G.R. No.
L-20569 October 29, 1923 finding the defendant guilty of the offense charged and
THE PEOPLE OF THE PHILIPPINE
ISLANDS, plaintiff-appellee,
vs.
J. J. KOTTINGER, defendant-appellant.
Fisher, Dewitt, Perkins and Brady for appellant.
Attorney-General Villa-Real for appellee.
MALCOLM, J.:
The question to be here decided is whether or not
pictures portraying the inhabitants of the country in
native dress and as they appear and can be seen in the
regions in which they live, are absence or indecent.
Surprising as it may seem, the question is one of first
impression not alone in the Philippine Islands, but in the
United States, Great Britain, and elsewhere. This will
explain why a case which otherwise would be heard and
voted in Division has been submitted to the court in
banc for decision.
On November 24, 1922, detective Juan Tolentino raided
the premises known as Camera Supply Co. at 110
Escolta, Manila. He found and confiscated the post-
cards which subsequently were used as evidence against
J. J. Kottinger, the manager of the company.
Out of these facts arose the criminal prosecution of J. J.
Kottinger in the Court of First Instance of Manila. The
information filed in court charged him with having kept
for sale in the store of the Camera Supply Co., obscene
and indecedent pictures, in violation of section 12 of
Act No. 277. To this information, the defendant
interposed a demurrer based upon the ground that the
facts alleged therein did not constitute an offense and
were not contrary to law; but trial court overruled the
demurrer and the defendant duly excepted thereto.
Following the presentation of evidence by the
Government and the defense, judgment was rendered
or indecent writing, paper, book, or other matter, and
sentencing him to pay a fine of P50 with subsidiary
imprisonment in case of insolvency, and the costs.
The five errors assigned by defendant-appellant in this
court divide themselves into two general issues. The
first point sustained by counsel for the appellant is in
nature a technical objection, growing out of the
defendant's demurrer. The second point, in reality the
decesive issue, is as suggested in the beginning of the
decision. We will take upon the assignments of errors as
thus classified in order.
Act No. 277 is the Philippine Libel Law. But included
therein is a section, No. 12, making obscene or indecent
publications misdemeanors. Said section 12 which, it is
contended by the Government, has here been violated,
and which, appellant argues, does not apply to the
information and the facts, reads as follow:
Any person who writes, composes, stereotypes, prints,
publishes, sells, or keeps for sale, distributes, or exhibits
any obscene or indecent writing, paper, book, or other
matter, or who designs, copies, draws, engraves, paints,
or otherwise prepares any obscene picture or print, or
who moulds, cuts, casts, or otherwise makes any
obscene or indecent figure, or who writes, composes, or
prints any notice or advertisement of any such writing,
paper, book, print, or figure shall be guilty of a
misdemeanor and punished by a fine of not exceeding
one thousand dollars or by imprisonment not exceeding
one year, or both.
Counsel has gone to the trouble to make a careful
analysis of section 12 of the Libel Law which is
intended to bear out his thesis, first, that section 12 does
not prohibit the taking, selling, and publishing of
alleged obscene and indecent pictures and prints, and
second, that the information in this case charges no
offense prohibited by section 12. Recall, however, that
the law provides punishment, among other things, for
any person who keeps for sale or exhibits any absence
that the information charges the defendant, among other
things, with having wilfully and feloniously kept for
sale, distribution, or exhibition, obscene and indecent
pictures.
The phrase in the law "or other matter", was apparently
added as a sort of "catch-all." While limited to that
which is of the same kind as its antecedent, it is
intended to cover kindred subjects. The rule of ejusdem
generis invoked by counsel is by no means a rule of
universal application and should be made to carry out,
not to defeat, the legislative intent. Even if the phrase
"or other matter" be cobstrued to mean "or other matter
of like kind," pictures and postcards are not so far
unrelated to writings, papers, and books, as not to be
covered by the general words (Commonwealth vs.
Dejardin [1878], 126 Mass., 46; 30 Am. Rep., 652;
Brown vs. Corbin [1889], 40 Minn., 508).
The line of argumentation is more refined that practical.
Once conceded that section 12 of Act No. 277 does not
cover the present case, there yet remain for application
article 571, No. 2, of the penal code, and section 730 of
the Revised Ordinances of the City of Manila. The
section of the Revised Ordinances cited is most specific
when it provides in part that no person shall "exhibit,
circulate, distribute, sell, offer or expose for sale, or
give or deliver to another, or cause the same to be done,
any lewd, indecent, or absence book, picture, pamphlet,
card, print, paper, writing, mould, cast, figure, or any
other thing."
While admittedly the information is lacking in precision
and while the content of section 12 of the Libel Law is
not as inclusive as it might be, we yet conclude that the
information is not fatally defective, and that said section
12 covers the alleged facts.
We come now to decide the main issue. We repeat that
our own researches have confirmed the statement of
counsel that no one parrallel case be found. We must
perforce reason from the general to the specific and
from universal principle to actual fact.
The pictures which it is argued offend against the law
on account of being obscene and indecent, disclose six
different postures of non-Christian inhabitants of the
Philippines. Exhibit A carries the legend "Philippines,
Bontoc Woman." Exhibit A-1 is a picture of five young
boys and carries the legend "Greetings from the
Philippines." Exhibit A-2 has the legend "Ifugao Belle,
Philippines. Greetings from the Philippines." Exhibit A-
3 has the legend "Igorot Girl, Rice Field Costume."
Exhibit A-4 has the legend "Kalinga Girls, Philippines.
Exhibit A-5 has the legend "Moros Philippines."
The prosecution produced no evidence proving the
postcards obscene and indecent because it thought the
post-cards themselves the best evidence of that fact. The
fiscal admitted in open court "that those pictures
represented the natives (non-Christians) in their native
dress." The defendant, on the other hand, attempted to
show that the pictures as true to life. Dr. H. Otley
Beyer, Professor in the University of the Philippines,
corroborated by other witnesses, testified from his
studies in various parts of the Islands, such as the
Mountain Province, Abra, Palawan, and Mindanao and
Sulu, that none of the pictures represented poses which
he had not observed on various occasions, and that the
costumes worn by the people in the pictures are the true
costumes regularly worn by them. Are such pictures
obscene or indecent?
The word "obscene" ands the term "obscenity" may be
defined as meaning something offensive to chastify,
decency, or delicacy. "Indeceny" is an act against
behavior and a just delicacy. The test ordinarily
followed by the courts in determining whether a
particular publication or other thing is obscene within
the meaning of the statutes, is 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. Another test of
obscenity is that which shocks the ordinary and
common sense of men as an indecency, (29 Cyc., 1315;
8 R. C. L., 312.)
The Philippine statute does not attempt to define
obscene or indecent pictures, writings, papers, or books.
But the words "obscene or indecent" are themselves
descriptive. They are words in common used and every
person of average intelligence understand their
meaning. Indeed, beyond the evidence furnished by the
pictures themselves, there is but little scope for proof
bearing on the issue of obscenity or indecency. Whether
a picture is obscene or indecent must depend upon the
circumstances of the case. (People vs. Muller [1884], 96
N. Y., 408; 48 Am. Rep., 635.)
Considerable light can be thrown on the subject by
turning to the Federal Laws prohibiting the use of the
mails for obscene matter and prohibiting the
importation into the Philippine Islands of articles, etc.,
of obscene or indecent character. (U. S. Rev. Stat., art.
3893; 36 stat. at L., 135; 7 Fed. Stat. Ann., 1194, sec.
3[b].)
"Obscene," as used in the Federal Statutes making it a
criminal offense to place in the mails any obscene,
lewd, or lascivious publication, according to the united
States Supreme Court and lesser Federal courts,
signifies that form of immorality which has relation to
sexual impurity, and has the same meaning as is given
at common law in prosecutions for obscene libel.
(Swearingen vs. U. S. [1896], 161 U. S., 446; U. S. vs.
Males [1892], 51 Fed., 41; 6 Words and Phrases, 4888,
4889.)
The case of United States vs. Harmon ([189], 45 Fed.,
414), grew out of an indictment for despositing an
obscene publication in a United States post-office in
violator of the Postal Law. Judge Philips said:
The statute does not undertake to define the meaning of
the terms "obscene," etc., further than may be implied
by the succeeding phrase, "or other publication of an
indecent character." On the well-organized canon of
construction these words are presumed to have been
employed by the law-maker in their ordinary
acceptation and use.
As they cannot be said to have acquired any technical
significance as applied to some particular matter,
calling, or profession, but are terms of popular use, the
court might perhaps with propriety leave their import to
the presumed intelligence of the jury. A standard
dictionary says that "obscene" mean "offensive to
chastity and decency; expressing or presenting to the
mind or view something which delicacy, purity, and
decency forbid to be exposed." This mere dictionary
definition may be extended or amplified by the courts in
actual practice, preserving, however, its essential
though, and having always due regard to the popular
and proper sense in which the legislature employed the
term. Chief Justice Cockburn, in Rex vs. Hicklin (L. R.
3 Q. B., 360), said: "The test of obscenity is this: Where
the tendency of the matter charged as obscene is to
deprave and corrupt those whose minds are open to
such immoral influences, and into whose hands a
publication of this sort may fall;" and where "it who
suggest to the minds of the young of either sex, or even
to persons of more advanced years, thoughts of the most
impure and libidinous character." So, also, it has been
held that a book is obscene which is offensive to
decency or chastity, which is immodest, which is
indelicate, impure, causing lewd thoughts of an immoral
tendency." U. S. vs. Bennet, 16 Blatchf., 338. Judge
Thayer, in U. S. vs. Clarke, 38 Fed. Rep., 732,
observed:
"The word "obscene" ordinarily means something
which is offensive to chastity; something that is foul or
filthy, and for that reason is offensive to pure-minded
persons. That is the meaning of the word in the
concrete; but when used, as in the statute, to describe
the character of a book, pamphlet, or paper, it means
containing immodest and indecent matter, the reading
whereof would have a tendency to deprave and corrupt
the minds of those into whose hands the publication
might fall whose minds are open to such immoral
influences."
Laws of this character are made for society in the
aggregate, and not in particular. So, while there may be
individuals and societies of men and women of peculiar
motions are idiosyncrasies, whose moral sense would
neither be depraved nor offended by the publication
now under consideration, yet the exceptional sensibility,
or want of sensibility, of such cannot be allowed as a
standard by which its obscenity or indecency is to be
tested. Rather is the test, what is the judgment of the
aggregate sense of the community reached by it? What
is its probable, reasonable effect on the sense of
decency, purity, and chastity of society, extending to the
family, made up of men and women, young boys and
girls, — the family, which is the common nursery of
mankind, the foundation rock upon which the state
reposes?
. . . To the pure all things are pure, is too poetical for the
actualities of practical life. There is in the popular
conception and heart such a thing as modesty. It was
born in the Garden of Eden. After Adam and Eve ate of
the fruit of the tree of knowledge they passed from the
condition of perfectibility which some people nowadays
aspire to, and, their eyes being opened, they discerned
that there was both good and evil; "and they knew that
they were naked; and they sewed fig leaves together,
and made themselves aprons." From that day to this
civilized man has carried with him the sense of shame,
— the feeling that there were some things on which the
eye — the mind — should not look; and where men and
women become so depraved by the use, or so insensate
from perverted education, that they will not evil their
eyes, nor hold their tongues, the government should
perform the office for them in protection of the social
compact and the body politic.
As above intimated, the Federal statue prohibits the
importation or shipment into the Philippine Islands of
the following: "Articles, books, pamphlets, printed
matter, manuscripts, typewritten matter, paintings,
illustrations, figures or objects of obscene or indecent
character or subversive of public order." There are,
however, in the record, copies of reputable magazines
which circulate freely thruout the United States and
other countries, and which are admitted into Philippines
without question, containing illustrations identical in
nature to those forming the basis of the prosecution at
bar. Publications of the Philippine Government have
also been offered in evidence such as Barton's "Ifugao
Law," the "Philippine Journal of Science" for October,
1906, and the Reports of the Philippine Commission for
1903, 1912, and 1913, in which are found illustrations
either exactly the same or nearly akin to those which are
now impugned.
It appears therefore that a national standard has been set
up by the Congress of the United States. Tested by that
standard, it would be extremely doubtful if the pictures
here challenged would be held obscene or indecent by
any state of Federal court. It would be particularly
unwise to sanction a different type of censorship in the
Philippines that in the United States, or for that matter
in the rest of the world.
The pictures in question merely depict persons as they
actually live, without attempted presentation of persons
in unusual postures or dress. The aggregate judgment of
the Philippine community, the moral sense of all the
people in the Philippines, would not be shocked by
photographs of this type. We are convicted that the
post-card pictures in this case cannot be characterized
as offensive to chastity, or foul, or filthy.
We readily understand the laudable motives which
moved the Government to initiate this prosecution. We
fully appreciate the sentiments of colleagues who take a
different view of the case. We would be the last to
offend the sensibilities of the Filipino people and the
sanction anything which would hold them up to ridicule
in the eyes of mankind. But we emphasize that we are
not deciding a question in political theory or in social
ethics. We are dealing with a legal question predicated
on a legal fact, and on this question and fact, we reach
the conclusion that there has not been proved a violation
of section 12 of the Libel Law. When other cases
predicated on other states of facts are brought to our
attention, we will decide them as they arise.
We seem to recall the statement of counsel that the
proprietor of the photographic concern whom he
represents would on his own initiative place suitable
and explicit inscriptions on the pictures so that no one
may be misled as to them. Indeed, he might even go
further and out of consideration for the natural
sensibilities of his customers, withdraw from sale
certain pictures which can be pointed out to him.
We hold that pictures portraying the inhabitants of the
country in native dress and as they appear and can be
seen in the regions in which they live, are not obscene
or indecent within the meaning of the Libel Law.
Disagreeing therefore with the appellant on his
technical argument but agreeing with him on his main
contention, it becomes our duty to order the dismissal of
the information. 1awph!l.net
Judgment is reversed, the information is dismissed, and
the defendant-appellant is acquitted with all costs de
oficio. So ordered.
Johnson, Street, Avanceña, Villamor and Johns, JJ.,
concur.
Mr. Chief Justice Manuel Araullo was present at the
time this case was voted and then voted with Mr. Justice
Romualdez. (Sgd.) E. FINLEY JOHNSON.
EN
[G.R. No. L-7295. June 28,
THE PEOPLE OF THE PHILIPPINES, Plaintiff-
Appellee, v. MARINA PADAN Y ALOVA, COSME
ESPINOSA, ERNESTO REYES and JOSE
FAJARDO, Defendants. MARINA PADAN Y ALOVA
and JOSE FAJARDO, Defendants-Appellants.
Augusto Revilla for appellant Jose Fajardo.
W.M. Bayhon for appellant Marina Padan y Alova.
Solicitor General Ambrosio Padilla and Solicitor Jose P.
Alejandro for Appellee.
SYLLABUS
1. CRIMINAL LAW; OFFENSE AGAINST MORALS
AND DECENCY; CLAIM OF ART. — The Supreme
Court has had occasion to consider offenses like the
exhibition of still or moving pictures of women in the
nude, which it condemned for obscenity and 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 features. 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 especially
on the youth of the land. Considering the seriousness of
the crime, the relatively severe penalty imposed by the
trial court is proper.
D E C I S I O N
BANC MONTEMAYOR, J.:
1957.] In the Court of First Instance of Manila, Marina Padan,
Jose Fajardo y Garcia, Cosme Espinosa, and Ernesto
Reyes were charged with a violation of Article 201 of
the Revised Penal Code, said to have been committed as
follows:chanrob1es virtual 1aw library
That on or about the 13th day of September, 1953, in
the city of Manila, Philippines, the said accused
conspiring and confederating together and mutually
helping one another, did then and there willfully,
unlawfully and feloniously exhibit or cause to be
exhibited inside a building at the corner of Camba Ext.
and Morga Ext., Tondo, this City, immoral scenes and
acts, to wit: the said accused Jose Fajador y Garcia,
being then the manager and Ernesto Reyes y Yabut, as
ticket collector and or exhibitor, willfully, unlawfully
and feloniously hired their co-accused Marina Palan y
Alova and Cosme Espinosa y Abordo to act as
performers or exhibitionists to perform and in fact
performed sexual intercourse in the presence of many
spectators, thereby exhibiting or performing highly
immoral and indecent acts or shows thereat."cralaw
virtua1aw library
Upon arraignment, all pleaded not guilty. Later,
however, Marina Padan, with the assistance of her
counsel de parte and counsel de oficio, asked for
permission to withdraw her former plea of not guilty,
which was granted, and upon rearraignment, she
pleaded guilty to the charge. In a decision dated
October 12, 1953, Marina Padan was found guilty as
charged and sentenced to six months and one day of
prision correccional and a fine of P200, with subsidiary
imprisonment in case of insolvency, not to exceed one-
third of the principal penalty, with the accessory
penalties prescribed by the law, and to pay the
proportionate costs. After trial of the three remaining
accused, they were all found guilty; Cosme Espinosa
and Ernesto Reyes were sentenced each to not less than
six months and one day of prision correccional and not
more than one year, one month and eleven days of
prision correccional, to pay a fine of P500, with
subsidiary imprisonment in case of insolvency, not to
exceed one-third of the principal penalty, and to pay the
proportionate costs. Jose Fajardo was sentenced to not
less than one year, one month and ten days of prision
correccional and not more than one year eight months
and twenty days, also of prision correccional, to pay a
fine of P1,000, with subsidiary imprisonment in case of
insolvency, not to exceed one-third of the principal
penalty and to pay the proportionate costs. The army
steel bed, the army woolen blanket, the pillow, the
ladies’ panties, and the men’s underwear, described in
Exhibit C, were declared confiscated.
The four accused appealed in the decision, the appeal
having been sent to us. Appellants Espinosa and Reyes
failed to file their briefs within the period prescribed by
law and their appeal was dismissed by resolution of this
Court of November 25, 1955, and the decision as to
them became final and executory on January 7, 1956, as
appears from the entry of judgment.
Because of her plea of guilty in the lower court,
appellant Marina in her appeal does not question her
conviction; she merely urges the reduction of the
penalty by eliminating the prison sentence. We do not
feel warranted in interfering with the exercise of
discretion in this matter, made by the lower court
presided by Judge Magno S. Gatmaitan. According to
his decision of October 12, 1953, in imposing the
sentence, he already considered Marina’s plea of
leniency, and so despite the recommendation of the
fiscal that she be fined P600.00 in addition to the prison
sentence of six months and one day, his honor reduced
the fine to only P200.
We believe that the penalty imposed fits the crime,
considering its seriousness. As far as we know, this is
the first time that the courts in this jurisdiction, at least
this Tribunal, have been called upon to take cognizance
of an offense against morals and decency of this kind.
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. We repeat
that because of all this, the penalty imposed by the trial
court on Marina, despite her plea of guilty, is neither
excessive nor unreasonable.
Going to the appeal of Jose Fajardo y Garcia, while he
does not deny the fact of the commission of the offense
charged, he insists that he was not the manager or the
person incharge of the show or proceedings on the night
of September 13, 1953; that his participation, if he
participated at all, was to play the role of an innocent
bystander, but that because of his popularity in the
neighborhood, being popularly known as a "siga-siga"
character, he was requested by the spectators to select
the man and the woman to engage or indulge in the
actual act of coitus before the spectators; that after
making the selection, he did not even care to witness the
act but left the scene and returned to it only when he
heard a commotion produced by the raid conducted by
the police.
The evidence on his active participation and that he was
the manager and one in charge of the show is however
ample, even conclusive. We have carefully examined
such evidence, and we are satisfied that they fully
support the findings of the trial court. Such facts may be
briefly stated as follows: At the corner of Morga
Extension and Camba Extension, Tondo, Manila, was a
one story building which judging from the picture
exhibited is nothing but a shed, with a floor space of
eight by fifteen meters which was mainly used for
playing ping-pong. A ping-pong table must have been
placed in the center and on two sides were built benches
in tiers, so that the spectators seated on them could look
down and see the game. On September 13, 1953,
however, the building was used for a different purpose.
It was to be the scene of what was said to be an
exhibition of human "fighting fish", the actual act of
coitus of copulation. It must have been advertised by
word of mouth; tickets therefor were sold at P3 each,
and the show was supposed to begin at 8:00 o’clock in
the evening. About that time of the night, there was
already a crowd around the building, but the people
were not admitted into it until about an hour later, and
the show did not begin until about 9:15. The Manila
Police Department must have gotten wind of the affair;
it bought tickets and provided several of its members
who later attended the show, but in plain clothes, and
after the show conducted a raid and made arrests. At the
trial, said policemen testified as to what actually took
place inside the building. About two civilians who
attended the affair gave testimony as to what they saw.
The customers not provided with tickets actually paid
P3 at the entrance to defendant Ernesto Reyes. He also
collected tickets. In all, there were about ninety paying
customers, while about sixteen were allowed to enter
free, presumably friends of the management. Jose
Fajardo y Garcia was clearly the manager of the show.
He was at the door to see to it that the customers either
were provided with tickets or paid P3.00 entrance fee.
He even asked them from whom they had bought the
tickets. He ordered that an army steel bed be placed at
the center of the floor, covered with an army blanket
and provided with a pillow. Once the spectators, about
106 in number, were crowded inside that small
building, the show started. Fajardo evidently to arouse
more interest among the customers, asked them to select
among two girls present who was to be one of the
principal actors. By pointing to or holding his hand over
the head of each of the two women one after the other,
and judging by the shouts of approval emitted by the
spectators, he decided that defendant Marina Padan was
the subject of popular approval, and he selected her.
After her selection, the other woman named Concha,
left. Without much ado, Fajardo selected Cosme
Espinosa to be Marina’s partner. Thereafter, Cosme and
Marina proceeded to disrobe while standing around the
bed. When completely naked, they turned around to
exhibit their bodies to the spectators. Then they
indulged in lascivious acts, consisting of petting,
kissing, and touching the private parts of each other.
When sufficiently aroused, they lay on the bed and
proceeded to consummate the act of coitus in three
different positions which we deem unnecessary to
describe. The four or five witnesses who testified for
the Government when asked about their reaction to
what they saw, frankly admitted that they were excited
beyond description. Then the police who were among
the spectators and who were previously provided with a
search warrant made the raid, arrested the four
defendants herein, and took pictures of Marina and
Cosme still naked and of the army bed, which pictures
were presented as exhibits during the trial.
From all this, there can be no doubt that Jose Fajardo y
Garcia contrary to what he claims, was the person in
charge of the show. Besides, as found by the trial court
and as shown by some of the tickets collected from the
spectators, submitted as exhibits, said tickets while
bearing on one side printed matter regarding an
excursion to Balara to be held on August 30, 1953, from
7:00 a.m. to 5:00 p.m., sponsored by a certain club, on
the other side appears the following typewritten form,
reading:jgc:chanrobles.com.ph
"P3.00 Admit one

PLEASURE SHOW

Place: P. Morga Ext. and Camba Ext.

Time: 8:00 o’clock sharp",

and superimposed on the same is the rubber stamped

name "Pepe Fajardo," which defendant Fajardo admits
to be his name. Considering all the above
circumstances, we agree with the trial court that Jose
Fajardo is the most guilty of the four, for he was the one
who conducted the show and presumably derived the
most profit or gain from the same.

As regards the penalty imposed by the trial court on

appellant Fajardo, we agree with the Solicitor General
that the same is correct, except the minimum thereof
which is beyond the legal range, and which should be
reduced from one year, one month, and ten days of
prision correccional to only six months of arresto
mayor.

With the modification above-mentioned, the decision

appealed from by Marina Padan and Jose Fajardo are
hereby affirmed, with costs against both.

Paras, C.J., Padilla, Reyes, A., Bautista Angelo,

Labrador, Concepcion, Reyes, J.B.L., Endencia and
Felix, JJ., concur.
G.R. No. L-19518 November 28, 1964
TRINIDAD A. DEAÑO, ET AL., plaintiffs-appellants,
vs.
DIOGENES GODINEZ, defendant-appellee.
Manuel Deaño for plaintiffs-appellants.
Casimiro P. Cabigon for defendant-appellee.
BAUTISTA ANGELO, J.:
This is an action for damages brought by Trinidad A.
Deaño, assisted by her husband Manuel Deaño against
defendant Diogenes Godinez before the Court of First
Instance of Lanao del Norte based on a communication
sent by the latter as district supervisor to his immediate
superior, the Division Superintendent of Schools.
Trinidad claims that with malice aforethought and in
disregard of proper decorum and accepted
administrative practices, defendant wrote the aforesaid
communication making therein statements which are
contrary to morals, good customs or public policy, and
to existing rules and regulations, thereby causing
irreparable damage to her personal dignity and
professional standing, for which reason she asks that
she be paid P30,000.00 as moral damages, P10,000.00
as exemplary damages, and P10,000.00 attorney's fees
for bringing the present action.
Defendant moved to dismiss the complaint on the
ground that the letter complained of is a privileged
communication and the action has already prescribed.
The motion was upheld, and the court a quo dismissed
the complaint. Hence this appeal.
In paragraph 3 of the complaint, it is alleged that on or
about March 20, 1956, defendant, as a responsible
public school official, wrote a letter to the Division
Superintendent of Schools, his immediate superior
officer, the contents of which we quote for ready
reference:
Respectfully returned to the Division Superintendent of contribution of P20.00 which she intended to be only
Schools, Camp Keithley, Lanao, with the explanation to for the dental-medical drive, when she knew well that
the alleged confusion in the dental-medical reports of the drive included the Boy Scout Rally of the district.
the district. It seems, the basic communication has been "In view of the above, Dr. Deaño is a carping critic, a
written thru the deliberate misinformation of Dr. T. fault finder and suspects every teacher or school official
Deaño the School dentist. If such be the case, she to be potential grafters and swindlers of the medical-
twisted the facts to satisfy her ulterior motives. dental funds. ... The lady dentist will not be welcomed
Immediately upon her arrival in the district, Dr. Deaño in Lumbatan district next school year. ... She did more
was informed of the present set-up in the district. The harm than good to the teeth of the patients she treated."
teachers contribute twenty pesos (P20.) each by
installments to cover all the voluntary drives. Among The utterances or statements above referred to, if
untrue, are indeed derogatory to the personal dignity
other things, it includes the dental-medical drive and the
and professional standing of the plaintiff as a high
support to Boy Scout Rally, district, provincial and
official in the government service as they in fact
Mindanao meets. Despite that information, she required
disturbed her peace of mind to the extent that they
the teachers in the field to sign the blank form she was
caused her mental anguish, wounded her feelings and
bringing with her not filled, then later on put the amount
made her suffer moral shock and social humiliation for
of P20.00. It then tended to show that the teachers
which she now asks for damages in retribution. But
contributed P20.00 each solely for the dental-medical
defendant claims that he made those statements in
drive. Teachers in Lumbatan district can be asked
pursuance of a legal duty or in the exercise of his
individually to support the contention of the
functions as a public official and as such they are
undersigned. In view of the above, Dr. Deaño is a
justifiable under the doctrine of privileged
carping critic, a fault finder and suspects every teacher
communication. In this sense, defendant contends, they
or school official to be potential grafters and swindlers
cannot be the basis of an action for damages.
of the medical-dental funds. If the Division
Superintendent of Schools after the above explanation
The question that now arises is: Does the letter in which
still entertains doubts of the funds, the undersigned
the alleged defamatory statements appear partake of the
welcomes a probe to clear his besmirched reputation.
nature of a privileged communication?
But, the lady dentist must be ready to answer
complaints of teachers and pupils against her services
Reading the complaint one may gather that the letter
while she was in Lumbatan District. In this connection,
alleged to be defamatory is embodied in an indorsement
the undersigned wishes to make record that the lady
sent by defendant to the Division Superintendent of
dentist will not be welcomed in Lumbatan district next
Schools, his immediate superior, by way of an
school year. If she will be sent back, the undersigned
explanation of an alleged confusion concerning a
and his teachers will not lift a finger in the collection of
dental-medical funds. She did more harm than good to dental-medical report submitted relative to the fund
drive then being undertaken for certain public purpose.
the teeth of the patients she treated.
Apparently, the explanation was given as a comment on
a communication referred to the defendant in his
The highlights of the letter may be boiled down as
official capacity as district supervisor. And in his
follows: Dr. Trinidad A. Deaño plaintiff herein, as the
indorsement defendant stated certain facts which came
school dentist of Lanao, required the teachers in the
to his information regarding the dental-medical drive
field to sign blank forms indicating therein a
then undertaken by the plaintiff, but that the language
he used was such that it somewhat hurt the feeling and
pride of plaintiff as a public school official.
Nevertheless, we find that the communication is
privileged in nature and as such comes within the
purview of Article 354 of the Revised Penal Code,
which we quote:
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.
Indeed, the communication now denounced by plaintiff
as defamatory is one sent by defendant to his immediate
superior in the performance of a legal duty, or in the
nature of a report submitted in the exercise of an official
function. He sent it as in explanation of a matter
contained in an indorsement sent to him by his superior
officer. It is a report submitted in obedience to a lawful
duty, though in doing so defendant employed a
language somewhat harsh and uncalled for. But such is
excusable in the interest of public policy. As it has been
aptly said, "The doctrine of privileged communication
rests upon public policy, which looks to the free and
unfettered administration of justice, though, as an
incidental result, it may in some instances afford an
immunity to the evil-disposed and malignant slanderer."
(Abbott v. National Bank of Commerce of Tacoma 175
U.S., 409, 411). The Philosophy behind this privilege is
well expressed thus:
Public policy is the foundation of the doctrine of
privileged communications. It is based upon the
recognition of the fact that the right of the individual to
enjoy immunity from the publication of untruthful
charges derogatory to his character is not absolute and
must at times yield to the superior necessity of
subjecting to investigation the conduct of persons
charged with wrong-doing. In order to accomplish this
purpose and to permit private persons having, or in
good faith believing themselves to have, knowledge to
such wrongdoing, to perform the legal, moral, social
duty resulting from such knowledge or belief, without
restraining them by the fear that an error, no matter how
innocently or honestly made, may subject them to
punishment for defamation, the doctrine of qualified
privilege has been evolved. (U.S. v. Cañete, et al., 38
Phil. 235)
The letter sent by defendant being a privileged
communication, it is presumed that it was sent without
malice.1 It being a communication sent in the discharge
of a legal duty, the writer is not liable for damages.
It will be noted that all of the defendant's
communications were of a public nature and addressed
to his superior officers, and that his investigation was
made in the line of his duty. There is no evidence that
defendant was actuated by any malicious motive ... .
In the instant case, the alleged libel is based upon the
official letters of the defendant to his superior officers,
which were written in the discharge of his official
duties, and for which he is not liable in an action for
damages. (Gilmer v. Hilliard 43 Phil. 180.)
WHEREFORE, the order appealed from is affirmed. No
costs.
G.R. No. L-20387 January 31, 1968
JESUS P. MORFE, plaintiff-appellee,
vs.
AMELITO R. MUTUC, as Executive Secretary, ET
AL., defendants-appellants.
Jesus P. Morfe for and his own behalf as plaintiff-
appellee.
Office of the Solicitor General for defendants-
appellants.
FERNANDO, J.:
Congress in 1960 enacted the Anti-Graft and Corrupt
Practices Act 1 to deter public officials and employees
from committing acts of dishonesty and improve the
tone of morality in public service. It was declared to be
the state policy "in line with the principle that a public
office is a public trust, to repress certain acts of public
officers and private persons alike which constitute graft
or corrupt practices or which may lead thereto." 2 Nor
was it the first statute of its kind to deal with such a
grave problem in the public service that unfortunately
has afflicted the Philippines in the post-war era. An
earlier statute decrees the forfeiture in favor of the State
of any property found to have been unlawfully acquired
by any public officer or employee. 3
One of the specific provisions of the Anti-Graft and
Corrupt Practices Act of 1960 is that every public
officer, either within thirty (30) days after its approval
or after his assumption of office "and within the month
of January of every other year thereafter", as well as
upon the termination of his position, shall prepare and
file with the head of the office to which he belongs, "a
true detailed and sworn statement of assets and
liabilities, including a statement of the amounts and
sources of his income, the amounts of his personal and
family expenses and the amount of income taxes paid
for the next preceding calendar: . . ." 4
In this declaratory relief proceeding, the periodical
submission "within the month of January of every other
year thereafter" of such sworn statement of assets and
liabilities after an officer or employee had once bared
his financial condition upon assumption of office was
challenged for being violative of due process as an
oppressive exercise of police power and as an unlawful
invasion of the constitutional right to privacy, implicit
in the ban against unreasonable search and seizure
construed together with the prohibition against self-
incrimination. The lower court in the decision appealed
from sustained plaintiff, then as well as now, a judge of
repute of a court of first instance. For it, such
requirement of periodical submission of such sworn
statement of assets and liabilities exceeds the
permissible limit of the police power and is thus
offensive to the due process clause.
We do not view the matter thus and accordingly reverse
the lower court.
1. The reversal could be predicated on the absence of
evidence to rebut the presumption of validity. For in
this action for declaratory relief filed with the Court of
First Instance of Pangasinan on January 31, 1962,
plaintiff, after asserting his belief "that it was a
reasonable requirement for employment that a public
officer make of record his assets and liabilities upon
assumption of office and thereby make it possible
thereafter to determine whether, after assuming his
position in the public service, he accumulated assets
grossly disproportionate to his reported incomes, the
herein plaintiff [having] filed within the period of time
fixed in the aforesaid Administrative Order No. 334 the
prescribed sworn statement of financial condition,
assets, income and liabilities, . . ." 5 maintained that the
provision on the "periodical filing of sworn statement of
financial condition, assets, income and liabilities after
an officer or employee had once bared his financial
condition, upon assumption of office, is oppressive and
unconstitutional." 6
As earlier noted, both the protection of due process and
the assurance of the privacy of the individual as may be
inferred from the prohibition against unreasonable
search and seizure and self-incrimination were relied
upon. There was also the allegation that the above
requirement amounts to "an insult to the personal
integrity and official dignity" of public officials,
premised as it is "on the unwarranted and derogatory
assumption" that they are "corrupt at heart" and unless
thus restrained by this periodical submission of the
statements of "their financial condition, income, and
expenses, they cannot be trusted to desist from
committing the corrupt practices defined. . . ." 7 It was
further asserted that there was no need for such a
provision as "the income tax law and the tax census law
also require statements which can serve to determine
whether an officer or employee in this Republic has
enriched himself out of proportion to his reported
income." 8
Then on February 14, 1962, came an Answer of the
then Executive Secretary and the then Secretary of
Justice as defendants, where after practically admitting
the facts alleged, they denied the erroneous conclusion
of law and as one of the special affirmative defenses set
forth: "1. That when a government official, like
plaintiff, accepts a public position, he is deemed to have
voluntarily assumed the obligation to give information
about his personal affair, not only at the time of his
assumption of office but during the time he continues to
discharge public trust. The private life of an employee
cannot be segregated from his public life. . . ." 9 The
answer likewise denied that there was a violation of his
constitutional rights against self-incrimination as well
as unreasonable search and seizure and maintained that
"the provision of law in question cannot be attacked on
the ground that it impairs plaintiff's normal and
legitimate enjoyment of his life and liberty because said
provision merely seeks to adopt a reasonable measure
of insuring the interest or general welfare in honest and
clean public service and is therefore a legitimate
exercise of the police power." 10
On February 27, 1962, plaintiff filed a Motion for
judgment on the pleadings as in his opinion all his
material allegations were admitted. Then on March 10,
1962, an order was issued giving the parties thirty days
within which to submit memoranda, but with or without
them, the case was deemed submitted for decision the
lower court being of the belief that "there is no question
of facts, . . . the defendants [having admitted] all the
material allegations of the complaint." 11
The decision, now on appeal, came on July 19, 1962,
the lower court declaring "unconstitutional, null and
void Section 7, Republic Act No. 3019, insofar as it
required periodical submittal of sworn statements of
financial conditions, assets and liabilities of an official
or employee of the government after he had once
submitted such a sworn statement upon assuming
office; . . . ." 12
In Ermita-Malate Hotel and Motel Operators
Association v. The Mayor of Manila, 13 it was the
holding of this Court that in the absence of a factual
foundation, the lower court deciding the matter purely
"on the pleadings and the stipulation of facts, the
presumption of validity must prevail." In the present
case likewise there was no factual foundation on which
the nullification of this section of the statute could be
based. Hence as noted the decision of the lower court
could be reversed on that ground.
A more extended consideration is not inappropriate
however, for as likewise made clear in the above
Ermita-Malate Hotel case: "What cannot be stressed
sufficiently is that if the liberty involved were freedom
of the mind or the person, the standard for the validity
of governmental acts is much more rigorous and
exacting, but where the liberty curtailed affects at the
most rights of property, the permissible scope of
regulatory measure is wider."
Moreover, in the Resolution denying the Motion for
Reconsideration in the above case, we expressly
affirmed: "This is not to discount the possibility of a
situation where the nullity of a statute, executive order,
or ordinance may not be readily apparent but the threat
to constitutional rights, especially those involving the
freedom of the mind, present and ominous." 14 In such
an event therefore, "there should not be a rigid
insistence on the requirement that evidence be
presented." Also, in the same Resolution, Professor
Freund was quoted thus: "In short, when freedom of the
mind is imperiled by law, it is freedom that commands a
momentum of respect; when property is imperiled, it is
the lawmakers' judgment that commands respect. This
dual standard may not precisely reverse the presumption
of constitutionality in civil liberties cases, but obviously
it does set up a hierarchy of values within the due
process clause. 15
2. We inquire first whether or not by virtue of the above
requirement for a periodical submission of sworn
statement of assets and liabilities, there is an invasion of
liberty protected by the due process clause.
Under the Anti-Graft Act of 1960, after the statement of
policy, 16 and definition of terms, 17 there is an
enumeration of corrupt practices declared unlawful in
addition to acts or omissions of public officers already
penalized by existing law. They include persuading,
inducing, or influencing another public officer to
perform an act constituting a violation of rules and
regulations duly promulgated by competent authority or
an offense in connection with the official duties of the
latter, or allowing himself to be persuaded, induced, or
influenced to commit such violation or offense;
requesting or receiving directly or indirectly any gift,
present, share, percentage, or benefit, for himself, or for
any other person, in connection with any contract or
transaction between the government and any other
party, wherein the public officer in his official capacity,
has to intervene under the law; requesting or receiving
directly or indirectly any gift, present, or other
pecuniary or material benefit, for himself or for another,
from any person for whom the public officer, in any
manner or capacity, has secured or obtained, or will
secure or obtain, any Government permit or license, in
consideration for the help given or to be given;
accepting or having any member of his family accept
employment in a private enterprise which has pending
official business with him during the pendency thereof
or within one year after its termination; causing any
undue injury to any party, including the Government, or
giving any private party any unwarranted benefits,
advantage or preference in the discharge of his official
administrative or judicial functions through manifest
partiality, evident bad faith or gross inexcusable
negligence; neglecting or refusing, after due demand or
request, without sufficient justification, to act within a
reasonable time on any matter pending before him for
the purpose of obtaining, directly or indirectly, from
any person interested in the matter some pecuniary or
material benefit or advantage, or for the purpose of
favoring his own interest or giving undue advantage in
favor of or discriminating against any other interested
party; entering, on behalf of the Government, into any
contract or transaction manifestly and grossly
disadvantageous to the same, whether or not the public
officer profited or will profit thereby; having directly or
indirectly financial or pecuniary interest in any
business, contract or transaction in connection with
which he intervenes or takes part in his official capacity
or in which he is prohibited by the Constitution or by
any law from having any interests; becoming interested
directly or indirectly, for personal gain, or having a
material interest in any transaction or act requiring the
approval of a board, panel or group of which he is a
member, and which exercises discretion in such
approval, even if he votes against the same or does not
participate in such action; approving or granting
knowingly any license, permit, privilege or benefit in
favor of any person not qualified for or not legally
entitled to such license, permit, privilege or advantage,
or of a mere representative or dummy of one who is not
so qualified or entitled and divulging valuable
information of a confidential character, acquired by his
office or by him on account of his official position to
unauthorized persons, or releasing such information in
advance of its authorized release date. 18
After which come the prohibition on private
individuals, 19 prohibition on certain relatives, 20 and
prohibition on Members of Congress. 21 Then there is
this requirement of a statement of assets and liabilities,
that portion requiring periodical submission being
challenged here. 22 The other sections of the Act deal
with dismissal due to unexplained wealth, reference
being made to the previous statute, 23 penalties for
violation, 24 the vesting of original jurisdiction in the
Court of First Instance as the competent court, 25 the
prescription of offenses, 26 the prohibition against any
resignation or retirement pending investigation,
criminal or administrative or pending a Or, in traditional terminology, is this requirement a
prosecution, 27suspension and loss of
benefits, 28 exception of unsolicited gifts or presents of
small or insignificant value as well as recognition of
legitimate practice of one's profession or trade or
occupation, 29 the separability clause, 30 and its
effectivity. 31
Nothing can be clearer therefore than that the Anti-
Graft Act of 1960 like the earlier statute 32 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.
The statute was framed with that end in view. It is
comprehensive in character, sufficiently detailed and
explicit to make clear to all and sundry what practices
were prohibited and penalized. More than that, an effort
was made, so evident from even a cursory perusal
thereof, to avoid evasions and plug loopholes. One such
feature is the challenged section. Thereby it becomes
much more difficult by those disposed to take
advantage of their positions to commit acts of graft and
corruption.
While in the attainment of such public good, no
infringement of constitutional rights is permissible,
there must be a showing, clear, categorical, and
undeniable, that what the Constitution condemns, the
statute allows. More specifically, since that is the only
question raised, is that portion of the statute requiring
periodical submission of assets and liabilities, after an
officer or employee had previously done so upon
assuming office, so infected with infirmity that it cannot
be upheld as valid?
valid exercise of the police power? In the aforesaid
Ermita-Malate Hotel decision, 33 there is a reaffirmation
of its nature and scope as embracing the power to
prescribe regulations to promote the health, morals,
education, good order, safety, or the general welfare of
the people. It has been negatively put forth by Justice
Malcolm as "that inherent and plenary power in the
state which enables it to prohibit all things hurtful to the
comfort, safety and welfare of society." 34
Earlier Philippine cases refer to police power as the
power to promote the general welfare and public
interest; 35 to enact such laws in relation to persons and
property as may promote public health, public morals,
public safety and the general welfare of each
inhabitant; 36 to preserve public order and to prevent
offenses against the state and to establish for the
intercourse of citizen with citizen those rules of good
manners and good neighborhood calculated to prevent
conflict of rights. 37 In his work on due process,
Mott 38 stated that the term police power was first used
by Chief Justice Marshall. 39
As currently in use both in Philippine and American
decisions then, police power legislation usually has
reference to regulatory measures restraining either the
rights to property or liberty of private individuals. It is
undeniable however that one of its earliest definitions,
valid then as well as now, given by Marshall's
successor, Chief Justice Taney does not limit its scope
to curtailment of rights whether of liberty or property of
private individuals. Thus: "But what are the police
powers of a State? They are nothing more or less than
the powers of government inherent in every sovereignty
to the extent of its dominions. And whether a State
passes a quarantine law, or a law to punish offenses, or
to establish courts of justice, or requiring certain
instruments to be recorded, or to regulate commerce
within its own limits, in every case it exercises the same
power; that is to say, the power of sovereignty, the
power to govern men and things within the limits of its
domain." 40 Text writers like Cooley and Burdick were
of a similar mind. 41
What is under consideration is a statute enacted under
the police power of the state to promote morality in
public service necessarily limited in scope to
officialdom. May a public official claiming to be
adversely affected rely on the due process clause to
annul such statute or any portion thereof? The answer
must be in the affirmative. If the police power extends
to regulatory action affecting persons in public or
private life, then anyone with an alleged grievance can
invoke the protection of due process which permits
deprivation of property or liberty as long as such
requirement is observed.
While the soundness of the assertion that a public office
is a public trust and as such not amounting to property
in its usual sense cannot be denied, there can be no
disputing the proposition that from the standpoint of the
security of tenure guaranteed by the Constitution the
mantle of protection afforded by due process could
rightfully be invoked. It was so implicitly held
in Lacson v. Romero, 42 in line with the then pertinent
statutory provisions 43 that procedural due process in the
form of an investigation at which he must be given a
fair hearing and an opportunity to defend himself must
be observed before a civil service officer or employee
may be removed. There was a reaffirmation of the view
in even stronger language when this Court through
Justice Tuason in Lacson v. Roque 44 declared that even
without express provision of law, "it is established by
the great weight of authority that the power of removal
or suspension for cause can not, except by clear
statutory authority, be exercised without notice and
hearing." Such is likewise the import of a statement
from the then Justice, now Chief Justice, Concepcion,
speaking for the Court in Meneses v. Lacson; 45 "At any
rate, the reinstatement directed in the decision appealed
from does not bar such appropriate administrative
action as the behaviour of petitioners herein may
warrant, upon compliance with the requirements of due
process."
To the same effect is the holding of this Court
extending the mantle of the security of tenure provision
to employees of government-owned or controlled
corporations entrusted with governmental functions
when through Justice Padilla in Tabora v.
Montelibano, 46 it stressed: "That safeguard, guarantee,
or feeling of security that they would hold their office
or employment during good behavior and would not be
dismissed without justifiable cause to be determined in
an investigation, where an opportunity to be heard and
defend themselves in person or by counsel is afforded
them, would bring about such a desirable condition."
Reference was there made to promoting honesty and
efficiency through an assurance of stability in their
employment relation. It was to be expected then that
through Justice Labrador in Unabia v. City
Mayor, 47 this Court could categorically affirm: "As the
removal of petitioner was made without investigation
and without cause, said removal is null and void. . . ."
It was but logical therefore to expect an explicit holding
of the applicability of due process guaranty to be
forthcoming. It did in Cammayo v. Viña, 48 where the
opinion of Justice Endencia for the Court contained the
following unmistakable language: "Evidently, having
these facts in view, it cannot be pretended that the
constitutional provision of due process of law for the
removal of the petitioner has not been complied with."
Then came this restatement of the principle from the
pen of Justice J.B.L. Reyes "We are thus compelled to
conclude that the positions formerly held by appellees
were not primarily confidential in nature so as to make
their terms of office co-terminal with the confidence
reposed in them. The inevitable corollary is that
respondents-appellees, Leon Piñero, et al., were not
subject to dismissal or removal, except for cause
specified by law and within due process. . . ." 49 In a still
later decision, Abaya v. Subido, 50 this Court, through
Justice Sanchez, emphasized "that the vitality of the
constitutional principle of due process cannot be
allowed to weaken by sanctioning cancellation" of an
employee's eligibility or "of his dismissal from service
— without hearing — upon a doubtful assumption that
he has admitted his guilt for an offense against Civil
Service rules." Equally emphatic is this observation
from the same case: "A civil service employee should
be heard before he is condemned. Jurisprudence has
clung to this rule with such unrelenting grasp that by
now it would appear trite to make citations thereof."
If as is so clearly and unequivocally held by this Court,
due process may be relied upon by public official to
protect the security of tenure which in that limited sense
is analogous to property, could he not likewise avail
himself of such constitutional guarantee to strike down
what he considers to be an infringement of his liberty?
Both on principle, reason and authority, the answer
must be in the affirmative. Even a public official has
certain rights to freedom the government must respect.
To the extent then, that there is a curtailment thereof, it
could only be permissible if the due process mandate is
not disregarded.
Since under the constitutional scheme, liberty is the rule
and restraint the exception, the question raised cannot
just be brushed aside. In a leading Philippine case, Rubi
v. Provincial Board, 51 liberty as guaranteed by the
Constitution was defined by Justice Malcolm to include
"the right to exist and the right to be free from arbitrary
personal restraint or servitude. The term cannot be
dwarfed into mere freedom from physical restraint of
the person of the citizen, but is deemed to embrace the
right of man to enjoy the facilities with which he has
been endowed by his Creator, subject only to such
restraint as are necessary for the common welfare." In
accordance with this case therefore, the rights of the
citizens to be free to use his faculties in all lawful ways;
to live and work where he will; to earn his livelihood by
any lawful calling; to pursue any avocation, are all
deemed embraced in the concept of liberty. This Court
in the same case, however, gave the warning that liberty
as understood in democracies, is not license. Implied in
the term is restraint by law for the good of the
individual and for the greater good, the peace and order
of society and the general well-being. No one can do
exactly as he pleases. Every man must renounce
unbridled license. In the words of Mabini as quoted by
Justice Malcolm, "liberty is freedom to do right and
never wrong; it is ever guided by reason and the upright
and honorable conscience of the individual."
The liberty to be safeguarded is, as pointed out by Chief
Justice Hughes, liberty in a social
organization, 52 implying the absence of arbitrary
restraint not immunity from reasonable regulations and
prohibitions imposed in the interest of the
community. 53 It was Linton's view that "to belong to a
society is to sacrifice some measure of individual
liberty, no matter how slight the restraints which the
society consciously imposes." 54 The above statement
from Linton however, should be understood in the sense
that liberty, in the interest of public health, public order
or safety, of general welfare, in other words through the
proper exercise of the police power, may be regulated.
The individual thought, as Justice Cardozo pointed out,
has still left a "domain of free activity that cannot be
touched by government or law at all, whether the
command is specially against him or generally against
him and others." 55
Is this provision for a periodical submission of sworn
statement of assets and liabilities after he had filed one
upon assumption of office beyond the power of
government to impose? Admittedly without the
challenged provision, a public officer would be free
from such a requirement. To the extent then that there is
a compulsion to act in a certain way, his liberty is
affected. It cannot be denied however that under the
Constitution, such a restriction is allowable as long as
due process is observed.
The more crucial question therefore is whether there is
an observance of due process. That leads us to an
inquiry into its significance. "There is no controlling
and precise definition of due process. It furnishes
though a standard to which governmental action should
conform in order that deprivation of life, liberty or
property, in each appropriate case, be valid. What then
is the standard of due process which must exist both as
a procedural and as substantive requisite to free the
challenged ordinance, or any action for that matter,
from the imputation of legal infirmity sufficient to spell
its doom? It is responsiveness to the supremacy of
reason, obedience to the dictates of justice. Negatively
put, arbitrariness is ruled out and unfairness avoided. To
satisfy the due process requirement, official action, to
paraphrase Cardozo, must not outrun the bounds of
reason and result in sheer oppression. Due process is
thus hostile to any official action marred by lack of
reasonableness. Correctly has it been identified as
freedom from arbitrariness. It is the embodiment of the
sporting idea of fair play. It exacts fealty 'to those
strivings for justice' and judges the act of officialdom of
whatever branch 'in the light of reason drawn from
considerations of fairness that reflect [democratic]
traditions of legal and political thought.' It is not a
narrow or 'technical conception with fixed content
unrelated to time, place and circumstances,' decisions
based on such a clause requiring a 'close and perceptive
inquiry into fundamental principles of our society.'
Questions of due process are not to be treated narrowly
or pedantically in slavery to form or phrases." 56
It would be to dwell in the realm of abstractions and to
ignore the harsh and compelling realities of public
service with its ever-present temptation to heed the call
of greed and avarice to condemn as arbitrary and
oppressive a requirement as that imposed on public
officials and employees to file such sworn statement of
assets and liabilities every two years after having done
so upon assuming office. The due process clause is not
susceptible to such a reproach. There was therefore no
unconstitutional exercise of police power.
4. The due process question touching on an alleged
deprivation of liberty as thus resolved goes a long way
in disposing of the objections raised by plaintiff that the
provision on the periodical submission of a sworn
statement of assets and liabilities is violative of the
constitutional right to privacy. There is much to be said
for this view of Justice Douglas: "Liberty in the
constitutional sense must mean more than freedom from
unlawful governmental restraint; it must include privacy
as well, if it is to be a repository of freedom. The right
to be let alone is indeed the beginning of all
freedom." 57 As a matter of fact, this right to be let alone
is, to quote from Mr. Justice Brandeis "the most
comprehensive of rights and the right most valued by
civilized men." 58
The concept of liberty would be emasculated if it does
not likewise compel respect for his personality as a
unique individual whose claim to privacy and
interference demands respect. As Laski so very aptly
stated: "Man is one among many, obstinately refusing
reduction to unity. His separateness, his isolation, are
indefeasible; indeed, they are so fundamental that they
are the basis on which his civic obligations are built. He
cannot abandon the consequences of his isolation,
which are, broadly speaking, that his experience is
private, and the will built out of that experience
personal to himself. If he surrenders his will to others,
he surrenders his personality. If his will is set by the
will of others, he ceases to be master of himself. I
cannot believe that a man no longer master of himself is
in any real sense free." 59
Nonetheless, in view of the fact that there is an express
recognition of privacy, specifically that of
communication and correspondence which "shall be
inviolable except upon lawful order of Court or when
public safety and order" 60may otherwise require, and
implicitly in the search and seizure clause, 61 and the
liberty of abode 62 the alleged repugnancy of such
statutory requirement of further periodical submission
of a sworn statement of assets and liabilities deserves to
be further looked into.
In that respect the question is one of first impression, no
previous decision having been rendered by this Court. It
is not so in the United States where, in the leading case
of Griswold v. Connecticut, 63 Justice Douglas,
speaking for five members of the Court, stated:
"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 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, papers,
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." After referring to various American
Supreme Court decisions, 64 Justice Douglas continued:
"These cases bear witness that the right of privacy
which presses for recognition is a legitimate one."
The Griswold case 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 of privacy of married persons;
rightfully it stressed "a relationship lying within the
zone of privacy created by several fundamental
constitutional guarantees." 65 It has wider implications
though. The constitutional right to privacy has come
into its own.1äwphï1.ñët
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." 66
Even with due recognition of such a view, it cannot be
said that the challenged statutory provision calls for
disclosure of information which infringes on the right of
a person to privacy. It cannot be denied that the rational
relationship such a requirement possesses with the
objective of a valid statute goes very far in precluding
assent to an objection of such character. This is not to
say that a public officer, by virtue of a position he
holds, is bereft of constitutional protection; it is only to
emphasize that in subjecting him to such a further
compulsory revelation of his assets and liabilities,
including the statement of the amounts and sources of
income, the amounts of personal and family expenses,
and the amount of income taxes paid for the next
preceding calendar year, there is no unconstitutional
intrusion into what otherwise would be a private sphere.
5. Could it be said, however, as plaintiff contends, that
insofar as the challenged provision requires the
periodical filing of a sworn statement of financial
condition, it would be violative of the guarantees
against unreasonable search and seizure and against
self-incrimination?
His complaint cited on this point Davis v. United
States. 67 In that case, petitioner Davis was convicted
under an information charging him with unlawfully
having in his possession a number of gasoline ration
coupons representing so many gallons of gasoline, an
offense penalized under a 1940 statute. 68 He was
convicted both in the lower court and in the Circuit
Court of Appeals over the objection that there was an
unlawful search which resulted in the seizure of the
coupons and that their use at the trial was in violation of
Supreme Court decisions. 69 In the District Court, there
was a finding that he consented to the search and
seizure. The Circuit Court of Appeals did not disturb
that finding although expressed doubt concerning it,
affirming however under the view that such seized
coupons were properly introduced in evidence, the
search and seizure being incidental to an arrest, and
therefore reasonable regardless of petitioner's consent.
In affirming the conviction the United States Supreme
Court, through Justice Douglas emphasized that the
Court was dealing in this case "not with private papers
or documents, but with gasoline ration coupons which
never became the private property of the holder but
remained at all times the property of the government
and subject to inspection and recall by it." 70 He made it
clear that the opinion was not to be understood as
suggesting "that officers seeking to reclaim government
property may proceed lawlessly and subject to no
restraints. Nor [does it] suggest that the right to inspect
under the regulations subjects a dealer to a general
search of his papers for the purpose of learning whether
he has any coupons subject to inspection and seizure.
The nature of the coupons is important here merely as
indicating that the officers did not exceed the
permissible limits of persuasion in obtaining them." 71
True, there was a strong dissenting opinion by Justice
Frankfurter in which Justice Murphy joined, critical of
what it considered "a process of devitalizing
interpretation" which in this particular case gave
approval "to what was done by arresting officers" and
expressing the regret that the Court might be "in danger
of forgetting what the Bill of Rights reflects experience
with police excesses."
Even this opinion, however, concerned that the
constitutional guarantee against unreasonable search
and seizure "does not give freedom from testimonial
compulsion. Subject to familiar qualifications every
man is under obligation to give testimony. But that
obligation can be exacted only under judicial sanctions
which are deemed precious to Anglo-American
civilization. Merely because there may be the duty to
make documents available for litigation does not mean
that police officers may forcibly or fraudulently obtain
them. This protection of the right to be let alone except
under responsible judicial compulsion is precisely what
the Fourth Amendment meant to express and to
safeguard." 72
It would appear then that a reliance on that case for an
allegation that this statutory provision offends against
the unreasonable search and seizure clause would be
futile and unavailing. This is the more so in the light of
the latest decision of this Court in Stonehill v.
Diokno, 73 where this Court, through Chief Justice
Concepcion, after stressing that the constitutional
requirements must be strictly complied with, and that it
would be "a legal heresy of the highest order" to convict
anybody of a violation of certain statutes without
reference to any of its determinate provisions delimited
its scope as "one of the most fundamental rights
guaranteed in our Constitution," safeguarding "the
sanctity, of the domicile and the privacy of
communication and correspondence. . . ." Such is
precisely the evil sought to be remedied by the
constitutional provision above quoted — to outlaw the
so-called general warrants.
It thus appears clear that no violation of the guarantee
against unreasonable search and seizure has been shown
to exist by such requirement of further periodical
submission of one's financial condition as set forth in
the Anti-Graft Act of 1960.
Nor does the contention of plaintiff gain greater
plausibility, much less elicit acceptance, by his
invocation of the non-incrimination clause. According
to the Constitution: "No person shall be compelled to be
a witness against himself." 74 This constitutional
provision gives the accused immunity from any attempt
by the prosecution to make easier its task by coercing or
intimidating him to furnish the evidence necessary to
convict. He may confess, but only if he voluntarily wills
it. He may admit certain facts but only if he freely
chooses to.75 Or he could remain silent, and the
prosecution is powerless to compel him to talk. 76 Proof
is not solely testimonial in character. It may be
documentary. Neither then could the accused be ordered
to write, when what comes from his pen may constitute
evidence of guilt or innocence. 77 Moreover, there can
be no search or seizure of his house, papers or effects
for the purpose of locating incriminatory matter. 78
In a declaratory action proceeding then, the objection
based on the guaranty against self-incrimination is far
from decisive. It is well to note what Justice Tuason
stated: "What the above inhibition seeks to [prevent] is
compulsory disclosure of incriminating
facts." 79 Necessarily then, the protection it affords will
have to await, in the language of Justice J. B. L. Reyes,
the existence of actual cases, "be they criminal, civil or
administrative." 80 Prior to such a stage, there is no
pressing need to pass upon the validity of the fear
sincerely voiced that there is an infringement of the
non-incrimination clause. What was said in an
American State decision is of relevance. In that case, a
statutory provision requiring any person operating a
motor vehicle, who knows that injury has been caused a
person or property, to stop and give his name,
residence, and his license number to the injured party or
to a police officer was sustained against the contention
that the information thus exacted may be used as
evidence to establish his connection with the injury and
therefore compels him to incriminate himself. As was
stated in the opinion: "If the law which exacts this
information is invalid, because such information,
although in itself no evidence of guilt, might possibly
lead to a charge of crime against the informant, then all
police regulations which involve identification may be
questioned on the same ground. We are not aware of
any constitutional provision designed to protect a man's
conduct from judicial inquiry or aid him in fleeing from
justice. But, even if a constitutional right be involved, it
is not necessary to invalidate the statute to secure its
protection. If, in this particular case, the constitutional
privilege justified the refusal to give the information
exacted by the statute, that question can be raised in the
defense to the pending prosecution. Whether it would
avail, we are not called upon to decide in this
proceeding." 81
6. Nor could such a provision be nullified on the
allegation that it constitutes "an insult to the personal
integrity and official dignity" of public officials. On its
face, it cannot thus be stigmatized. As to its being
unnecessary, it is well to remember that this Court, in
the language of Justice Laurel, "does not pass upon
questions of wisdom, justice or expediency of
legislation." 82 As expressed by Justice Tuason: "It is
not the province of the courts to supervise legislation
and keep it within the bounds of propriety and common
sense. That is primarily and exclusively a legislative
concern." 83 There can be no possible objection then to
the observation of Justice Montemayor: "As long as
laws do not violate any Constitutional provision, the
Courts merely interpret and apply them regardless of
whether or not they are wise or salutary." 84 For they,
according to Justice Labrador, "are not supposed to
override legitimate policy and . . . never inquire into the
wisdom of the law." 85
It is thus settled, to paraphrase Chief Justice
Concepcion in Gonzales v. Commission on
Elections, 86 that only congressional power or
competence, not the wisdom of the action taken may be
the basis for declaring a statute invalid. This is as it
ought to be. The principle of separation of powers has
in the main wisely allocated the respective authority of
each department and confined its jurisdiction to such a
sphere. There would then be intrusion not allowable
under the Constitution if on a matter left to the
discretion of a coordinate branch, the judiciary would
substitute its own. If there be adherence to the rule of
law, as there ought to be, the last offender should be
courts of justice, to which rightly litigants submit their
controversy precisely to maintain unimpaired the
supremacy of legal norms and prescriptions. The attack
on the validity of the challenged provision likewise
insofar as there may be objections, even if valid and
cogent on its wisdom cannot be sustained.

WHEREFORE, the decision of the lower court of July

19, 1962 "declaring unconstitutional, null and void
Section 7, Republic Act No. 3019, insofar as it requires
periodical submittal of sworn statements of financial
conditions, assets and liabilities of an official or
employee of the government after he had once
submitted such a sworn statement . . . is reversed."
Without costs.
G.R. No. L-32066 August 6, 1979
MANUEL LAGUNZAD, petitioner,
vs.
MARIA SOTO VDA. DE GONZALES and THE
COURT OF APPEALS, respondents.
Diosdado P. Peralta for petitioner.
Manuel S. Tonogbanua for private respondent.
MELENCIO-HERRERA, J.:
Before us is a Petition for Review by certiorari of the
Decision of the Court of Appeals in CA-G.R. No.
34703, promulgated on January 13, 1970, affirming the
Decision of the Court of First Instance of Negros
Occidental, dated June 30, 1964, in Civil Case No. 6414
entitled "Maria Soto Vda. de Gonzales vs. Manuel
Lagunzad," for a Sum of Money and Attachment.
The present controversy stems from a "Licensing
Agreement" entered into by and between petitioner
Manuel M. Lagunzad and private respondent Maria
Soto Vda. de Gonzales on October 5, 1961, which
contract petitioner claims to be null and void for having
been entered into by him under duress, intimidation and
undue influence.
The antecedental facts follow: Sometime in August,
1961, petitioner Manuel Lagunzad, a newspaperman,
began the production of a movie entitled "The Moises
Padilla Story" under the name of his own business
outfit, the "MML Productions." It was based mainly on
the copyrighted but unpublished book of Atty. Ernesto
Rodriguez, Jr., entitled "The Long Dark Night in
Negros" subtitled "The Moises Padilla Story," 1 the
rights to which petitioner had purchased from Atty.
Rodriguez in the amount of P2,000.00. 2
The book narrates the events which culminated in the On the same date, October 5, 1961, after some
murder of Moises Padilla sometime between November bargaining as to the amount to be paid, which was
11 and November 17, 1951. Padilla was then a P50,000.00 at first, then reduced to
mayoralty candidate of the Nacionalista Party (then the P20,000.00, 7 petitioner and private respondent,
minority party) for the Municipality of Magallon, represented by her daughters and Atty. Ernesto
Negros Occidental, during the November, 1951 Rodriguez, at the law office of Jalandoni and Jamir,
elections. Governor Rafael Lacson, a member of the executed a "Licensing Agreement" reading as follows:
Liberal Party then in power and his men were tried and
convicted for that murder in People vs. Lacson, et LICENSING AGREEMENT
al. 3 In the book, Moises Padilla is portrayed as "a
martyr in contemporary political history." KNOW ALL MEN BY THESE PRESENTS:
Although the emphasis of the movie was on the public This Agreement, made and executed at the City of
Manila, Philippines, this 5th day of October, 1961, by
life of Moises Padilla, there were portions which dealt
with his private and family life including the portrayal and between:
in some scenes, of his mother, Maria Soto Vda. de
MANUEL M. LAGUNZAD, of legal age, married,
Gonzales, private respondent herein, and of one
presently engaged in the business of producing motion
"Auring" as his girl friend. 4
pictures under the style of "MML Productions" with
residence at 76 Central Boulevard, Quezon City and
The movie was scheduled for a premiere showing on
with offices at 301 Cu Unjieng Bldg., Escolta, Manila
October 16, 1961, or at the very latest, before the
and hereinafter referred to as LICENSEE,
November, 1961 elections.
— and —
On October 3, 1961, petitioner received a telephone call
from one Mrs. Nelly Amante, half-sister of Moises
MARIA SOTO VDA. DE GONZALES, of legal age,
Padilla, objecting to the filming of the movie and the
widow, resident of the Municipality of Moises Padilla,
"exploitation" of his life. Shown the early "rushes" of
Province of Negros Occidental, represented in this Act
the picture, Mrs. Amante and her sister, Mrs. Gavieres,
by her Attorneys-in-fact Atty. Ernesto Rodriguez, Jr. of
objected to many portions thereof notwithstanding
legal age and resident of 393F-Buencamino St., San
petitioner's explanation that the movie had been
supervised by Ernesto Rodriguez, Jr., based on his book Miguel, Manila; Maria Nelly G. Amazite, of legal age
and resident of 121 South 13, Quezon City; and Dolores
"The Long Dark Night in Negros." On October 5, 1961,
G, Gavieres, of legal age, and resident of 511 San
Mrs. Amante, for and in behalf of her mother, private
Rafael Street, Quiapo, Manila, also duly authorized and
respondent, demanded in writing for certain changes,
hereinafter referred to as LICENSOR,
corrections and deletions in the movie. 5 Petitioner
contends that he acceded to the demands because he had
WITNESSETH:
already invested heavily in the picture to the extent of
mortgaging his properties, 6 in addition to the fact that
That, the LICENSEE is currently producing a motion
he had to meet the scheduled target date of the premiere
picture entitled "The Moises Padilla Story" (hereinafter
showing.
referred to as the PICTURE, for short) based on certain
episodes in the life of Moises Padilla, now deceased:
That the LICENSOR is the legitimate mother and only
surviving compulsory heir of Moises Padilla, the latter
not having married during his lifetime and having died
without any descendants, legitimate or illegitimate;
That, in the PICTURE and in all incidents thereof, such
as scenarios, advertisements, etc., the LICENSEE has,
without the prior consent and authority of LICENSOR,
exploited the life story of Moises Padilla for pecuniary
gain and other profit motives, and has, furthermore
encroached upon the privacy of Moises Padilla's
immediate family, and has in fact, included in the
PICTURE'S cast, persons portraying some of MOISES
PADILLA's kin, including LICENSOR herself;
That, for and in consideration of the foregoing premises
and the other covenants and conditions hereunder
stated, the LICENSOR hereby grants authority and
permission to LICENSEE to exploit, use, and develop
the life story of Moises Padilla for purposes of
producing the PICTURE, and in connection with
matters incidental to said production, such as
advertising and the like, as well as authority and
permission for the use of LICENSOR's name in the
PICTURE and have herself portrayed therein, the
authority and permission hereby granted, to retroact to
the date when LICENSEE first committed any of the
acts herein authorized.
THE CONDITIONS AND OTHER COVENANTS OF
THIS AGREEMENT ARE AS FOLLOWS:
1. For and in consideration of the authority and
permission hereby granted by LICENSOR to
LICENSEE, LICENSEE shall pay LICENSOR, through
Atty. Lope E. Adriano at the Pelaez and Jalandoni Law
Office, 6th Floor, Magsaysay Bldg., San Luis, Ermita,
Manila, the following:
a) The sum of TWENTY THOUSAND PESOS
(P20,000.00), Philippine Currency, payable without
need of further demand, as follows: P5,000.00 on or
before Oct. 10, 1961; P10,000.00 on or before Oct. 31, 5) The LICENSOR shall not in any way be liable on
1961; and P5,000.00 on or before November 30, 1961. any claim from third persons as a result of, or arising
In default of the payment of any of these amounts as from, the manner by which the PICTURE is put
they fall due, the others become immediately due and together, nor on any claim arising from the production,
demandable. distribution and exhibition of the PICTURE, and in the
event of any such claim being asserted against
b) A royalty in such amount corresponding to TWO LICENSOR, the LICENSEE undertakes to hold
AND A HALF PER CENTUM (2-½ %) of all gross LICENSOR harmless thereon.
income or receipts derived by, and/or for and in behalf
of, LICENSEE as rentals and or percentage of box 6) This agreement shall be binding upon the parties
office receipts from exhibitors and others for the right to hereto, their representatives, administrators, successors
exploit, use, distribute and/or exhibit the picture and assigns.
anywhere here in the Philippines or abroad.
IN WITNESS WHEREOF, the parties have hereunto
2) The LICENSEE agrees to keep complete, true and set their hands on the date and at the place first above
accurate books of accounts, contracts and vouchers stated.
relating to the exploitation, distribution and exhibition
of the PICTURE, the bookings thereof and the rentals MARIA SOTO VDA. DE GONZALES MANUEL M.
and gross receipts therefrom, and to give to LICENSOR LAGUNZAD
and/or her accredited representatives, full access at all Licensor Licensee
reasonable times to all of the said books, accounts,
records, vouchers and all other papers. By:
3) The LICENSEE shall furnish LICENSOR monthly (Sgd.) ERNESTO R. RODRIGUEZ, Jr.
statements in duplicate, showing in detail the gross (Sgd.) MARIA NELLY G. AMANTE
receipts accruing from the picture, which monthly (Sgd.) DOLORES G. GAVIERES
statements shall be delivered to the LICENSOR with Attorneys-in-fact
reasonable promptness, and upon verification and
approval of said statements by LICENSOR, the SIGNED IN THE PRESENCE OF:
LICENSEE shall pay the corresponding royalties due to
LOPE E. ADRIANO ILLEGIBLE
the LICENSOR.
ACKNOWLEDGMENT
4) The authority and permission herein granted is
subject to the condition that LICENSEE shall change,
Petitioner takes the position that he was pressured into
delete, and/or correct such portions in the PICTURE as
signing the Agreement because of private respondent's
the LICENSOR may require, in writing before final
demand, through Mrs. Amante, for payment for the
printing of the PICTURE, and shall, furthermore, not be
"exploitation" of the life story of Moises Padilla,
understood as a consent to anything in the picture that
otherwise, she would "call a press conference declaring
is, or tends to be, derogatory to the deceased MOISES
the whole picture as a fake, fraud and a hoax and would
PADILLA or to LICENSOR.
denounce the whole thing in the press, radio, television
and that they were going to Court to stop the picture." 8
On October 10, 1961, petitioner paid private respondent
the amount of P5,000.00 but contends that he did so not
pursuant to their Agreement but just to placate private
respondent.9
On October 14, 1961, the filming of the movie was
completed. On October 16, 1961, a premiere showing
was held at the Hollywood Theatre, Manila, with the
Moises Padilla Society as its sponsor. 10 Subsequently,
the movie was shown in different theaters all over the
country.
Because petitioner refused to pay any additional
amounts pursuant to the Agreement, on December 22,
1961, private respondent instituted the present suit
against him praying for judgment in her favor ordering
petitioner 1) to pay her the amount of P15,000.00, with
legal interest from the filing of the Complaint; 2) to
render an accounting of the proceeds from the picture
and to pay the corresponding 2-1/2% royalty therefrom;
3) to pay attorney's fees equivalent to 20% of the
amounts claimed; and 4) to pay the costs.
Traversing the Complaint, petitioner contended in his
Answer that the episodes in the life of Moises Padilla
depicted in the movie were matters of public knowledge
and occurred at or about the same time that the
deceased became and was a public figure; that private
respondent has no property right over those incidents;
that the Licensing Agreement was without valid cause
or consideration and that he signed the same only
because private respondent threatened him with
unfounded and harassing action which would have
delayed production; and that he paid private respondent
the amount of P5,000.00 in October, 1961, only because
of the coercion and threat employed upon him. By way
of counterclaim, petitioner demanded that the Licensing
Agreement be declared null and void for being without
any valid cause; that private respondent be ordered to
return to him the amount of P5,000.00; and that he be
paid P50,000.00 by way of moral damages, and
P7,500.00 as attorney's fees.
Private respondent duly filed her Answer to
Counterclaim alleging that the transaction between her
and petitioner was entered into freely and voluntarily.
On June 30, 1964, the trial Court rendered a Decision,
and decreed in its dispositive portion:
WHEREFORE, judgment is hereby rendered ordering
the defendant Manuel Lagunzad to pay the plaintiff the
sum of P15,000.00 with interest at the rate of 6% per
annum from December 22, 1961 up to its complete
payment; to order the defendant to render an accounting
of the gross income or proceeds derived from the
exhibition, use and/or rental of the motion picture of
"The Moises Padilla Story" and to pay the plaintiff 2-
1/2% of said gross income; to pay the plaintiff the
amount equivalent to 20% of the amount due the
plaintiff under the first cause of action as attorney's
fees; and to pay the costs.
On appeal to the Court of Appeals, the latter Court
affirmed the judgment. Reconsideration having been
denied by the Court, petitioner filed the instant Petition
for Review on Certiorari.
Initially, or on June 16, 1970, this Court denied the
Petition for lack of merit, but resolved subsequently to
give it due course after petitioner moved for
reconsideration on the additional argument that the
movie production was in exercise of the constitutional
right of freedom of expression, and that the Licensing
cement is a form of restraint on the freedom of speech
and of the press.
In his Brief, petitioner assigns the following errors to
the appellate Court:
I. THE COURT OF APPEALS ERRED IN
EXERCISING JURISDICTION IN THE CASE
BECAUSE THE JUDGMENT APPEALED FROM
WAS INTERLOCUTORY IN NATURE AND
CHARACTER;
II. THE COURT OF APPEALS ERRED IN ITS
FAILURE TO MAKE COMPLETE FINDINGS OF
FACTS ON ALL ISSUES BEFORE IT;
III. THE COURT OF APPEALS ERRED IN NOT
DECLARING THE LICENSING AGREEMENT,
EXHIBIT "A", NULL AND VOID FOR LACK OF,
OR FOR HAVING AN ILLEGAL CAUSE OR
CONSIDERATION OF CONTRACT, PETITIONER
HAVING PREVIOUSLY OBTAINED THE
AUTHORITY AND/OR PERMISSION PURPOSELY
GRANTED TO HIM BY RESPONDENT UNDER
SAID LICENSING AGREEMENT;
IV. THE COURT OF APPEALS ERRED IN NOT
FINDING THAT THE LICENSING AGREEMENT,
EXHIBIT "A", IS NULL AND VOID; RESPONDENT
NOT HAVING HAD ANY PROPERTY NIGHTS
OVER THE INCIDENTS IN THE LIFE OF MOISES
PADILLA WHO WAS A PUBLIC FIGURE.
V. THE COURT OF APPEALS ERRED IN NOT
FINDING THAT THE LICENSING AGREEMENT,
EXHIBIT "A", WAS NULL AND VOID,
PETITIONER'S CONSENT HAVING BEEN
PROCURED BY MEANS OF DURESS,
INTIMIDATION AND UNDUE INFLUENCE;
VI. THE COURT OF APPEALS, IN UPHOLDING
THE RIGHT TO PRIVACY OF RESPONDENT AS
DEFINED IN ART. 26 OF THE NEW CIVIL CODE
OVER THE RIGHT OF PETITIONER TO FILM THE
PUBLIC LIFE OF A PUBLIC FIGURE, INFRINGED
UPON THE CONSTITUTIONAL RIGHT OF
PETITIONER TO FREE SPEECH AND FREE PRESS.
We find the assigned errors bereft of merit.
Petitioner's contention that because an accounting had
been ordered, respondent Court of Appeals did not have
jurisdiction over the case as the Decision of the lower
Court was not yet final and appealable, is untenable.
The doctrine enunciated in Fuentebella vs.
Carrascoso 11 relied upon by petitioner, which held that
whether or not the action for accounting is the principal
action or is merely incidental to another, the judgment
requiring such accounting cannot be final, has been
abandoned in Miranda vs. Court of Appeals 12 which
ruled:
For the guidance of bench and bar, the Court declares as
abandoned the doctrine of Fuentebella vs.
Carrascoso and adopts the opposite rule that judgments
for recovery with accounting are final and appealable
(without need of awaiting the accounting) and would
become final and executory if not appealed within the
reglementary period.
In other words, where there is complete adjudication
and determination of the rights and obligations of the
parties, as in the instant case, an order for accounting in
that judgment does not affect its final character, said
accounting being merely incidental to the judgment.
Petitioner's contention that respondent Court failed to
make complete findings of fact on all issues raised
before it is without basis. A careful study of the
Decision reveals that respondent Court has substantially
and sufficiently complied with the injunction that a
decision must state clearly and distinctly the facts and
the law on which it is based. The rule remains that the
ultimate test as to the sufficiency of a Court's findings
of fact is "whether they are comprehensive enough and
pertinent to the issues raised to provide a basis for
decision." 13 The judgment sought to be reviewed
sufficiently complies with this requirement.
Neither do we agree with petitioner's submission 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 had purchased 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
members of his family. As held in Schuyler v.
Curtis,14 "a privilege may be given the surviving
relatives of a deceased person to protect his memory,
but the privilege exists for the benefit of the living, to
protect their feelings and to prevent a violation of their
own rights in the character and memory of the
deceased."
Petitioner's 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
figure he or she may be. 15 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. 16
We also find it difficult to sustain petitioner's posture
that his consent to the Licensing Agreement was
procured thru duress, intimidation and undue influence
exerted on him by private respondent and her daughters
at a time when he had exhausted his financial resources,
the premiere showing of the picture was imminent, and
"time was of the essence." As held in Martinez vs.
Hongkong & Shanghai Bank, 17 it is necessary to
distinguish between real duress and the motive which is
present when one gives his consent reluctantly. A
contract is valid even though one of the parties entered
into it against his own wish and desires, or even against
his better judgment. In legal effect, there is no
difference between a contract wherein one of the
contracting parties exchanges one condition for another
because he looks for greater profit or gain by reason of
such change, and an agreement wherein one of the
contracting parties agrees to accept the lesser of two
disadvantages. In either case, he makes a choice free
and untramelled and must accordingly abide by it. The
Licensing Agreement has the force of law between the
contracting parties and since its provisions are not
contrary to law, morals, good customs, public order or
public policy (Art. 1306, Civil Code), petitioner Should
comply with it in good faith.
Lastly, neither do we find merit in petitioner's
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 of freedom of expression, indeed, occupies a
preferred position in the "hierarchy of civil
liberties." 18 It is not, however, without limitations. As
held in Gonzales vs. Commission on Elections, 27
SCRA 835, 858 (1969):
From the language of the specific 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.
The prevailing doctrine is that the clear and present
danger rule is such a limitation. Another criterion for
permissible limitation on freedom of speech and of the
press, which includes such vehicles of the mass media
as radio, television and the movies, is the "balancing-of-
interests test." 19 The principle i requires a court to take
conscious and detailed consideration of the interplay of
interests observable in a given situation or type of
situation."20
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.

WHEREFORE, the Petition for Review is denied and

the judgment appealed from hereby affirmed. Costs
against petitioner.
G.R. No. L-69500 July 22, 1985
JOSE ANTONIO U. GONZALEZ in behalf of
MALAYA FILMS, LINO BROCKA, JOSE F.
LACABA, and DULCE Q. SAGUISAG, petitioners,
vs.
CHAIRMAN MARIA KALAW KATIGBAK,
GENERAL WILFREDO C. ESTRADA (Ret.), and
THE BOARD OF REVIEW FOR MOTION
PICTURES AND TELEVISION
(BRMPT), respondents.
Irene R. Cortes, Perfecto V. Fernandez, Haydee Yorac
and Joker P. Arroyo for petitioners.
The Solicitor General for respondents.
FERNANDO, C.J.:
In this case of first impression, a certiorari proceeding
filed on January 10, 1985, there is a persuasive ring to
the invocation of the constitutional right to freedom of
expression 1 of an artist—and for that matter a man of
letters too—as the basis for a ruling on the scope of the
power of respondent Board of Review for Motion
Pictures and Television and how it should be exercised.
The dispute between the parties has been narrowed
down. The motion picture in question, Kapit sa
Patalim was classified "For Adults Only." There is the
further issue then, also one of first impression, as to the
proper test of what constitutes obscenity in view of the
objections raised. Thus the relevance of this
constitutional command: "Arts and letters shall be under
the patronage of the State.2
The principal petitioner is Jose Antonio U.
Gonzalez, 3 President of the Malaya Films, a movie
production outfit duly registered as a single
proprietorship with the Bureau of Domestic Trade. The
respondent is the Board of Review for Motion Pictures
and Television, with Maria Kalaw Katigbak as its
Chairman and Brig. Gen. Wilfredo C. Estrada as its
Vice-Chairman, also named respondents.
In a resolution of a sub-committee of respondent Board
of October 23, 1984, a permit to exhibit the film Kapit
sa Patalim under the classification "For Adults Only,"
with certain changes and deletions enumerated was
granted. A motion for reconsideration was filed by
petitioners stating that the classification of the film "For
Adults Only" was without basis. 4 Then on November
12, 1984, respondent Board released its decision:
"Acting on the applicant's Motion for Reconsideration
dated 29 October 1984, the Board, after a review of the
resolution of the sub-committee and an examination of
the film, Resolves to affirm in toto the ruling of the sub-
committee. Considering, however, certain vital
deficiencies in the application, the Board further
Resolves to direct the Chairman of the Board to
Withheld the issuance of the Permit to exhibit until
these deficiencies are supplied. 5 Hence this petition.
This Court, in a resolution of January 12, 1985, required
respondent to answer. In such pleading submitted on
January 21, 1985, as one of its special and affirmative
defenses, it was alleged that the petition is moot as
"respondent Board has revoked its questioned
resolution, replacing it with one immediately granting
petitioner company a permit to exhibit the film Kapit
without any deletion or cut [thus an] adjudication of the
questions presented above would be academic on the
case." 6 Further: "The modified resolution of the Board,
of course, classifies Kapit as for-adults-only, but the
petition does not raise any issue as to the validity of this
classification. All that petitioners assail as arbitrary on
the part of the Board's action are the deletions ordered
in the film. 7 The prayer was for the dismissal of the
petition.
An amended petition was then filed on January 25,
1985. The main objection was the classification of the
film as "For Adults Only." For petitioners, such
classification "is without legal and factual basis and is
exercised as impermissible restraint of artistic
expression. The film is an integral whole and all its
portions, including those to which the Board now offers
belated objection, are essential for the integrity of the
film. Viewed as a whole, there is no basis even for the
vague speculations advanced by the Board as basis for
its classification. 8 There was an answer to the amended
petition filed on February 18, 1985. It was therein
asserted that the issue presented as to the previous
deletions ordered by the Board as well as the statutory
provisions for review of films and as to the requirement
to submit the master negative have been all rendered
moot. It was also submitted that the standard of the law
for classifying films afford a practical and determinative
yardstick for the exercise of judgment. For respondents,
the question of the sufficiency of the standards remains
the only question at issue.
It would be unduly restrictive under the circumstances
to limit the issue to one of the sufficiency of standards
to guide respondent Board in the exercise of its power.
Even if such were the case, there is justification for an
inquiry into the controlling standard to warrant the
classification of "For Adults Only." This is especially
so, when obscenity is the basis for any alleged invasion
of the right to the freedom of artistic and literary
expression embraced in the free speech and free press
guarantees of the Constitution.
1. Motion pictures are important both as a medium for
the communication of Ideas and the expression of the
artistic impulse. Their effects on the perception by our
people of issues and public officials or public figures as
well as the prevailing cultural traits is considerable. Nor
as pointed out in Burstyn v. Wilson9 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. 10There 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. Our
recent decision in Reyes v. Bagatsing11 cautions against
such a move. Press freedom, as stated in the opinion of
the Court, "may be Identified with the liberty to discuss
publicly and truthfully any matter of public concern
without censorship or punishment. 12This is not to say
that such freedom, as is the freedom of speech,
absolute. It can be limited if "there be a 'clear and
present danger of a substantive evil that [the State] has a
right to prevent. 13
2. Censorship or previous restraint certainly is not all
there is to free speech or free press. If it were so, then
such basic rights are emasculated. It is however, except
in exceptional circumstances a sine qua non for the
meaningful exercise of such right. This is not to deny
that equally basic is the other important aspect of
freedom from liability. Nonetheless, for the purposes of
this litigation, the emphasis should rightly be on
freedom from censorship. It is, beyond question, a well-
settled principle in our jurisdiction. As early as 1909, in
the case of United States v. Sedano,14 a prosecution for
libel, the Supreme Court of the Philippines already
made clear that freedom of the press consists in the
right to print what one chooses without any previous
license. There is reaffirmation of such a view in Mutuc
v. Commission on Elections, 15 where an order of
respondent Commission on Elections giving due course
to the certificate of candidacy of petitioner but
prohibiting him from using jingles in his mobile units
equipped with sound systems and loud speakers was
considered an abridgment of the right of the freedom of
expression amounting as it does to censorship. It is the
opinion of this Court, therefore, that to avoid an
unconstitutional taint on its creation, the power of
respondent Board is limited to the classification of
films. It can, to safeguard other constitutional
objections, determine what motion pictures are for
general patronage and what may require either parental
guidance or be limited to adults only. That is to abide
by the principle that freedom of expression is the rule
and restrictions the exemption. The power to exercise
prior restraint is not to be presumed, rather the
presumption is against its validity.16
3. The test, to repeat, to determine whether freedom of
excession may be limited is the clear and present danger
of an evil of a substantive character that the State has a
right to prevent. Such danger must not only be clear but
also present. There should be no doubt that what is
feared may be traced to the expression complained of.
The causal connection must be evident. Also, there
must be reasonable apprehension about its imminence.
The time element cannot be ignored. Nor does it suffice
if such danger be only probable. There is the require of
its being well-nigh inevitable. The basic postulate,
wherefore, as noted earlier, is that where the movies,
theatrical productions radio scripts, television programs,
and other such media of expression are concerned —
included as they are in freedom of expression —
censorship, especially so if an entire production is
banned, is allowable only under the clearest proof of a
clear and present danger of a substantive evil to public
public morals, public health or any other legitimate
public interest. 17 There is merit to the observation of
Justice Douglas that "every writer, actor, or producer,
no matter what medium of expression he may use,
should be freed from the censor. 18
4. The law, however, frowns on obscenity and rightly
so. As categorically stated by Justice Brennan in Roth v.
United States 19 speaking of the free speech and press
guarantee of the United States Constitution: "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 guaranties, unless excludable
because they encroach upon the limited area of the First
Amendment is the rejection of obscenity as utterly
without redeeming social importance. 20 Such a view
commends itself for approval.
5. There is, however, some difficulty in determining
what is obscene. There is persuasiveness to the
approach followed in Roth: "The early leading standard
of obscenity allowed material to be judged merely by
the effect of an isolated excerpt upon particularly
susceptible persons. Regina v. Hicklin [1868] LR 3 QB
360. Some American courts adopted this standard but
later decisions have rejected it and substituted this test:
whether to the average person, applying contemporary
community standards, the dominant theme of the
material taken as a whole appeals to prurient interest.
The Hicklin test, judging obscenity by the effect of
isolated passages upon the most susceptible persons,
might well encompass material legitimately treating
with sex, and so it must be rejected as
unconstitutionally restrictive of the freedoms of speech
and press. On the other hand, the substituted standard
provides safeguards adequate to withstand the charge of
constitutional infirmity. 21
6. The above excerpt which imposes on the judiciary
the duty to be ever on guard against any impermissible
infringement on the freedom of artistic expression calls
to mind the landmark ponencia of Justice Malcolm
in United States v. Bustos, 22 decided in 1918. While
recognizing the principle that libel is beyond the pale of
constitutional protection, it left no doubt that in
determining what constitutes such an offense, a court
should ever be mindful that no violation of the right to
freedom of expression is allowable. It is a matter of
pride for the Philippines that it was not until 1984
in New York Timer v. Sullivan, 23 thirty-years later, that
the United States Supreme Court enunciated a similar
doctrine.
7. It is quite understandable then why in the Roth
opinion, Justice Brennan took pains to emphasize that
"sex and obscenity are not synonymous. 24 Further:
"Obscene material is material which deals with sex in a
manner appealing to prurient interest. The portrayal of
sex, e.g., in art, literature and scientific works, is not
itself sufficient reason to deny material the
constitutional protection of freedom of speech and
press. Sex, a great and mysterious motive force in
human life has indisputably been a subject of absorbing
interest to mankind through the ages; it is one of the
vital problems of human interest and public concern. 25
8. In the applicable law, Executive Order No. 876,
reference was made to respondent Board "applying
contemporary Filipino cultural values as
standard, 26 words which can be construed in an
analogous manner. Moreover, as far as the question of
sex and obscenity are concerned, it cannot be stressed
strongly that the arts and letters "shall be under the
patronage of the State. 27 That is a constitutional
mandate. It will be less than true to its function if any
government office or agency would invade the sphere
of autonomy that an artist enjoys. There is no orthodoxy
in what passes for beauty or for reality. It is for the artist
to determine what for him is a true representation. It is
not to be forgotten that art and belleslettres deal
primarily with imagination, not so much with ideas in a
strict sense. What is seen or perceived by an artist is
entitled to respect, unless there is a showing that the
product of his talent rightfully may be considered
obscene. As so wen put by Justice Frankfurter in a
concurring opinion, "the widest scope of freedom is to
be given to the adventurous and imaginative exercise of
the human spirit" 28 in this sensitive area of a man's
personality. On the question of obscenity, therefore, and
in the light of the facts of this case, such standard set
forth in Executive Order No. 878 is to be construed in
such a fashion to avoid any taint of unconstitutionality.
To repeat, what was stated in a recent decision 29 citing
the language of Justice Malcolm in Yu Cong Eng v.
Trinidad, 30 it is "an elementary, a fundamental, and a
universal role of construction, applied when considering
constitutional questions, that when a law is susceptible
of two constructions' one of which will maintain and the
other destroy it, the courts will always adopt the
former. 31 As thus construed, there can be no valid
objection to the sufficiency of the controlling standard television is concerned: a less liberal approach calls for
and its conformity to what the Constitution ordains. observance. This is so because unlike motion pictures
where the patrons have to pay their way, television
9. This being a certiorari petition, the question before reaches every home where there is a set. Children then
the Court is whether or not there was a grave abuse of will likely will be among the avid viewers of the
discretion. That there was an abuse of discretion by programs therein shown. As was observed by Circuit
respondent Board is evident in the light of the difficulty Court of Appeals Judge Jerome Frank, it is hardly the
and travail undergone by petitioners before Kapit sa concern of the law to deal with the sexual fantasies of
Patalim was classified as "For Adults Only," without the adult population. 34 it cannot be denied though that
any deletion or cut. Moreover its perception of what the State as parens patriae is called upon to manifest an
constitutes obscenity appears to be unduly restrictive. attitude of caring for the welfare of the young.
This Court concludes then that there was an abuse of
discretion. Nonetheless, there are not enough votes to WHEREFORE, this Court, in the light of the principles
maintain that such an abuse can be considered grave. of law enunciated in the opinion, dismisses this petition
Accordingly, certiorari does not lie. This conclusion for certiorari solely on the ground that there are not
finds support in this explanation of respondents in its enough votes for a ruling that there was a grave abuse
Answer to the amended petition: "The adult of discretion in the classification of Kapit sa Patalim as
classification given the film serves as a warning to "For-Adults-Only."
theater operators and viewers that some contents of
Kapit are not fit for the young. Some of the scenes in
the picture were taken in a theater-club and a good
portion of the film shots concentrated on some women
erotically dancing naked, or at least nearly naked, on the
theater stage. Another scene on that stage depicted the
women kissing and caressing as lesbians. And toward
the end of the picture, there exists scenes of excessive
violence attending the battle between a group of robbers
and the police. The vulnerable and imitative in the
young audience will misunderstand these
scenes." 32 Further: "Respondents further stated in its
answer that petitioner company has an option to have
the film reclassified to For-General-Patronage if it
would agree to remove the obscene scenes and pare
down the violence in the film." 33 Petitioners, however,
refused the "For Adults Only" classification and
instead, as noted at the outset, filed this suit for
certiorari.
10. All that remains to be said is that the ruling is to be
limited to the concept of obscenity applicable to motion
pictures. It is the consensus of this Court that where
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;
(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 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.
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):
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.
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).
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
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. 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).

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.
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.
G.R. No. L-68635 May 14, 1987
IN THE MATTER OF PROCEEDINGS FOR
DISCIPLINARY ACTION AGAINST ATTY.
WENCESLAO LAURETA, AND OF CONTEMPT
PROCEEDINGS AGAINST EVA MARAVILLA-
ILUSTRE in G.R. No. 68635, entitled "EVA
MARAVILLA-ILUSTRE, vs. HON. INTERMEDIATE
APPELLATE COURT, ET AL."
RESOLUTION
PER CURIAM:
Before us are 1) Atty. Wenceslao Laureta's Motion for
Reconsideration of the Per Curiam Resolution of this
Court promulgated on March 12, 1987, finding him
guilty of grave professional misconduct and suspending
him indefinitely from the practice of law; and 2) Eva
Maravilla-Ilustre's Motion for Reconsideration of the
same Resolution holding her in contempt and ordering
her to pay a fine of P1,000.00.
Essentially, Atty. Laureta maintains that the Order of
suspension without hearing violated his right to life and
due process of law and by reason thereof the Order is
null and void; that the acts of misconduct imputed to
him are without basis; that the charge against him that it
was he who had circulated to the press copies of the
Complaint filed before the Tanodbayan is unfounded
such that, even in this Court's Resolution, his having
distributed copies to the press is not stated positively;
that the banner headline which appeared In the Daily
Express is regrettable but that he was not responsible
for such "misleading headline;" that he "did nothing of
the sort" being fully conscious of his responsibilities as
a law practitioner and officer of the Court; that as a
former newspaperman, he would not have been satisfied
with merely circulating copies of the Complaint to the
press in envelopes where his name appears; "he himself
would have written stories about the case in a manner
that sells newspapers; even a series of juicy articles
perhaps, something that would have further subjected
the respondent justices to far worse publicity;" that, on
the contrary, the press conference scheduled by Ilustre
was cancelled through his efforts in order to prevent any
further adverse publicity resulting from the filing of the
complaint before the Tanodbayan; that, as a matter of
fact, it was this Court's Resolution that was serialized in
the Bulletin Today, which newspaper also made him the
subject of a scathing editorial but that he "understands
the cooperation because after all, the Court rendered a
favorable judgment in the Bulletin union case last year;"
that he considered it "below his dignity to plead for the
chance to present his side" with the Editor, Mr. Ben
Rodriguez, "a long-time personal friend" since he "can
afford to be the sacrificial lamb if only to help the
Honorable Court uphold its integrity;" that he was
called by a reporter of DZRH and was asked to
comment on the case filed before the Tanodbayan but
that his remarks were confined to the filing of the case
by Ilustre herself, and that the judgment of the trial
Court had attained its finality long ago; that he is not
Ilustre's counsel before the Tanodbayan and did not
prepare the complaint filed before it, his professional
services having been terminated upon the final
dismissal of Ilustre's case before this Court; that
similarities in the language and phraseology used in the
Ilustre letters, in pleadings before this Court and before
the Tanodbayan do not prove his authorship since other
lawyers "even of a mediocre caliber" could very easily
have reproduced them; that the discussions on the
merits in the Per Curiam Resolution are "more properly
addressed to the Tanodbayan, Justice Raul M. Gonzales
being competent to deal with the case before him;" that
he takes exception to the accusation that he has
manifested lack of respect for and exposed to public
ridicule the two highest Courts of the land, all he did
having been to call attention to errors or injustice
committed in the promulgation of judgments or orders;
that he has "not authorized or assisted and/or abetted
and could not have prevented the contemptuous
statements, conduct, acts and malicious charges of Eva
Maravilla Ilustre who was no longer his client when
these alleged acts were done; that "he is grateful to this
Court for the reminder on the first duty of a lawyer
which is to the Court and not to his client, a duty that he
has always impressed upon his law students;" and
finally, that "for the record, he is sorry for the adverse
publicity generated by the filing of the complaint
against the Justices before the Tanodbayan."
In her own Motion for Reconsideration, Eva Maravilla-
Ilustre also raises as her main ground the alleged
deprivation of her constitutional right to due process.
She maintains that as contempt proceedings are
commonly treated as criminal in nature, the mode of
procedure and rules of evidence in criminal prosecution
should be assimilated, as far as practicable, in this
proceeding, and that she should be given every
opportunity to present her side. Additionally, she states
that, with some sympathetic lawyers, they made an
"investigation" and learned that the Resolution of the
First Division was arrived at without any deliberation
by its members; that Court personnel were "tight-lipped
about the matter, which is shrouded mystery" thereby
prompting her to pursue a course which she thought was
legal and peaceful; that there is nothing wrong in
making public the manner of voting by the Justices, and
it was for that reason that she addressed Identical letters
to Associate Justices Andres Narvasa, Ameurfina M.
Herrera, Isagani Cruz and Florentino Feliciano; that "if
the lawyers of my opponents were not a Solicitor
General, and member of the Supreme Court and a
Division Chairman, respectively, the resolution of May
14, 1986 would not have aroused my suspicion;" that
instead of taking the law into her own hands or joining
any violent movement, she took the legitimate step of
making a peaceful investigation into how her case was
decided, and brought her grievance to the Tanodbayan
"in exasperation" against those whom she felt had
committed injustice against her "in an underhanded
manner."
We deny reconsideration in both instances.
The argument premised on lack of hearing and due
process, is not impressed with merit. What due process
abhors is absolute lack of opportunity to be heard
(Tajonera vs. Lamaroza, et al., 110 SCRA 438 [1981]).
The word "hearing" does not necessarily connote a
"trial-type" proceeding. In the show-cause Resolution of
this Court, dated January 29, 1987, Atty. Laureta was
given sufficient opportunity to inform this Court of the
reasons why he should not be subjected to dispose
action. His Answer, wherein he prayed that the action
against him be dismissed, contained twenty-two (22)
pages, double spaced. Eva Maravilla-Ilustre was also
given a like opportunity to explain her statements,
conduct, acts and charges against the Court and/or the
official actions of the Justices concerned. Her
Compliance Answer, wherein she prayed that the
contempt proceeding against her be dismissed,
contained nineteen (19) pages, double spaced. Both
were afforded ample latitude to explain matters fully.
Atty. Laureta denied having authored the letters written
by Ilustre, his being her counsel before the Tanodbayan,
his having circularized to the press copies of the
complaint filed before said body, and his having
committed acts unworthy of his profession. But the
Court believed otherwise and found that those letters
and the charges levelled against the Justices concerned,
of themselves and by themselves, betray not only their
malicious and contemptuous character, but also the lack
of respect for the two highest Courts of the land, a
complete obliviousness to the fundamental principle of
separation of powers, and a wanton disregard of the
cardinal doctrine of independence of the Judiciary. Res
ipsa loquitur. Nothing more needed to have been said or
proven. The necessity to conduct any further
evidentially hearing was obviated (See People vs. Hon.
Valenzuela, G.R. Nos. 63950-60, April 19, 1985, 135
SCRA 712). Atty. Laureta and Ilustre were given ample
opportunity to be heard, and were, in fact, heard.
(1)
In his Motion for Reconsideration, Atty. Laureta
reiterates his allegations in his Answer to the show-
cause Resolution that his professional services were
terminated by Ilustre after the dismissal of the main
petition by this Court; that he had nothing to do with the
contemptuous letters to the individual Justices; and that
he is not Ilustre's counsel before the Tanodbayan.
Significantly enough, however, copy of the Tanodbayan
Resolution dismissing Ilustre's Complaint was furnished
Atty. Laureta as "counsel for the complainant" at his
address of record. Of note, too, is the fact that it was he
who was following up the Complaint before the
Tanodbayan and, after its dismissal, the Motion for
Reconsideration of the Order of dismissal.
Of import, as well, is the report of Lorenzo C. Bardel, a
process server of this Court, that after having failed to
serve copy of the Per Curiam Resolution of March 12,
1987 of this Court on Ilustre personally at her address
of record, "101 F. Manalo St., Cubao, Quezon City,"
having been informed that she is 6 not a resident of the
place," he proceeded to the residence of Atty. Laureta
where the latter's wife "voluntarily received the two
copies of decision for her husband and for Ms.
Maravina-Ilustre" (p. 670, Rollo, Vol. 11).
That Ilustre subsequently received copy of this Court's
Resolution delivered to Mrs. Laureta is shown by the
fact that she filed, as of March 27, 1987, a "Petition for
Extension of Time to file Motion for Reconsideration"
and subsequently the Motion for Reconsideration. In
that Petition Ilustre acknowledged receipt of the
Resolution on March 12, 1987, the very same date Mrs.
Laureta received copy thereof. If, indeed, the lawyer-
client relationship between her husband and Ilustre had
been allegedly completely severed, all Mrs. Laureta had
to do was to return to the Sheriff the copy intended for
Ilustre. As it was, however, service on Atty. Laureta
proved to be service on Ilustre as well. The close tie- up
between the corespondents is heightened by the fact that
three process servers of this Court failed to serve copy
of this Court's Per Curiam Resolution on Ilustre
personally.
Noteworthy, as well, is that by Atty. Laureta's own
admission, he was the one called by a "reporter" of
DZRH to comment on the Ilustre charges before the
Tanodbayan. If, in fact, he had nothing to do with the
complaint, he would not have been pinpointed at all.
And if his disclaimer were the truth, the logical step for
him to have taken was to refer the caller to the lawyer/s
allegedly assisting Ilustre, at the very least, out of
elementary courtesy and propriety. But he did nothing
of the sort. " He gave his comment with alacrity.
The impudence and lack of respect of Atty. Laureta for
this Court again surfaces when he asserts in his Motion
for Reconsideration that he "understands the
cooperation" of the Bulletin Today as manifested in the
serialized publication of the Per Curiam Resolution of
this Court and his being subjected to a scathing editorial
by the same newspaper "because after all, the Court
rendered a favorable judgment in the Bulletin union
case last year." The malice lurking in that statement is
most unbecoming of an officer of the Court and is an
added reason for denying reconsideration.
Further, Atty. Laureta stubbornly contends that
discussions on the merits in the Court's Per Curiam
Resolution are more properly addressed to the
Tanodbayan, forgetting, however, his own discourse on
the merits in his Answer to this Court's Resolution
dated January 29, 1987. He thus incorrigibly insists on
subordinating the Judiciary to the executive
notwithstanding the categorical pronouncement in the
Per Curiam Resolution of March 12, 1987, that Article
204 of the Revised Penal Code has no application to the
members of a collegiate Court; that a charge of
violation of the Anti-Graft and Corrupt Practices Act on
the ground that a collective decision is "unjust" cannot
prosper; plus the clear and extended dissertation in the
same Per Curiam Resolution on the fundamental
principle of separation of powers and of checks and
balances, pursuant to which it is this Court "entrusted
exclusively with the judicial power to adjudicate with
finality all justifiable disputes, public and private. No
other department or agency may pass upon its
judgments or declare them 'unjust' upon controlling and
irresistible reasons of public policy and of sound
practice."
Atty. Laureta's protestations that he has done his best to
protect and uphold the dignity of this Court are belied
by environmental facts and circumstances. His
apologetic stance for the "adverse publicity" generated
by the filing of the charges against the Justices
concerned before the Tanodbayan rings with insincerity.
The complaint was calculated precisely to serve that
very purpose. The threat to bring the case to "another
forum of justice" was implemented to the fun. Besides,
he misses the heart of the matter. Exposure to the glare
of publicity is an occupational hazard. If he has been
visited with disciplinary sanctions it is because by his
conduct, acts and statements, he has, overall,
deliberately sought to destroy the "authenticity,
integrity, and conclusiveness of collegiate acts," to
"undermine the role of the Supreme Court as the final
arbiter of all justifiable disputes," and to subvert public
confidence in the integrity of the Courts and the Justices
concerned, and in the orderly administration of justice.
In fine, we discern nothing in Atty. Laureta's Motion for
Reconsideration that would call for a modification,
much less a reversal, of our finding that he is guilty of
grave professional misconduct that renders him unfit to
continue to be entrusted with the duties and
responsibilities pertaining to an attorney and officer of
the Court.
(2)
Neither do we find merit in Ilustre's Motion for
Reconsideration. She has turned deaf ears to any reason
or clarification. She and her counsel have refused to
accept the untenability of their case and the inevitability
of losing in Court. They have allowed suspicion alone
to blind their actions and in so doing degraded the
administration of justice. "Investigation" was utterly
uncalled for. All conclusions and judgments of the
Court, be they en banc or by Division, are arrived at
only after deliberation. The fact that no dissent was
indicated in the Minutes of the proceedings held on
May 14, 1986 showed that the members of the Division
voted unanimously. Court personnel are not in a
position to know the voting in any case because all
deliberations are held behind closed doors without any
one of them being present. No malicious inferences
should have been drawn from their inability to furnish
the information Ilustre and Atty. Laureta desired The
personality of the Solicitor General never came into the
picture. It was Justice Abad Santos, and not Justice
Yap, who was Chairman of the First Division when the
Resolution of May 14, 1986 denying the Petition was
rendered. Thereafter Justice Yap inhibited himself from
any participation. The fact that the Court en
banc upheld the challenged Resolutions of the First
Division emphasizes the irrespective of Ilustre's case
irrespective of the personalities involved.
Additionally, Ilustre has been trifling with this Court.
She has given our process servers the run-around. Three
of them failed to serve on her personally her copy of
this Court's Per Curiam Resolution of March 12, 1987
at her address of record. Mrs. Laureta informed process
server Lorenzo C. Bardel that Ilustre was residing at 17-
D, Quezon St., Tondo, Manila. Romeo C. Regala,
another process server, went to that address to serve
copy of the Resolution but he reported:
4. That inspite of diligent efforts to locate the address of
ms.Eva Maravilla-Ilustre, said address could not be
located;
5. That I even asked the occupants (Cerdan Family) of
No. 17 Quezon Street, Tondo, Manila, and they
informed that there is no such Ms. Eva Maravilla-Ilustre
in the neighborhood and/or in the vicinity; ... (p. 672,
Rollo, Vol. 11).
The third process server, Nelson C. Cabesuela, was also
unable to serve copy of this Court's Resolution on
Ilustre. He reported:
2. On March 17, 1987, at about 9:30 A.M., I arrived at
the house in the address furnished at; the notice of
judgment (101 Felix Manalo St., Cubao, Quezon City),
and was received by an elderly woman who admitted to
be the owner of the house but vehemently refused to be
Identified, and told me that she does not know the
addressee Maravilla, and told me further that she always
meets different persons looking for Miss Maravilla
because the latter always gives the address of her house;
3. That, I was reminded of an incident that I also
experienced in the same place trying to serve a
resolution to Miss Maravilla which was returned
unserved because she is not known in the place; ... (p.
674, Rollo, Vol. II).
And yet, in her Petition for Extension of Time and in
her Motion for Reconsideration she persists in giving
that address at 101 Felix Manalo St., Cubao, Quezon
City, where our process servers were told that she was
not a resident of and that she was unknown thereat. If
for her contumacious elusiveness and lack of candor
alone, Ilustre deserves no further standing before this
Court.
ACCORDINGLY, the respective Motions for
reconsideration of Atty. Wenceslao G. Laureta for the
setting aside of the order suspending him from the
practice of law, and of Eva Maravilla Ilustre for the
lifting of the penalty for contempt are DENIED, and
this denial is FINAL. Eva Maravilla Ilustre shall pay the
fine of P1,000.00 imposed on her within ten (10) days
from notice, or, suffer imprisonment for ten (10) days
upon failure to pay said fine within the stipulated
period.

SO ORDERED.
G.R. No. L-69377 July 20, 1987
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ALEXANDER ALBOFERA and ROMEO LAWI-
AN, accused-appellants.
MELENCIO-HERRERA, J.:
Mandatory review of the Decision of the Regional Trial
Court, Branch XVIII, Digos, Davao del Sur, in Criminal
Case No. 184.* which convicted accused Alexander
Albofera and Romeo Lawi-an of Murder, inflicted on
them the capital punishment, and ordered them to
indemnify the heirs of the victim in the amount of
P35,000.00, "by way of moral as well as actual
damages."
There is no direct evidence linking both accused to the
crime charged, their alleged participation therein having
been found by the Trial Court to have been proved by
circumstantial evidence adduced by the prosecution as
follows:
Sometime in June or July 1980, at about 4:30 o'clock in
the afternoon. Rodrigo Esma was tending his onion
farm located in Upper Bagong Silang, Managa,
Bansalan, Davao del Sur, near the place of the accused
Romeo Lawi-an, a long time acquaintance, when
accused Alexander Albofera, whom Esma also knew for
years and likewise a resident of the same place, called
him and informed him they would ran after somebody.
Esma acceded (tsn, October 20, 1982, pp. 38-42).
Together, Albofera and Esma proceeded at once to the
house of accused Lawi-an. There Lawi-an told Albofera
that the forester was around making a list of people
engaged in "caingin" (tsn, October 20, 1982, p. 43).
Whereupon, Albofera asked Esma to join him in going
after the forester. The two were able to overtake the
forester, a certain Teodoro Carancio, at the lower
portion of the road (tsn, October 20, 1982, p. 44).
Albofera at once put his arm on the shoulder of
Carancio and asked him to go with them to the upper
portion because they will do something there. Carancio
was taken to the house of accused Lawi-an where
several persons were already gathered, among whom
were accused Lawi-an, a certain alias Jun, Boy Lawi-an,
and Joel Maldan. Once inside and seated, Albofera
began questioning Carancio about his purpose in the
place. Carancio replied that he was there to inspect the
"caingin" as a forester Albofera resented this, telling
Carancio that his acts hurt the poor people who were
making a plain and simple living. Carancio answered
that he was only complying with the orders of the
government. Albofera then asked Carancio should he be
set free not to come back anymore. Carancio, however,
replied that he would still come back and bring his
nephew who is an army man. Thereupon, Albofera
intimated to Carancio that he is a member of the NPA
and that the NPA's were against the forestry personnel.
Thereafter, the persons gathered decided to kin
Carancio. Right then and there, Albofera tied Carancio's
hands at the back. Carancio pleaded for mercy.
Unheeding, Albofera, Romeo Lawi-an, alias Jun, Boy
Lawi-an, and Joel Maldan decided to bring, and they
indeed brought, Carancio to the forest some 200 meters
away from Lawi-an's house. Esma did not join the
group but remained in the house of Lawi-an (tsn,
October 20, 1982, pp. 44-51). Not long after, the group
returned to Lawi-an's house, but without Carancio.
Albofera's hands, as wen as alias Jun's hands were
bloodied. After washing their hands, Albofera
announced that they had already finished the killing. He
also warned everyone, particularly Esma, against
revealing or saying anything to any person or the
military, otherwise he (Albofera) would hold him
accountable. After that, E smaller went home (tsn,
October 20, 1982, pp. 52-54).
Meanwhile, at about the same time Efren Sisneros and
his wife were weeding their farm in Barangay
Buenavista, Bansalan, which is adjacent to Bagong
Silang, Managa, also in Bansalan, when the son of
accused Lawi-an, who is his compadre, arrived and
informed him that his father (the accused) wanted him
(Sisneros) in his house. So, Sisneros went with Lawi-
an's son (tsn, September 16, 1982, pp. 3-7, 11). On
reaching the front yard of the Lawi-ans, Sisneros saw
the ac cused Lawi-an at the window. A lot of people
were likewise in the house, and he recognized Boy
Lawi-an and a certain Jun Menez among others.
Sisneros called for accused Lawi-an. The latter went
down and they talked downstairs. Accused Lawi-an
explained that he had Sisneros fetched, because the
people inside the house were discussing on what to do
with somebody — a Bureau of Forestry employee-later
on Identified as Teodoro Carancio — who was also
inside the house at the time, and that they were inclined
to kill that person who, according to Lawi-an, was a
hindrance to the farmers, because he (the forester) had
caused Lawi-an's uncle and brother-in-law to be put in
jail and fined for cutting trees in the forest. Shocked,
Sisneros could only say "do not do that because killing
a person is great sin toward God." Thereafter, accused
Lawi-an went upstairs. Sisneros who was left
downstairs went home (tsn, September 16, 1982, pp.
11-16, 21).
The following day, at about 9:00 o'clock in the
morning, Sisneros was at his farm when accused Lawi-
an and Jun Menez passed by and called him. When
Sisneros got near the two, accused Lawi-an told him
that the forester was already killed and warned him not
to reveal this matter to anybody otherwise he would be
killed (tsn, September 16, 1982, pp. 16-20.)
The threat to his life caused Sisneros to be cautious in
not reporting at once the matter to the authorities.
However, in June 1981, Sisneros finally reported the
killing of that forester to his brother Margarito, a CHDF
member in Bansalan. Margarito then accompanied him
to the municipal hall to see the Chief of Police, P/Sgt.
Arnulfo Gohol. Sisneros related the killing to Sgt.
Gohol. That forester must have already been reported
missing, for Sgt. Gohol told Sisneros that the slain
forester was Teodoro Carancio. Sisneros asked that his
Identity be kept secret in the meantime pending the
arrest of Albofera and Lawi-an. Sgt. Gohol acceded
(tsn. September 16, 1982, pp. 19-20, 21-22).
The police authorities arrested accused Albofera on July
2, 1981. ...
xxx xxx xxx
Accused Romeo Lawi-an was subsequently arrested on
July 4, 1981 (pp. 12, 15, Record).
Also in July, 1981, the two accused, shortly after their
arrest, led the police authorities to the place in Bagong
Silang where they buried the slain forester, specifically
in a hilly portion near the forest where the trees were
not quite big besides a coffee plantation (tsn, January 6,
1983, pp, 84-87). And on the very spot pointed to by the
two accused, the authorities dug and recovered the
cadaver, together with the clothings, namely: a maroon
sweater, a semi-green trousers and fatigue briefs worn
by the victim, still intact. After placing these in a sack,
the group left at about 6:00 o'clock p.m. and returned to
the municipal building at around 10:00 p.m. (tsn,
January 6, 1983, pp. 87-89, 94-101).
xxx xxx xxx1
On July 2, 1981, Albofera executed an extra-judicial
confession before the Municipal Circuit Judge. He
stated therein that he was forced to join the NPA
movement for fear of his life; that said group had
ordered the "arrest" of the victim, Carancio, a Forest
Guard in the National Park, because he was "a very
strict employee of the government who arrested several
kaingeros already in the National Park and Romeo
Lawi-an being one of his victims before, got mad of his
actuations prompting the latter to report said person to
the NPA for possible punishments;" and that the group
"sentenced him (the victim) to die by stabbing."
Albofera further declared:
Q. 21- Was said Carancio killed by the group?
A. Yes, sir, Carancio was stabbed to death by alias
John, Romeo Lawi-an, alias "Dolly" Fred, Albert and
myself in succession.
Q. 22- Do you mean to say that you have participated in
stabbing Carancio to death?
A. I was the last to thrust said bolo but I know that said
victim was already dead when I did it.
Accused for their part, maintain:
That in or about the middle of 1980, both the accused-
appellants ALEXANDER ALBOFERA and ROMEO
LAWI-AN, who were farmer-residents at that time of
Sitio Balutakay, Barangay Mansaga, a remote
settlement in the Municipality of Bansalan, Davao del
Sur, were fetched from their farm houses by four (4)
persons, known to be NPA elements operating in their
locality and Identified with their aliases "Fred",
"Dolly", "John", and "Albert". Both accused together
with Efren Sisneros and Rodrigo Esma were brought by
the said four (4) NPA's to a secluded forested area in
order to witness the execution of a man, whom the
prosecution later claimed to be one Teodoro Carancio,
an employee of the Bureau of Forest Development.
Thereafter, both the accused, Efren Sisneros and
Rodrigo Esma were ordered by these armed NPA to
bury the remains of the victim. Afterwards, they were
warned, with threat to their lives, not to reveal or report
to the government authorities. 2
In the course of the trial, the prosecution presented a
letter written in the Visayan dialect by accused
Alexander Albofera, while under detention, to witness
Rodrigo Esma several days before the latter testified on
October 20, 1982, which was translated into English by
the Trial Court interpreter and reads as follows:
10-5-82
Dear Odeng,
Ding first of all how are you are in good health. As to
me if you will also ask me I am here suffering from
hardship, so that Ding, help me that I can get out in this
difficult condition because your affidavit is the one that
has weight. Ding, you go with Mining to my lawyer so
that I can study your reason because I will ride if what
is your affidavit. If you will not appear before the
lawyer it will mean that you will pushed us. Ding, you
know about this incident and that I do not want this to
happen but you were the one persisting in fact I asked
you and you acceded so that that happened. But now
you are going to put us down will you not pity the uncle
of your wife and furthermore you were not threatened
by me we have agreed about this thing now you will
free yourself. Ding you must bear in mind that you are a
part of this if that will happen to me I will include you
so that we will be together in jail anyway your affidavit
is there that you are one of those who apprehended the
forestry and Noy Roming will testify that no one
threatened us and also according to him that he will
declare that the two of us apprehended so that the three
of us win be convicted. Ding why is it that we are not
going to understand one another so that we will not be
hard-up we have still a way that will be taught by my
lawyer in which we have nothing to fear each one of us.
Anyway you can still be a witness of the other side my
lawyer wants to know only your reason so that he can
study this in order that I ran prepare and ride on it so
that you will not be included and I can also get out from
this case because if you will not make any arrangement
our reasons will contradict with each other even though
we have exculpated you we will instead be together
here if how many years will be my sentence yours will
also be the same because I will include you anyway you
were present in the incident nobody force us nobody
can witness that you were force by me because that is
not the truth. And Ding, I have not squeal because it's
difficult the other side no jail its's better for the
government because we will just be imprisoned you are
the one who win know how to understand we win help
one another in order that no hazard of both of us
anyway you will not be imprisoned of this you will only
help me in order that I can get out here. This is our
agreement, is it not.
I hope you will remember our being together before we
are very close but now because we have a
misunderstanding but our complainant you do not even
know him will they look back at you after this.
Your mercy
(Sgd.) Alex Albofera. 3
Rodrigo Esma's Affidavit referred to in the letter taken
on July 21, 1981, mentioned accused "Albofera and
"alias Jun" "as having killid the victim.
After trial, the lower Court found the circumstantial
evidence sufficient to warrant conviction beyond
reasonable doubt of both accused for the crime charged,
and sentenced them to death in its Decision of October
5, 1984, now before us.
The accused raise the following errors:
I That the Court a quo erred in appreciating as competent
That the Regional Trial Court of Davao del Sur gravely
erred in finding both accused guilty of murder, as
charged in the information, and ordaining a sentence of
death, instead of dismissing the charge anchor
absolving them as the entire proceedings on the case in
the Municipal Court of Bansalan up to rendition of
judgment in the CFI of Davao del Sur are void ab initio
and a nullity for being tainted with serious illegalities
and jurisdictional infirmities as from the inception of
appellant's illegal arrest, tortures, and detention without
bait their fundamental constitutional and human rights
were blatantly violated, brazenly trampled upon and
utterly reduced to naught.
II
That the Regional Trial Court of Davao del Sur gravely
erred-in failing to consider at all the prosecution's
evidence on record, which reasonably raises doubt upon
the conclusiveness of the bases as to the supposed
victim's (1) Identity; (2) his alleged fact of death as
stated in the certificate of death [Exh. D]; (3) the place
of death and, the approximate or credible date of death;
and-consequently, in not finding that on the basis of the
above-factual hiatus, the evidence has failed to establish
the guilt of both accused beyond that quantum of
reasonable doubt as zealously mandated by the
constitution.
III
That the Court a quo erred in holding that evidence
adduced against accused-appellants conceded to be
merely circumstantial in character and confirmed as
such in the appealed decision, has attained such degree
of proof and weight of moral persuasion as to leave no
vestige of reasonable doubt on the guilt of both accused.
IV
evidence the letter written by accused Alexander
Albofera to Rodrigo Esma (Exh. B), the admissibility
thereof being specifically excluded under Sec. 4, Art.
IV of the 1973 Constitution.
V
That the Regional Trial Court of Davao del Sur gravely
erred in admitting and considering as competent
evidence the illegally extracted extra-judicial confession
of accused Alexander Albofera (Exh. C) in violation of,
and contrary to Sec. 20, Art. IV of the Philippine
Constitution of 1973 and the Supreme Court's judicial
precedents in point.
VI
That the Trial Court gravely erred (1) in sustaining the
prosecution's theory that both accused-appellants were
responsible and culpable for the killing of the alleged
victim; (2) in according credence to the testimonies of
prosecution's witnesses Efren Sisneros and Rodrigo K.
Esma; (3) in failing to sustain the defense theory; and
(4) in convicting and sentencing both accused-
appellants.
VII
Furthermore, the lower court gravely incurred the
following patent reversible errors: (1) in finding
aggravating and qualifying circumstances in the alleged
commission of murder, and (2) in not absolving the two
accused-appellants, and awarding damages. 4
Succintly stated, the essential issues posed are:
1) Whether or not "serious illegalities and jurisdictional
infirmities," in fact, attended the proceedings below and
"constitutional and human rights of the accused
brazenly trampled upon."
2) Whether or not the extrjudicial confession of accused
Alexander Albofera, and his letter to Rodrigo Esma are
admissible in evidence;
3) Whether or not the Identity of the victim and the fact
of his death were duly proved;
4) Whether or not the circumstantial evidence adduced
is sufficient to warrant conviction; and
5) Whether or not qualifying and aggravating
circumstances were duly proved.
On Irregularities alleged:
The charge of illegalities and infirmities is absolutely
without basis. There was nothing illegal in the accused's
detention without bail. They were charged with and
held for the crime of murder, a capital offense and,
therefore, were not entitled to bail where the evidence
of guilt was strong. That was for the Trial Court to
evaluate. The preliminary investigation was far from
being "hasty and farcical." If the second stage thereof
was not held it was because the accused had waived the
same and prayed for the transmittal of the case to the
then Court of First Instance for trial on the merits; it
was not because they were deprived of the right. Much
less has due process been denied the accused. They
were duly informed of the charge against them and they
were given fun opportunity to interpose and prove their
defense.
On the Admissibility of the Extra-Judicial Confession of
Accused A Alexander Albofera:
The preliminary questions addressed to said accused
when his Sworn Statement was taken read:
P R E L I M I N A R Y:
Mr. Albofera, I am reminding you that you are now
under investigation in connection with the commission
of an offense, but before I will proceed in it, I would
like to inform you that under the Constitution of the
Philippines it is so provided that you have the right to
remain silent, the right to counsel of your own choice to
be present with you while being investigated, the right
to self-incrimination and the right to due process, do
you understand this:
Answer — Yes sir, I do.
I would like to inform you further, that the manner in
which this investigation will be conducted in English,
but however, the contents of the same will be
interpreted to you in dialect you fully understand and
speak, and if you choose to answer one of the question
or questions propounded to you, your answer will be
reduced into writing and the same will be used in
evidence against you or to your favor in any court of
justice in the country, do you understand what I am
explaining to you?
Answer — Yes. sir, I understand it because you
explained it to me clearly.
Do you need then the assistance of counsel to assist you
while investigated?
Answer — I think I do not need any yet this time
because I know what I am going to declare here it being
the truth of the matter, sir.
Since you do not (have) any lawyer yet, are you willing
to proceed with this investigation and submit yourself
freely into it?
Answer — I wish that this investigation will be
continued because lawyer is not necessary yet.
Are you willing to swear and sign this statement of
yours freely to justify that your submission into the said
investigation is free and voluntary?
Answer — Yes sir, I will sign it if only to prove that all
what I have stated are true and to the best of my
knowledge and ability.
(Sgd.) Alex Albofera
(Exhibits "C", "C-1").
Judicial precedents5 have laid down the rule that the
foregoing form of questioning, does not satisfy the
Constitutional requirement that an accused be apprised
of his constitutional rights to remain silent and to
counsel. It is, at best, ceremonial and perfunctory, with
the answers being mere formalisms put into the mouth
of the affiant. What is contemplated is the transmission
of meaningful information, comprehended by the
person under investigation, not a mere recitation of the
Constitutional mandates.
More, the extra-judicial confession was extracted
without the assistance of counsel contrary to the rulings
of this Court in Morales, Jr. vs. Enrile, No. L-61016,
April 26, 1983, 121 SCRA 538, affirmed in People vs.
Galit, No. L-51770, March 20, 1985, 135 SCRA
465, People vs. Burgos, L-68955, September 4, 1986,
144 SCRA 1, that "no custodial investigation shall be
conducted unless it be in the presence of counsel
engaged by the person arrested, by any person on his
behalf, or appointed by the court upon petition either of
the detainee himself or by anyone on his behalf."
While Albofera seemingly waived his right to counsel,
which he is allowed to do, aside from the fact that we
are not convinced that the waiver was voluntary,
knowing and intelligent, the waiver was not valid
because it was made without the assistance of
counsel.6 That principle is now enshrined in the 1987
Constitution, which explicitly requires that the waiver
be in writing and in the presence of counsel.7
For failure to meet such exacting standards, the
extrajudicial confession of accused Albofera must be
stricken out and held inadmissible in evidence against
him.8
On the admissibility of Albofera's Letter.
Accused Albofera contends that his letter to prosecution
witness, Rodrigo Esma (Exhibit "B"), is inadmissible in
evidence against him under the exclusionary provisions
of Section 4, Article IV of the 1973 Constitution
(substantially reproduced in Section 3, Article III of the
1987 Constitution), which provides:
Sec. 4 (1) The privacy of communication and
correspondence shall be inviolable except upon lawful
order of the Court, or when public safety and order
require otherwise.
2) Any evidence obtained in violation of this or the
preceding section shall be inadmissible for any purpose
in any proceeding.
The submission is untenable. The foregoing provision
implements another Constitutional provision on the
security of a citizen against unreasonable search and
seizure. The production of that letter by the prosecution
was not the result of an unlawful search and seizure nor
was it through unwarranted intrusion or invasion into
Albofera's privacy. Albofera admitted having sent the
letter and it was its recipient, Rodrigo Esma himself,
who produced and Identified the same in the course of
his testimony in Court. Besides, there is nothing really
self-incriminatory in the letter. Albofera mainly pleaded
that Esma change his declaration in his Affidavit and
testify in his (Albofera's) favor. Furthermore, nothing
Albofera stated in his letter is being taken against him
in arriving at a determination of his culpability.
On the Identity of the Victim and the Fact of Death:
Accused argue that corpus delicti had not been
established as the body of the victim, Teodoro
Carancio, was not Identified, nor the fact, place and
approximate date of his death established.
The term corpus delicti stands for the substance of the
crime, the fact that a crime has actually been
committed.9The evidence adduced in this case
sufficiently proved the commission of the crime. In fact,
the accused themselves pointed to the grave where the
body of a person, allegedly slain in their presence, had
been dumped and which, when dug, produced human
remains, which turned out to be those of the victim.
The skeletal remains of the victim were Identified by
his brother, Benjamin Carancio, through the victim's
front teeth whose "base seemed rusty" and which bore
resemblance to his own, as well as through the victim's
clothes, fatigue briefs, maroon sweater and trousers,
which Benjamin recognized.10 Prosecution witness
Esma also Identified the victim from a photograph
which was presented to him.11
On the Circumstantial Evidence:
Circumstantial evidence is admissible in the absence of
an eyewitness to the commission of a crime, and it is
sufficient for conviction if: (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 conviction
beyond reasonable doubt.12
The circumstances testified to by prosecution witnesses
meet the foregoing criteria. Even disregarding
Albofera's extra-judicial confession, the combination of
circumstances sufficiently point to his guilt. The
presence of both accused at the scene of the incident is
admitted by them. They also admit that they witnessed
the execution of the victim, although they claim that
they were merely compelled to do so. The foregoing
version, however, is negated by Rodrigo Esma's
testimony from which it is clear that it was Albofera, his
long-time friend, who had fetched witness Esma and
informed the latter that they would run after somebody.
Together, they proceeded to the house of accused Lawi-
an who informed Albofera that the victim was around
making a list of "kaingeros." Albofera asked Esma to
join him in going after the forester. Overtaking the
latter, Albofera took him to Lawi-an's house where a
group had already congregated and a discussion
followed as to the victim's fate. Albofera resented the
victim's determination to do his duty and the latter's
statement that he was bringing an army man to help
him. Sufficient motive was provided to do away with
the victim. Albofera tied the victim's hands and, with
Lawi-an and three others, took the victim to the forest.
When the group returned not long after, the victim was
no longer with them. Witness Esma noticed Albofera's
and "alias Jun's" hands bloodied. After they had washed
their hands, Albofera announced to everyone present at
Lawi-an's house that the victim had been done away
with and warned everyone not to reveal the incident to
anyone including the military.
Apparent from the foregoing narrated circumstances is
the fact that it was Albofera who was "calling the
shots;" that it was he who was the leader of the group
and not "alias Jun" as he would want this Court to
believe.
Esma's testimony is worthy of credence. He was a
friend of long standing of Albofera.lawphi1 There was
no reason for him to attribute to Albofera the
commission of such a serious crime as Murder, if such
not the truth.
Accused Lawi-an must be held equally culpable. That
he was part of the criminal design from its initial stages
until its culmination is revealed through the
circumstances brought out by prosecution witness,
Sisneros who testified that while he was weeding his
farm, Lawi-an, his "compadre," sent his son to fetch
him (Sisneros). With the son, they proceeded to Lawi-
an's house where Sisneros saw many people. Lawi-an
went down the house and explained to Sisneros that
they were discussing what to do with the victim, and
that they were inclined to kill him. Sisneros advised
against it and went home. The following morning,
Lawi-an passed by Sisneros farm and informed the
latter that the victim had already been killed with the
warning to Sisneros not to reveal the incident to anyone.
Prosecution witness, Esma, further buttressed the fact of
Lawi-an's participation in the criminal plot when he
testified that it was Lawi-an who informed Albofera
that the victim was around making a list of "kaingeros;"
that it was on the strength of that information that
Albofera coaxed Esma into joining him to search for the
victim; that Lawi-an was with Albofera and three others
who, starting from Lawi-an's house, took the victim to
the forest and then returned thereafter without the
victim, obviously because the latter had been done away
with.
While the degree of actual participation by Lawi-an in
committing the offense is not described with accuracy,
Lawi-an's conduct before and after the commission of
the crime shows that he acted in concert with his co-
accused Albofera. He indubitably cooperated with the
latter and three other persons in bringing about the
death of the victim goaded by resentment against the
latter for his strict enforcement of forestry laws, which
led to the incarceration of Lawi-an's uncle and brother-
in-law and the imposition of fines against them. The
circumstances proven sufficiently establish a
community of purpose-a conspiracy among the
perpetrators — such that the crime committed in
furtherance thereof must be held to be the act of all
regardless of the extent and character of an accused's
active participation.13
On the Attendance of Qualifying and Aggravating
Circumstances:
No reversible error was committed by the Trial Court in
appreciating the presence of qualifying and aggravating
circumstances.
The killing of the victim was committed treacherously,
his hands having been tied behind his back so that he
was totally helpless and defenseless, and in no position
to resist nor fight back. The accused employed means
which tended directly to insure the execution of the
crime without risk to themselves arising from the
defense which the victim might have made.
Evident premeditation was likewise present as both
accused and their co-conspirators had deliberately
planned to commit the crime and had persistently and
continuously followed it notwithstanding that they had
ample time to reflect and allow their conscience to
overcome their resolution to kill.14
The accused likewise took advantage of superior
strength although this cannot be appreciated separately
as it is deemed absorbed in treachery.15
The killing of the victim because of his strictness and
the resentment against him as a forester constitutes the
aggravating circumstance of disregard of the respect
due the offended party on account of his rank,16 and not
because the victim was engaged in the discharge of his
duties under Article 14 (5) of the Revised Penal Code as
found by the Trial Court.
With the attendance of the qualifying circumstance of
treachery and two (2) generic aggravating
circumstances with no mitigating circumstance to offset
them, the crime committed is Murder and the death
penalty imposed by the Trial Court is proper. However,
with the abolition of the death penalty under Section
19(l), Article III of the 1987 Constitution, and as
mandated therein the death penalty imposed by the Trial
Court should be reduced to reclusion perpetua.
WHEREFORE, the judgment of conviction is hereby
affirmed with modification that the accused Alexander
Albofera and Romeo Lawi-an are hereby sentenced to
suffer the penalty of reclusion perpetua, to indemnify
the heirs of the victim, Teodoro Carancio, in the amount
of P30,000.00, and each to pay one-half (1/2) of the
costs.
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.
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 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, 3former Chief
Justice Fernando, speaking for the Court, explained:
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 the life of Moises Padilla, a
mayoralty candidate of the Nacionalista 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 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 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.
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.
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 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, 3former Chief
Justice Fernando, speaking for the Court, explained:
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 the life of Moises Padilla, a
mayoralty candidate of the Nacionalista 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 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 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.
G.R. No. L-69866 April 15, 1988
ROGELIO ABERCA, RODOLFO BENOSA, NESTOR
BODINO NOEL ETABAG DANILO DE LA
FUENTE, BELEN DIAZ-FLORES, MANUEL
MARIO GUZMAN, ALAN JAZMINEZ, EDWIN
LOPEZ, ALFREDO MANSOS, ALEX MARCELINO,
ELIZABETH PROTACIO-MARCELINO, JOSEPH
OLAYER, CARLOS PALMA, MARCO PALO,
ROLANDO SALUTIN, BENJAMIN SESGUNDO,
ARTURO TABARA, EDWIN TULALIAN and
REBECCA TULALIAN petitioners,
vs.
MAJ. GEN. FABIAN VER, COL. FIDEL SINGSON,
COL. ROLANDO ABADILLA, COL. GERARDO B.
LANTORIA, COL. GALILEO KINTANAR, 1ST LT.
COL. PANFILO M. LACSON, MAJ. RODOLFO
AGUINALDO, CAPT. DANILO PIZARRO, 1ST LT.
PEDRO TANGO, 1ST LT. ROMEO RICARDO, 1ST
LT. RAUL BACALSO, MSGT BIENVENIDO
BALABA and REGIONAL TRIAL COURT, National
Capital Judicial Region, Branch XCV (95), Quezon
City, respondents.
YAP, J.:
This petition for certiorari presents vital issues not
heretofore passed upon by this Court. It poses the
question whether the suspension of the privilege of the
writ of habeas corpus bars a civil action for damages for
illegal searches conducted by military personnel and
other violations of rights and liberties guaranteed under
the Constitution. If such action for damages may be
maintained, who can be held liable for such violations:
only the military personnel directly involved and/or
their superiors as well.
This case stems from alleged illegal searches and
seizures and other violations of the rights and liberties
of plaintiffs by various intelligence units of the Armed
Forces of the Philippines, known as Task Force
Makabansa (TFM) ordered by General Fabian Ver "to
conduct pre-emptive strikes against known communist-
terrorist (CT) underground houses in view of increasing
reports about CT plans to sow disturbances in Metro
Manila," Plaintiffs allege, among others, that complying
with said order, elements of the TFM raided several
places, employing in most cases defectively issued
judicial search warrants; that during these raids, certain
members of the raiding party confiscated a number of
purely personal items belonging to plaintiffs; that
plaintiffs were arrested without proper warrants issued
by the courts; that for some period after their arrest,
they were denied visits of relatives and lawyers; that
plaintiffs were interrogated in violation of their rights to
silence and counsel; that military men who interrogated
them employed threats, tortures and other forms of
violence on them in order to obtain incriminatory
information or confessions and in order to punish them;
that all violations of plaintiffs constitutional rights were
part of a concerted and deliberate plan to forcibly
extract information and incriminatory statements from
plaintiffs and to terrorize, harass and punish them, said
plans being previously known to and sanctioned by
defendants.
Plaintiffs sought actual/compensatory damages
amounting to P39,030.00; moral damages in the amount
of at least P150,000.00 each or a total of P3,000,000.00;
exemplary damages in the amount of at least
P150,000.00 each or a total of P3,000,000.00; and
attorney's fees amounting to not less than P200,000.00.
A motion to dismiss was filed by defendants, through
their counsel, then Solicitor-General Estelito Mendoza,
alleging that (1) plaintiffs may not cause a judicial
inquiry into the circumstances of their detention in the
guise of a damage suit because, as to them, the privilege
of the writ of habeas corpus is suspended; (2) assuming
that the courts can entertain the present action,
defendants are immune from liability for acts done in
the performance of their official duties; and (3) the
complaint states no cause of action against the
defendants. Opposition to said motion to dismiss was
filed by plaintiffs Marco Palo, Danilo de la Fuente,
Benjamin Sesgundo, Nel Etabag, Alfredo Mansos and
Rolando Salutin on July 8, 1983, and by plaintiffs
Edwin Lopez, Manuel Mario Guzman, Alan Jasminez,
Nestor Bodino, Carlos Palma, Arturo Tabara, Joseph
Olayer, Rodolfo Benosa, Belen Diaz, Flores, Rogelio
Aberca, Alex Marcelino and Elizabeth Marcelino on
July 21, 1983. On November 7, 1983, a Consolidated
Reply was filed by defendants' counsel.
Then, on November 8, 1983, the Regional Trial Court,
National Capital Region, Branch 95, Judge Willelmo C.
Fortun, Presiding, 1 issued a resolution granting the
motion to dismiss. I sustained, lock, stock and barrel,
the defendants' contention (1) the plaintiffs may not
cause a judicial inquiry into the circumstances of their
detention in the guise of a damage suit because, as to
them, the privilege of the writ of habeas corpus is
suspended; (2) that assuming that the court can entertain
the present action, defendants are immune from liability
for acts done in the performance of their official duties;
and (3) that the complaint states no cause of action
against defendants, since there is no allegation that the
defendants named in the complaint confiscated
plaintiffs' purely personal properties in violation of their
constitutional rights, and with the possible exception of
Major Rodolfo Aguinaldo and Sergeant Bienvenido
Balabo committed acts of torture and maltreatment, or
that the defendants had the duty to exercise direct
supervision and control of their subordinates or that
they had vicarious liability as employers under Article
2180 of the Civil Code. The lower court stated, "After a
careful study of defendants' arguments, the court finds
the same to be meritorious and must, therefore, be
granted. On the other hand, plaintiffs' arguments in their
opposition are lacking in merit."
A motion to set aside the order dismissing the complaint
and a supplemental motion for reconsideration was filed
by the plaintiffs on November 18, 1983, and November
24, 1983, respectively. On December 9, 1983, the
defendants filed a comment on the aforesaid motion of
plaintiffs, furnishing a copy thereof to the attorneys of
all the plaintiffs, namely, Attys. Jose W. Diokno,
Procopio Beltran, Rene Sarmiento, Efren Mercado,
Auguso Sanchez, Antonio L. Rosales, Pedro B. Ella Jr.,
Arno V. Sanidad, Alexander Padilla, Joker Arroyo,
Rene Saguisag, Ramon Esguerra and Felicitas Aquino.
On December 15, 1983, Judge Fortun issued an order
voluntarily inhibiting himself from further proceeding
in the case and leaving the resolution of the motion to
set aside the order of dismissal to Judge Lising, "to
preclude any suspicion that he (Judge Fortun) cannot
resolve [the] aforesaid pending motion with the cold
neutrality of an impartial judge and to put an end to
plaintiffs assertion that the undersigned has no authority
or jurisdiction to resolve said pending motion." This
order prompted plaintiffs to reesolve an amplificatory
motion for reconsideration signed in the name of the
Free Legal Assistance Group (FLAG) of Mabini Legal
Aid Committee, by Attys. Joker P. Arroyo, Felicitas
Aquino and Arno Sanidad on April 12, 1984. On May
2,1984, the defendants filed a comment on said
amplificatory motion for reconsideration.
In an order dated May 11, 1984, the trial court, Judge
Esteban Lising, Presiding, without acting on the motion
to set aside order of November 8, 1983, issued an order,
as follows:
It appearing from the records that, indeed, the following
plaintiffs, Rogelio Aberca, Danilo de la Fuente and
Marco Palo, represented by counsel, Atty. Jose W.
Diokno, Alan Jasminez represented by counsel, Atty.
Augusta Sanchez, Spouses Alex Marcelino and
Elizabeth Protacio-Marcelino, represented by counsel,
Atty. Procopio Beltran, Alfredo Mansos represented by
counsel, Atty. Rene Sarmiento, and Rolando Salutin,
represented by counsel, Atty. Efren Mercado, failed to
file a motion to reconsider the Order of November 8,
1983, dismissing the complaint, nor interposed an
appeal therefrom within the reglementary period, as
prayed for by the defendants, said Order is now final
against said plaintiffs.
Assailing the said order of May 11, 1984, the plaintiffs
filed a motion for reconsideration on May 28,1984,
alleging that it was not true that plaintiffs Rogelio
Aberca, Danilo de la Fuente, Marco Palo, Alan
Jasminez, Alex Marcelino, Elizabeth Protacio-
Marcelino, Alfredo Mansos and Rolando Salutin failed
to file a motion to reconsider the order of November 8,
1983 dismissing the complaint, within the reglementary
period. Plaintiffs claimed that the motion to set aside
the order of November 8, 1983 and the amplificatory
motion for reconsideration was filed for all the
plaintiffs, although signed by only some of the lawyers.
In its resolution of September 21, 1984, the respondent
court dealt with both motions (1) to reconsider its order
of May 11, 1984 declaring that with respect to certain
plaintiffs, the resolution of November 8, 1983 had
already become final, and (2) to set aside its resolution
of November 8, 1983 granting the defendants' motion to
dismiss. In the dispositive portion of the order of
September 21, 1984, the respondent court resolved:
(1) That the motion to set aside the order of finality,
dated May 11, 1984, of the Resolution of dismissal of
the complaint of plaintiffs Rogelio Aberca, Danilo de la
Fuente, Marco Palo, Alan Jasminez Alex Marcelino,
Elizabeth Protacio-Marcelino, Alfredo Mansos and
Rolando Salutin is deed for lack of merit;
(2) For lack of cause of action as against the following
defendants, to wit:
1. Gen Fabian Ver
2. Col. Fidel Singson
3. Col. Rolando Abadilla
4. Lt. Col. Conrado Lantoria, Jr.
5. Col. Galileo Montanar
6. Col. Panfilo Lacson
7. Capt. Danilo Pizaro
8. 1 Lt Pedro Tango
9. Lt. Romeo Ricardo
10. Lt. Raul Bacalso
the motion to set aside and reconsider the Resolution of
dismissal of the present action or complaint, dated
November 8, 1983, is also denied but in so far as it
affects and refers to defendants, to wit:
1. Major Rodolfo Aguinaldo, and
2. Master Sgt. Bienvenido Balaba
the motion to reconsider and set aside the Resolution of
dismissal dated November 3, 1983 is granted and the
Resolution of dismissal is, in this respect, reconsidered
and modified.
Hence, petitioners filed the instant petition for certiorari
on March 15, 1985 seeking to annul and set aside the
respondent court's resolution of November 8, 1983, its
order of May 11, 1984, and its resolution dated
September 21, 1984. Respondents were required to
comment on the petition, which it did on November 9,
1985. A reply was filed by petitioners on August 26,
1986.
We find the petition meritorious and decide to give it
due course.
At the heart of petitioners' complaint is Article 32 of the
Civil Code which provides:
ART. 32. Any public officer or employee, or any
private individual who directly or indirectly obstructs,
defeats, violates or in any manner impedes or impairs
any of the following rights and liberties of another
person shall be liable to the latter for damages:
(1) Freedom of religion;
(2) Freedom of speech;
(3) Freedom to write for the press or to maintain a
periodical publication;
(4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
(6) The right against deprivation of property without
due process
(7) of law;
(8) The right to a just compensation when private
property is taken for public use;
(9) The right to the equal protection of the laws;
(10) The right to be secure in one's person, house,
papers, and effects against unreasonable searches and
seizures;
(11) The liberty of abode and of changing the same;
(12) The privacy of cmmunication and correspondence;
(13) The right to become a member of associations or
societies for purposes not contrary to law;
(14) The right to take part in a peaceable assembly to
petition the Government for redress of grievances;
(15) The right to be free from involuntary servitude in
any form;
(16) The rigth of the accused against excessive bail;
(17) The rigth of the aaccused to be heard by himself
and counsel, to be informed of the nature and cause of
the accusation against him, to have a speedy and public
trial, to meet the witnesses face to face, and to have
compulsory process to secure the attendance of witness
in behalf;
(18) Freedom from being compelled to be a witness
against ones self, or from being forced to confess guilt,
or from being induced by a promise of immunity or
reward to make such confession, except when the
person confessing becomes a State witness;
(19) Freedom from excessive fines or cruel and unusual
punishment, unless the same is imposed or inflicted in
accordance with a statute which has not been judicially
declared unconstitutional; and
(20) Freedom of access to the courts.
In any of the cases referred to in this article, whether or
not the defendant's act or omission constitutes a
criminal offense, the against grieved party has a right to
commence an entirely separate and distinct civil action
for damages, and for other relief. Such civil action shall
proceed independently of any criminal prosecution (if
the latter be instituted), and may be proved by a
preponderance of evidence.
The indemnity shall include moral damages. Exemplary
damages may also be adjudicated.
The responsibility herein set forth is not demandable
from a judge unless his act or omission constitutes a
violation of the Penal Code or other penal statute.
It is obvious that the purpose of the above codal
provision is to provide a sanction to the deeply
cherished rights and freedoms enshrined in the
Constitution. Its message is clear; no man may seek to
violate those sacred rights with impunity. In times of
great upheaval or of social and political stress, when the
temptation is strongest to yield — borrowing the words
of Chief Justice Claudio Teehankee — to the law of
force rather than the force of law, it is necessary to
remind ourselves that certain basic rights and liberties
are immutable and cannot be sacrificed to the transient
needs or imperious demands of the ruling power. The
rule of law must prevail, or else liberty will perish. Our
commitment to democratic principles and to the rule of
law compels us to reject the view which reduces law to
nothing but the expression of the will of the
predominant power in the community. "Democracy
cannot be a reign of progress, of liberty, of justice,
unless the law is respected by him who makes it and by
him for whom it is made. Now this respect implies a
maximum of faith, a minimum of Idealism. On going to
the bottom of the matter, we discover that life demands
of us a certain residuum of sentiment which is not
derived from reason, but which reason nevertheless
controls. 2
Seeking to justify the dismissal of plaintiffs' complaint,
the respondents postulate the view that as public
officers they are covered by the mantle of state
immunity from suit for acts done in the performance of
official duties or function In support of said contention,
respondents maintain that —
Respondents are members of the Armed Forces of the
Philippines. Their primary duty is to safeguard public
safety and order. The Constitution no less provides that
the President may call them "to prevent or supress
lawless violence, invasion, insurrection or rebellion, or
imminent danger thereof." (Constitution, Article VII,
Section 9).
On January 17, 1981, the President issued Proclamation
No. 2045 lifting martial law but providing for the
continued suspension of the privilege of the writ of
habeas corpus in view of the remaining dangers to the
security of the nation. The proclamation also provided
"that the call to the Armed Forces of the Philippines to
prevent or suppress lawless violence, insuitection
rebellion and subversion shall continue to be in force
and effect."
Petitioners allege in their complaint that their causes of
action proceed from respondent General Ver's order to
Task Force Makabansa to launch pre-emptive strikes
against communist terrorist underground houses in
Metro Manila. Petitioners claim that this order and its
subsequent implementation by elements of the task
force resulted in the violation of their constitutional
rights against unlawful searches, seizures and arrest,
rights to counsel and to silence, and the right to property
and that, therefore, respondents Ver and the named
members of the task force should be held liable for
damages.
But, by launching a pre-emptive strike against
communist terrorists, respondent members of the armed
forces merely performed their official and constitutional
duties. To allow petitioners to recover from respondents
by way of damages for acts performed in the exercise of
such duties run contrary to the policy considerations to
shield respondents as public officers from undue
interference with their duties and from potentially
disabling threats of hability (Aarlon v. Fitzgerald 102 S.
Ct. 2731-1 Forbes v. Chuoco Tiaco, 16 Phil. 634), and
upon the necessity of protecting the performance of
governmental and public functions from being harassed
unduly or constantly interrupted by private suits
(McCallan v. State, 35 Cal. App. 605; Metran v.
Paredes, 79 Phil. 819).
xxx xxx xxx
The immunity of public officers from liability arising
from the performance of their duties is now a settled
jurisprudence Alzua v. Johnson, 21 Phil. 308; Zulueta v.
Nicolas, 102 Phil. 944; Spalding v. Vilas, 161 US 483;
40 L. Ed. 780, 16 S. Ct. 631; Barr v. Mateo, 360; Butz
v. Economon, 438 US 478; 57 L. Ed. 2d 895, 98 S. Ct.
2894; Scheuer v. Rhodes, 416 US 232; Forbes v.
Chuoco Tiaco, supra; Miller v. de Leune, 602 F. 2d
198; Sami v. US, 617 F. 2d 755).
Respondents-defendants who merely obeyed the lawful
orders of the President and his call for the suppression
of the rebellion involving petitioners enjoy such
immunity from Suit.3
We find respondents' invocation of the doctrine of state
immunity from suit totally misplaced. The cases
invoked by respondents actually involved acts done by
officers in the performance of official duties written the
ambit of their powers. As held in Forbes, etc. vs.
Chuoco Tiaco and Crossfield: 4
No one can be held legally responsible in damages or
otherwise for doing in a legal manner what he had
authority, under the law, to do. Therefore, if the
Governor-General had authority, under the law to
deport or expel the defendants, and circumstances
justifying the deportation and the method of carrying it
out are left to him, then he cannot be held liable in
damages for the exercise of this power. Moreover, if the
courts are without authority to interfere in any manner,
for the purpose of controlling or interferring with the
exercise of the political powers vested in the chief
executive authority of the Government, then it must
follow that the courts cannot intervene for the purpose
of declaring that he is liable in damages for the
exeercise of this authority.
It may be that the respondents, as members of the
Armed Forces of the Philippines, were merely
responding to their duty, as they claim, "to prevent or
suppress lawless violence, insurrection, rebellion and
subversion" in accordance with Proclamation No. 2054
of President Marcos, despite the lifting of martial law
on January 27, 1981, and in pursuance of such
objective, to launch pre- emptive strikes against alleged
communist terrorist underground houses. But this
cannot be construed as a blanket license or a roving
commission untramelled by any constitutional restraint,
to disregard or transgress upon the rights and liberties of
the individual citizen enshrined in and protected by the
Constitution. The Constitution remains the supreme law
of the land to which all officials, high or low, civilian or
military, owe obedience and allegiance at all times.
Article 32 of the Civil Code which renders any public
officer or employee or any private individual liable in
damages for violating the Constitutional rights and
liberties of another, as enumerated therein, does not
exempt the respondents from responsibility. Only
judges are excluded from liability under the said article,
provided their acts or omissions do not constitute a
violation of the Penal Code or other penal statute.
This is not to say that military authorities are restrained
from pursuing their assigned task or carrying out their
mission with vigor. We have no quarrel with their duty
to protect the Republic from its enemies, whether of the
left or of the right, or from within or without, seeking to
destroy or subvert our democratic institutions and
imperil their very existence. What we are merely trying
to say is that in carrying out this task and mission,
constitutional and legal safeguards must be observed,
otherwise, the very fabric of our faith will start to
unravel. In the battle of competing Ideologies, the
struggle for the mind is just as vital as the struggle of
arms. The linchpin in that psychological struggle is faith
in the rule of law. Once that faith is lost or
compromised, the struggle may well be abandoned.
We do not find merit in respondents' suggestion that
plaintiffs' cause of action is barred by the suspension of
the privilege of the writ of habeas corpus. Respondents
contend that "Petitioners cannot circumvent the
suspension of the privilege of the writ by resorting to a
damage suit aimed at the same purpose-judicial inquiry
into the alleged illegality of their detention. While the
main relief they ask by the present action is
indemnification for alleged damages they suffered, their
causes of action are inextricably based on the same
claim of violations of their constitutional rights that
they invoked in the habeas corpus case as grounds for
release from detention. Were the petitioners allowed the
present suit, the judicial inquiry barred by the
suspension of the privilege of the writ will take place.
The net result is that what the courts cannot do, i.e.
override the suspension ordered by the President,
petitioners will be able to do by the mere expedient of
altering the title of their action."
We do not agree. We find merit in petitioners'
contention that the suspension of the privilege of the
writ of habeas corpus does not destroy petitioners' right
and cause of action for damages for illegal arrest and
detention and other violations of their constitutional
rights. The suspension does not render valid an
otherwise illegal arrest or detention. What is suspended
is merely the right of the individual to seek release from
detention through the writ of habeas corpus as a speedy
means of obtaining his liberty.
Moreover, as pointed out by petitioners, their right and
cause of action for damages are explicitly recognized in
P.D. No. 1755 which amended Article 1146 of the Civil
Code by adding the following to its text:
However, when the action (for injury to the rights of the
plaintiff or for a quasi-delict) arises from or out of any
act, activity or conduct of any public officer involving
the exercise of powers or authority arising from Martial
Law including the arrest, detention and/or trial of the
plaintiff, the same must be brought within one (1) year.
Petitioners have a point in contending that even
assuming that the suspension of the privilege of the writ
of habeas corpus suspends petitioners' right of action for
damages for illegal arrest and detention, it does not and
cannot suspend their rights and causes of action for
injuries suffered because of respondents' confiscation of
their private belongings, the violation of their right to
remain silent and to counsel and their right to protection
against unreasonable searches and seizures and against
torture and other cruel and inhuman treatment.
However, we find it unnecessary to address the
constitutional issue pressed upon us. On March 25,
1986, President Corazon C. Aquino issued
Proclamation No. 2, revoking Proclamation Nos. 2045
and 2045-A and lifting the suspension of the privilege
of the writ of habeas corpus. The question therefore has
become moot and academic.
This brings us to the crucial issue raised in this petition.
May a superior officer under the notion of respondent
superior be answerable for damages, jointly and
severally with his subordinates, to the person whose
constitutional rights and liberties have been violated?
Respondents contend that the doctrine of respondent
superior is applicable to the case. We agree. The
doctrine of respondent superior has been generally
limited in its application to principal and agent or to
master and servant (i.e. employer and employee)
relationship. No such relationship exists between
superior officers of the military and their subordinates.
Be that as it may, however, the decisive factor in this
case, in our view, is the language of Article 32. The law
speaks of an officer or employee or person 'directly' or
"indirectly" responsible for the violation of the
constitutional rights and liberties of another. Thus, it is
not the actor alone (i.e. the one directly responsible)
who must answer for damages under Article 32; the
person indirectly responsible has also to answer for the
damages or injury caused to the aggrieved party.
By this provision, the principle of accountability of
public officials under the Constitution 5 acquires added
meaning and asgilrnes a larger dimension. No longer
may a superior official relax his vigilance or abdicate
his duty to supervise his subordinates, secure in the
thought that he does not have to answer for the
transgressions committed by the latter against the
constitutionally protected rights and liberties of the
citizen. Part of the factors that propelled people power
in February 1986 was the widely held perception that
the government was callous or indifferent to, if not
actually responsible for, the rampant violations of
human rights. While it would certainly be go naive to
expect that violators of human rights would easily be
deterred by the prospect of facing damage suits, it
should nonetheless be made clear in no ones terms that
Article 32 of the Civil Code makes the persons who are
directly, as well as indirectly, responsible for the
transgression joint tortfeasors.
In the case at bar, the trial court dropped defendants
General Fabian Ver, Col. Fidel Singson, Col. Rolando
Abadilla, Col. Gerardo Lantoria, Jr., Col. Galileo
Kintanar, Col. Panfilo Lacson, Capt. Danilo Pizarro, lst
Lt. Pedro Tango, Lt. Romeo Ricardo and Lt. Ricardo
Bacalso from the acts of their subordinates. Only Major
Rodolfo Aguinaldo and Master Sgt. Bienvenido Balaba
were kept as defendants on the ground that they alone
'have been specifically mentioned and Identified to have
allegedly caused injuries on the persons of some of the
plaintiff which acts of alleged physical violence
constitute a delict or wrong that gave rise to a cause of
action. But such finding is not supported by the record,
nor is it in accord with law and jurisprudence.
Firstly, it is wrong to at the plaintiffs' action for
damages 5 Section 1, Article 19. to 'acts of alleged
physical violence" which constituted delict or wrong.
Article 32 clearly specifies as actionable the act of
violating or in any manner impeding or impairing any
of the constitutional rights and liberties enumerated
therein, among others —
1. Freedom from arbitrary arrest or illegal detention;
2. The right against deprivation of property without due
process of law;
3. The right to be secure in one's person, house, papers
and effects against unreasonable searches and seizures;
4. The privacy of communication and correspondence;
5. Freedom from being compelled to be a witness
against one's self, or from being forced to confess guilt,
or from being induced by a promise of immunity or
reward to make a confession, except when the person
confessing becomes a state witness.
The complaint in this litigation alleges facts showing
with abundant clarity and details, how plaintiffs'
constitutional rights and liberties mentioned in Article
32 of the Civil Code were violated and impaired by
defendants. The complaint speaks of, among others,
searches made without search warrants or based on
irregularly issued or substantially defective warrants;
seizures and confiscation, without proper receipts, of
cash and personal effects belonging to plaintiffs and
other items of property which were not subversive and
illegal nor covered by the search warrants; arrest and
detention of plaintiffs without warrant or under
irregular, improper and illegal circumstances; detention
of plaintiffs at several undisclosed places of
'safehouses" where they were kept incommunicado and
subjected to physical and psychological torture and
other inhuman, degrading and brutal treatment for the
purpose of extracting incriminatory statements. The
complaint contains a detailed recital of abuses
perpetrated upon the plaintiffs violative of their
constitutional rights.
Secondly, neither can it be said that only those shown to
have participated "directly" should be held liable.
Article 32 of the Civil Code encompasses within the
ambit of its provisions those directly, as well as
indirectly, responsible for its violation.
The responsibility of the defendants, whether direct or
indirect, is amply set forth in the complaint. It is well
established in our law and jurisprudence that a motion
to dismiss on the ground that the complaint states no
cause of action must be based on what appears on the
face of the complaint. 6 To determine the sufficiency of
the cause of action, only the facts alleged in the
complaint, and no others, should be considered. 7 For
this purpose, the motion to dismiss must hypothetically
admit the truth of the facts alleged in the complaint. 8
Applying this test, it is difficult to justify the trial
court's ruling, dismissing for lack of cause of action the
complaint against all the defendants, except Major
Rodolfo Aguinaldo and Master Sgt. Bienvenido Balaba.
The complaint contained allegations against all the
defendants which, if admitted hypothetically, would be
sufficient to establish a cause or causes of action against
all of them under Article 32 of the Civil Code.
This brings us to the last issue. Was the trial court
correct in dismissing the complaint with respect to
plaintiffs Rogelio Aberca, Danilo de la Puente, Marco
Palo, Alan Jazminez, Alex Marcelino, Elizabeth
Protacio-Marcelino, Alfredo Mansos and Rolando
Salutin, on the basis of the alleged failure of said
plaintiffs to file a motion for reconsideration of the
court's resolution of November 8, 1983, granting the
respondent's motion to dismiss?
It is undisputed that a timely motion to set aside said
order of November 8, 1983 was filed by 'plaintiffs,
through counsel. True, the motion was signed only by
Atty. Joker P. Arroyo, counsel for Benjamin Sesgulido;
Atty. Antonio Rosales, counsel for Edwin Lopez and
Manuel Martin Guzman; Atty. Pedro B. Ella, Jr.,
counsel for Nestor Bodino and Carlos Palma; Atty.
Arno V. Sanidad, counsel for Arturo Tabara; Atty.
Felicitas S. Aquino, counsel for Joseph Olayer; and
Atty. Alexander Padilla, counsel for Rodolfo Benosa.
But the body of the motion itself clearly indicated that
the motion was filed on behalf of all the plaintiffs. And
this must have been also the understanding of
defendants' counsel himself for when he filed his
comment on the motion, he furnished copies thereof,
not just to the lawyers who signed the motion, but to all
the lawyers of plaintiffs, to wit: Attys. Jose Diokno,
Procopio Beltran, Rene Sarmiento, Efren Mercado,
Augusto Sanchez, Antonio Rosales, Pedro Efla Jr.,
Arno Sanidad, Alexander Padilla, Joker Arroyo, Rene
Saguisag, Ramon Esguerra and Felicitas S. Aquino.
In filing the motion to set aside the resolution of
November 8, 1983, the signing attorneys did so on
behalf of all the plaintiff. They needed no specific
authority to do that. The authority of an attorney to
appear for and in behalf of a party can be assumed,
unless questioned or challenged by the adverse party or
the party concerned, which was never done in this case.
Thus, it was grave abuse on the part of respondent judge
to take it upon himself to rule that the motion to set
aside the order of November 8, 1953 dismissing the
complaint was filed only by some of the plaintiffs,
when by its very language it was clearly intended to be
filed by and for the benefit of all of them. It is obvious
that the respondent judge took umbrage under a
contrived technicality to declare that the dismissal of
the complaint had already become final with respect to
some of the plaintiffs whose lawyers did not sign the
motion for reconsideration. Such action tainted with
legal infirmity cannot be sanctioned.
Accordingly, we grant the petition and annul and set
aside the resolution of the respondent court, dated
November 8, 1983, its order dated May 11, 1984 and its
resolution dated September 21, 1984. Let the case be
remanded to the respondent court for further
proceedings. With costs against private respondents.
SO ORDERED.
G.R. No. 93833 September 28, 1995
SOCORRO D. RAMIREZ, petitioner,
vs.
HONORABLE COURT OF APPEALS, and ESTER S.
GARCIA, respondents.
KAPUNAN, J.:
A civil case damages was filed by petitioner Socorro D.
Ramirez in 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:
Plaintiff Soccoro D. Ramirez (Chuchi) — Good
Afternoon M'am.
Defendant Ester S. Garcia (ESG) — Ano ba ang
nangyari sa 'yo, nakalimot ka na kung paano ka napunta
rito, porke member ka na, magsumbong ka kung ano
ang gagawin ko sa 'yo.
CHUCHI — Kasi, naka duty ako noon.
ESG — Tapos iniwan no. (Sic)
CHUCHI — Hindi m'am, pero ilan beses na nila akong
binalikan, sabing ganoon —
ESG — Ito and (sic) masasabi ko sa 'yo, ayaw kung
(sic) 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, nag-aaply ka sa
review mo, kung kakailanganin ang certification mo,
kalimutan mo na kasi hindi ka sa akin makakahingi.
CHUCHI — Hindi M'am. Kasi ang ano ko talaga noon
i-cocontinue ko up to 10:00 p.m.
ESG — Bastos ka, nakalimutan mo na kung paano ka
pumasok dito sa hotel. Magsumbong ka sa Union kung
gusto mo. Nakalimutan mo na kung paano ka
nakapasok dito "Do you think that on your own
makakapasok ka kung hindi ako. Panunumbyoyan na
kita (Sinusumbatan na kita).
CHUCHI — Itutuloy ko na M'am sana ang duty ko.
ESG — Kaso ilang beses na akong binabalikan doon ng
mga no (sic) ko.
ESG — Nakalimutan mo na ba kung paano ka pumasok
sa hotel, kung on your own merit alam ko naman kung
gaano ka "ka bobo" mo. Marami ang nag-aaply alam
kong hindi ka papasa.
CHUCHI — Kumuha kami ng exam noon.
ESG — Oo, pero hindi ka papasa.
CHUCHI — Eh, bakit ako ang nakuha ni Dr. Tamayo
ESG — Kukunin ka kasi ako.
CHUCHI — Eh, di sana —
ESG — Huwag mong ipagmalaki na may utak ka
kasi wala kang utak. Akala mo ba makukuha ka dito
kung hindi ako.
CHUCHI — Mag-eexplain ako.
ESG — Huwag na, hindi ako mag-papa-explain sa 'yo,
makaalala ka kung paano ka puma-rito. "Putang-ina"
sasabi-sabihin mo kamag-anak ng nanay at tatay mo
ang mga magulang ko.
ESG — Wala na akong pakialam, dahil nandito ka sa
loob, nasa labas ka puwede ka ng hindi pumasok, okey
yan nasaloob ka umalis ka doon.
CHUCHI — Kasi M'am, binbalikan ako ng mga taga
Union.
ESG — Nandiyan na rin ako, pero huwag mong
kalimutan na hindi ka makakapasok kung hindi ako.
Kung hindi mo kinikilala yan okey lang sa akin, dahil
tapos ka na.
CHUCHI — Ina-ano ko m'am na utang na loob.
ESG — Huwag na lang, hindi mo utang na loob, kasi
kung baga sa no, nilapastangan mo ako.
CHUCHI — Paano kita nilapastanganan?
ESG — Mabuti pa lumabas ka na. Hindi na ako
makikipagusap sa 'yo. Lumabas ka na. Magsumbong
ka.3
As a result of petitioner's recording of the event and
alleging that the said act of secretly taping the
confrontation was illegal, private respondent filed a
criminal case before the Regional Trial Court of Pasay
City for violation of 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 the said Act, dated October 6, 1988 is
quoted herewith:
INFORMATION
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.
Contrary to law.
Pasay City, Metro Manila, September 16, 1988.
MARIANO M. CUNETA
Asst. City Fiscal
Upon arraignment, in lieu of a plea, petitioner filed a
Motion to Quash the Information on the ground that the
facts charged do not constitute an offense, particularly a
violation of R.A. 4200. In an order May 3, 1989, the
trial court granted the Motion to Quash, agreeing with
petitioner that 1) the facts charged do not constitute 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 other than a participant to
the communication.4
From the trial court's Order, the private respondent filed
a Petition for Review on Certiorari with this Court,
which forthwith referred the case to the Court of
Appeals in a Resolution (by the First Division) of June
19, 1989.
On February 9, 1990, respondent Court of Appeals
promulgated its assailed Decision declaring the trial
court's order of May 3, 1989 null and void, and holding
that:
[T]he allegations sufficiently constitute an offense
punishable under Section 1 of R.A. 4200. In thus
quashing the information based on the ground that the
facts alleged do not constitute an offense, the
respondent judge acted in grave abuse of discretion
correctible by certiorari.5
Consequently, on February 21, 1990, petitioner filed a
Motion for Reconsideration which respondent Court of
Appeals denied in its Resolution6 dated June 19, 1990.
Hence, the instant petition.
Petitioner vigorously argues, as her "main and principal
issue"7 that the applicable provision of Republic Act
4200 does not apply to the taping of a private
conversation by one of the parties to the conversation.
She contends that the provision merely refers to the
unauthorized taping of a private conversation by a party
other than those involved in the communication.8 In
relation to this, petitioner avers that the substance or
content of the conversation must be alleged in the
Information, otherwise the facts charged would not
constitute a violation of R.A. 4200.9 Finally, petitioner
agues that 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.
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 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 unauthorized "recording" of private communications
privacy of the latter's office. Any doubts about the with the use of tape-recorders as among the acts
legislative body's meaning of the phrase "private punishable.
communication" are, furthermore, put to rest by the fact
that the terms "conversation" and "communication" WHEREFORE, because the law, as applied to the case
were interchangeably used by Senator Tañada in his at bench is clear and unambiguous and leaves us with
Explanatory Note to the bill quoted below: no discretion, the instant petition is hereby DENIED.
The decision appealed from is AFFIRMED. Costs
It has been said that innocent people have nothing to against petitioner.
fear from their conversations being overheard. But this
statement ignores the usual nature of conversations as SO ORDERED.
well the undeniable fact that most, if not all, civilized
people have some aspects of their lives they do not wish
to expose. Free conversationsare 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
CECILIA ZULUETA, petitioner, vs. COURT OF
APPEALS and ALFREDO MARTIN, respondents.
DECISION
MENDOZA, J.:
This is a petition to review the decision of the Court of
Appeals, affirming the decision of the Regional Trial
Court of Manila (Branch X) which ordered petitioner to
return documents and papers taken by her from private
respondents clinic without the latters knowledge and
consent.
The facts are as follows:
Petitioner Cecilia Zulueta is the wife of private
respondent Alfredo Martin. On March 26, 1982,
petitioner entered the clinic of her husband, a doctor of
medicine, and in the presence of her mother, a driver
and private respondents secretary, forcibly opened the
drawers and cabinet in her husbands clinic and took 157
documents consisting of private correspondence
between Dr. Martin and his alleged paramours,
greetings cards, cancelled checks, diaries, Dr. Martins
passport, and photographs. The documents and papers
were seized for use in evidence in a case for legal
separation and for disqualification from the practice of
medicine which petitioner had filed against her
husband.
Dr. Martin brought this action below for recovery of the
documents and papers and for damages against
petitioner. The case was filed with the Regional Trial
Court of Manila, Branch X, which, after trial, rendered
judgment for private respondent, Dr. Alfredo Martin,
declaring him the capital/exclusive owner of the
properties described in paragraph 3 of plaintiffs
Complaint or those further described in the Motion to
Return and Suppress and ordering Cecilia Zulueta and
any person acting in her behalf to immediately return
the properties to Dr. Martin and to pay him P5,000.00,
as nominal damages; P5,000.00, as moral damages and
attorneys fees; and to pay the costs of the suit. The writ
of preliminary injunction earlier issued was made final
and petitioner Cecilia Zulueta and her attorneys and
representatives were enjoined from using or
submitting/admitting as evidence the documents and
papers in question. On appeal, the Court of Appeals
affirmed the decision of the Regional Trial Court.
Hence this petition.
There is no question that the documents and papers in
question belong to private respondent, Dr. Alfredo
Martin, and that they were taken by his wife, the herein
petitioner, without his knowledge and consent. For that
reason, the trial court declared the documents and
papers to be properties of private respondent, ordered
petitioner to return them to private respondent and
enjoined her from using them in evidence. In appealing
from the decision of the Court of Appeals affirming the
trial courts decision, petitioners only ground is that
in Alfredo Martin v. Alfonso Felix, Jr.,1 this Court ruled
that the documents and papers (marked as Annexes A-i
to J-7 of respondents comment in that case) were
admissible in evidence and, therefore, their use by
petitioners attorney, Alfonso Felix, Jr., did not
constitute malpractice or gross misconduct. For this
reason it is contended that the Court of Appeals erred in
affirming the decision of the trial court instead of
dismissing private respondents complaint.
Petitioners contention has no merit. The case against
Atty. Felix, Jr. was for disbarment. Among other things,
private respondent, Dr. Alfredo Martin, as complainant
in that case, charged that in using the documents in
evidence, Atty. Felix, Jr. committed malpractice or
gross misconduct because of the injunctive order of the
trial court. In dismissing the complaint against Atty.
Felix, Jr., this Court took note of the following defense
of Atty. Felix, Jr. which it found to be impressed with
merit:2
On the alleged malpractice or gross misconduct of
respondent [Alfonso Felix, Jr.], he maintains that:
xxx xxx xxx
4. When respondent refiled Cecilias case for legal
separation before the Pasig Regional Trial Court, there
was admittedly an order of the Manila Regional Trial
Court prohibiting Cecilia from using the documents
Annex A-I to J-7. On September 6, 1983, however
having appealed the said order to this Court on a
petition for certiorari, this Court issued a restraining
order on aforesaid date which order temporarily set
aside the order of the trial court. Hence, during the
enforceability of this Courts order, respondents request
for petitioner to admit the genuineness and authenticity
of the subject annexes cannot be looked upon as
malpractice. Notably, petitioner Dr. Martin finally
admitted the truth and authenticity of the questioned
annexes. At that point in time, would it have been
malpractice for respondent to use petitioners admission
as evidence against him in the legal separation case
pending in the Regional Trial Court of Makati?
Respondent submits it is- not malpractice.
Significantly, petitioners admission was done not thru
his counsel but by Dr. Martin himself under oath. Such
verified admission constitutes an affidavit, and,
therefore, receivable in evidence against him. Petitioner
became bound by his admission. For Cecilia to avail
herself of her husbands admission and use the same in
her action for legal separation cannot be treated as
malpractice.
Thus, the acquittal of Atty. Felix, Jr. in the
administrative case amounts to no more than a
declaration that his use of the documents and papers for
the purpose of securing Dr. Martins admission as to
their genuiness and authenticity did not constitute a
violation of the injunctive order of the trial court. By no
means does the decision in that case establish the
admissibility of the documents and papers in question.
It cannot be overemphasized that if Atty. Felix, Jr. was is freedom of communication; quite another is a
acquitted of the charge of violating the writ of compulsion for each one to share what one knows with
preliminary injunction issued by the trial court, it was the other. And this has nothing to do with the duty of
only because, at the time he used the documents and fidelity that each owes to the other.
papers, enforcement of the order of the trial court was
temporarily restrained by this Court. The TRO issued WHEREFORE, the petition for review is DENIED for
by this Court was eventually lifted as the petition for lack of merit.
certiorari filed by petitioner against the trial courts order
was dismissed and, therefore, the prohibition against the
further use of the documents and papers became
effective again.

Indeed the documents and papers in question are

inadmissible in evidence. The constitutional injunction
declaring the privacy of communication and
correspondence [to be] inviolable3is no less applicable
simply because it is the wife (who thinks herself
aggrieved by her husbands infidelity) who is the party
against whom the constitutional provision is to be
enforced. The only exception to the prohibition in the
Constitution is if there is a lawful order [from a] court
or when public safety or order requires otherwise, as
prescribed by law.4 Any violation of this provision
renders the evidence obtained inadmissible for any
purpose in any proceeding.5

The intimacies between husband and wife do not justify

any one of them in breaking the drawers and cabinets of
the other and in ransacking them for any telltale
evidence of marital infidelity. A person, by contracting
marriage, does not shed his/her integrity or his right to
privacy as an individual and the constitutional
protection is ever available to him or to her.

The law insures absolute freedom of communication

between the spouses by making it privileged. Neither
husband nor wife may testify for or against the other
without the consent of the affected spouse while the
marriage subsists.6 Neither may be examined without
the consent of the other as to any communication
received in confidence by one from the other during the
marriage, save for specified exceptions.7 But one thing
WATEROUS DRUG CORPORATION and MS.
EMMA CO, petitioners, vs. NATIONAL LABOR
RELATIONS COMMISSION and ANTONIA
MELODIA CATOLICO, respondents.
DECISION
DAVIDE, JR. J.:
Nor is he a true Servant [who] buys dear to share in the
Profit with the Seller.[1]
This petition for certiorari under Rule 65 of the Rules
of Court seeks to declare private respondent Antonia
Melodia Catolico (hereafter Catolico) not a true
Servant, thereby assailing the 30 September 1993
decision[2] and 2 December 1993 Resolution[3] of the
National Labor Relations Commission (NLRC) in
NLRC-NCR CA No. 005160-93, which sustained the
reinstatement and monetary awards in favor of private
respondent[4] and denied the petitioners motion for
reconsideration.[5]
The facts are as follows:
Catolico was hired as a pharmacist by petitioner
Waterous Drug Corporation (hereafter WATEROUS)
on 15 August 1988.
On 31 July 1989, Catolico received a
memorandum[6] from WATEROUS Vice President-
General Manager Emma R. Co warning her not to
dispense medicine to employees chargeable to the
latters accounts because the same was a prohibited
practice. On the same date, Co issued another
memorandum[7] to Catolico warning her not to negotiate
with suppliers of medicine without consulting the
Purchasing Department, as this would impair the
companys control of purchases and, besides she was not
authorized to deal directly with the suppliers.
As regards the first memorandum, Catolico did not deny
her responsibility but explained that her act was due to
negligence, since fellow employee Irene Soliven
obtained the medicines in bad faith and through
misrepresentation when she claimed that she was given
a charge slip by the Admitting Dept. Catolico then
asked the company to look into the fraudulent activities
of Soliven.[8]
In a memorandum[9] dated 21 November 1989,
WATEROUS Supervisor Luzviminda E. Bautro warned
Catolico against the rush delivery of medicines without
the proper documents.
On 29 January 1990, WATEROUS Control Clerk
Eugenio Valdez informed Co that he noticed an
irregularity involving Catolico and Yung Shin
Pharmaceuticals, Inc. (hereafter YSP), which he
described as follows:
A case in point is medicine purchased under our
Purchase Order (P.O.) No. 19045 with YSP Sales
Invoice No. 266 representing purchase of ten (10)
bottles of Voren tablets at P384.00 per unit. Previous
P.O.s issued to YSP, Inc. showed that the price per
bottle is P320.00 while P.O. No. 19045 is priced
at P384.00 or an over price of P64.00 per bottle (or total
of P640.00). WDRC paid the amount of P3,840.00 thru
MBTC Check No. 222832 dated December 15, 1988.
Verification was made to YSP, Inc. to determine the
discrepancy and it was found that the cost per bottle
was indeed overpriced. YSP, Inc. Accounting
Department (Ms. Estelita Reyes) confirmed that the
difference represents refund of jack-up price of ten
bottles of Voren tablets per sales invoice no. 266 as per
their check voucher no. 629552 (shown to the
undersigned), which was paid to Ms. Catolico through
China Bank check no. 892068 dated November 9,
1989....
The undersigned talked to Ms. Catolico regarding the
check but she denied having received it and that she is
unaware of the overprice. However, upon conversation
with Ms. Saldana, EDRC Espana Pharmacy Clerk, she
confirmed that the check amounting to P640.00 was
actually received by Ms. Catolico. As a matter of fact,
Ms. Catolico even asked Ms. Saldana if she opened the
envelope containing the check but Ms. Saldana
answered her talagang ganyan, bukas. It appears that the
amount in question (P640.00) had been pocketed by
Ms. Catolico.[10]
Forthwith, in her memorandum[11] dated 31 January
1990, Co asked Catolico to explain, within twenty-four
hours, her side of the reported irregularity. Catolico
asked for additional time to give her explanation,[12] and
she was granted a 48-hour extension from 1 to 3
February 1990. However, on 2 February 1990, she was
informed that effective 6 February 1990 to 7 March
1990, she would be placed on preventive suspension to
protect the interests of the company.[13]
In a letter dated 2 February 1990, Catolico requested
access to the file containing Sales Invoice No. 266 for
her to be able to make a satisfactory explanation. In said
letter she protested Saldaas invasion of her privacy
when Saldaa opened an envelope addressed to
Catolico.[14]
In a letter[15] to Co dated 10 February 1990, Catolico,
through her counsel, explained that the check she
received from YSP was a Christmas gift and not a
refund of overprice. She also averred that the preventive
suspension was ill-motivated, as it sprang from an
earlier incident between her and Cos secretary, Irene
Soliven.
On 5 March 1990, WATEROUS Supervisor
Luzviminda Bautro, issued a memorandum[16] notifying
Catolico of her termination; thus:
We received your letter of explanation and your
lawyer's letter dated Feb. 2, 1990 and Feb. 10, 1990
respectively regarding our imposition of preventive
suspension on you for acts of dishonesty.However, said
letters failed to rebut the evidences [sic] in our
possession which clearly shows that as a Pharmacist
stationed at Espana Branch, you actually made Purchase
Orders at YSP Phils., Inc. for 10 bottles of Voren tablets
at P384.00/bottle with previous price of P320.00/bottle
only. A check which you received in the amount
of P640.00 actually represents the refund of over price
of said medicines and this was confirmed by Ms.
Estelita Reyes, YSP Phils., Inc. Accounting
Department.
Your actuation constitutes an act of dishonesty
detrimental to the interest of the company. Accordingly,
you are hereby terminated effective March 8, 1990.
On 5 May 1990, Catolico filed before the Office of the
Labor Arbiter a complaint for unfair labor practice,
illegal dismissal, and illegal suspension.[17]
In his decision[18] of 10 May 1993, Labor Arbiter Alex
Arcadio Lopez found no proof of unfair labor practice
against petitioners. Nevertheless, he decided in favor of
Catolico because petitioners failed to prove what [they]
alleged as complainants dishonesty, and to show that
any investigation was conducted. Hence, the dismissal
was without just cause and due process. He thus
declared the dismissal and suspension illegal but
disallowed reinstatement, as it would not be to the best
interest of the parties. Accordingly, he awarded
separation pay to Catolico computed at one-half months
pay for every year of service; back wages for one year;
and the additional sum of P2,000.00 for illegal
suspension representing 30 days work. Arbiter Lopez
computed the award in favor of Catolico as follows:
30 days Preventive Suspension P 2,000.00
Backwages 26,858.50
1/12 of P26,858.50 2,238.21
Separation pay (3 years) 4,305.15
TOTAL AWARD: P35,401.86
Petitioners seasonably appealed from the decision and
urged the NLRC to set it aside because the Labor
Arbiter erred in finding that Catolico was denied due
process and that there was no just cause to terminate her
services.
In its decision[19] of 30 September 1993, the NLRC
affirmed the findings of the Labor Arbiter on the ground
that petitioners were not able to prove a just cause for
Catolicos dismissal from her employment. It found that
petitioners evidence consisted only of the check
of P640.00 drawn by YSP in favor of complainant,
which her co-employee saw when the latter opened the
envelope. But, it declared that the check was
inadmissible in evidence pursuant to Sections 2 and 3(1
and 2) of Article III of the Constitution.[20] It concluded:
With the smoking gun evidence of respondents being
rendered inadmissible, by virtue of the constitutional
right invoked by complainants, respondents case falls
apart as it is bereft of evidence which cannot be used as
a legal basis for complainants dismissal.
The NLRC then dismissed the appeal for lack of merit,
but modified the dispositive portion of the appealed
decision by deleting the award for illegal suspension as
the same was already included in the computation of the
aggregate of the awards in the amount of P35,401.86.
Their motion for reconsideration having been denied,
petitioners filed this special civil action for certiorari,
which is anchored on the following grounds:
I. Public respondent committed grave abuse of
discretion in its findings of facts.
II. Due process was duly accorded to private
respondent.
III. Public respondent gravely erred in applying Section
3, Article III of the 1987 Constitution.
As to the first and second grounds, petitioners insist that
Catolico had been receiving commissions from YSP, or
probably from other suppliers, and that the check issued
to her on 9 November 1989 was not the first or the
last. They also maintained that Catolico occupied a
confidential position and that Catolicos receipt of YSPs
check, aggravated by her propensity to violate company
rules, constituted breach of confidence. And contrary to
the findings of NLRC, Catolico was given ample
opportunity to explain her side of the controversy.
Anent the third ground, petitioners submit that, in light
of the decision in the People v. Marti,[21] the
constitutional protection against unreasonable searches
and seizures refers to the immunity of ones person from
interference by government and cannot be extended to
acts committed by private individuals so as to bring it
within the ambit of alleged unlawful intrusion by the
government.
In its Manifestation in Lieu of Comment, the Office of
the Solicitor General (OSG) disagreed with the NLRC's
decision, as it was of the persuasion that (a) the
conclusions reached by public respondent are
inconsistent with its findings of fact; and (b) the
incident involving the opening of envelope addressed to
private respondent does not warrant the application of
the constitutional provisions. It observed that Catolico
was given several opportunities to explain her side of
the check controversy, and concluded that the
opportunities granted her and her subsequent
explanation satisfy the requirements of just cause and
due process. The OSG was also convinced that
Catolicos dismissal was based on just cause and that
Catolicos admission of the existence of the check, as
well as her lame excuse that it was a Christmas gift
from YSP, constituted substantial evidence of
dishonesty. Finally, the OSG echoed petitioners
argument that there was no violation of the right of
privacy of communication in this case,[22] adding that
petitioner WATEROUS was justified in opening an
envelope from one of its regular suppliers as it could
assume that the letter was a business communication in
which it had an interest.
In its Comment which we required to be filed in view of
the adverse stand of the OSG, the NLRC contends that
petitioners miserably failed to prove their claim that it
committed grave abuse of discretion in its findings of
fact. It then prays that we dismiss this petition.
In her Comment, Catolico asserts that petitioners
evidence is too flimsy to justify her dismissal. The
check in issue was given to her, and she had no duty to
turn it over to her employer.Company rules do not
prohibit an employee from accepting gifts from clients,
and there is no indication in the contentious check that
it was meant as a refund for overpriced
medicines.Besides, the check was discovered in
violation of the constitutional provision on the right to
privacy and communication; hence, as correctly held by
the NLRC, it was inadmissible in evidence.
Catolico likewise disputes petitioners claim that the
audit report and her initial response that she never
received a check were sufficient to justify her
dismissal. When she denied having received a check
from YSP, she meant that she did not receive any
refund of overprice, consistent with her position that
what she received was a token gift. All that can be
gathered from the audit report is that there was
apparently an overcharge, with no basis to conclude that
Catolico pocketed the amount in collusion with
YSP. She thus concluded that her dismissal was based
on a mere suspicion.
Finally, Catolico insists that she could not have
breached the trust and confidence of WATEROUS
because, being merely a pharmacist, she did not handle
confidential information or sensitive properties. She
was doing the task of a saleslady: selling drugs and
making requisitions when supplies were low.
A thorough review of the record leads us to no other
conclusion than that, except as to the third ground, the
instant petition must fail.
Concededly, Catolico was denied due
process. Procedural due process requires that an
employee be apprised of the charge against him, given
reasonable time to answer the charge, allowed ample
opportunity to be heard and defend himself, and assisted
by a representative if the employee so desires.[23] Ample
opportunity connotes every kind of assistance that
management must accord the employee to enable him to
prepare adequately for his defense, including legal
representation.[24]
In the case at bar, although Catolico was given an
opportunity to explain her side, she was dismissed from
the service in the memorandum of 5 March 1990 issued
by her Supervisor after receipt of her letter and that of
her counsel. No hearing was ever conducted after the
issues were joined through said letters. The Supervisors
memorandum spoke of evidences [sic] in
[WATEROUS] possession, which were not, however,
submitted. What the evidences [sic] other than the sales
invoice and the check were, only the Supervisor knew.
Catolico was also unjustly dismissed. It is settled that
the burden is on the employer to prove just and valid
cause for dismissing an employee, and its failure to
discharge that burden would result in a finding that the
dismissal is unjustified.[25] Here, WATEROUS proved
unequal to the task.
It is evident from the Supervisors memorandum that
Catolico was dismissed because of an alleged
anomalous transaction with YSP. Unfortunately for
petitioners, their evidence does not establish that there
was an overcharge. Control Clerk Eugenio C. Valdez,
who claims to have discovered Catolicos inappropriate
transaction, stated in his affidavit:[26]
4. My findings revealed that on or before the month of
July 31, 1989, Ms. Catolico in violation of the
[company] procedure, made an under the table deal with
YSP Phils. to supply WDRC needed medicines like
Voren tablets at a jack-up price of P384.00 per bottle of
50 mg. which has a previous price of only P320.00;
5. I verified the matter to YSP Phils. to determine the
discrepancy and I found out that the cost per bottle was
indeed overpriced. The Accounting Department of YSP
Phils. through Ms. Estelita Reyes confirmed that there
was really an overprice and she said that the difference
was refunded through their check voucher no. 629552
which was shown to me and the payee is Melodia
Catolico, through a China Bank Check No. 892068
dated November 9, 1989.
It clearly appears then that Catolicos dismissal was
based on hearsay information. Estelita Reyes never
testified nor executed an affidavit relative to this case;
thus, we have to reject the statements attributed to her
by Valdez. Hearsay evidence carries no probative
value.[27]
Besides, it was never shown that petitioners paid for the
Voren tablets. While Valdez informed Co, through the
formers memorandum[28] of 29 January 1990, that
WATEROUS paid YSP P3,840.00 thru MBTC Check
No. 222832, the said check was never presented in
evidence, nor was any receipt from YSP offered by
petitioners.
Moreover, the two purchase orders for Voren tablets
presented by petitioners do not indicate an
overcharge. The purchase order dated 16 August
1989[29] stated that the Voren tablets cost P320.00 per
box, while the purchase order dated 5 October
1989[30] priced the Voren tablets at P384.00 per
bottle. The difference in price may then be attributed to
the different packaging used in each purchase order.
Assuming that there was an overcharge, the two
purchase orders for the Voren tablets were
recommended by Director-MMG Mario R. Panuncio,
verified by AVP-MNG Noli M. Lopez and approved by
Vice President-General Manager Emma R. Co. The
purchase orders were silent as to Catolicos participation
in the purchase. If the price increase was objectionable
to petitioners, they or their officers should have
disapproved the transaction. Consequently, petitioners
had no one to blame for their predicament but
themselves. This set of facts emphasizes the
exceedingly incredible situation proposed by
petitioners. Despite the memorandum warning Catolico
not to negotiate with suppliers of medicine, there was
no proof that she ever transacted, or that she had the
opportunity to transact, with the said suppliers. Again,
as the purchase orders indicate, Catolico was not at all
involved in the sale of the Voren tablets. There was no
occasion for Catolico to initiate, much less benefit from,
what Valdez called an under the table deal with YSP.
Catolicos dismissal then was obviously grounded on
mere suspicion, which in no case can justify an
employees dismissal. Suspicion is not among the valid
causes provided by the Labor Code for the termination
of employment;[31] and even the dismissal of an
employee for loss of trust and confidence must rest on
substantial grounds and not on the employers
arbitrariness, whims, caprices, or suspicion.[32] Besides,
Catolico was not shown to be a managerial employee,
to which class of employees the term trust and
confidence is restricted.[33]
As regards the constitutional violation upon which the
NLRC anchored its decision, we find no reason to
revise the doctrine laid down in People vs. Marti[34] that
the Bill of Rights does not protect citizens from
unreasonable searches and seizures perpetrated by
private individuals. It is not true, as counsel for Catolico
claims, that the citizens have no recourse against such
assaults. On the contrary, and as said counsel admits,
such an invasion gives rise to both criminal and civil
liabilities.
Finally, since it has been determined by the Labor
Arbiter that Catolicos reinstatement would not be to the
best interest of the parties, he correctly awarded
separation pay to Catolico.Separation pay in lieu of
reinstatement is computed at one months salary for
every year of service.[35] In this case, however, Labor
Arbiter Lopez computed the separation pay at one-half
months salary for every year of service. Catolico did not
oppose or raise an objection. As such, we will uphold
the award of separation pay as fixed by the Labor
Arbiter.
WHEREFORE, the instant petition is hereby
DISMISSED and the challenged decision and resolution
of the National Labor Relations Commission dated 30
September 1993 and 2 December 1993, respectively, in
NLRC-NCR CA No. 005160-93 are AFFIRMED,
except as to its reason for upholding the Labor Arbiters
decision, viz., that the evidence against private
respondent was inadmissible for having been obtained
in violation of her constitutional rights of privacy of
communication and against unreasonable searches and
seizures which is hereby set aside.
Costs against petitioners.
SO ORDERED.
THE PEOPLE OF THE PHILIPPINES, plaintiff-
appellee, vs. ROSA ARUTA y MENGUIN, accused-
appellant.
DECISION
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 wilfully, 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 travelling
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 travelling 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 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-appellants 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
Prosecutions 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 latters 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:
Section 2. The right of the people to be secure in their
persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature
and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge
after examination under oath or affirmation of the
complainant and the witnesses he may produce, and
particularly describing the place to be searched and the
persons or things to be seized.
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:
Section 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 Court[8] and by prevailing jurisprudence;
2. Seizure of evidence in plain view, the elements of
which are:
(a) a prior valid intrusion based on the valid warrantless
arrest in which the police are legally present in the
pursuit of their official duties;
(b) the evidence was inadvertently discovered by the
police who had the right to be where they are;
(c) the evidence must be immediately apparent, and
(d) plain view justified mere seizure of evidence
without further search;
3. Search of a moving vehicle. Highly regulated by the
government, the vehicles 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 travelling 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 Arutas
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, Arutas 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-appellants 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 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 travelling 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 travelling 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 culprits 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 Encinadas 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-appellants 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-appellants 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.
Aminnudin[19] where, this Court observed that:
x x x 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-appellants 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-
appellants 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 Gracia.[22] In
said case, there were intelligence reports that the
building was being used as headquarters by the RAM
during a coup detat. 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. Malasugui[23] 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 Generals
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 Republics 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 Bolonias 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 Bolonias search
of his belongings. Appellants silence should not be
lightly taken as consent to such search. The implied
acquiscence 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-appellants 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]
x x x [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-
x x x. 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
x x x 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
officers 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 travelling bag, we asked the
driver if we could see the contents.
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 couldbe secured only if accused-appellants
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:
x x x [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. (Italics 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 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 courts 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 prosecutions Formal Offer of
Evidence.
It is apropos to quote the case of People v.
Barros,[33] which stated:
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 appellants 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]
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.

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 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
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 andCHAIRMAN OF THE COMMISSION
ON AUDIT, respondents.
DECISION
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 instrumentalities 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:
SECTION 1. Establishment of a National Computerized
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
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 ESTABLISHMENT 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
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.
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 President.[15] It is generally
defined as the power to enforce and administer the
laws.[16] It is the power of carrying the laws into
practical operation and enforcing their due
observance.[17]
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 structures 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 the 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 guidelines 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.O.
No. 308 is not a law because it confers no right,
imposes no duty, affords no protection, 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: "x x x Many
regulations however, bear directly on the public. It is
here that administrative legislation must be 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 itviolates 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 x x x.
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 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, papers, 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
The Griswold case 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 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 protected 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.
x x x.
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.
x x x.
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 Deposit 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 provide 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 application
of statistical methods to biological facts; a mathematical
analysis of biological data."[45] The term "biometrics"
has now 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 identification systems use
a card or personal identification 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 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 banquet 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 for 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 underplayed 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 and
formidable information 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 information 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 be 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 a 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 data 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 National 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 drawn 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. 308 gives the IACC virtually unfettered
discretion to determine the metes and bounds of the ID
System.
Nor do our present laws provide 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 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 concludes 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 hold 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 itenough 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 Constitution.
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
Substances Act of 1972 required physicians to identify
patients 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 disclosure of personal
matters 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 minimize the misuse of dangerous
drugs. The patient-identification requirement was a
product of an orderly and rational legislative decision
made upon recommendation by a specially appointed
commission which held extensive hearings on the
matter. Moreover, the statute was narrowly drawn and
contained numerous safeguards against indiscriminate
disclosure. The statute laid down the procedure and
requirements for the gathering, storage and retrieval of
the information. It enumerated who were authorized to
access the data. It also prohibited public disclosure of
the data by imposing penalties for its violation. In view
of these safeguards, the infringement of the patients'
right to privacy was justified by a valid exercise of
police power. As we discussed above, A.O. No. 308
lacks these vital safeguards.
Even while we strike down A.O. No. 308, we spell out
in neon that the Court is not per se against the use of
computers to accumulate, store, process, retrieve and
transmit data to improve our bureaucracy. Computers
work wonders to achieve the efficiency which both
government and private industry seek. Many
information systems in different countries make use of
the computer to facilitate important social objectives,
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 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."[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 the 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 record-
keeping power of the computer, only the indifferent will
fail to perceive the danger that A.O. No. 308 gives the
government the power to compile a devastating dossier
against unsuspecting citizens. It is timely to take note of
the well-worded warning of Kalvin, Jr., "the disturbing
result could be that everyone will live burdened by an
unerasable record of his past and his limitations. In a
way, the threat is that because of its record-keeping, the
society will have lost its benign capacity to
forget."[89] Oblivious to this counsel, the dissents still
say we should not be too quick in labelling the right to
privacy as a fundamental right. We close with the
statement that the right to privacy was not engraved in
our Constitution for flattery.
IN VIEW WHEREOF, the petition is granted and
Administrative Order No. 308 entitled "Adoption of a
National Computerized Identification Reference
System" declared null and void for being
unconstitutional.
SO ORDERED.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
DELFIN RONDERO, accused-appellant.
DECISION
PER CURIAM:
When an accused appeals from the judgment of the trial
court, he waives the constitutional safeguard against
double jeopardy and throws the whole case open for
review of the appellate court, which is then called to
render such judgment as law and justice dictate,
whether favorable or unfavorable.[1] With this precept in
mind, this Court as the ultimate dispenser of justice,
will not hesitate to render the proper imposable penalty,
whenever it sees fit, even the supreme penalty of death.
Before us is an appeal from a decision rendered by the
Regional Trial Court of Dagupan City, Branch 41,
sentencing herein accused-appellant Delfin Rondero y
Sigua to suffer the penalty of reclusion perpetua for the
crime of homicide.
The facts of the case are as follows:
On the evening of March 25, 1994, Mardy Doria came
home late from a barrio fiesta. When he noticed that his
nine year old sister, Mylene, was not around, he woke
up his parents to inquire about his sisters
whereabouts. Realizing that Mylene was missing, their
father, Maximo Doria, sought the help of a neighbor,
Barangay Kagawad Andong Rondero to search for
Mylene. Maximo and Andong went to the house of a
Barangay Captain to ask for assistance and also
requested their other neighbors in Pugaro, Dagupan to
look for Mylene.
The group began searching for Mylene at around 1:00
oclock in the morning of March 26, 1994. They scoured
the campus of Pugaro Elementary School and the
seashore in vain. They even returned to the school and
inspected every classroom but to no avail. Tired and
distraught, Maximo started on his way home. When he well.[7] Acting on this lead, the policemen returned to
was about five (5) meters away from his house, Pugaro and arrested accused-appellant.
Maximo, who was then carrying a flashlight, saw herein
accused-appellant Delfin Rondero pumping the artesian An autopsy of the body of the victim conducted by the
well about one (1) meter away. Accused-appellant had Assistant City Health Officer of Dagupan City, Dr.
an ice pick clenched in his mouth and was washing his Tomas G. Cornel, revealed the following injuries:
bloodied hands.[2]
EXTERNAL FINDINGS
Maximo hastily returned to the school and told
Kagawad Andong what he saw without, however, 1. Contusion hematoma, anterior chest wall, along the
revealing that the person he saw was the latters own midclavicular line, level of the 2nd intercostal space,
son.[3] Maximo and Andong continued their search for right.
Mylene but after failing to find her, the two men
decided to go home. After some time, a restless 2. Contusion hematoma, along the parasternal line, level
Maximo began to search anew for her daughter. He of the 1st intercostal space, left.
again sought the help of Andong and the barangay
3. Contusion hematoma, posterior aspect, shoulder, left.
secretary. The group returned to Pugaro Elementary
School where they found Mylenes lifeless body lying
4. Contusion hematoma, anterior axillary line, level of
on a cemented pavement near the canteen.[4] Her right
the 3rd intercostal space. left.
hand was raised above her head, which was severely
bashed, and her fractured left hand was behind her
5. Contusion hematoma, anterior aspect, neck.
back. She was naked from the waist down and had
several contusions and abrasions on different parts of 6. Contusion hematoma, lower jaw, mid portion.
her body. Tightly gripped in her right hand were some
hair strands. A blue rubber slipper with a tiny leaf 7. Contusion hematoma, periorbital, right.
painted in red was found beside her body while the
other slipper was found behind her back. 8. Lacerated wound, 1x x , maxillary area, right.
Half an hour later, five (5) policemen arrived at the 9. Contusion hematoma, temporal area, left.
scene and conducted a spot investigation. They found a
pair of shorts[5] under Mylenes buttocks, which Maximo 10. Contusion hematoma, mid frontal area.
identified as hers. Thereafter, Maximo led the
11. Lacerated wound x x , frontal area, left.
policemen to the artesian well where he had seen
accused-appellant earlier washing his hands. The
12. Contusion hematoma, occipital area, right.
policemen found that the artesian well was spattered
with blood.[6] After the investigation, the policemen,
13. Abrasion, medial anterior aspect, elbow, left.
together with Maximo, went back to their headquarters
in Dagupan City. There, Maximo disclosed that before
14. Abrasion, lateral aspect, buttock, right.
they found Mylenes body, he saw accused-appellant
washing his bloodstained hands at the artesian 15. Abrasion, antero lateral aspect, iliac crest, right.
16. Contusion hematoma, upper lip.
17. Avulsion, upper central and lateral incisors.
18. Fresh laceration of the hymen at 1:00 oclock, 6:00
oclock and 9:00 oclock position. Fresh laceration of the
labia minora at 6:00 oclock and 9:00 oclock position.
INTERNAL FINDINGS
Massive intracranial hemorrhage with brain tissue
injury. Fracture of the right occipital bone.
Note:
Vaginal smear was done at the Gov. Teofilo Sison
Memorial Provl Hosp. Laboratory and the result
showed no sperm cell seen. (March 26, 1994)
Cause of death: Cardio Respiratory Arrest
Due to: Massive Intracranial Hemorrhage Traumatic[8]
For Mylenes burial, her parents spent P5,043.00 during
her wake,[9] P9,000.00 for funeral expenses[10] and
P850.00 for church services and entombment.[11]
On March 28, 1994, the hair strands which were found
on the victims right hand and at the scene of the crime,
together with hair specimens taken from the victim and
accused-appellant, were sent to he National Bureau of
Investigation (NBI) for laboratory examination.[12]
Meanwhile, on March 30, 1994, accused-appellant was
formally charged with the special complex crime of
rape with homicide in an information which reads:
The undersigned 4th Assistant City Prosecutor accuses
DELFIN RONDERO y Sigua, of Pugaro District,
Dagupan City, of the crime of RAPE WITH
HOMICIDE, committed as follows:
That on or about the 26th day of March, 1994, in the
city of Dagupan, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused,
DELFIN RONDERO y Sigua, did then and there,
wilfully, unlawfully, criminally, and forcibly have
carnal knowledge with one MYLENE J. DORIA, a 9-
year old girl, against her will and consent, and
thereafter, with intent to kill, criminally and unlawfully
employed violence against her person, thereby causing
the death of said MYLENE J. DORIA, as evidenced by
the Autopsy Report issued by Dr. Tomas G. Cornel,
Asst. City Health Officer, this city, to the damage and
prejudice of the legal heirs of said deceased, MYLENE
J. DORIA in the amount of not less than FIFTY
THOUSAND PESOS (P50,000.00), Philippine
currency, and other consequential damages.
Contrary to Article 335 in relation to Article 249 of the
Revised Penal Code.
Accused-appellant pleaded not guilty at his
arraignment. In the meantime, the NBI sent a fax
message to the Dagupan City Police Station saying that
it could not conduct an examination on the hair strands
because the proper comparative specimens were not
given. The NBI suggested that hair strands be pulled,
not cut, from the suspect and from the victim on the
four regions of their heads so that all parts of the hair
strands, from root to tip, may be
presented.[13] Thereupon, accused-appellant, who
executed a waiver of detention including a waiver of the
provisions of Section 12, Article III of the Constitution
on the rights of the accused during custodial
investigation,[14] was allegedly convinced by a certain
Major Wendy Ocampo to give sample hair
strands. Another police officer went to the Dorias
residence to get hair samples from Mylene, who had not
yet been interred. The hair strands taken from accused-
appellant and the victim were later indorsed to the NBI
for laboratory testing.[15] Comparative micro-physical
examination on the specimens showed that the hair
strands found on the right hand of the victim had similar
characteristics to those of accused-appellants, while the
hair specimen taken from the crime scene showed
similar characteristics to those of the victims. [16] Alicia
P. Liberato, the NBI Senior Forensic Chemist who
conducted the microscopic examination on the hair
samples, later reiterated the aforesaid findings in
court.[17]
At the trial, Dr. Cornel, the physician who conducted
the autopsy on Mylene at around 9:30 oclock in the
morning of March 26, 1994, testified that the victims
death probably occurred before 11:00 oclock in the
evening of March 25, 1994 judging from the rigidity of
her lower and upper extremities. He explained that the
contusions and hematoma found on Mylenes body were
possibly caused by a blunt instrument, a clenched fist or
a piece of wood.[18] The lacerated wounds on her face
may have been caused by a bladed instrument, not
necessarily sharp, or by hitting her head on a concrete
wall with jagged edges. The abrasions on her elbow,
right buttock and upper hip may have been caused by a
rough object that came in contact with her skin. [19] Dr.
Cornel also explained that the victims upper and lateral
incisors may have been avulsed by a sudden blow in the
mouth using a blunt instrument, stone or wood. He
added that the fresh hymenal lacerations at 1:00 o'clock,
6:00 oclock and 9:00 oclock positions and the fresh
laceration of the labia minora at 6:00 oclock and 9:00
oclock positions could have been caused either by
sexual intercourse or by an object forcibly inserted in
Mylenes vagina.[20]
Accused-appellant resolved not to testify at the trial,
opting instead to present his wife and his father as
witnesses to account for his whereabouts on the night of
the gruesome incident.
Christine Gonzales, wife of accused-appellant, testified
that on March 25, 1994, at around 7:00 oclock in the
evening, she had a quarrel with her husband. Accused-
appellant was then slightly drunk and apparently irked
when supper was not yet ready. He slapped his wife and
shouted invectives at her, causing a disturbance in the
neighborhood and prompting his father, who lived just a
house away, to intervene. When accused-appellant
refused to be pacified, his father hit him in the nose,
mouth and different parts of the body.[21] His father left
accused-appellant profusely bleeding. Accused-
appellant then changed his blood-stained clothes and
went to bed with his wife. It was a little after 8:00
oclock in the evening.
Christine woke up the next day at around 7:00 oclock in
the morning. She washed some clothes including the
blood-stained ones her husband wore the night
before. After doing the laundry, she went out to pay her
father a visit. On her way back home, Christine was
informed by a child that her husband was arrested by
the police. Christine rushed home and found some
policemen taking the newly washed undershirt and short
pants of accused-appellant from the clothesline. The
policemen brought Christine with them to the police
headquarters for questioning. When asked about the
blood on her husbands clothes, Christine told them
about their quarrel the night before.[22]
Accused-appellants father, Leonardo Rondero,
corroborated Christines story. He testified that on the
night in question, at around 7:00 oclock in the evening,
he was resting at home, located only a house away from
his sons, when he heard the latter having a heated
discussion with Christine. Embarrassed at the scene that
his son was creating at such an hour, Leonardo went to
he couples house to pacify the slightly inebriated
accused-appellant. Accused-appellant ignored his father
and continued shouting at his wife. Leonardo then hit
him several times causing his nose and mouth to bleed
profusely that it stained his sando and short
pants. Startled at the injuries that his son sustained,
Leonardo went home. Early the next morning, March
26, 1994, at around 1:30 oclock, Leonardo was
awakened by his neighbor, Maximo Doria, who sought
his assistance to search for his missing nine-year old
daughter Mylene. Leonardo willingly obliged. Thus,
Maximo, Leonardo and the barangay secretary searched
the nearby houses for hours but failed to find
Mylene.[23]
On October 13, 1995, the trial court rendered
judgment[24] convicting accused-appellant of the crime
of murder and sentencing him to death. The dispositive
portion of the decision reads:
WHEREFORE:
For the crime you had wilfully and deliberately
committed, this court finds you guilty beyond
reasonable doubt of the crime of murder defined and
punished by Section 6 of Republic Act No. 7659, in
relation to Article 248 of the Revised Penal Code,
together with all its attendant aggravating circumstances
without any mitigating circumstance of whatever
nature.
You, Delfin Rondero, are hereby therefore sentenced to
die by electrocution pursuant to Article 81 of Republic
Act No. 7659, for your heinous crime as charged in the
information as a punishment and as an example to
future offenders.
You are hereby further ordered to indemnify the heirs of
the victim by paying to them an amount of P60,000.00
for the loss of life of Mylene J. Doria; P15,000.00 for
consequential damages and P100,000.00 as moral
damages.
May God have mercy on your soul.
SO ORDERED.[25]
Accused-appellant moved for reconsideration. On
November 10, 1995, the trial court issued an order
modifying its earlier decision, convicting accused-
appellant of the crime of homicide and sentencing him
to suffer the penalty of reclusion perpetua instead, on
the ground that under Section 10 of Republic Act No.
7610, otherwise known as the Special Protection of
Children Against Child Abuse, Exploitation and
Discrimination Act, the penalty for homicide
is reclusion perpetua when the victim is under twelve
(12) years of age.[26]
In this appeal, accused-appellant raises the following
assignment of errors:
I. THE LOWER COURT ERRED IN FINDING
ACCUSED-APPELLANT GUILTY OF THE CRIME
OF MURDER AMENDED TO HOMICIDE AND
SENTENCING HIM TO SUFFER LIFE
IMPRISONMENT (sic) AND TO INDEMNIFY THE
AGGRIEVED PARTY IN THE AMOUNT OF
P175,000.00 BASED ONLY ON CIRCUMSTANTIAL
EVIDENCE.
II. THE LOWER COURT COMMITTED GRAVE
ERROR IN CONVICTING THE ACCUSED OF
HOMICIDE.
III. THE LOWER COURT COMMITTED GRAVE
ERROR IN FINDING ACCUSED GUILTY TO (sic)
THE CRIME OF HOMICIDE DESPITE ILLEGAL
ARREST AND ILLEGAL DETENTION OF
ACCUSED-APPELLANT.[27]
The appeal has no merit.
Accused-appellant argues that the circumstantial
evidence presented by the prosecution is not strong
enough to sustain his conviction, asserting that Maximo
Dorias testimony that he saw him about a meter away
washing his bloodied hands at an artesian well was
highly improbable inasmuch as it was dark at that
time. Accused-appellant also considered it strange that
when Maximo saw him, he did not bother to ask if he
had seen Mylene. Finally, accused-appellant alleges that
the slippers presented in court as evidence are not the
same ones which were recovered at the scene of the
crime since the pictures presented in court did not show
the leaf painted in red on the left slipper.
Section 4, Rule 133 of the Revised Rules of Court
provides:
Sec. 4. Circumstantial evidence, when sufficient.-
Circumstantial evidence is sufficient for conviction if:
(a) There is more than one circumstance;
(b) The facts from which the inferences are derived are
proven; and
(c) The combination of all the circumstances is such as
to produce a conviction beyond reasonable doubt.
Circumstantial evidence is that evidence which proves a
fact or series of facts from which the facts in issue may
be established by inference.[28] Such evidence is
founded on experience and observed facts and
coincidences establishing a connection between the
known and proven facts and the facts sought to be
proved.[29] Circumstantial evidence is sufficient for
conviction in criminal cases when there is more than
one circumstance, derived from facts duly given and the
combination of all is such as to produce conviction
beyond reasonable doubt. The test for accepting
circumstantial evidence as proof of guilt beyond
reasonable doubt is: the series of circumstances duly
proved must be consistent with each other and that each
and every circumstance must be consistent with the
accuseds guilt and inconsistent with his innocence.
In the case at bar, the prosecution avers that there are
several circumstances availing which, when pieced
together, point to accused-appellant as the author of the
gruesome crime committed on the night of March 25,
1994, to wit:
1. A few hours after the victims probable time of death,
Maximo saw accused-appellant, with an ice pick
clenched in his mouth, washing his bloodied hands at an
artesian well.[30]
2. A pair of slippers which Maximo identified as
belonging to accused-appellant was found at the scene
of the crime. One was found beside the victims body
while the other was under her buttocks.[31] Maximo
positively pointed to accused-appellant as the owner of
the pair of slippers because of a distinguishing mark of
the painting of a red leaf on the left slipper. Maximo
said accused-appellant used to frequent their house
wearing the same pair of slippers for over a year.[32]
3. The hair strands which were found on Mylenes right
hand and the hair strands taken from accused-appellant
were shown to have similar characteristics when
subjected to microscopic examination.[33]
4. Accused-appellants undershirt and short pants which
he wore on the night of March 25, 1994 had
bloodstains. His wife admitted having washed the
undershirt and short pants in the early morning of
March 26, 1994.[34]
Contrary to the allegations of accused-appellant, the
evidence presented by the prosecution is sufficient to
sustain his conviction. Maximo stated on the witness
stand that he was able to identify accused-appellant
because he focused his flashlight on him while he was
washing his bloodstained hands at an artesian well
located only a meter away from where Maximo was
standing.[35] Maximo considered it wise not to talk to
accused-appellant because at that time he had an ice
pick clenched in his mouth and looked slightly
drunk. As to the allegation that the slippers presented in
court were not the same ones recovered at the scene of
the crime, suffice it to say that the photographs taken of
the crime scene were not focused only on the pair of
slippers; hence, the red leaf may be too minuscule to be
noticed. In any case, the pair of slippers shown in the
photographs corroborate the testimony of the
prosecutions witnesses that a pair of rubber slippers
were indeed recovered at the scene.
It might not be amiss to note that Maximo was not
shown to have had any motive to impute so grave a
wrong on accused-appellant. Prior to the incident,
accused-appellant used to frequent Maximos house for a
visit.[36] On the night of the incident, Maximo even
sought the help of accused-appellants father to search
for Mylene.
On the other hand, the testimonies of the witnesses for
the defense are incredulous, to say the least. Leonardo
Rondero, accused-appellants father, testified that he
mauled his son in an effort to pacify him during a
heated altercation with his wife, Christine. Leonardo
said that he felt embarrassed because his son was
shouting invectives at Christine and was causing a
scene in the neighborhood so he hit the accused-
appellant several times. Leonardos curious way of
pacifying his son resulted in bodily injuries on the
latter. Strangely, despite his sustained injuries and
profuse bleeding, accused-appellant and his wife just
went to sleep after Leonardo left.[37] We find it
unnatural that a father, a barangay kagawad, would
repeatedly hit his son in an effort to pacify him in the
middle of a marital spat. We find it even more unnatural
that one who was bleeding profusely would act so
insouciant as to just to go to sleep without attending to
his injuries.
Accused-appellant alleges that while in the custody of
police officers, some hair strands were taken from him
without his consent and submitted to the NBI for
investigation, in violation of his right against self
incrimination. Aside from executing a waiver of the
provisions of Article 125 of the Revised Penal Code,
accused-appellant executed a waiver of the provisions
of Article III, Section 12 of the Constitution regarding
the rights of an accused during custodial
investigation.[38] It appears, however, that the waivers
were executed by the accused without the assistance of
a counsel of his own choice.
The use of evidence against the accused obtained by
virtue of his testimony or admission without the
assistance of counsel while under custodial
investigation is proscribed under Sections 12 and 17,
Article III of the Constitution, to wit:
Sec. 12. (1) Any person under investigation for the
commission of an offense shall have the right to be
informed of his right to remain silent and to have
competent and independent counsel preferably of his
own choice. If the person cannot afford the services of
counsel, he must be provided with one. These rights
cannot be waived except in writing and in the presence
of counsel.
(2) No torture, force, violence, threat, intimidation or
any other means which vitiate the free will shall be used
against him. Secret detention places, solitary,
incommunicado, or other similar forms of detention are
prohibited.
(3) Any confession or admission in violation of this or
Section 17 hereof shall be inadmissible in evidence
against him.
xxxxxxxxx
Sec. 17. No person shall be compelled to be a witness
against himself.
The aforesaid rules are set forth in the Constitution as a
recognition of the fact that the psychological if not
physical atmosphere of custodial investigations in the
absence of procedural safeguards is inherently coercive
in nature. However, to paraphrase Justice Sanchez in
the case of Chavez vs. Court of Appeals,[39] Compulsion
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 making rational judgment would be sufficient. So is
moral coercion tending to force testimony from the
unwilling lips of the defendant. Needless to say, the
above-mentioned provisions are an affirmation that
coercion can be mental as well as physical and that the
blood of the accused is not the only hallmark of an
unconstitutional inquisition.[40]
It bears emphasis, however, that under the above-quoted
provisions, what is actually proscribed is the use of
physical or moral compulsion to extort communication
from the accused-appellant and not the inclusion of his
body in evidence when it may be material. For instance,
substance emitted from the body of the accused may be
received as evidence in prosecution for acts of
lasciviousness[41] and morphine forced out of the mouth
of the accused may also be used as evidence against
him.[42] Consequently, although accused-appellant
insists that hair samples were forcibly taken from him
and submitted to the NBI for forensic examination, the
hair samples may be admitted in evidence against him,
for what is proscribed is the use of testimonial
compulsion or any evidence communicative in nature
acquired from the accused under duress.
On the other hand, the blood-stained undershirt and
short pants taken from the accused are inadmissible in
evidence. They were taken without the proper search
warrant from the police officers. Accused-appellants
wife testified that the police officers, after arresting her
husband in their house, took the garments from the
clothesline without proper authority.[43] This was never
rebutted by the prosecution.Under the libertarian
exclusionary rule known as the fruit of the poisonous
tree, evidence illegally obtained by the state should not
be used to gain other evidence because the illegally
obtained evidence taints all evidence subsequently
obtained. Simply put, accused-appellants garments,
having been seized in violation of his constitutional
right against illegal searches and seizure, are
inadmissible in court as evidence.
Nevertheless, even without the admission of the
bloodied garments of the accused as corroborative
evidence, the circumstances obtaining against accused-
appellant are sufficient to establish his guilt.
Having disposed of the foregoing, we now come to the
issue of whether accused-appellant should be convicted
of the special complex crime of rape with homicide.
It is a jurisprudential rule that an appeal throws a whole
case to review and it becomes the duty of the appellate
court to correct such error as may be found in the
judgment appealed from whether they are made the
subject of assigned errors or not.[44]
The trial court dismissed the charge of rape holding that
it has not been adequately proven due to the absence of
spermatozoa in the victims private part. It is well settled
that the absence of spermatozoa in the victims private
part does not negate the commission of rape for the
simple reason that the mere touching of the pudenda by
the male organ is already considered as consummated
rape. Mylene Doria was naked from waist down when
she was found. Her private organ had hymenal
lacerations at 1:00 oclock, 6:00 oclock and 9:00 oclock
positions. There were fresh lacerations in the labia
minora at 6:00 oclock and 9:00 oclock positions as
well. The trial judge even noted that it can be
conclusively deduced that her sex organ was subjected
to a humiliating punishment. While the examining
physician speculated that the lacerations could have
been caused by a piece of wood or rounded object, he
did not rule out the possibility of forcible sexual
intercourse.
The presence of physical injuries on the victim strongly
indicates the employment of force on her
person. Contusion was found on Mylenes face, arms
and thighs. In rape cases, when a woman is forcibly
made to lie down, she will utilize her elbow as the
fulcrum so that abrasions will be observed. In an
attempt to stand, the victim will flex her neck
forward. The offender will then push her head
backwards, causing hematoma at the region of the
occiput. To prevent penetration of the male organ, she
will try to flex her thighs and the offender will give a
strong blow to the inner aspects of both thighs so that
the victim will be compelled to straighten them.[45]
As aptly observed by the Solicitor General, aside from
the hymenal lacerations, the examining physician
testified that Mylene sustained abrasions on her left
elbow, right buttock and right upper hip and contusion
hematoma at the occipital area, i.e., back part of the
head, right side.[46] Indeed, the physical evidence
indubitably tells a harrowing crime committed against
nine-year old Mylene Doria in a manner that no words
can sufficiently describe.
Anent accused-appellants third assignment of error, it
might be true that accused-appellants warrantless arrest
was not lawful. The police officers who arrested him
had no personal knowledge of facts indicating that he
was the perpetrator of the crime just committed. His
warrantless arrest was not based on a personal
knowledge of the police officers indicating facts that he
has committed the gruesome crime but solely on
Maximos suspicion that he was involved in the slaying
of Mylene since he was seen washing his bloodied
hands in the early morning of March 26,
1994.[47] Nevertheless, it is hornbook knowledge that
any irregularity attending the arrest of an accused is
deemed waived when, instead of quashing the
information for lack of jurisdiction over his person, the
accused voluntarily submits himself to the court by
entering a plea of guilty or not guilty during the
arraignment and participating in the proceedings.
Finally, we reiterate that when an accused appeals from
the sentence of the trial court, he waives the
constitutional safeguard against double jeopardy and
throws the whole case open to the review of the P75,000.00 by way of civil indemnity, P50,000.00 as
appellate court, which is then called to render judgment moral damages and P15,000.00 as consequential
as the law and justice dictate, whether favorable or damages.
unfavorable, and whether they are made the subject of
assigned errors or not. This precept should be borne in In accordance with Section 25 of Republic Act No.
mind by every lawyer of an accused who unwittingly 7659, amending Article 83 of the Revised Penal Code,
takes the risk involved when he decides to appeal his upon finality of this decision, let the records of this case
sentence. be forwarded to the Office of the President for possible
exercise of pardoning power.
Accused-appellants guilt having been established
beyond reasonable doubt for the rape and brutal slaying SO ORDERED.
of Mylene Doria, this Court has no other recourse but to
impose the penalty of death upon accused-appellant
Delfin Rondero y Sigua. Under Article 335 of the
Revised Penal Code, as amended by Republic Act No.
7659, when by reason or on occasion of the rape, a
homicide is committed, the penalty shall be death. At
this juncture, it should be stated that four justices of the
court have continued to maintain the unconstitutionality
of R.A. No. 7659 insofar as it prescribes the death
penalty; nevertheless, they submit to the ruling of the
majority to the effect that this law is constitutional and
that the death penalty can be lawfully imposed in the
case at bar.
The award of P50,000.00 as indemnity to the heirs of
the victim is increased to P75,000.00 in line with our
ruling in People vs. Mahinay.[48] The award of moral
damages in the sum of P100,000.00 is reduced to
P50,000.00. Further, accused-appellant is ordered to
pay the sum of P15,000.00 as consequential damages.
WHEREFORE, the decision of the Regional Trial
Court, Branch 41, Dagupan City finding accused-
appellant Delfin Rondero y Sigua guilty beyond
reasonable doubt of the crime of homicide is
MODIFIED. Accused-appellant Delfin Rondero y
Sigua is found guilty beyond reasonable doubt of the
charge of special complex crime of rape with homicide
committed against Mylene J. Doria and is accordingly
sentenced to suffer the supreme penalty of DEATH. He
is also ordered to pay the heirs of the victim the sum of
SOCIAL JUSTICE SOCIETY (SJS), G.R. No. 157870 PUNO, C.J., VELASCO, JR., J.:

Petitioner, QUISUMBING, In these kindred petitions, the constitutionality of

Section 36 of Republic Act No. (RA) 9165, otherwise
- versus - YNARES-SANTIAGO, known as the Comprehensive Dangerous Drugs Act of
2002, insofar as it requires mandatory drug testing of
CARPIO, candidates for public office, students of secondary and
tertiary schools, officers and employees of public and
DANGEROUS DRUGS BOARD and AUSTRIA-MARTINEZ, private offices, and persons charged before the
- versus - CORONA, prosecutors office with certain offenses, among other
PHILIPPINE DRUG ENFORCEMENT
personalities, is put in issue.
CARPIO MORALES,
AGENCY (PDEA),
AZCUNA,
Respondents.
As far as pertinent, the challenged section reads as
TINGA,
follows:
x-----------------------------------------------x
CHICO-NAZARIO,
SEC. 36. Authorized Drug Testing.Authorized drug
ATTY. MANUEL J. LASERNA, JR., G.R. No. 158633
testing shall be done by any government forensic
VELASCO, JR.,
Petitioner, laboratories or by any of the drug testing laboratories
NACHURA, accredited and monitored by the DOH to safeguard the
quality of the test results. x x x The drug testing shall
REYES, employ, among others, two (2) testing methods, the
- versus - screening test which will determine the positive result
LEONARDO-DE CASTRO, and as well as the type of drug used and the confirmatory
test which will confirm a positive screening test. x x
BRION, JJ. x The following shall be subjected to undergo drug
DANGEROUS DRUGS BOARD and testing:

PHILIPPINE DRUG ENFORCEMENT

COMMISSION ON ELECTIONS, Promulgated:
AGENCY, xxxx
Respondent.
Respondents.
November 3, 2008
x-----------------------------------------------x (c) Students of secondary and tertiary schools.Students
x------------------------------------------------------------------ of secondary and tertiary schools shall, pursuant to the
AQUILINO Q. PIMENTEL, JR., G.R. No. 161658 -----------------------x related rules and regulations as contained in the schools
student handbook and with notice to the parents,
Petitioner, DECISION undergo a random drug testing x x x;

Present:
(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 companys 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
(f) All persons charged before the prosecutors 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 on the mandatory drug testing
of candidates for public office in 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
persons 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]
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.
Pimentels 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 Rights[12] 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 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
seizure[16] under Sec. 2, Art. III[17] 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 VernoniaSchool 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 schools 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 schools drug testing policy violated, inter alia,
the Fourth Amendment[19] 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 students
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 Fourth[20] 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 schools 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, 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 Nations schoolchildren is as important as
enhancing efficient enforcement of the Nations 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 Lasernas 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
citizens 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 ones person or from
intrusion into ones private activities in such a way as to
cause humiliation to a persons 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 states
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 individuals 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 employeesand
students for that matterunder 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
companys 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 companys 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 employees 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 individuals privacy
interest under the premises. The Court can consider that
the illegal drug menace cuts across gender, age group,
and social- economic lines. And it may not be amiss to
state that the sale, manufacture, or trafficking of illegal
drugs, with their ready market, would be an investors
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 companys 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)
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. 9165 CONSTITUTIONAL, but declaring its Sec.
In the case of private and public employees, the 36(f) UNCONSTITUTIONAL. All concerned agencies
constitutional soundness of the mandatory, random, and are, accordingly, permanently enjoined from
suspicionless drug testing proceeds from the implementing Sec. 36(f) and (g) of RA 9165. No costs.
reasonableness of the drug test policy and requirement.
SO ORDERED.
We find the situation entirely different in the case of
persons charged before the public prosecutors 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 prosecutors 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
prosecutors 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
G.R. No. 203335 February 11, 2014 G.R. No. 203359 STUDENTS OF THE PHILIPPINES, ET
AL., Petitioners,
JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, SENATOR TEOFISTO DL GUINGONA vs.
LIANNE IVY P. MEDINA, JANETTE TORAL and III, Petitioner, PAQUITO N. OCHOA, JR., in his capacity as
ERNESTO SONIDO, JR., Petitioners, vs. Executive Secretary and alter-ego of President Benigno
vs. EXECUTIVE SECRETARY, THE SECRETARY OF Simeon Aquino III, LEILA DE LIMA in her capacity as
THE SECRETARY OF JUSTICE, THE SECRETARY JUSTICE, THE SECRETARY OF THE Secretary of Justice, Respondents.
OF THE DEPARTMENT OF THE INTERIOR AND DEPARTMENT OF INTERIOR AND LOCAL
LOCAL GOVERNMENT, THE EXECUTIVE GOVERNMENT, THE CHIEF OF THE PHILIPPINE x-----------------------x
DIRECTOR OF THE INFORMATION AND NATIONAL POLICE, and DIRECTOR OF THE
COMMUNICATIONS TECHNOLOGY OFFICE, THE NATIONAL BUREAU OF G.R. No. 203407
CHIEF OF THE PHILIPPINE NATIONAL POLICE INVESTIGATION, Respondents.
and THE DIRECTOR OF THE NATIONAL BUREAU BAGONG ALYANSANG MAKABAYAN
OF INVESTIGATION, Respondents. x-----------------------x SECRETARY GENERAL RENATO M. REYES, JR.,
National Artist BIENVENIDO L. LUMBERA,
x-----------------------x G.R. No. 203378 Chairperson of Concerned Artists of the Philippines,
ELMER C. LABOG, Chairperson of Kilusang Mayo
G.R. No. 203299 ALEXANDER ADONIS, ELLEN TORDESILLAS, Uno, CRISTINA E. PALABAY, Secretary General of
MA. GISELA ORDENES-CASCOLAN, H. HARRY L. Karapatan, FERDINAND R. GAITE, Chairperson of
LOUIS "BAROK" C. BIRAOGO, Petitioner, ROQUE, JR., ROMEL R. BAGARES, and GILBERT COURAGE, JOEL B. MAGLUNSOD, Vice President
vs. T. ANDRES, Petitioners, of Anakpawis Party-List, LANA R. LINABAN,
NATIONAL BUREAU OF INVESTIGATION and vs. Secretary General Gabriela Women's Party, ADOLFO
PHILIPPINE NATIONAL POLICE, Respondents. THE EXECUTIVE SECRETARY, THE ARES P. GUTIERREZ, and JULIUS GARCIA
DEPARTMENT OF BUDGET AND MATIBAG, Petitioners,
x-----------------------x MANAGEMENT, THE DEPARTMENT OF JUSTICE, vs.
THE DEPARTMENT OF THE INTERIOR AND BENIGNO SIMEON C. AQUINO III, President of the
G.R. No. 203306 LOCAL GOVERNMENT, THE NATIONAL Republic of the Philippines, PAQUITO N. OCHOA,
BUREAU OF INVESTIGATION, THE PHILIPPINE JR., Executive Secretary, SENATE OF THE
ALAB NG MAMAMAHAYAG (ALAM), NATIONAL POLICE, AND THE INFORMATION PHILIPPINES, represented by SENATE PRESIDENT
HUKUMAN NG MAMAMAYAN MOVEMENT, AND COMMUNICATIONS TECHNOLOGY JUAN PONCE ENRILE, HOUSE OF
INC., JERRY S. YAP, BERTENI "TOTO" CAUSING, OFFICE-DEPARTMENT OF SCIENCE AND REPRESENTATIVES, represented by SPEAKER
HERNANI Q. CUARE, PERCY LAPID, TRACY TECHNOLOGY, Respondents. FELICIANO BELMONTE, JR., LEILA DE LIMA,
CABRERA, RONALDO E. RENTA, CIRILO P.
Secretary of the Department of Justice, LOUIS
SABARRE, JR., DERVIN CASTRO, ET x-----------------------x NAPOLEON C. CASAMBRE, Executive Director of
AL., Petitioners,
the Information and Communications Technology
vs. G.R. No. 203391 Office, NONNATUS CAESAR R. ROJAS, Director of
OFFICE OF THE PRESIDENT, represented by
the National Bureau of Investigation, D/GEN.
President Benigno Simeon Aquino III, SENATE OF HON. RAYMOND V. PALATINO, HON. ANTONIO
NICANOR A. BARTOLOME, Chief of the Philippine
THE PHILIPPINES, and HOUSE OF TINIO, VENCER MARI CRISOSTOMO OF
National Police, MANUEL A. ROXAS II, Secretary of
REPRESENTATIVES, Respondents. ANAKBAYAN, MA. KATHERINE ELONA OF THE
the Department of the Interior and Local
PHILIPPINE COLLEGIAN, ISABELLE THERESE
Government, Respondents.
x-----------------------x BAGUISI OF THE NATIONAL UNION OF
x-----------------------x COORDINATING CENTER, AND ALL AGENCIES represented by FELICIANO R. BELMONTE, JR., in
AND INSTRUMENTALITIES OF GOVERNMENT his capacity as Speaker of the House of
G.R. No. 203440 AND ALL PERSONS ACTING UNDER THEIR Representatives; HON. PAQUITO N. OCHOA, JR., in
INSTRUCTIONS, ORDERS, DIRECTION IN his capacity as Executive Secretary; HON. LEILA M.
MELENCIO S. STA. MARIA, SEDFREY M. RELATION TO THE IMPLEMENTATION OF DE LIMA, in her capacity as Secretary of Justice;
CANDELARIA, AMPARITA STA. MARIA, RAY REPUBLIC ACT NO. 10175, Respondents. HON. LOUIS NAPOLEON C. CASAMBRE, in his
PAOLO J. SANTIAGO, GILBERT V. SEMBRANO, capacity as Executive Director, Information and
and RYAN JEREMIAH D. QUAN (all of the Ateneo x-----------------------x Communications Technology Office; HON.
Human Rights Center),Petitioners, NONNATUS CAESAR R. ROJAS, in his capacity as
vs. G.R. No. 203454 Director, National Bureau of Investigation; and
HONORABLE PAQUITO OCHOA in his capacity as P/DGEN. NICANOR A. BARTOLOME, in his
Executive Secretary, HONORABLE LEILA DE LIMA PAUL CORNELIUS T. CASTILLO & RYAN D. capacity as Chief, Philippine National
in her capacity as Secretary of Justice, HONORABLE ANDRES, Petitioners, Police, Respondents.
MANUEL ROXAS in his capacity as Secretary of the vs.
Department of Interior and Local Government, The THE HON. SECRETARY OF JUSTICE THE HON. x-----------------------x
CHIEF of the Philippine National Police, The SECRETARY OF INTERIOR AND LOCAL
DIRECTOR of the National Bureau of Investigation (all GOVERNMENT,Respondents. G.R. No. 203501
of the Executive Department of
Government), Respondents. x-----------------------x PHILIPPINE BAR ASSOCIATION, INC., Petitioner,
vs.
x-----------------------x G.R. No. 203469 HIS EXCELLENCY BENIGNO S. AQUINO III, in his
official capacity as President of the Republic of the
G.R. No. 203453 ANTHONY IAN M. CRUZ; MARCELO R. Philippines; HON. PAQUITO N. OCHOA, JR., in his
LANDICHO; BENJAMIN NOEL A. ESPINA; official capacity as Executive Secretary; HON. LEILA
NATIONAL UNION OF JOURNALISTS OF THE MARCK RONALD C. RIMORIN; JULIUS D. M. DE LIMA, in her official capacity as Secretary of
PHILIPPINES (NUJP), PHILIPPINE PRESS ROCAS; OLIVER RICHARD V. ROBILLO; AARON Justice; LOUIS NAPOLEON C. CASAMBRE, in his
INSTITUTE (PPI), CENTER FOR MEDIA ERICK A. LOZADA; GERARD ADRIAN P. official capacity as Executive Director, Information and
FREEDOM AND RESPONSIBILITY, ROWENA MAGNAYE; JOSE REGINALD A. RAMOS; MA. Communications Technology Office; NONNATUS
CARRANZA PARAAN, MELINDA QUINTOS-DE ROSARIO T. JUAN; BRENDALYN P. RAMIREZ; CAESAR R. ROJAS, in his official capacity as Director
JESUS, JOSEPH ALWYN ALBURO, ARIEL MAUREEN A. HERMITANIO; KRISTINE JOY S. of the National Bureau of Investigation; and
SEBELLINO AND THE PETITIONERS IN THE e- REMENTILLA; MARICEL O. GRAY; JULIUS IVAN DIRECTOR GENERAL NICANOR A.
PETITION http://www.nujp.org/no-to- F. CABIGON; BENRALPH S. YU; CEBU BARTOLOME, in his official capacity as Chief of the
ra10175/, Petitioners, BLOGGERS SOCIETY, INC. PRESIDENT RUBEN Philippine National Police,Respondents.
vs. B. LICERA, JR; and PINOY EXPAT/OFW BLOG
THE EXECUTIVE SECRETARY, THE SECRETARY AWARDS, INC. COORDINATOR PEDRO E. x-----------------------x
OF JUSTICE, THE SECRETARY OF THE INTERIOR RAHON; Petitioners,
AND LOCAL GOVERNMENT, THE SECRETARY vs. G.R. No. 203509
OF BUDGET AND MANAGEMENT, THE HIS EXCELLENCY BENIGNO S. AQUINO III, in his
DIRECTOR GENERAL OF THE PHILIPPINE capacity as President of the Republic of the Philippines; BAYAN MUNA REPRESENTATIVE NERI J.
NATIONAL POLICE, THE DIRECTOR OF THE SENATE OF THE PHILIPPINES, represented by COLMENARES, Petitioner,
NATIONAL BUREAU OF INVESTIGATION, THE HON. JUAN PONCE ENRILE, in his capacity as vs.
CYBERCRIME INVESTIGATION AND Senate President; HOUSE OF REPRESENTATIVES,
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;
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."6Since 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.
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 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.30The 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:
(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 freedom of expression. Unsolicited advertisements are
commercial communications, also known as "spam." legitimate forms of expression.
The term "spam" surfaced in early internet chat rooms
and interactive fantasy games. One who repeats the Articles 353, 354, and 355 of the Penal Code
same sentence or comment was said to be making a
"spam." The term referred to a Monty Python’s Flying Section 4(c)(4) of the Cyber Crime Law
Circus scene in which actors would keep saying "Spam,
Spam, Spam, and Spam" when reading options from a Petitioners dispute the constitutionality of both the
menu.35 penal code provisions on libel as well as Section 4(c)(4)
of the Cybercrime Prevention Act on cyberlibel.
The Government, represented by the Solicitor General,
points out that unsolicited commercial communications The RPC provisions on libel read:
or spams are a nuisance that wastes the storage and
Art. 353. Definition of libel. — A libel is public and
network capacities of internet service providers, reduces
malicious imputation of a crime, or of a vice or defect,
the efficiency of commerce and technology, and
real or imaginary, or any act, omission, condition,
interferes with the owner’s peaceful enjoyment of his
status, or circumstance tending to cause the dishonor,
property. Transmitting spams amounts to trespass to
discredit, or contempt of a natural or juridical person, or
one’s privacy since the person sending out spams enters
to blacken the memory of one who is dead.
the recipient’s domain without prior permission. The
OSG contends that commercial speech enjoys less
Art. 354. Requirement for publicity. — Every
protection in law.
defamatory imputation is presumed to be malicious,
even if it be true, if no good intention and justifiable
But, firstly, the government presents no basis for
motive for making it is shown, except in the following
holding that unsolicited electronic ads reduce the
cases:
"efficiency of computers." Secondly, people, before the
arrival of the age of computers, have already been
1. A private communication made by any person to
receiving such unsolicited ads by mail. These have
another in the performance of any legal, moral or social
never been outlawed as nuisance since people might
duty; and
have interest in such ads. What matters is that the
recipient has the option of not opening or reading these 2. A fair and true report, made in good faith, without
mail ads. That is true with spams. Their recipients any comments or remarks, of any judicial, legislative or
always have the option to delete or not to read them. other official proceedings which are not of confidential
nature, or of any statement, report or speech delivered
To prohibit the transmission of unsolicited ads would
in said proceedings, or of any other act performed by
deny a person the right to read his emails, even
public officers in the exercise of their functions.
unsolicited commercial ads addressed to him.
Commercial speech is a separate category of speech Art. 355. Libel means by writings or similar means. —
which is not accorded the same level of protection as A libel committed by means of writing, printing,
that given to other constitutionally guaranteed forms of lithography, engraving, radio, phonograph, painting,
expression but is nonetheless entitled to theatrical exhibition, cinematographic exhibition, or any
protection.36 The State cannot rob him of this right similar means, shall be punished by prision correccional
without violating the constitutionally guaranteed
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
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.48Indeed, 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.
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 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,
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 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 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.
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.
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 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
c. Section 19 of the same Act that authorizes the
Department of Justice to restrict or block access to
suspected Computer Data.
2. VALID and CONSTITUTIONAL:
a. Section 4(a)(1) that penalizes accessing a computer
system without right;
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;
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 4(c)(2) on Child Pornography, 4(c)(3) on
Unsolicited Commercial Communications, and 4(c)(4)
on online Libel.1âwphi1
Lastly, the Court RESOLVES to LEAVE THE
DETERMINATION of the correct application of
Section 7 that authorizes prosecution of the offender
under both the Revised Penal Code and Republic Act
10175 to actual cases, WITH THE EXCEPTION of the
crimes of:
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.
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
communication of himself to others, in light of the
environmental conditions and social norms set by the
society in which he lives.
- Alan Westin, Privacy and Freedom (1967)
The Case
Before Us is a Petition for Review on Certiorari under
Rule 45 of the Rules of Court, in relation to Section 19
of A.M. No. 08-1-16-SC,1 otherwise known as the
"Rule on the Writ of Habeas Data." Petitioners herein
assail the July 27, 2012 Decision2 of the Regional Trial
Court, Branch 14 in Cebu City (RTC) in SP. Proc. No.
19251-CEB, which dismissed their habeas data petition.
The Facts
Nenita Julia V. Daluz (Julia) and Julienne Vida Suzara
(Julienne), both minors, were, during the period
material, graduating high school students at St.
Theresa's College (STC), Cebu City. Sometime in
January 2012, while changing into their swimsuits for a
beach party they were about to attend, Julia and
Julienne, along with several others, took digital pictures
of themselves clad only in their undergarments. These
pictures were then uploaded by Angela Lindsay Tan
(Angela) on her Facebook3 profile.
Back at the school, Mylene Rheza T. Escudero
(Escudero), a computer teacher 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,4but 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-38594.7In it, Tan prayed that defendants
therein be enjoined from implementing the sanction that
precluded Angela from joining the commencement
exercises.
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
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,26promulgated on January30, 2013, recognized that
"[t]he law has to 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.38Otherwise, 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 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."51Thus, 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 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.
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.