handwriting for the purpose of submitting the latter

for comparison.

Without express pronouncement as to costs. So ordered.


NON-IMPRISONMENT FOR BELIEFS; INVOLUNTARY
SERVITUDE
[ GR No. L-2690, Jan 01, 1949 ]
BARTOLOME CAUNCA v. JULIA SALAZAR
82 Phil. 851 Unrep. (Reporters Office)
PERFECTO, J.:
HABEAS CORPUS; EMPLOYMENT AS MAID IN EMPLOYMENT
AGENCY. 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, freedom
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 an imaginary power of an impostor to cause
harm if not blindly obeyed, to any other psychological element that
may curtail the mental faculty of choice or the unhampered exercise
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
illegally deprived of liberty by duress or physical coercion. (Decision
signed by only one Justice: Perfecto, J.)
DECISION
Estelita Flores, 21, orphan of father and mother, illiterate, was
brought from her native torni, Buruanga, Capiz, by Estrella Justo,
maid recruiter, to Manila, where she arrived on December 24, 1948,
and stayed in the house of Julia Salazar at 1343 Felix Huertas St.,
where the latter is running the Far Eastern Employment Bureau.
On December 26, 1948, when her cousin Bartolome Caunca went
to pay her a visit, Estelita manifested her earnest desire to go along
with him, but was prevented by Julia Salazar and Estrella Justo,
both demanding the condition that the sum of P83.85 advanced for
the fare and other transportation expenses of Estelita from
Buruanga to Manila be paid first before she could leave the house
of Julia Salazar.
Although there is no evidence that any physical force has been used
to prevent her from leaving the house, Estelita failed to leave it.
Bartolome testified that, although Estelita was embracing him in her
desire to go with him, he/was unable to take her with him because
of respondents' opposition and of the many peoolo in the house.
Considering the crass ignorance of Estelita, her low mentality, her
apparent undernoursihment and weak vitality, her pusillanimous
character, she is so timid that she hardly dared to speak during her
testimony, given in Hiligaynon, the only language she knows,--there
should not be any doubt that by sheer mental anu social superiority.
respondent Julia Salazar is an able and very intelligent
businesswoman, respondents exerted moral compulsion strong
enough to have effectively deprived Estelita of her personal liberty
and of the freedom to go along with her cousin.
Bartolome promised Estelita to take steps to seek her release and
filed the petition giving rise to this proceeding for a writ of habeas
corpus.
The writ was issued on the very morning when the petition was filed
on December 31, 1948, ordering respondents to bring to this Court
the person of Estelita at 2 o'clock that afternoon, the hour set for the
hearing of the case. At said hearing both Estelita and respondent
Julia Salasar failed to appear. The latter, according to Estrella Justo,
brought Estelita that morning to Silang, Cavite, and would not return
until the evening. Continuation of the hearing was set for January 1,
1949, at 9 o'clock in the morning.
CONSTI LAW II I ACJUCO 625
Julia Salazar appeared at said hour and explained that she had no
sufficient time to bring Estelita, because the latter was left in Silang,
and requested for time to bring the girl to this Court, She was
granted time to bring the girl at 5 o'clock in the afternoon of January
1, 1949, and at the hearing which started at said hour the
testimonies of Estelita and Julia Salazar, as the last witnesses, were
taken.
Upon the evidence, there is no question that Estelita is restrained of
her personal liberty and not free to go with her cousin at her will.
The fact that no physical force has been exerted to keep her in the
house of Julia Salazar, at 1343 Felix Huertas St., or to stay in Silang,
Cavite, in the house of Julia Salazar's cousin, a place that Estelita
could not identify better than just describing it as a place very far
from Manila, does not make less real the deprivation of Estelita's
personal freedom which includes the freedom of movement,
freedom to transfer from one place to another, freedom 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 an imaginary power of an impostor to cause harm if not
blindly obeyed, to any other psychological element that may curtail
the mental faculty of choice or the unhampered exercise 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 illegally deprived
of liberty by duress or physical coercion.
On the hypothesis that Estelita is really indebted in the amount of
P83.85, such is not a valid reason for the respondents to obstruct,
impede or interfere with Estelita's desire to leave the house of Julia
Salazar and to live in the residence of his cousin Bartolome. Said
indebtedness may be multiplied by thousands or millions, but would
not in any way subtract an iota from Estelita's fundamental right to
have a free choice of abode.
An employment agency, regardless of the amount it may advance
to a prospective employee has absolutely no power to curtail the
freedom of movement of said employee. The fact that power to
control said freedom may be an effective means of avoiding
monetary losses to the agency is no reason for jeopardizing a
fundamental human right. The fortunes of business can not be
controlled by controlling a fundamental human freedom. Human
dignity is not a merchandise appropriate for commercial barters or
business bargains. Fundamental freedoms are beyond the province
of commerce or any other business enterprise.
In the scale of values, there is no acceptable equivalence between
matters involving human dignity and those belonging to the domain
of business. The latter are characterized by transience and
precariousness, while the former are the nearest things to what are
everlasting, if ever there are any, in humanity. Human dignity and
human freedoms are essentially spiritual, notwithstanding their
material manifestations in the external world, and the universal
concept of the spirit is inseparable from the idea of the eternal, of
the unlimited by space or time. Money, power, domination,
satisfaction of the pleasures of the flesh, like all lusts, belong to the
ephemeral and perishable, an order of things which has no possible
equation with the moral values of the spirit, among which are human
freedoms.
The petition is granted and it is accordingly ordered that Estelita
Flores be allowed to go with her cousin Bartolome Caunca or to any
place of her choice, and respondents are ordered not to impede,
obstruct or, in any way, interfere with such freedom of Estelita
Flores.
This decision shall be executed today, January 1, 1949, immediately
upon its promulgation at the close of the hearing of this case.
 CONSTI LAW II I ACJUCO 626

EXCESSIVE FINES AND CRUEL AND INHUMAN 818 violates the constitutional provisions on due process, bail and
PUNISHMENT imposition of cruel, degrading or inhuman punishment.

In a resolution dated February 26, 2002, this Court granted the

[G.R. No. 149276. September 27, 2002]
petition of Jovencio Lim to post bail pursuant to Department of
Justice Circular No. 74 dated November 6, 2001 which amended
JOVENCIO LIM and TERESITA LIM, petitioners, vs. THE
the 2000 Bail Bond Guide involving estafa under Article 315, par. 2
PEOPLE OF THE PHILIPPINES, THE REGIONAL TRIAL
(d), and qualified theft. Said Circular specifically provides as follows:
COURT OF QUEZON CITY, BRANCH 217, THE CITY
PROSECUTOR OF QUEZON CITY, AND WILSON CHAM,
xxx xxx xxx
respondents.
3) Where the amount of fraud is P32,000.00 or over in which the
DECISION
imposable penalty is reclusion temporal to reclusion perpetua, bail
shall be based on reclusion temporal maximum, pursuant to Par. 2
CORONA, J.:
(a) of the 2000 Bail Bond Guide, multiplied by P2,000.00, plus an
additional of P2,000.00 for every P10,000.00 in excess of
The constitutionality of PD 818, a decree which amended Article 315
P22,000.00; Provided, however, that the total amount of bail shall
of the Revised Penal Code by increasing the penalties for estafa
not exceed P60,000.00.
committed by means of bouncing checks, is being challenged in this
petition for certiorari, for being violative of the due process clause,
In view of the aforementioned resolution, the matter concerning bail
the right to bail and the provision against cruel, degrading or
shall no longer be discussed. Thus, this decision will focus on
inhuman punishment enshrined under the Constitution.
whether or not PD 818 violates Sections 1 and 19 of Article III of the
Constitution, which respectively provide:
The antecedents of this case, as gathered from the parties
pleadings and documentary proofs, follow.
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
In December 1991, petitioner spouses issued to private respondent
protection of the laws.
two postdated checks, namely, Metrobank check no. 464728 dated
January 15, 1992 in the amount of P365,750 and Metrobank check
xxx
no. 464743 dated January 22, 1992 in the amount of P429,000.
Check no. 464728 was dishonored upon presentment for having
Section 19 (1) Excessive fines shall not be imposed, nor cruel,
been drawn against insufficient funds while check no. 464743 was
degrading or inhuman punishment inflicted. x x x.
not presented for payment upon request of petitioners who
promised to replace the dishonored check.
We shall deal first with the issue of whether PD 818 was enacted in
contravention of Section 19 of Article III of the Constitution. In this
When petitioners reneged on their promise to cover the amount of
regard, the impugned provision of PD 818 reads as follows:
check no. 464728, the private respondent filed a complaint-affidavit
before the Office of the City Prosecutor of Quezon City charging
SECTION 1. Any person who shall defraud another by means of
petitioner spouses with the crime of estafa under Article 315, par. 2
false pretenses or fraudulent acts as defined in paragraph 2(d) of
(d) of the Revised Penal Code, as amended by PD 818.
Article 315 of the Revised Penal Code, as amended by Republic Act
No. 4885, shall be punished by:
On February 16, 2001, the City Prosecutor issued a resolution
finding probable cause against petitioners and recommending the
1st. The penalty of reclusion temporal if the amount of the fraud is
filing of an information for estafa with no bail recommended. On the
over 12,000 pesos but does not exceed 22,000 pesos, and if such
same day, an information for the crime of estafa was filed with
amount exceeds the later sum, the penalty provided in this
Branch 217 of the Regional Trial Court of Quezon City against
paragraph shall be imposed in its maximum period, adding one year
petitioners. The case was docketed as Criminal Case No. Q-01-
for each additional 10,000 pesos but the total penalty which may be
101574. Thereafter, the trial court issued a warrant for the arrest of
imposed shall in no case exceed thirty years. In such cases, and in
herein petitioners, thus:
connection with the accessory penalties which may be imposed
under the Revised Penal Code, the penalty shall be termed
It appearing on the face of the information and from supporting
reclusion perpetua;
affidavit of the complaining witness and its annexes that probable
cause exists, that the crime charged was committed and accused is
2nd. The penalty of prision mayor in its maximum period, if the
probably guilty thereof, let a warrant for the arrest of the accused be
amount of the fraud is over 6,000 pesos but does not exceed 12,000
issued.
pesos.
No Bail Recommended.
3rd. The penalty of prision mayor in its medium period, if such
amount is over 200 pesos but does not exceed 6,000 pesos; and
SO ORDERED.[1]
4th. By prision mayor in its minimum period, if such amount does
On July 18, 2001, petitioners filed an Urgent Motion to Quash
not exceed 200 pesos.
Information and Warrant of Arrest which was denied by the trial
court. Likewise, petitioners motion for bail filed on July 24, 2001 was
Petitioners contend that, inasmuch as the amount of the subject
denied by the trial court on the same day. Petitioner Jovencio Lim
check is P365,750, they can be penalized with reclusion perpetua
was arrested by virtue of the warrant of arrest issued by the trial
or 30 years of imprisonment. This penalty, according to petitioners,
court and was detained at the Quezon City Jail. However, petitioner
is too severe and disproportionate to the crime they committed and
Teresita Lim remained at large.
infringes on the express mandate of Article III, Section 19 of the
Constitution which prohibits the infliction of cruel, degrading and
On August 22, 2001, petitioners filed the instant petition for certiorari
inhuman punishment.
imputing grave abuse of discretion on the part of the lower court and
the Office of the City Prosecutor of Quezon City, arguing that PD
 CONSTI LAW II I ACJUCO 627

Settled is the rule that a punishment authorized by statute is not rejected. Publication, being an indispensable part of due process, is
cruel, degrading or disproportionate to the nature of the offense imperative to the validity of laws, presidential decrees and executive
unless it is flagrantly and plainly oppressive and wholly orders.[5] PD 818 was published in the Official Gazette on
disproportionate to the nature of the offense as to shock the moral December 1, 1975.[6]
sense of the community. It takes more than merely being harsh,
excessive, out of proportion or severe for a penalty to be obnoxious With the foregoing considerations in mind, this Court upholds the
to the Constitution.[2] Based on this principle, the Court has constitutionality of PD 818.
consistently overruled contentions of the defense that the penalty of
fine or imprisonment authorized by the statute involved is cruel and WHEREFORE, the petition is hereby DISMISSED.
degrading.
SO ORDERED.
In People vs. Tongko,[3] this Court held that the prohibition against
cruel and unusual punishment is generally aimed at the form or
character of the punishment rather than its severity in respect of its
duration or amount, and applies to punishments which never existed
in America or which public sentiment regards as cruel or obsolete.
This refers, for instance, to those inflicted at the whipping post or in
the pillory, to burning at the stake, breaking on the wheel,
disemboweling and the like. The fact that the penalty is severe
provides insufficient basis to declare a law unconstitutional and
does not, by that circumstance alone, make it cruel and inhuman.

Petitioners also argue that while PD 818 increased the imposable

penalties for estafa committed under Article 315, par. 2 (d) of the
Revised Penal Code, it did not increase the amounts corresponding
to the said new penalties. Thus, the original amounts provided for in
the Revised Penal Code have remained the same notwithstanding
that they have become negligible and insignificant compared to the
present value of the peso.

This argument is without merit. The primary purpose of PD 818 is

emphatically and categorically stated in the following:

WHEREAS, reports received of late indicate an upsurge of estafa

(swindling) cases committed by means of bouncing checks;

WHEREAS, if not checked at once, these criminal acts would erode

the peoples confidence in the use of negotiable instruments as a
medium of commercial transaction and consequently result in the
retardation of trade and commerce and the undermining of the
banking system of the country;

WHEREAS, it is vitally necessary to arrest and curb the rise in this

kind of estafa cases by increasing the existing penalties provided
therefor.

Clearly, the increase in the penalty, far from being cruel and
degrading, was motivated by a laudable purpose, namely, to
effectuate the repression of an evil that undermines the countrys
commercial and economic growth, and to serve as a necessary
precaution to deter people from issuing bouncing checks. The fact
that PD 818 did not increase the amounts corresponding to the new
penalties only proves that the amount is immaterial and
inconsequential. What the law sought to avert was the proliferation
of estafa cases committed by means of bouncing checks. Taking
into account the salutary purpose for which said law was decreed,
we conclude that PD 818 does not violate Section 19 of Article III of
the Constitution.

Moreover, when a law is questioned before the Court, the

presumption is in favor of its constitutionality. To justify its
nullification, there must be a clear and unmistakable breach of the
Constitution, not a doubtful and argumentative one.[4] The burden
of proving the invalidity of a law rests on those who challenge it. In
this case, petitioners failed to present clear and convincing proof to
defeat the presumption of constitutionality of PD 818.

With respect to the issue of whether PD 818 infringes on Section 1

of Article III of the Constitution, petitioners claim that PD 818 is
violative of the due process clause of the Constitution as it was not
published in the Official Gazette. This claim is incorrect and must be

G.R. No. 180016 April 29, 2014
LITO CORPUZ, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
PERALTA, J.:
This is to resolve the Petition for Review on Certiorari, under Rule
45 of the Rules of Court, dated November 5, 2007, of petitioner Lito
Corpuz (petitioner), seeking to reverse and set aside the Decision1
dated March 22, 2007 and Resolution2 dated September 5, 2007 of
the Court of Appeals (CA), which affirmed with modification the
Decision3 dated July 30, 2004 of the Regional Trial Court (RTC),
Branch 46, San Fernando City, finding the petitioner guilty beyond
reasonable doubt of the crime of Estafa under Article 315,
paragraph (1), sub-paragraph (b) of the Revised Penal Code.
The antecedent facts follow.
Private complainant Danilo Tangcoy and petitioner met at the
Admiral Royale Casino in Olongapo City sometime in 1990. Private
complainant was then engaged in the business of lending money to
casino players and, upon hearing that the former had some pieces
of jewelry for sale, petitioner approached him on May 2, 1991 at the
same casino and offered to sell the said pieces of jewelry on
commission basis. Private complainant agreed, and as a
consequence, he turned over to petitioner the following items: an
18k diamond ring for men; a woman's bracelet; one (1) men's
necklace and another men's bracelet, with an aggregate value of
₱98,000.00, as evidenced by a receipt of even date. They both
agreed that petitioner shall remit the proceeds of the sale, and/or, if
unsold, to return the same items, within a period of 60 days. The
period expired without petitioner remitting the proceeds of the sale
or returning the pieces of jewelry. When private complainant was
able to meet petitioner, the latter promised the former that he will
pay the value of the said items entrusted to him, but to no avail.
Thus, an Information was filed against petitioner for the crime of
estafa, which reads as follows:
That on or about the fifth (5th) day of July 1991, in the City of
Olongapo, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, after having received from one
Danilo Tangcoy, one (1) men's diamond ring, 18k, worth
₱45,000.00; one (1) three-baht men's bracelet, 22k, worth
₱25,000.00; one (1) two-baht ladies' bracelet, 22k, worth
₱12,000.00, or in the total amount of Ninety-Eight Thousand Pesos
(₱98,000.00), Philippine currency, under expressed obligation on
the part of said accused to remit the proceeds of the sale of the said
items or to return the same, if not sold, said accused, once in
possession of the said items, with intent to defraud, and with
unfaithfulness and abuse of confidence, and far from complying with
his aforestated obligation, did then and there wilfully, unlawfully and
feloniously misappropriate, misapply and convert to his own
personal use and benefit the aforesaid jewelries (sic) or the
proceeds of the sale thereof, and despite repeated demands, the
accused failed and refused to return the said items or to remit the
amount of Ninety- Eight Thousand Pesos (₱98,000.00), Philippine
currency, to the damage and prejudice of said Danilo Tangcoy in
the aforementioned amount.
CONTRARY TO LAW.
On January 28, 1992, petitioner, with the assistance of his counsel,
entered a plea of not guilty. Thereafter, trial on the merits ensued.
The prosecution, to prove the above-stated facts, presented the
lone testimony of Danilo Tangcoy. On the other hand, the defense
CONSTI LAW II I ACJUCO 628
presented the lone testimony of petitioner, which can be
summarized, as follows:
Petitioner and private complainant were collecting agents of Antonio
Balajadia, who is engaged in the financing business of extending
loans to Base employees. For every collection made, they earn a
commission. Petitioner denied having transacted any business with
private complainant.
However, he admitted obtaining a loan from Balajadia sometime in
1989 for which he was made to sign a blank receipt. He claimed that
the same receipt was then dated May 2, 1991 and used as evidence
against him for the supposed agreement to sell the subject pieces
of jewelry, which he did not even see.
After trial, the RTC found petitioner guilty beyond reasonable doubt
of the crime charged in the Information. The dispositive portion of
the decision states:
WHEREFORE, finding accused LITO CORPUZ GUILTY beyond
reasonable doubt of the felony of Estafa under Article 315,
paragraph one (1), subparagraph (b) of the Revised Penal Code;
there being no offsetting generic aggravating nor ordinary mitigating
circumstance/s to vary the penalty imposable;
accordingly, the accused is hereby sentenced to suffer the penalty
of deprivation of liberty consisting of an imprisonment under the
Indeterminate Sentence Law of FOUR (4) YEARS AND TWO (2)
MONTHS of Prision Correccional in its medium period AS
MINIMUM, to FOURTEEN (14) YEARS AND EIGHT (8) MONTHS
of Reclusion Temporal in its minimum period AS MAXIMUM; to
indemnify private complainant Danilo Tangcoy the amount of
₱98,000.00 as actual damages, and to pay the costs of suit.
SO ORDERED.
The case was elevated to the CA, however, the latter denied the
appeal of petitioner and affirmed the decision of the RTC, thus:
WHEREFORE, the instant appeal is DENIED. The assailed
Judgment dated July 30, 2004 of the RTC of San Fernando City (P),
Branch 46, is hereby AFFIRMED with MODIFICATION on the
imposable prison term, such that accused-appellant shall suffer the
indeterminate penalty of 4 years and 2 months of prision
correccional, as minimum, to 8 years of prision mayor, as maximum,
plus 1 year for each additional ₱10,000.00, or a total of 7 years. The
rest of the decision stands.
SO ORDERED.
Petitioner, after the CA denied his motion for reconsideration, filed
with this Court the present petition stating the following grounds:
A. THE HONORABLE COURT OF APPEALS ERRED IN
CONFIRMING THE ADMISSION AND APPRECIATION BY THE
LOWER COURT OF PROSECUTION EVIDENCE, INCLUDING ITS
EXHIBITS, WHICH ARE MERE MACHINE COPIES, AS THIS
VIOLATES THE BEST EVIDENCE RULE;
B. THE HONORABLE COURT OF APPEALS ERRED IN
AFFIRMING THE LOWER COURT'S FINDING THAT THE
CRIMINAL INFORMATION FOR ESTAFA WAS NOT FATALLY
DEFECTIVE ALTHOUGH THE SAME DID NOT CHARGE THE
OFFENSE UNDER ARTICLE 315 (1) (B) OF THE REVISED
PENAL CODE IN THAT -
1. THE INFORMATION DID NOT FIX A PERIOD WITHIN WHICH
THE SUBJECT [PIECES OF] JEWELRY SHOULD BE
RETURNED, IF UNSOLD, OR THE MONEY TO BE REMITTED, IF
SOLD;

2. THE DATE OF THE OCCURRENCE OF THE CRIME ALLEGED
IN THE INFORMATION AS OF 05 JULY 1991 WAS MATERIALLY
DIFFERENT FROM THE ONE TESTIFIED TO BY THE PRIVATE
COMPLAINANT WHICH WAS 02 MAY 1991;
C. THE HONORABLE COURT OF APPEALS ERRED IN
AFFIRMING THE LOWER COURT'S FINDING THAT DEMAND TO
RETURN THE SUBJECT [PIECES OF] JEWELRY, IF UNSOLD,
OR REMIT THE PROCEEDS, IF SOLD – AN ELEMENT OF THE
OFFENSE – WAS PROVED;
D. THE HONORABLE COURT OF APPEALS ERRED IN
AFFIRMING THE LOWER COURT'S FINDING THAT THE
PROSECUTION'S CASE WAS PROVEN BEYOND REASONABLE
DOUBT ALTHOUGH -
1. THE PRIVATE COMPLAINANT TESTIFIED ON TWO (2)
VERSIONS OF THE INCIDENT;
2. THE VERSION OF THE PETITIONER – ACCUSED IS MORE
STRAIGHTFORWARD AND LOGICAL, CONSISTENT WITH
HUMAN EXPERIENCE;
3. THE EQUIPOISE RULE WAS NOT APPRECIATED IN AND
APPLIED TO THIS CASE;
4. PENAL STATUTES ARE STRICTLY CONSTRUED AGAINST
THE STATE.
In its Comment dated May 5, 2008, the Office of the Solicitor
General (OSG) stated the following counter-arguments:
The exhibits were properly admitted inasmuch as petitioner failed to
object to their admissibility.
The information was not defective inasmuch as it sufficiently
established the designation of the offense and the acts complained
of.
The prosecution sufficiently established all the elements of the crime
charged.
This Court finds the present petition devoid of any merit.
The factual findings of the appellate court generally are conclusive,
and carry even more weight when said court affirms the findings of
the trial court, absent any showing that the findings are totally devoid
of support in the records, or that they are so glaringly erroneous as
to constitute grave abuse of discretion.4 Petitioner is of the opinion
that the CA erred in affirming the factual findings of the trial court.
He now comes to this Court raising both procedural and substantive
issues.
According to petitioner, the CA erred in affirming the ruling of the
trial court, admitting in evidence a receipt dated May 2, 1991 marked
as Exhibit "A" and its submarkings, although the same was merely
a photocopy, thus, violating the best evidence rule. However, the
records show that petitioner never objected to the admissibility of
the said evidence at the time it was identified, marked and testified
upon in court by private complainant. The CA also correctly pointed
out that petitioner also failed to raise an objection in his Comment
to the prosecution's formal offer of evidence and even admitted
having signed the said receipt. The established doctrine is that when
a party failed to interpose a timely objection to evidence at the time
they were offered in evidence, such objection shall be considered
as waived.5
Another procedural issue raised is, as claimed by petitioner, the
formally defective Information filed against him. He contends that
the Information does not contain the period when the pieces of
CONSTI LAW II I ACJUCO 629
jewelry were supposed to be returned and that the date when the
crime occurred was different from the one testified to by private
complainant. This argument is untenable. The CA did not err in
finding that the Information was substantially complete and in
reiterating that objections as to the matters of form and substance
in the Information cannot be made for the first time on appeal. It is
true that the gravamen of the crime of estafa under Article 315,
paragraph 1, subparagraph (b) of the RPC is the appropriation or
conversion of money or property received to the prejudice of the
owner6 and that the time of occurrence is not a material ingredient
of the crime, hence, the exclusion of the period and the wrong date
of the occurrence of the crime, as reflected in the Information, do
not make the latter fatally defective. The CA ruled:
x x x An information is legally viable as long as it distinctly states the
statutory designation of the offense and the acts or omissions
constitutive thereof. Then Section 6, Rule 110 of the Rules of Court
provides that a complaint or information is sufficient if it states the
name of the accused;
the designation of the offense by the statute; the acts or omissions
complained of as constituting the offense; the name of the offended
party; the approximate time of the commission of the offense, and
the place wherein the offense was committed. In the case at bar, a
reading of the subject Information shows compliance with the
foregoing rule. That the time of the commission of the offense was
stated as " on or about the fifth (5th) day of July, 1991" is not likewise
fatal to the prosecution's cause considering that Section 11 of the
same Rule requires a statement of the precise time only when the
same is a material ingredient of the offense. The gravamen of the
crime of estafa under Article 315, paragraph 1 (b) of the Revised
Penal Code (RPC) is the appropriation or conversion of money or
property received to the prejudice of the offender. Thus, aside from
the fact that the date of the commission thereof is not an essential
element of the crime herein charged, the failure of the prosecution
to specify the exact date does not render the Information ipso facto
defective. Moreover, the said date is also near the due date within
which accused-appellant should have delivered the proceeds or
returned the said [pieces of jewelry] as testified upon by Tangkoy,
hence, there was sufficient compliance with the rules. Accused-
appellant, therefore, cannot now be allowed to claim that he was not
properly apprised of the charges proferred against him.7
It must be remembered that petitioner was convicted of the crime of
Estafa under Article 315, paragraph 1 (b) of the RPC, which reads:
ART. 315. Swindling (estafa). – Any person who shall defraud
another by any of the means mentioned hereinbelow.
1. With unfaithfulness or abuse of confidence, namely:
xxxx
(b) By misappropriating or converting, to the prejudice of another,
money, goods, or any other personal property received by the
offender in trust or on commission, or for administration, or under
any other obligation involving the duty to make delivery of or to
return the same, even though such obligation be totally or partially
guaranteed by a bond; or by denying having received such money,
goods, or other property; x x x
The elements of estafa with abuse of confidence are as follows: (a)
that money, goods or other personal property is received by the
offender in trust, or on commission, or for administration, or under
any other obligation involving the duty to make delivery of, or to
return the same; (b) that there be misappropriation or conversion of
such money or property by the offender or denial on his part of such
receipt; (c) that such misappropriation or conversion or denial is to
the prejudice of another; and (d) that there is a demand made by
the offended party on the offender.8

Petitioner argues that the last element, which is, that there is a
demand by the offended party on the offender, was not proved. This
Court disagrees. In his testimony, private complainant narrated how
he was able to locate petitioner after almost two (2) months from the
time he gave the pieces of jewelry and asked petitioner about the
same items with the latter promising to pay them. Thus:
PROS. MARTINEZ
q Now, Mr. Witness, this was executed on 2 May 1991, and this
transaction could have been finished on 5 July 1991, the question
is what happens (sic) when the deadline came?
a I went looking for him, sir.
q For whom?
a Lito Corpuz, sir.
q Were you able to look (sic) for him?
a I looked for him for a week, sir.
q Did you know his residence?
a Yes, sir.
q Did you go there?
a Yes, sir.
q Did you find him?
a No, sir.
q Were you able to talk to him since 5 July 1991?
a I talked to him, sir.
q How many times?
a Two times, sir.
q What did you talk (sic) to him?
a About the items I gave to (sic) him, sir.
q Referring to Exhibit A-2?
a Yes, sir, and according to him he will take his obligation and I
asked him where the items are and he promised me that he will pay
these amount, sir.
q Up to this time that you were here, were you able to collect from
him partially or full?
a No, sir.9
No specific type of proof is required to show that there was
demand.10 Demand need not even be formal; it may be verbal.11
The specific word "demand" need not even be used to show that it
has indeed been made upon the person charged, since even a mere
query as to the whereabouts of the money [in this case, property],
would be tantamount to a demand.12 As expounded in Asejo v.
People:13
With regard to the necessity of demand, we agree with the CA that
demand under this kind of estafa need not be formal or written. The
appellate court observed that the law is silent with regard to the form
of demand in estafa under Art. 315 1(b), thus:
CONSTI LAW II I ACJUCO 630
When the law does not qualify, We should not qualify. Should a
written demand be necessary, the law would have stated so.
Otherwise, the word "demand" should be interpreted in its general
meaning as to include both written and oral demand. Thus, the
failure of the prosecution to present a written demand as evidence
is not fatal.
In Tubb v. People, where the complainant merely verbally inquired
about the money entrusted to the accused, we held that the query
was tantamount to a demand, thus:
x x x [T]he law does not require a demand as a condition precedent
to the existence of the crime of embezzlement. It so happens only
that failure to account, upon demand for funds or property held in
trust, is circumstantial evidence of misappropriation. The same way,
however, be established by other proof, such as that introduced in
the case at bar.14
In view of the foregoing and based on the records, the prosecution
was able to prove the existence of all the elements of the crime.
Private complainant gave petitioner the pieces of jewelry in trust, or
on commission basis, as shown in the receipt dated May 2, 1991
with an obligation to sell or return the same within sixty (60) days, if
unsold. There was misappropriation when petitioner failed to remit
the proceeds of those pieces of jewelry sold, or if no sale took place,
failed to return the same pieces of jewelry within or after the agreed
period despite demand from the private complainant, to the
prejudice of the latter.
Anent the credibility of the prosecution's sole witness, which is
questioned by petitioner, the same is unmeritorious. Settled is the
rule that in assessing the credibility of witnesses, this Court gives
great respect to the evaluation of the trial court for it had the unique
opportunity to observe the demeanor of witnesses and their
deportment on the witness stand, an opportunity denied the
appellate courts, which merely rely on the records of the case.15
The assessment by the trial court is even conclusive and binding if
not tainted with arbitrariness or oversight of some fact or
circumstance of weight and influence, especially when such finding
is affirmed by the CA.16 Truth is established not by the number of
witnesses, but by the quality of their testimonies, for in determining
the value and credibility of evidence, the witnesses are to be
weighed not numbered.17
As regards the penalty, while this Court's Third Division was
deliberating on this case, the question of the continued validity of
imposing on persons convicted of crimes involving property came
up. The legislature apparently pegged these penalties to the value
of the money and property in 1930 when it enacted the Revised
Penal Code. Since the members of the division reached no
unanimity on this question and since the issues are of first
impression, they decided to refer the case to the Court en banc for
consideration and resolution. Thus, several amici curiae were
invited at the behest of the Court to give their academic opinions on
the matter. Among those that graciously complied were Dean Jose
Manuel Diokno, Dean Sedfrey M. Candelaria, Professor Alfredo F.
Tadiar, the Senate President, and the Speaker of the House of
Representatives. The parties were later heard on oral arguments
before the Court en banc, with Atty. Mario L. Bautista appearing as
counsel de oficio of the petitioner.
After a thorough consideration of the arguments presented on the
matter, this Court finds the following:
There seems to be a perceived injustice brought about by the range
of penalties that the courts continue to impose on crimes against
property committed today, based on the amount of damage
measured by the value of money eighty years ago in 1932.
However, this Court cannot modify the said range of penalties
because that would constitute judicial legislation. What the
legislature's perceived failure in amending the penalties provided for

in the said crimes cannot be remedied through this Court's
decisions, as that would be encroaching upon the power of another
branch of the government. This, however, does not render the whole
situation without any remedy. It can be appropriately presumed that
the framers of the Revised Penal Code (RPC) had anticipated this
matter by including Article 5, which reads:
ART. 5. Duty of the court in connection with acts which should be
repressed but which are not covered by the law, and in cases of
excessive penalties. - Whenever a court has knowledge of any act
which it may deem proper to repress and which is not punishable by
law, it shall render the proper decision, and shall report to the Chief
Executive, through the Department of Justice, the reasons which
induce the court to believe that said act should be made the subject
of penal legislation.
In the same way, the court shall submit to the Chief Executive,
through the Department of Justice, such statement as may be
deemed proper, without suspending the execution of the sentence,
when a strict enforcement of the provisions of this Code would result
in the imposition of a clearly excessive penalty, taking into
consideration the degree of malice and the injury caused by the
offense.18
The first paragraph of the above provision clearly states that for acts
bourne out of a case which is not punishable by law and the court
finds it proper to repress, the remedy is to render the proper decision
and thereafter, report to the Chief Executive, through the
Department of Justice, the reasons why the same act should be the
subject of penal legislation. The premise here is that a deplorable
act is present but is not the subject of any penal legislation, thus,
the court is tasked to inform the Chief Executive of the need to make
that act punishable by law through legislation. The second
paragraph is similar to the first except for the situation wherein the
act is already punishable by law but the corresponding penalty is
deemed by the court as excessive. The remedy therefore, as in the
first paragraph is not to suspend the execution of the sentence but
to submit to the Chief Executive the reasons why the court considers
the said penalty to be non-commensurate with the act committed.
Again, the court is tasked to inform the Chief Executive, this time, of
the need for a legislation to provide the proper penalty.
In his book, Commentaries on the Revised Penal Code,19
Guillermo B. Guevara opined that in Article 5, the duty of the court
is merely to report to the Chief Executive, with a recommendation
for an amendment or modification of the legal provisions which it
believes to be harsh. Thus:
This provision is based under the legal maxim "nullum crimen, nulla
poena sige lege," that is, that there can exist no punishable act
except those previously and specifically provided for by penal
statute.
No matter how reprehensible an act is, if the law-making body does
not deem it necessary to prohibit its perpetration with penal
sanction, the Court of justice will be entirely powerless to punish
such act.
Under the provisions of this article the Court cannot suspend the
execution of a sentence on the ground that the strict enforcement of
the provisions of this Code would cause excessive or harsh penalty.
All that the Court could do in such eventuality is to report the matter
to the Chief Executive with a recommendation for an amendment or
modification of the legal provisions which it believes to be harsh.20
Anent the non-suspension of the execution of the sentence, retired
Chief Justice Ramon C. Aquino and retired Associate Justice
Carolina C. Griño-Aquino, in their book, The Revised Penal Code,21
echoed the above-cited commentary, thus:
CONSTI LAW II I ACJUCO 631
The second paragraph of Art. 5 is an application of the humanitarian
principle that justice must be tempered with mercy. Generally, the
courts have nothing to do with the wisdom or justness of the
penalties fixed by law. "Whether or not the penalties prescribed by
law upon conviction of violations of particular statutes are too severe
or are not severe enough, are questions as to which commentators
on the law may fairly differ; but it is the duty of the courts to enforce
the will of the legislator in all cases unless it clearly appears that a
given penalty falls within the prohibited class of excessive fines or
cruel and unusual punishment." A petition for clemency should be
addressed to the Chief Executive.22
There is an opinion that the penalties provided for in crimes against
property be based on the current inflation rate or at the ratio of ₱1.00
is equal to ₱100.00 . However, it would be dangerous as this would
result in uncertainties, as opposed to the definite imposition of the
penalties. It must be remembered that the economy fluctuates and
if the proposed imposition of the penalties in crimes against property
be adopted, the penalties will not cease to change, thus, making the
RPC, a self-amending law. Had the framers of the RPC intended
that to be so, it should have provided the same, instead, it included
the earlier cited Article 5 as a remedy. It is also improper to presume
why the present legislature has not made any moves to amend the
subject penalties in order to conform with the present times. For all
we know, the legislature intends to retain the same penalties in order
to deter the further commission of those punishable acts which have
increased tremendously through the years. In fact, in recent moves
of the legislature, it is apparent that it aims to broaden the coverage
of those who violate penal laws. In the crime of Plunder, from its
original minimum amount of ₱100,000,000.00 plundered, the
legislature lowered it to ₱50,000,000.00. In the same way, the
legislature lowered the threshold amount upon which the Anti-
Money Laundering Act may apply, from ₱1,000,000.00 to
₱500,000.00.
It is also worth noting that in the crimes of Theft and Estafa, the
present penalties do not seem to be excessive compared to the
proposed imposition of their corresponding penalties. In Theft, the
provisions state that:
Art. 309. Penalties. — Any person guilty of theft shall be punished
by:
1. The penalty of prision mayor in its minimum and medium periods,
if the value of the thing stolen is more than 12,000 pesos but does
not exceed 22,000 pesos, but if the value of the thing stolen exceeds
the latter amount the penalty shall be the maximum period of the
one prescribed in this paragraph, and one year for each additional
ten thousand pesos, but the total of the penalty which may be
imposed shall not exceed twenty years. In such cases, and in
connection with the accessory penalties which may be imposed and
for the purpose of the other provisions of this Code, the penalty shall
be termed prision mayor or reclusion temporal, as the case may be.
2. The penalty of prision correccional in its medium and maximum
periods, if the value of the thing stolen is more than 6,000 pesos but
does not exceed 12,000 pesos.
3. The penalty of prision correccional in its minimum and medium
periods, if the value of the property stolen is more than 200 pesos
but does not exceed 6,000 pesos.
4. Arresto mayor in its medium period to prision correccional in its
minimum period, if the value of the property stolen is over 50 pesos
but does not exceed 200 pesos.
5. Arresto mayor to its full extent, if such value is over 5 pesos but
does not exceed 50 pesos.
6. Arresto mayor in its minimum and medium periods, if such value
does not exceed 5 pesos.

7. Arresto menor or a fine not exceeding 200 pesos, if the theft is
committed under the circumstances enumerated in paragraph 3 of
the next preceding article and the value of the thing stolen does not
exceed 5 pesos. If such value exceeds said amount, the provision
of any of the five preceding subdivisions shall be made applicable.
8. Arresto menor in its minimum period or a fine not exceeding 50
pesos, when the value of the thing stolen is not over 5 pesos, and
the offender shall have acted under the impulse of hunger, poverty,
or the difficulty of earning a livelihood for the support of himself or
his family.
In a case wherein the value of the thing stolen is ₱6,000.00, the
above-provision states that the penalty is prision correccional in its
minimum and medium periods (6 months and 1 day to 4 years and
2 months). Applying the proposal, if the value of the thing stolen is
₱6,000.00, the penalty is imprisonment of arresto mayor in its
medium period to prision correccional minimum period (2 months
and 1 day to 2 years and 4 months). It would seem that under the
present law, the penalty imposed is almost the same as the penalty
proposed. In fact, after the application of the Indeterminate
Sentence Law under the existing law, the minimum penalty is still
lowered by one degree; hence, the minimum penalty is arresto
mayor in its medium period to maximum period (2 months and 1 day
to 6 months), making the offender qualified for pardon or parole after
serving the said minimum period and may even apply for probation.
Moreover, under the proposal, the minimum penalty after applying
the Indeterminate Sentence Law is arresto menor in its maximum
period to arresto mayor in its minimum period (21 days to 2 months)
is not too far from the minimum period under the existing law. Thus,
it would seem that the present penalty imposed under the law is not
at all excessive. The same is also true in the crime of Estafa.23
Moreover, if we apply the ratio of 1:100, as suggested to the value
of the thing stolen in the crime of Theft and the damage caused in
the crime of Estafa, the gap between the minimum and the
maximum amounts, which is the basis of determining the proper
penalty to be imposed, would be too wide and the penalty imposable
would no longer be commensurate to the act committed and the
value of the thing stolen or the damage caused:
I. Article 309, or the penalties for the crime of Theft, the value would
be modified but the penalties are not changed:
1. ₱12,000.00 to ₱22,000.00 will become ₱1,200,000.00 to
₱2,200,000.00, punished by prision mayor minimum to prision
mayor medium (6 years and 1 day to 10 years).
2. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to
₱1,200,000.00, punished by prision correccional medium and to
prision correccional maximum (2 years, 4 months and 1 day to 6
years).24
3. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00,
punishable by prision correccional minimum to prision correccional
medium (6 months and 1 day to 4 years and 2 months).
4. ₱50.00 to ₱200.00 will become ₱5,000.00 to ₱20,000.00,
punishable by arresto mayor medium to prision correccional
minimum (2 months and 1 day to 2 years and 4 months).
5. ₱5.00 to ₱50.00 will become ₱500.00 to ₱5,000.00, punishable
by arresto mayor (1 month and 1 day to 6 months).
6. ₱5.00 will become ₱500.00, punishable by arresto mayor
minimum to arresto mayor medium.
x x x x.
CONSTI LAW II I ACJUCO 632
II. Article 315, or the penalties for the crime of Estafa, the value
would also be modified but the penalties are not changed, as
follows:
1st. ₱12,000.00 to ₱22,000.00, will become ₱1,200,000.00 to
₱2,200,000.00, punishable by prision correccional maximum to
prision mayor minimum (4 years, 2 months and 1 day to 8 years).25
2nd. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to
₱1,200,000.00, punishable by prision correccional minimum to
prision correccional medium (6 months and 1 day to 4 years and 2
months).26
3rd. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00,
punishable by arresto mayor maximum to prision correccional
minimum (4 months and 1 day to 2 years and 4 months).
4th. ₱200.00 will become ₱20,000.00, punishable by arresto mayor
maximum (4 months and 1 day to 6 months).
An argument raised by Dean Jose Manuel I. Diokno, one of our
esteemed amici curiae, is that the incremental penalty provided
under Article 315 of the RPC violates the Equal Protection Clause.
The equal protection clause requires equality among equals, which
is determined according to a valid classification. The test developed
by jurisprudence here and yonder is that of reasonableness,27
which has four requisites:
(1) The classification rests on substantial distinctions;
(2) It is germane to the purposes of the law;
(3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class.28
According to Dean Diokno, the Incremental Penalty Rule (IPR) does
not rest on substantial distinctions as ₱10,000.00 may have been
substantial in the past, but it is not so today, which violates the first
requisite; the IPR was devised so that those who commit estafa
involving higher amounts would receive heavier penalties; however,
this is no longer achieved, because a person who steals
₱142,000.00 would receive the same penalty as someone who
steals hundreds of millions, which violates the second requisite;
and, the IPR violates requisite no. 3, considering that the IPR is
limited to existing conditions at the time the law was promulgated,
conditions that no longer exist today.
Assuming that the Court submits to the argument of Dean Diokno
and declares the incremental penalty in Article 315 unconstitutional
for violating the equal protection clause, what then is the penalty
that should be applied in case the amount of the thing subject matter
of the crime exceeds ₱22,000.00? It seems that the proposition
poses more questions than answers, which leads us even more to
conclude that the appropriate remedy is to refer these matters to
Congress for them to exercise their inherent power to legislate laws.
Even Dean Diokno was of the opinion that if the Court declares the
IPR unconstitutional, the remedy is to go to Congress. Thus:
xxxx
JUSTICE PERALTA:
Now, your position is to declare that the incremental penalty should
be struck down as unconstitutional because it is absurd.
DEAN DIOKNO:
 CONSTI LAW II I ACJUCO 633

Absurd, it violates equal protection, Your Honor, and cruel and The Court cannot do that.
unusual punishment.
DEAN DIOKNO:
JUSTICE PERALTA:
Could not be.
Then what will be the penalty that we are going to impose if the
amount is more than Twenty-Two Thousand (₱22,000.00) Pesos. JUSTICE PERALTA:

DEAN DIOKNO: The only remedy is to go to Congress...

Well, that would be for Congress to ... if this Court will declare the DEAN DIOKNO:
incremental penalty rule unconstitutional, then that would ... the void
should be filled by Congress. Yes, Your Honor.

JUSTICE PERALTA: JUSTICE PERALTA:

But in your presentation, you were fixing the amount at One ... and determine the value or the amount.
Hundred Thousand (₱100,000.00) Pesos ...
DEAN DIOKNO:
DEAN DIOKNO:
Yes, Your Honor.
Well, my presen ... (interrupted)
JUSTICE PERALTA:
JUSTICE PERALTA:
That will be equivalent to the incremental penalty of one (1) year in
For every One Hundred Thousand (₱100,000.00) Pesos in excess excess of Twenty-Two Thousand (₱22,000.00) Pesos.
of Twenty-Two Thousand (₱22,000.00) Pesos you were suggesting
an additional penalty of one (1) year, did I get you right? DEAN DIOKNO:

DEAN DIOKNO: Yes, Your Honor.

Yes, Your Honor, that is, if the court will take the route of statutory JUSTICE PERALTA:
interpretation.
The amount in excess of Twenty-Two Thousand (₱22,000.00)
JUSTICE PERALTA: Pesos.

Ah ... Thank you, Dean.

DEAN DIOKNO: DEAN DIOKNO:

If the Court will say that they can go beyond the literal wording of Thank you.
the law...
x x x x29
JUSTICE PERALTA:
Dean Diokno also contends that Article 315 of the Revised Penal
But if we de ... (interrupted) Code constitutes cruel and unusual punishment. Citing Solem v.
Helm,30 Dean Diokno avers that the United States Federal
DEAN DIOKNO: Supreme Court has expanded the application of a similar
Constitutional provision prohibiting cruel and unusual punishment,
....then.... to the duration of the penalty, and not just its form. The court therein
ruled that three things must be done to decide whether a sentence
JUSTICE PERALTA: is proportional to a specific crime, viz.; (1) Compare the nature and
gravity of the offense, and the harshness of the penalty; (2)
Ah, yeah. But if we declare the incremental penalty as Compare the sentences imposed on other criminals in the same
unsconstitutional, the court cannot fix the amount ... jurisdiction, i.e., whether more serious crimes are subject to the
same penalty or to less serious penalties; and (3) Compare the
DEAN DIOKNO: sentences imposed for commission of the same crime in other
jurisdictions.
No, Your Honor.
However, the case of Solem v. Helm cannot be applied in the
JUSTICE PERALTA: present case, because in Solem what respondent therein deemed
cruel was the penalty imposed by the state court of South Dakota
... as the equivalent of one, as an incremental penalty in excess of after it took into account the latter’s recidivist statute and not the
Twenty-Two Thousand (₱22,000.00) Pesos. original penalty for uttering a "no account" check. Normally, the
maximum punishment for the crime would have been five years
DEAN DIOKNO: imprisonment and a $5,000.00 fine. Nonetheless, respondent was
sentenced to life imprisonment without the possibility of parole
No, Your Honor. under South Dakota’s recidivist statute because of his six prior
felony convictions. Surely, the factual antecedents of Solem are
JUSTICE PERALTA: different from the present controversy.

With respect to the crime of Qualified Theft, however, it is true that
the imposable penalty for the offense is high. Nevertheless, the
rationale for the imposition of a higher penalty against a domestic
servant is the fact that in the commission of the crime, the helper
will essentially gravely abuse the trust and confidence reposed upon
her by her employer. After accepting and allowing the helper to be
a member of the household, thus entrusting upon such person the
protection and safekeeping of the employer’s loved ones and
properties, a subsequent betrayal of that trust is so repulsive as to
warrant the necessity of imposing a higher penalty to deter the
commission of such wrongful acts.
There are other crimes where the penalty of fine and/or
imprisonment are dependent on the subject matter of the crime and
which, by adopting the proposal, may create serious implications.
For example, in the crime of Malversation, the penalty imposed
depends on the amount of the money malversed by the public
official, thus:
Art. 217. Malversation of public funds or property; Presumption of
malversation. — Any public officer who, by reason of the duties of
his office, is accountable for public funds or property, shall
appropriate the same or shall take or misappropriate or shall
consent, through abandonment or negligence, shall permit any
other person to take such public funds, or property, wholly or
partially, or shall otherwise be guilty of the misappropriation or
malversation of such funds or property, shall suffer:
1. The penalty of prision correccional in its medium and maximum
periods, if the amount involved in the misappropriation or
malversation does not exceed two hundred pesos.
2. The penalty of prision mayor in its minimum and medium periods,
if the amount involved is more than two hundred pesos but does not
exceed six thousand pesos.
3. The penalty of prision mayor in its maximum period to reclusion
temporal in its minimum period, if the amount involved is more than
six thousand pesos but is less than twelve thousand pesos.
4. The penalty of reclusion temporal, in its medium and maximum
periods, if the amount involved is more than twelve thousand pesos
but is less than twenty-two thousand pesos. If the amount exceeds
the latter, the penalty shall be reclusion temporal in its maximum
period to reclusion perpetua.
In all cases, persons guilty of malversation shall also suffer the
penalty of perpetual special disqualification and a fine equal to the
amount of the funds malversed or equal to the total value of the
property embezzled.
The failure of a public officer to have duly forthcoming any public
funds or property with which he is chargeable, upon demand by any
duly authorized officer, shall be prima facie evidence that he has put
such missing funds or property to personal use.
The above-provisions contemplate a situation wherein the
Government loses money due to the unlawful acts of the offender.
Thus, following the proposal, if the amount malversed is ₱200.00
(under the existing law), the amount now becomes ₱20,000.00 and
the penalty is prision correccional in its medium and maximum
periods (2 years 4 months and 1 day to 6 years). The penalty may
not be commensurate to the act of embezzlement of ₱20,000.00
compared to the acts committed by public officials punishable by a
special law, i.e., Republic Act No. 3019 or the Anti-Graft and Corrupt
Practices Act, specifically Section 3,31 wherein the injury caused to
the government is not generally defined by any monetary amount,
the penalty (6 years and 1 month to 15 years)32 under the Anti-Graft
Law will now become higher. This should not be the case, because
in the crime of malversation, the public official takes advantage of
CONSTI LAW II I ACJUCO 634
his public position to embezzle the fund or property of the
government entrusted to him.
The said inequity is also apparent in the crime of Robbery with force
upon things (inhabited or uninhabited) where the value of the thing
unlawfully taken and the act of unlawful entry are the bases of the
penalty imposable, and also, in Malicious Mischief, where the
penalty of imprisonment or fine is dependent on the cost of the
damage caused.
In Robbery with force upon things (inhabited or uninhabited), if we
increase the value of the thing unlawfully taken, as proposed in the
ponencia, the sole basis of the penalty will now be the value of the
thing unlawfully taken and no longer the element of force employed
in entering the premises. It may likewise cause an inequity between
the crime of Qualified Trespass to Dwelling under Article 280, and
this kind of robbery because the former is punishable by prision
correccional in its medium and maximum periods (2 years, 4 months
and 1 day to 6 years) and a fine not exceeding ₱1,000.00
(₱100,000.00 now if the ratio is 1:100) where entrance to the
premises is with violence or intimidation, which is the main
justification of the penalty. Whereas in the crime of Robbery with
force upon things, it is punished with a penalty of prision mayor (6
years and 1 day to 12 years) if the intruder is unarmed without the
penalty of Fine despite the fact that it is not merely the illegal entry
that is the basis of the penalty but likewise the unlawful taking.
Furthermore, in the crime of Other Mischiefs under Article 329, the
highest penalty that can be imposed is arresto mayor in its medium
and maximum periods (2 months and 1 day to 6 months) if the value
of the damage caused exceeds ₱1,000.00, but under the proposal,
the value of the damage will now become ₱100,000.00 (1:100), and
still punishable by arresto mayor (1 month and 1 day to 6 months).
And, if the value of the damaged property does not exceed ₱200.00,
the penalty is arresto menor or a fine of not less than the value of
the damage caused and not more than ₱200.00, if the amount
involved does not exceed ₱200.00 or cannot be estimated. Under
the proposal, ₱200.00 will now become ₱20,000.00, which simply
means that the fine of ₱200.00 under the existing law will now
become ₱20,000.00. The amount of Fine under this situation will
now become excessive and afflictive in nature despite the fact that
the offense is categorized as a light felony penalized with a light
penalty under Article 26 of the RPC.33 Unless we also amend
Article 26 of the RPC, there will be grave implications on the penalty
of Fine, but changing the same through Court decision, either
expressly or impliedly, may not be legally and constitutionally
feasible.
There are other crimes against property and swindling in the RPC
that may also be affected by the proposal, such as those that impose
imprisonment and/or Fine as a penalty based on the value of the
damage caused, to wit: Article 311 (Theft of the property of the
National Library and National Museum), Article 312 (Occupation of
real property or usurpation of real rights in property), Article 313
(Altering boundaries or landmarks), Article 316 (Other forms of
swindling), Article 317 (Swindling a minor), Article 318 (Other
deceits), Article 328 (Special cases of malicious mischief) and
Article 331 (Destroying or damaging statues, public monuments or
paintings). Other crimes that impose Fine as a penalty will also be
affected, such as: Article 213 (Frauds against the public treasury
and similar offenses), Article 215 (Prohibited Transactions),
Article 216 (Possession of prohibited interest by a public officer),
Article 218 (Failure of accountable officer to render accounts),
Article 219 (Failure of a responsible public officer to render accounts
before leaving the country).
In addition, the proposal will not only affect crimes under the RPC.
It will also affect crimes which are punishable by special penal laws,
such as Illegal Logging or Violation of Section 68 of Presidential
Decree No. 705, as amended.34 The law treats cutting, gathering,

collecting and possessing timber or other forest products without
license as an offense as grave as and equivalent to the felony of
qualified theft.35 Under the law, the offender shall be punished with
the penalties imposed under Articles 309 and 31036 of the Revised
Penal Code, which means that the penalty imposable for the offense
is, again, based on the value of the timber or forest products
involved in the offense. Now, if we accept the said proposal in the
crime of Theft, will this particular crime of Illegal Logging be
amended also in so far as the penalty is concerned because the
penalty is dependent on Articles 309 and 310 of the RPC? The
answer is in the negative because the soundness of this particular
law is not in question.
With the numerous crimes defined and penalized under the Revised
Penal Code and Special Laws, and other related provisions of these
laws affected by the proposal, a thorough study is needed to
determine its effectivity and necessity. There may be some
provisions of the law that should be amended; nevertheless, this
Court is in no position to conclude as to the intentions of the framers
of the Revised Penal Code by merely making a study of the
applicability of the penalties imposable in the present times. Such is
not within the competence of the Court but of the Legislature which
is empowered to conduct public hearings on the matter, consult
legal luminaries and who, after due proceedings, can decide
whether or not to amend or to revise the questioned law or other
laws, or even create a new legislation which will adopt to the times.
Admittedly, Congress is aware that there is an urgent need to
amend the Revised Penal Code. During the oral arguments, counsel
for the Senate informed the Court that at present, fifty-six (56) bills
are now pending in the Senate seeking to amend the Revised Penal
Code,37 each one proposing much needed change and updates to
archaic laws that were promulgated decades ago when the political,
socio-economic, and cultural settings were far different from today’s
conditions.
Verily, the primordial duty of the Court is merely to apply the law in
such a way that it shall not usurp legislative powers by judicial
legislation and that in the course of such application or construction,
it should not make or supervise legislation, or under the guise of
interpretation, modify, revise, amend, distort, remodel, or rewrite the
law, or give the law a construction which is repugnant to its terms.38
The Court should apply the law in a manner that would give effect
to their letter and spirit, especially when the law is clear as to its
intent and purpose. Succinctly put, the Court should shy away from
encroaching upon the primary function of a co-equal branch of the
Government; otherwise, this would lead to an inexcusable breach of
the doctrine of separation of powers by means of judicial legislation.
Moreover, it is to be noted that civil indemnity is, technically, not a
penalty or a Fine; hence, it can be increased by the Court when
appropriate. Article 2206 of the Civil Code provides:
Art. 2206. The amount of damages for death caused by a crime or
quasi-delict shall be at least three thousand pesos, even though
there may have been mitigating circumstances. In addition:
(1) The defendant shall be liable for the loss of the earning capacity
of the deceased, and the indemnity shall be paid to the heirs of the
latter; such indemnity shall in every case be assessed and awarded
by the court, unless the deceased on account of permanent physical
disability not caused by the defendant, had no earning capacity at
the time of his death;
(2) If the deceased was obliged to give support according to the
provisions of Article 291, the recipient who is not an heir called to
the decedent's inheritance by the law of testate or intestate
succession, may demand support from the person causing the
death, for a period not exceeding five years, the exact duration to
be fixed by the court;
CONSTI LAW II I ACJUCO 635
(3) The spouse, legitimate and illegitimate descendants and
ascendants of the deceased may demand moral damages for
mental anguish by reason of the death of the deceased.
In our jurisdiction, civil indemnity is awarded to the offended party
as a kind of monetary restitution or compensation to the victim for
the damage or infraction that was done to the latter by the accused,
which in a sense only covers the civil aspect. Precisely, it is civil
indemnity. Thus, in a crime where a person dies, in addition to the
penalty of imprisonment imposed to the offender, the accused is
also ordered to pay the victim a sum of money as restitution. Clearly,
this award of civil indemnity due to the death of the victim could not
be contemplated as akin to the value of a thing that is unlawfully
taken which is the basis in the imposition of the proper penalty in
certain crimes. Thus, the reasoning in increasing the value of civil
indemnity awarded in some offense cannot be the same reasoning
that would sustain the adoption of the suggested ratio. Also, it is
apparent from Article 2206 that the law only imposes a minimum
amount for awards of civil indemnity, which is ₱3,000.00. The law
did not provide for a ceiling. Thus, although the minimum amount
for the award cannot be changed, increasing the amount awarded
as civil indemnity can be validly modified and increased when the
present circumstance warrants it. Corollarily, moral damages under
Article 222039 of the Civil Code also does not fix the amount of
damages that can be awarded. It is discretionary upon the court,
depending on the mental anguish or the suffering of the private
offended party. The amount of moral damages can, in relation to
civil indemnity, be adjusted so long as it does not exceed the award
of civil indemnity.
In addition, some may view the penalty provided by law for the
offense committed as tantamount to cruel punishment. However, all
penalties are generally harsh, being punitive in nature. Whether or
not they are excessive or amount to cruel punishment is a matter
that should be left to lawmakers. It is the prerogative of the courts to
apply the law, especially when they are clear and not subject to any
other interpretation than that which is plainly written.
Similar to the argument of Dean Diokno, one of Justice Antonio
Carpio’s opinions is that the incremental penalty provision should be
declared unconstitutional and that the courts should only impose the
penalty corresponding to the amount of ₱22,000.00, regardless if
the actual amount involved exceeds ₱22,000.00. As suggested,
however, from now until the law is properly amended by Congress,
all crimes of Estafa will no longer be punished by the appropriate
penalty. A conundrum in the regular course of criminal justice would
occur when every accused convicted of the crime of estafa will be
meted penalties different from the proper penalty that should be
imposed. Such drastic twist in the application of the law has no legal
basis and directly runs counter to what the law provides.
It should be noted that the death penalty was reintroduced in the
dispensation of criminal justice by the Ramos Administration by
virtue of Republic Act No. 765940 in December 1993. The said law
has been questioned before this Court. There is, arguably, no
punishment more cruel than that of death. Yet still, from the time the
death penalty was re-imposed until its lifting in June 2006 by
Republic Act No. 9346,41 the Court did not impede the imposition
of the death penalty on the ground that it is a "cruel punishment"
within the purview of Section 19 (1),42 Article III of the Constitution.
Ultimately, it was through an act of Congress suspending the
imposition of the death penalty that led to its non-imposition and not
via the intervention of the Court.
Even if the imposable penalty amounts to cruel punishment, the
Court cannot declare the provision of the law from which the proper
penalty emanates unconstitutional in the present action. Not only is
it violative of due process, considering that the State and the
concerned parties were not given the opportunity to comment on the
subject matter, it is settled that the constitutionality of a statute
cannot be attacked collaterally because constitutionality issues
 CONSTI LAW II I ACJUCO 636

must be pleaded directly and not collaterally,43 more so in the

present controversy wherein the issues never touched upon the PROFESSOR TADIAR:
constitutionality of any of the provisions of the Revised Penal Code.
Yes.
Besides, it has long been held that the prohibition of cruel and
unusual punishments is generally aimed at the form or character of JUSTICE PERALTA:
the punishment rather than its severity in respect of duration or
amount, and applies to punishments which public sentiment has ... and so on. Is the Supreme Court equipped to determine those
regarded as cruel or obsolete, for instance, those inflicted at the factors?
whipping post, or in the pillory, burning at the stake, breaking on the
wheel, disemboweling, and the like. Fine and imprisonment would PROFESSOR TADIAR:
not thus be within the prohibition.44
There are many ways by which the value of the Philippine Peso can
It takes more than merely being harsh, excessive, out of proportion, be determined utilizing all of those economic terms.
or severe for a penalty to be obnoxious to the Constitution. The fact
that the punishment authorized by the statute is severe does not JUSTICE PERALTA:
make it cruel and unusual. Expressed in other terms, it has been
held that to come under the ban, the punishment must be "flagrantly Yeah, but ...
and plainly oppressive," "wholly disproportionate to the nature of the
offense as to shock the moral sense of the community."45 PROFESSOR TADIAR:

Cruel as it may be, as discussed above, it is for the Congress to And I don’t think it is within the power of the Supreme Court to pass
amend the law and adapt it to our modern time. upon and peg the value to One Hundred (₱100.00) Pesos to ...

The solution to the present controversy could not be solved by JUSTICE PERALTA:
merely adjusting the questioned monetary values to the present
value of money based only on the current inflation rate. There are Yeah.
other factors and variables that need to be taken into consideration,
researched, and deliberated upon before the said values could be