EN BANC invoking section 11, Rule 108, and the objection was sustained.
invoking section 11, Rule 108, and the objection was sustained. In view thereof, the accused refused to
G.R. No. L-2068 October 20, 1948
DOMINADOR B. BUSTOS, Petitioner, vs. ANTONIO G. LUCERO, Judge of First Instance of Pampanga,
Respondent.
E. M. Banzali for petitioner.
Acting Provincial Fiscal Albino L. Figueroa and Assistant Provincial Fiscal Marcelo L. Mallari for
respondent
TUASON, J.:
The petitioner herein, an accused in a criminal case, filed a motion with the Court of First Instance of
Pampanga after he had been bound over to that court for trial, praying that the record of the case be
remanded to the justice of the peace court of Masantol, the court of origin, in order that the petitioner
might cross-examine the complainant and her witnesses in connection with their testimony, on the
strength of which warrant was issued for the arrest of the accused. The motion was denied and that
denial is the subject matter of this proceeding.ch
According to the memorandum submitted by the petitioner's attorney to the Court of First Instance in
support of his motion, the accused, assisted by counsel, appeared at the preliminary investigation. In that
investigation, the justice of the peace informed him of the charges and asked him if he pleaded guilty or
not guilty, upon which he entered the plea of not guilty. "Then his counsel moved that the complainant
present her evidence so that she and her witnesses could be examined and cross-examined in the
manner and form provided by law." The fiscal and the private prosecutor objected, invoking section 11 of
rule 108, and the objection was sustained. "In view thereof, the accused's counsel announced his
intention to renounce his right to present evidence," and the justice of the peace forwarded the case to
the court of first instance.
Leaving aside the question whether the accused, after renouncing his right to present evidence, and by
reason of that waiver he was committed to the corresponding court for trial, is estopped, we are of the
opinion that the respondent judge did not act in excess of his jurisdiction or in abuse of discretion in
refusing to grant the accused's motion to return the record for the purpose set out therein. In Dequito
and Saling Buhay vs. Arellano, G.R. No. L-1336, recently promulgated, in which case the respondent
justice of the peace had allowed the accused, over the complaint's objection, to recall the complainant
and her witnesses at the preliminary investigation so that they might be cross-examined, we sustained
the justice of the peace's order. We said that section 11 of Rule 108 does not curtail the sound discretion
of the justice of the peace on the matter. We said that "while section 11 of Rule 108 defines the bounds
of the defendant's right in the preliminary investigation, there is nothing in it or any other law restricting
the authority, inherent in a court of justice, to pursue a course of action reasonably calculated to bring
out the truth."
But we made it clear that the "defendant can not, as a matter of right, compel the complaint and his
witnesses to repeat in his presence what they had said at the preliminary examination before the
issuance of the order of arrest." We called attention to the fact that "the constitutional right of an
accused to be confronted by the witnesses against him does not apply to preliminary hearings' nor will
the absence of a preliminary examination be an infringement of his right to confront witnesses." As a
matter of fact, preliminary investigation may be done away with entirely without infringing the
constitutional right of an accused under the due process clause to a fair trial.
The foregoing decision was rendered by a divided court. The minority went farther than the majority and
denied even any discretion on the part of the justice of the peace or judge holding the preliminary
investigation to compel the complainant and his witnesses to testify anew.
Upon the foregoing considerations, the present petition is dismissed with costs against the petitioner.
Moran, C.J., Paras, Pablo, Bengzon, and Briones, JJ., concur.
Separate Opinions
FERIA, J., dissenting:
I am sorry to dissent from the decision.
The petitioner in the present case appeared at the preliminary investigation before the Justice of the
Peace of Masantol, Pampanga, and after being informed of the criminal charges against him and asked if
he pleaded guilty or not guilty, pleaded not guilty. "Then the counsel for the petitioner moved that the
complainant present her evidence so that her witnesses could be examined and cross-examined in the
manner and form provided by law." The fiscal and the private prosecutor objected to petitioner's motion
present his evidence, and the case was forwarded to the Court of First Instance of Pampanga.
The counsel for the accused petitioner filed a motion with the Court of First Instance praying that the
record of the case be remanded to the justice of the peace of Masantol, in order that the petitioner
might cross-examine the complainant and her witnesses in connection with their testimony. The motion
was denied, and for that reason the present special civil action of mandamus was instituted.
It is evident that the refusal or waiver of the petitioner to present his evidence during the investigation in
the justice of the peace, was not a waiver of his alleged right to be confronted with and cross-examine
the witnesses for the prosecution, that is, of the preliminary investigation provided for in General Order
No. 58 and Act No. 194, to which he claims to be entitled, as shown by the fact that, as soon as the case
was forwarded to the Court of First Instance, counsel for the petitioner filed a motion with said court to
remand the case to the Justice of the Peace of Masantol ordering the latter to make said preliminary
investigation. His motion having been denied, the petitioner has filed the present action in which he
squarely attacks the validity of the provision of section 11, Rule 108, on the ground that it deprives him of
the right to be confronted with and cross-examine the witnesses for the prosecution, contrary to the
provision of section 13, Article VIII, of the Constitution.
In the case of Dequito and Saling Buhay vs. Arellano, No. L-1336, we did not discuss and decide the
question of validity or constitutionality of said section 11 in connection with section 1 of Rule 108,
because that question was not raised therein, and we merely construed the provisions on preliminary
investigation or Rule 108. In said case the writer of this dissenting opinion said:
It may not be amiss to state that, modesty aside, the writer of this dissenting opinion, then a practising
attorney, was the one who prepared the draft of the Rules of Court relating to criminal procedure, and
the provisions on preliminary investigation in the draft were the same as those of the old law, which gave
the defendant the right to be confronted with and to cross-examine the witnesses for the prosecution.
But the Supreme Court approved and adopted in toto the draft, except the part referring to preliminary
investigation which it modified, by suppressing said right and enacting, in its stead, the provisions of
section 11 of Rule 108 in its present form. I prefer the old to the new procedure. But I can not subscribe
to the majority decision, which is a judicial legislation and makes the exercise of the right of a defendant
to be confronted, with and cross-examine the witnesses against him, to depend entirely upon the whim
or caprice of a judge or officer conducting the preliminary investigation.
But now the question of the validity of said section 11, Rule 108, is squarely presented to this Court for
decision, we have perforce to pass upon it.
Section 13, Article VIII, of the Constitution prescribes that "the Supreme Court shall have power to
promulgate rules concerning pleading, practice and procedure in all courts, but said rules shall not
diminish, increase or modify substantive rights." The constitution added the last part of the above-
quoted constitutional precept in order to emphasize that the Supreme Court is not empowered, and
therefore can not enact or promulgate substantive laws or rules, for it is obvious that rules which
diminish, increase or modify substantive rights, are substantive and not adjective laws or rules
concerning pleading, practice and procedure.
It does not require an elaborate arguments to show that the right granted by law upon a defendant to be
confronted with and cross-examine the witnesses for the prosecuted in preliminary investigation as well
as in the trial of the case is a substantive right. It is based on human experience, according to which a
person is not prone to tell a lie against another in his presence, knowing fully well that the latter may
easily contradict him, and that the credibility of a person or veracity of his testimony may be efficaciously
tested by a cross-examination. It is substantive right because by exercising it, an accused person may
show, even if he has no evidence in his favor, that the testimonies of the witnesses for the prosecution
are not sufficient to indicate that there is a probability that a crime has been committed and he is guilty
thereof, and therefore the accused is entitled to be released and not committed to prison, and thus avoid
an open and public accusation of crime, the trouble, expense, and anxiety of a public trial, and the
corresponding anxiety or moral suffering which a criminal prosecution always entails.
This right is not a constitutional but a statutory right granted by law to an accused outside of the City of
Manila because of the usual delay in the final disposition of criminal cases in provinces. The law does not
grant such right to a person charged with offenses triable by the Court of First Instance in the City of
Manila, because of the promptness, actual or presumptive, with which criminal cases are tried and
disposed of in the Court of First Instance of said city. But this right, though not a constitutional one, can
1
not be modified, abridged, or diminished by the Supreme Court, by virtue of the rule making power
conferred upon this Court by the Constitution.
Since the provisions of section 11 of Rule 108 as construed by this Court in several cases, (in which the
question of constitutionality or validity of said section had not been squarely raised) do away with the
defendant's right under discussion, it follows that said section 11 diminishes the substantive right of the
defendant in criminal case, and this Court has no power or authority to promulgate it and therefore is
null and void.
The fact that the majority of this Court has ruled in the above cited case of Dequito and Saling Buhay vs.
Arellano, that the inferior or justice of the peace courts have discretion to grant a defendant's request to
have the witnesses for the prosecution recalled to testify again in the presence of the defendant and be
cross-examined by the latter, does not validate said provision; because to make the exercise of an
absolute right discretionary or dependent upon the will or discretion of the court or officer making the
preliminary investigation, is evidently to diminish or modify it.
Petition is therefore granted.
PERFECTO, J., dissenting:
In our concurring and dissenting opinion in the case of Dequito and Saling Buhay vs. Arellano, No. L-1336,
we said:
In our opinion, section 11 of Rule 108 must be read, interpreted, and applied in a way that will not
contravene the constitutional provision guaranteeing to all accused the right "to meet the witnesses face
to face." (Section 1 [17], Article III.)
Consequently, at the preliminary hearing contemplated by said reglementary section, the defendant is
entitled as a matter of fundamental right to her the testimony of the witnesses for the prosecution and
to cross-examine them.
Although in such preliminary hearing the accused cannot finally be convicted, he is liable to endure the
ordeal eloquently depicted in the decision, and the constitutional guarantee protects defendants, not
only from the jeopardy of being finally convicted and punished, but also from the physical, mental and
moral sufferings that may unjustly be visited upon him in any one of the stages of the criminal process
instituted against him. He must be afforded the opportunities to have the charges against him quashed,
not only at the final hearing, but also at the preliminary investigation, if by confronting the witnesses for
the prosecution he can convince the court that the charges are groundless. There is no justice in
compelling him to undergo the troubles of a final hearing if at the preliminary hearing the case can be
terminated in his favor. Otherwise, the preliminary investigation or hearing will be an empty gesture that
should not have a place within the framework of dignified and solemn judicial proceedings.
On the strength of the above quoted opinion the opinion should be granted and so we vote.
Petition dismissed.
RESOLUTION
March 8, 1949
TUASON, J.: chanrobles virtual law library
This cause is now before us on a motion for reconsideration.
In the decision sought to be reconsidered, we said, citing Dequito and Saling Buhay vs. Arellano, G.R. No.
L-1336: "The constitutional right of an accused to be confronted by the witnesses against him does not
apply to preliminary hearings; nor will the absence of a preliminary examination be an infringement of
his right to confront witness. As a matter of fact, preliminary investigation may be done away with
entirely without infringing the constitutional right of an accused under the due process clause to a fair
trial." We took this ruling to be ample enough to dispose the constitutional question pleaded in the
application for certiorari. Heeding the wishes of the petitioner, we shall enlarge upon the subject.
It is contended that section 11 of Rule 108 of the Rules of Court 1 infringes section 13, Article VIII, of the
Constitution. 2 It is said that the rule in question deals with substantive matters and impairs substantive
rights.
We can not agree with this view. We are of the opinion that section 11 of Rule 108, like its predecessors,
is an adjective law and not a substantive law or substantive right. Substantive law creates substantive
rights and the two terms in this respect may be said to be synonymous. Substantive rights is a term which
includes those rights which one enjoys under the legal system prior to the disturbance of normal
relations. (60 C.J., 980.) Substantive law is that part of the law which creates, defines and regulates rights,
or which regulates the rights and duties which give rise to a cause of action; that part of the law which
courts are established to administer; as opposed to adjective or remedial law, which prescribes the
method of enforcing rights or obtains redress for their invasion. (36 C. J., 27; 52 C. J. S., 1026.)
As applied to criminal law, substantive law is that which declares what acts are crimes and prescribes the
punishment for committing them, as distinguished from the procedural law which provides or regulates
the steps by which one who commits a crime is to be punished. (22 C. J. S., 49.) Preliminary investigation
is eminently and essentially remedial; it is the first step taken in a criminal prosecution.
As a rule of evidence, section 11 of Rule 108 is also procedural. Evidence - which is the "the mode and
manner of proving the competent facts and circumstances on which a party relies to establish the fact in
dispute in judicial proceedings" - is identified with and forms part of the method by which, in private law,
rights are enforced and redress obtained, and, in criminal law, a law transgressor is punished. Criminal
procedure refers to pleading, evidence and practice. (State vs. Capaci, 154 So., 419; 179 La., 462.) the
entire rules of evidence have been incorporated into the Rules of Court. We can not tear down section 11
of Rule 108 on constitutional grounds without throwing out the whole code of evidence embodied in
these Rules.
In Beazell vs. Ohio, 269 U. S., 167, 70 Law. ed., 216, the United States Supreme Court said:
Expressions are to be found in earlier judicial opinions to the effect that the constitutional limitation may
be transgressed by alterations in the rules of evidence or procedure. See Calder vs. Bull, 3 Dall. 386, 390,
1 L. ed., 648, 650; Cummings vs. Missouri, 4 Wall. 277, 326, 18 L. ed., 356, 364; Kring vs. Missouri, 107 U.
S. 221, 228, 232, 27 L. ed., 507, 508, 510, 2 Ct. Rep., 443. And there may be procedural changes which
operate to deny to the accused a defense available under the laws in force at the time of the commission
of his offense, or which otherwise affect him in such a harsh and arbitrary manner as to fall within the
constitutional prohibition. Kring vs. Missouri, 107 U. S., 221, 27 L. ed., 507, 2 Sup. Ct. Rep., 443;
Thompson vs. Utah, 170 U. S., 343, 42 L. ed., 1061, 18 Sup. Ct. Rep., 620. But it is not well settled that
statutory changes in the mode of trial or the rules of evidence, which do not deprive the accused of a
defense and which operate only in a limited and unsubstantial manner to his disadvantage, are not
prohibited. A statute which, after indictment, enlarges the class of persons who may be witnesses at the
trial, by removing the disqualification of persons convicted of felony, is not an ex post facto law. Hopt vs.
Utah, 110 U. S., 575, 28 L. ed., 263, 4 Sup. Ct. Rep., 202, 4 Am. Crim. Rep. 417. Nor is a statute which
changes the rules of evidence after the indictment so as to render admissible against the accused
evidence previously held inadmissible, Thompson vs. Missouri, 171 U. S., 380, 43 L. ed., 204, 18 Sup. Ct.
Rep., 922; or which changes the place of trial, Gut. vs. Minnesota, 9 Wall. 35, 19 L. ed., 573; or which
abolishes a court for hearing criminal appeals, creating a new one in its stead. See Duncan vs. Missouri,
152 U. S., 377, 382, 38 L. ed., 485, 487, 14 sup. Ct. Rep., 570.
Tested by this standard, we do not believe that the curtailment of the right of an accused in a preliminary
investigation to cross-examine the witnesses who had given evidence for his arrest is of such importance
as to offend against the constitutional inhibition. As we have said in the beginning, preliminary
investigation is not an essential part of due process of law. It may be suppressed entirely, and if this may
be done, mere restriction of the privilege formerly enjoyed thereunder can not be held to fall within the
constitutional prohibition.
While section 11 of Rule 108 denies to the defendant the right to cross-examine witnesses in a
preliminary investigation, his right to present his witnesses remains unaffected, and his constitutional
right to be informed of the charges against him both at such investigation and at the trial is unchanged. In
the latter stage of the proceedings, the only stage where the guaranty of due process comes into play, he
still enjoys to the full extent the right to be confronted by and to cross-examine the witnesses against
him. The degree of importance of a preliminary investigation to an accused may be gauged by the fact
that this formality is frequently waived.
The distinction between "remedy" and "substantive right" is incapable of exact definition. The difference
is somewhat a question of degree. (Dexter vs. Edmands, 89 F., 467; Beazell vs. Ohio, supra.) It is difficult
to draw a line in any particular case beyond which legislative power over remedy and procedure can pass
without touching upon the substantive rights of parties affected, as it is impossible to fix that boundary
by general condition. (State vs. Pavelick, 279 P., 1102.) This being so, it is inevitable that the Supreme
Court in making rules should step on substantive rights, and the Constitution must be presumed to
tolerate if not to expect such incursion as does not affect the accused in a harsh and arbitrary manner or
deprive him of a defense, but operates only in a limited and unsubstantial manner to his disadvantage.
For the Court's power is not merely to compile, revise or codify the rules of procedure existing at the
2
time of the Constitution's approval. This power is "to promulgate rules concerning pleading, practice, and
procedure in all courts," which is a power to adopt a general, complete and comprehensive system of
procedure, adding new and different rules without regard to their source and discarding old ones.
The motion is denied.
Moran, C.J., Paras, Pablo, Bengzon, Briones, and Montemayor, JJ., concur.
FERIA, J., dissenting:
I dissent.
The motion for reconsideration must be granted.
According to the resolution, the right of a defendant to be confronted with and cross-examine the
witnesses for the prosecution in a preliminary investigation granted by law or provided for in General
Orders, No. 58, as amended, in force prior to the promulgation of the Rules of Court, is not a substantive
right but a mere matter of procedure, and therefore this Court can suppress it in section 11, Rule 108, of
the Rules of Court, for the following reasons:chanrobles virtual law library
First. Because "preliminary investigation is eminently and essentially remedial; it is the first step taken in
a criminal prosecution." . . . "As a rule of evidence, section 11 of Rule 108 is also procedural." . . . "The
entire rules of evidence have been incorporated into the Rules of Court." And therefore "we can not tear
down section 11 of Rule 108 on constitutional grounds without throwing out the whole Code of evidence
embodied in these rules."chanrobles virtual law library
Secondly. Because, "preliminary investigation is not an essential part of due process of law. It may be
suppressed entirely, and if this may be done, mere restriction of the privilege formerly enjoyed
thereunder can not be held to fall within the constitutional prohibition."chanrobles virtual law library
Lastly. Because, "the distinction between remedy and 'substantive right' is incapable of exact definition.
The difference is somewhat a question of degree" . . . It is difficult to draw a line in any particular case
beyond which legislative power over remedy and procedure can pass without touching upon the
substantive rights of parties affected, as it is impossible to fix that boundary by general condition. . . .
"This being so, it is inevitable that the Supreme Court in making rules should step on substantive rights,
and the Constitution must be presumed to tolerate if not to expect such incursion as does not affect the
accused in a harsh and arbitrary manner or deprive him of a defense, but operates only in a limited and
unsubstantial manner to his disadvantage."chanrobles virtual law library
Before proceeding it is necessary to distinguish substantive law from procedure, for the distinction is not
always well understood. Substantive law is that part of the law which creates, defines, and regulates
rights as opposed to objective or procedural law which prescribes the method of enforcing rights. What
constitutes practice and procedure in the law is the mode or proceeding by which a legal right is
enforced, "that which regulates the formal steps in an action or judicial proceedings; the course of
procedure in courts; the form, manner and order in which proceedings have been, and are accustomed
to be had; the form, manner and order of carrying on and conducting suits or prosecutions in the courts
through their various sages according to the principles of law and the rules laid down by the respective
courts." 31 Cyc. Law and Procedure, p. 1153; id., 32, section 405; Rapalje & Lawrence's Law Dictionary;
Anderson Law Dictionary; Bouvier's Law Dictionary.chanroblesvirtualawlibrary chanrobles virtual law
library
Substantive rights may be created or granted either in the Constitution or in any branch of the law, civil,
criminal, administrative or procedural law. In our old Code of Civil Procedure, Act No. 190, as amended,
there are provisions which create, define and regulate substantive rights, and many of those provisions
such as those relating to guardianship, adoption, evidence and many others are incorporated in the Rules
of Court for the sake of convenience and not because this Court is empowered to promulgate them as
rules of court. And our old law of Criminal Procedure General Orders No. 58 grants the offended party
the right to commence a criminal action or file a complaint against the offender and to intervene in the
criminal prosecution against him, and grants the defendant in the Court of First Instance (except in the
City of Manila) the right to bail, and to a preliminary investigation including his rights during said
investigation, and the rights at the trial, which are now reproduced or incorporated in Rules 106, 108,
110, and 111 of the Rules of Court, except the rights now in question. And all these, and others not
necessary for us to mention, are obviously substantive rights.
(1) As to the first argument, the premise "the preliminary investigation is eminently and essentially
remedial is not correct. Undoubtedly the majority means to say procedural, in line with the conclusion in
the resolution, because remedial law is one thing, and procedural law is another. Obviously they are
different branches of the law. "Remedial statute" is "a statute providing a remedy for an injury as
distinguished from a penal statute. A statute giving a party a mode of remedy for a wrong where he had
none or a different one before. . . . Remedial statutes are those which are made to supply such defects,
and abridge such superfluities in the common law, as arise either from the general imperfections of all
human law, from change of time and circumstances, from the mistakes and unadvised determination of
unlearned (or even learned) judges, or from any other cause whatsoever." (Black's Law Dictionary, third
edition, pp. 1525, 1526.)
It is also not correct to affirm that section 11 of Rule 108 relating to right of defendant after arrest "is a
rule of evidence and therefore is also procedural." In the first place, the provisions of said section to the
effect that "the defendant, after the arrest and his delivery to the court has the right to be informed of
the complaint or information filed against him, and also to be informed of the testimony and evidence
presented against him, and may be allowed to testify and present witnesses or evidence for him if he so
desires," are not rules of evidence; and in the second place, it is evident that most of the rules of
evidence, if not all, are substantive laws that define, create or regulate rights, and not procedural. "Rules
of evidence are substantive rights found in common law chiefly and growing out of reasoning, experience
and common sense of lawyers and courts." (State vs. Pavelich, et al., 279 P., 1102.) "It is true that
weighing of evidence and the rules of practice with respect thereto form part of the law of procedure,
but the classification of proofs is sometime determined by the substantive law." (U. S. vs. Genato, 15
Phil., 170, 176.) How can the law on judicial notice, conclusive as well as juris tantum presumption,
hearsay and best evidence rule, parol evidence rule, interpretation of documents, competency of a
person to testify as a witness be considered procedural?
Therefore, the argumentative conclusion that "we can not tear down section 11 of Rule 108 on
constitutional grounds without throwing out the whole code of evidence embodied in these Rules," is
evidently wrong, not only for the reason just stated, but because our contention that the defendant can
not be deprived of his right to be confronted with and cross-examine the witness of the prosecution is a
preliminary investigation under consideration would not, if upheld, necessarily tear down said section.
Our theory, is that said section 11 should be so construed as to be valid and effective, that is, that if the
defendant asks the court to recall the witness or witnesses for the prosecution to testify again in his
presence, and to allow the former to cross-examine the latter, the court or officer making the preliminary
investigation is under obligation to grant the request. But if the defendant does not so ask the court, he
should be considered as waiving his right to be confronted with and cross-examine the witness against
him.
(2) With respect to the second argument or reason, it is true that the preliminary investigation as
provided for in the General Orders, No. 58, as amended, is not an essential part of due process of law,
because "due process of law" is not iron clad in its meaning; its does not necessarily mean a particular
procedure. Due process of law simply requires a procedure that fully protects the life, liberty and
property. For that reason the investigation to be made by the City Fiscal of the City of Manila under Act
No. 612, now section 2465 of the Administrative Code, before filing an information, was considered by
this Court as sufficient to satisfy the due process of law constitutional requirement (U. S. vs. Ocampo, 18
Phil., 1; U. S. vs. Grant and Kennedy, 18 Phil., 122). But it is also true that we have already and correctly
held that: "The law having explicitly recognized and established that no person charged with the
commission of a crime shall be deprived of his liberty or subjected to trial without prior preliminary
investigation (provided for in General orders, No. 58, as amended) that shall show that there are
reasonable grounds to believe him guilty, there can be no doubt that the accused who is deprived of his
liberty, tried and sentenced without the proper preliminary investigation having been made in his regard,
is convicted without the process of law," (United States vs. Banzuela, 31 Phil., 564).
The ruling in Beazell vs. Ohio, 269 U. S. 167, 70 Law. ed., 216, quoted in the resolution, has no application
to the present case, for the question involved therein was the power of Congress to alter the rules of
evidence and procedure without violating the constitutional precept that prohibits the passing of ex post
facto law, while the question herein involved is the power of the Supreme Court to promulgate rules of
pleading, practice and procedure, which diminish the substantive right of a defendant, expressly
prohibited by the same provision of the Constitution that confers upon this Court the power to
promulgate said rules.
(3) The last reason or argument premised on the conclusion that "the distinction between remedy and
'substantive right' is incapable of exact definition;" indeed "the difference is somewhat a question of
3
degree," (Dexter vs. Edmonds, 89 F 487), is immaterial, because, as we have already said in refuting the
majority's first reason, remedy and procedure are two completely different things.
As above defined, substantive law is clearly differentiated from procedural law and practice. But even
assuming arguendo that it is difficult to draw the line in any particular case beyond which the power of
the court over procedure can not pass without touching upon the substantial right of the parties, what
this Court should do in that case would be to abstain from promulgating such rule of procedure which
many increase, diminish or modify substantive right in order to avoid violating the constitutional
prohibition above referred to. Because as this Supreme Court is not empowered by the Constitution to
legislate on or abrogate substantive rights, but only to promulgate rules of pleading, practice and
procedure which "shall not diminish, increase or modify substantive rights," this Court can not step on
them in making the rules, and the Constitution must be presumed not to tolerate nor expect such
incursion as would affect the substantive rights of the accused in any manner.
Besides, depriving an accused of his right to be confronted and cross-examine the witness against him in
a preliminary investigation would affect the accused not in a limited and unsubstantial but in a harsh and
arbitrary manner. The testimony of a witness given in the absence of the defendant and without an
opportunity on the part of the latter to cross-examine him is a hearsay evidence, and it should not be
admitted against the defendant in a preliminary investigation that is granted to the latter as a protection
against hasty, malicious and oppressive prosecutions (U. S. vs. Grant and Kennedy, supra). Otherwise, an
accused who is innocent and should not be arrested, or if arrested should be released immediately a
short time after his arrest after the preliminary investigation, would have to be held for trial and wait for
a considerable period of time until the case is tried and acquitted after trial by the Courts of First Instance
in provinces on account of the admission of such evidence in the preliminary investigation, evidence not
admissible at the trial.chanroblesvirtualawlibrary chanrobles virtual law library
Therefore, the motion for reconsideration is granted, and after the necessary proceedings the decision of
the majority reversed or modified in accordance with my dissenting opinion.
PERFECTO, J.:
We dissent. Our opinion in the Dequito case still stands. The motion for reconsideration should be
granted.
Endnotes:
TUASON, J.:
1
Rights of defendant after arrest. - After the arrest of the defendant and his delivery to the court,
he shall be informed of the complaint or information filed against him. He shall also be informed of the
substance of the testimony and evidence presented against him, and, if he desires to testify or to present
witnesses or evidence in his favor, he may be allowed to do so. The testimony of the witnesses need not
be reduced to writing but that of the defendant shall be taken in writing and subscribed by him.
2
The Supreme Court shall have the power to promulgate rules concerning pleading, practice, and
procedure in all courts, and the admission to the practice of law. Said rules shall be uniform for all courts
of the same grade and shall not diminish, increase, or modify substantive rights. The existing laws on
pleading, practice, and procedure are hereby repealed as statutes, and are declared Rules of Courts,
subject to the power of the Supreme Court to alter and modify the same. The National Assembly shall
have the power to repeal, alter, or supplement the rules concerning pleading, practice, and procedure,
and the admission to the practice of law in the Philippines.

4
G.R. Nos. 108135-36 August 14, 2000
POTENCIANA M. EVANGELISTA, petitioner, vs.
THE PEOPLE OF THE PHILIPPINES and THE HONORABLE SANDIGANBAYAN, (FIRST DIVISION),
respondents.
RESOLUTION
YNARES-SANTIAGO, J.:
On September 30, 1999, we rendered a Decision in this case acquitting petitioner of the charge of
violation of then Section 268 (4) of the National Internal Revenue Code1 but affirming her conviction for
violation of Republic Act No. 3019, Section 3 (e),2 thus imposing on her an indeterminate sentence of
imprisonment for six (6) years and one month as minimum to twelve (12) years as maximum, and the
penalty of perpetual disqualification from public office.
The basic facts are briefly restated as follows:
On September 17, 1987, Tanduay Distillery, Inc. filed with the Bureau of Internal Revenue an application
for tax credit in the amount of P180,701,682.00, for allegedly erroneous payments of ad valorem taxes
from January 1, 1986 to August 31, 1987. Tanduay claimed that it is a rectifier of alcohol and other spirits,
which per previous ruling of the BIR is only liable to pay specific taxes and not ad valorem taxes. Upon
receipt of the application, Aquilino Larin of the Specific Tax Office sent a memorandum to the Revenue
Accounting Division (RAD), headed by petitioner, requesting the said office to check and verify whether
the amounts claimed by Tanduay were actually paid to the BIR as ad valorem taxes. Larin’s memorandum
was received by the Revenue Administrative Section (RAS), a subordinate office of the RAD. After making
the necessary verification, the RAS prepared a certification in the form of a 1st Indorsement to the
Specific Tax Office, dated September 25, 1987, which was signed by petitioner as RAD chief.
The 1st Indorsement states that Tanduay made tax payments classified under Tax Numeric Code (TNC)
3011-0001 totalling P102,519,100.00 and payments classified under TNC 0000-0000 totalling
P78,182,582.00. Meanwhile, Teodoro Pareño, head of the Tax and Alcohol Division, certified to Justino
Galban, Jr., Head of the Compounders, Rectifiers and Repackers Section, that Tanduay was a rectifier not
liable for ad valorem tax. Pareño recommended to Larin that the application for tax credit be given due
course. Hence, Larin recommended that Tanduay’s claim be approved, on the basis of which Deputy
Commissioner Eufracio D. Santos signed Tax Credit Memo No. 5177 in the amount of P180,701,682.00.
Sometime thereafter, a certain Ruperto Lim wrote a letter-complaint to then BIR Commissioner
Bienvenido Tan, Jr. alleging that the grant of Tax Credit Memo No. 5177 was irregular and anomalous.
Based on this, Larin, Pareño, Galban and petitioner Evangelista were charged before the Sandiganbayan
with violation of Section 268 (4) of the National Internal Revenue Code and of Section 3 (e) of R.A. 3019,
the Anti-Graft and Corrupt Practices Act. Larin, Pareño and petitioner were later convicted of both
crimes, while Galban was acquitted inasmuch as his only participation in the processing of Tanduay’s
application was the preparation of the memorandum confirming that Tanduay was a rectifier.
The three accused filed separate petitions for review. Pareño’s and Larin’s petitions were consolidated
and, in a decision dated April 17, 1996, both were acquitted by this Court in Criminal Cases Nos. 14208
and 14209.3 In this petition, on the other hand, we acquitted petitioner in Criminal Case No. 14208, for
violation of Section 268 (4) of the NIRC. However, we found petitioner guilty of gross negligence in issuing
a certification containing TNCs which she did not know the meaning of and which, in turn, became the
basis of the Bureau’s grant of Tanduay’s application for tax credit. Thus, we affirmed petitioner’s
conviction in Criminal Case No. 14209, i.e., for violation of Section 3 (e) of the Anti-Graft and Corrupt
Practices Act.
Petitioner seasonably filed a Motion for Reconsideration,4 wherein she asserts that there was nothing
false in her certification inasmuch as she did not endorse therein approval of the application for tax
credit. Rather, her certification showed the contrary, namely, that Tanduay was not entitled to the tax
credit since there was no proof that it paid ad valorem taxes. Petitioner also claims that she was neither
afforded due process nor informed of the nature and cause of the accusation against her. She was found
guilty of an offense different from that alleged in the information; consequently, she was unable to
properly defend herself from the crime for which she was convicted.
The Information against petitioner and her co-accused in Criminal Case No. 14209 alleges in fine that
they caused undue injury to the Government and gave unwarranted benefits to Tanduay when they
endorsed approval of the claim for tax credit by preparing, signing and submitting false memoranda,
certification and/or official communications stating that Tanduay paid ad valorem taxes when it was not
liable for such because its products are distilled spirits on which specific taxes are paid, by reason of
which false memoranda, certification and/or official communications the BIR approved the application
for tax credit, thus defrauding the Government of the sum of P107,087,394.80, representing the
difference between the amount claimed as tax credit and the amount of ad valorem taxes paid by
Tanduay to the BIR.5 According to petitioner, instead of convicting her of the acts described in the
Information, she was convicted of issuing the certification without identifying the kinds of tax for which
the TNCs stand and without indicating whether Tanduay was really entitled to tax credit or not.
The Solicitor General filed his Comment6 wherein he joined petitioner’s cause and prayed that the
motion for reconsideration be granted. In hindsight, even the Solicitor General’s comment on the petition
consisted of a "Manifestation and Motion in lieu of Comment,"7 where he recommended that petitioner
be acquitted of the two charges against her.
We find that the Motion for Reconsideration is well-taken.
After a careful re-examination of the records of this case, it would appear that the certification made by
petitioner in her 1st Indorsement was not favorable to Tanduay’s application for tax credit. Far from it,
petitioner’s certification meant that there were no payments of ad valorem taxes by Tanduay in the
records and hence, it was not entitled to tax credit. In other words, the certification was against the grant
of Tanduay’s application for tax credit.
It has been established that the BIR adopted tax numeric codes (TNCs) to classify taxes according to their
kinds and rates, in order to facilitate the preparation of statistical and other management reports, the
improvement of revenue accounting and the production of tax data essential to management planning
and decision-making. These codes include TNC No. 3011-0001 for specific tax on domestic distilled
spirits, TNC No. 3023-2001 for ad valorem tax on compounded liquors, and TNC No. 0000-0000 for
unclassified taxes.
Petitioner’s 1st Indorsement dated September 25, 1987 lists down the confirmation receipts covering tax
payments by Tanduay for the period January 1, 1986 to August 31, 1987, during which Tanduay alleges
that it made erroneous ad valorem tax payments, classified according to TNC numbers. The tax payments
therein are described only as falling under TNC No. 3011-0001, i.e., specific tax, and TNC No. 0000-0000,
i.e., unclassified taxes. There are no tax payments classified as falling under TNC No. 3023-2001, the code
for ad valorem taxes. The import of this, simply, is that Tanduay did not make any ad valorem tax
payments during the said period and is, therefore, not entitled to any tax credit.
Further, petitioner contends that she was convicted of a supposed crime not punishable by law.8 She was
charged with violation of Section 3 (e) of Republic Act No. 3019, the Anti-Graft and Corrupt Practices Act,
which states:
SEC. 3. Corrupt practices of public officers. --- In addition to acts or omissions of public officers already
penalized by existing law, the following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful:
xxx xxx xxx
(e)....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, judicial or administrative
functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision
shall apply to officers and employees of offices or government corporations charged with the grant of
licenses or permits or other concessions.
xxx xxx xxx
The elements of the offense are: (1) that the accused are public officers or private persons charged in
conspiracy with them; (2) that said public officers commit the prohibited acts during the performance of
their official duties or in relation to their public positions; (3) that they cause undue injury to any party,
whether the Government or a private party; (4) that such injury is caused by giving unwarranted benefits,
advantage or preference to such parties; and (5) that the public officers have acted with manifest
partiality, evident bad faith or gross inexcusable negligence.9
R.A. 3019, Section 3, paragraph (e), as amended, provides as one of its elements that the public officer
should have acted by causing any undue injury to any party, including the Government, or by giving any
private party unwarranted benefits, advantage or preference in the discharge of his functions. The use of
the disjunctive term "or" connotes that either act qualifies as a violation of Section 3, paragraph (e), or as
aptly held in Santiago,10 as two (2) different modes of committing the offense. This does not however
5
indicate that each mode constitutes a distinct offense, but rather, that an accused may be charged under
either mode or under both.11
In the instant case, we find that petitioner, in issuing the certification, did not cause any undue injury to
the Government. She also did not give unwarranted benefits, advantage or preference to Tanduay.
Neither did petitioner display manifest partiality to Tanduay nor act with evident bad faith or gross
inexcusable negligence. Quite the contrary, petitioner’s certification was against the interest of Tanduay.
It did not advocate the grant of its application for tax credit. The certification can even be read as a
recommendation of denial of the application.
Petitioner further argues that her conviction was merely based on her alleged failure to identify with
certainty in her certification the kinds of taxes paid by Tanduay and to indicate what the TNCs stand for,
which acts were different from those described in the Information under which she was charged. This,
she claims, violated her constitutional right to due process and to be informed of the nature and cause of
the accusation against her.
It is well-settled that an accused cannot be convicted of an offense unless it is clearly charged in the
complaint or information. Constitutionally, he has a right to be informed of the nature and cause of the
accusation against him. To convict him of an offense other than that charged in the complaint or
information would be a violation of this constitutional right.12 In the case at bar, we find merit in
petitioner’s contention that the acts for which she was convicted are different from those alleged in the
Information. More importantly, as we have discussed above, petitioner’s act of issuing the certification
did not constitute corrupt practices as defined in Section 3 (e) of R.A. 3019.
Employees of the BIR were expected to know what the TNCs stand for.1âwphi1 If they do not, there is a
"Handbook of Tax Numeric Code of Revenue Sources" which they can consult. With this, petitioner
should not be required to describe in words the kinds of tax for which each TNC used stands for.
Precisely, the purpose of introducing the use of tax numeric codes in the Bureau was to do away with
these descriptive words, in order to expedite and facilitate communications among the different divisions
therein. We find that petitioner’s omission to indicate what kind of taxes TNC Nos. 3011-0001 and 0000-
0000 stand for was not a criminal act. Applicable here is the familiar maxim in criminal law: Nullum
crimen nulla poena sine lege. There is no crime where there is no law punishing it.
On the whole, therefore, we find that petitioner was not guilty of any criminal offense. The prosecution’s
evidence failed to establish that petitioner committed the acts described in the Information which
constitute corrupt practices. Her conviction must, therefore, be set aside. For conviction must rest no less
than on hard evidence showing that the accused, with moral certainty, is guilty of the crime charged.
Short of these constitutional mandate and statutory safeguard --- that a person is presumed innocent
until the contrary is proved --- the Court is then left without discretion and is duty bound to render a
judgment of acquittal.13
WHEREFORE, the Motion for Reconsideration is GRANTED. This Court’s Decision dated September 30,
1999 is RECONSIDERED and SET ASIDE. Petitioner is ACQUITTED of the charge against her.
SO ORDERED.

6
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-34105 February 4, 1983
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
TIMOTEO CABURAL, CIRIACO YANGYANG, BENJAMIN LASPONIA, and LEONIDE CABUAL,
accussed,TIMOTEO CABURAL and CIRIACO YANGYANG, defendants-appellants.
The Solicitor General for plaintiff-appellee.
Benjamin A. Gravino for private respondents.
Abdon A. Arriba counsel for defendant-appellants.
RELOVA, J.:
This is an appeal from the decision of the Court of First Instance of Lanao del Norte, dated June 4, 1970,
convicting Timoteo Cabural of the crime of Robbery with Rape and sentencing him to suffer the penalty
of Reclusion Perpetua; and, convicting Leonide Cabual, Benjamin Lasponia and Ciriaco Yangyang of the
crime of Robbery and sentencing each of them to suffer imprisonment of six (6) years and one (1) day of
Prision Mayor, as minimum, to ten (10) years of Prision Mayor, as maximum; to indemnify the offended
party in the sum of P9,435.50, without subsidiary imprisonment in case of insolvency and to pay
proportionately the costs of the proceedings.
The statement of facts in the brief filed by the People of the Philippines is as follows:
... [A]t about 2:00 o'clock in the morning of September 14, 1960, three masked men entered the building
of the Kim San Milling in Palao City of Iligan thru an opening of the roof above the kitchen that was being
repaired and forced themselves inside a room where Pua Lim Pin Bebencio Palang, Sy Chua Tian and Siao
Chou were sleeping (tsn, pp. 78-82, May 31, 1965; tsn, pp. 141-148, June 13, 1961). The masked men, at
gunpoint, hogtied the four occupants of the room and commanding them to lie on the floor, face down,
were all covered with blankets (tsn, pp. 82-83, Ibid). The inmates of the room heard That the cabinets
were being ransacked (tsn, p. 82, Ibid). As this was going on, one of the men approached Pua Lim Pin to
ask him if he could open the safe to which he answered in the negative as he was a mere employee of
the firm (tsn, p. 83, May 31, 1961). An hour later, one of the men approached Sy Chua Tian (also See
Chou Kian tsn, p. 89, Ibid) and told him: 'now is 3:30, if by 4:00 the safe is not open we will kill you.' (tsn,
p. 94, Ibid.)
As this was going on, another episode was taking place inside the next room where the maids were
sleeping (tsn, p. 91, May 31, 1961). Restituta Biosano Panchita Maghanoy and Agripina Maglangit have
retired at about 10:00 o'clock in the evening of September 13, 1960, after their chores were performed
(tsn, p. 91, Ibid, tsn, p. 10, May 7,1961; tsn, p. 13, May 29,1961; tsn, p. 25, Ibid). At about 2:00 o'clock the
following morning, they were awakened by two persons, one holding a pistol and the other holding a
hunting knife. Like the fate of the four inmates of the other room, the maids were all hogtied, made to lie
on the floor, face downward, and were all covered with blankets (tsn, pp. 25-29, May 29,
1961).1äwphï1.ñët The two then left the room (tsn, p. 29, Ibid). After two hours later, one of the two
men re-appeared in the room and after discovering that Agripina Maglangit had freed her hands, he
showed anger and remarked that he would separate her from the rest. With his pistol pointed at her, he
took her outside the building to a secluded place within the Kim San Compound (tsn, pp. 30-33, Ibid.).
Here, with her hands tied, she was made to lie down flat on the ground face upwards. He then raised her
skirt, tied down her panties, and had sexual intercourse with her. She was unable to resist him and fight
back because at the time she had lost her strength not to mention the fact that she was deprived of the
use of her hands that were both tied together. The rape having been consummated, he pulled her left
arm so she could stand up. He then left her (tsn, pp. 33-35, Ibid.).
Agripina Maglangit recognized the features of the man that raped her. She Identified her rapist to be the
accused Timoteo Cabural (tsn, pp. 36-39, Ibid.).
At about four o'clock that morning (September 14, 1960) all the intruders must have left because the four
men that were hogtied in the other room noticed complete silence They each struggled to free
themselves which they succeeded. Maghanoy lost her Alosa 15-jewel watch costing her P65.00 (tsn, p.
22, May 29, 1961); Sy Chua Tian (See Chou Kian lost his Omega automatic wrist watch valued in the
amount of P385.00 that was snatched from his wrist by one of the robbers, besides his wallet containing
P264.00 in paper currency (tsn, p. 85 and p. 95, May 31, 1961). After the robbers left, the inmates
discovered the cash and some personal belongings in the total amount of P9,435.50 were transported by
the robbers (tsn, pp. 29-36, Oct. 23, 1961; tsn, pp. 120-125, June 13, 1961).
The accident having been reported, both the local police as well as the Philippine Constabulary stationed
in Iligan conducted their investigation. In the course of the investigation, members of the Philippine
Constabulary found a.30-caliber carbine with 4 magazines and a .45 caliber pistol well wrapped in a
banca at the shore behind the house of the accused Benjamin Lasponia This led to the investigation of
Lasponia who subsequently admitted the crime and pointed to his companions that night. On September
18, 1960, Benjamin Lasponia signed a confession before Assistant Fiscal Leonardo Magsalin, Exhibits B, B-
1, B-2, and B3 at the PC headquarters in Iligan (pp. 1025-1028, Vol. III Rec.). He confessed to the last
detail his participation in the crime. On September 19, 1960, the accused Leonide Cabual subscribed to
an affidavit before the same Fiscal .Magsalin regarding his participation and that of -his co-accused in the
robbery of Kim San Milling in the early morning of September 14, 1960, Exhibits C, C-1, C-2, C3 and C5
(pp. 1029-1034, Vol. III, Record (l). Ciriaco Yangyang followed. He subscribed his confession before Special
Counsel Dominador Padilla in the Office of the City Fiscal of Iligan on September 26, 960, Exhibits H, H-1
and H2 (pp. 1036-1038, Vol. III, Record, See complete testimony of Eustaquio Cabides, tsn, pp- 52-72, July
17, 1969).
On September 21, 1960, (1) Timoteo Cabural, alias Romeo alias Tiyoy (2) Benjamin Lasponia; (3) Leonide
Cabual alias Eddie; (4) Ciriaco Yangyang; (5) William Tate alias Negro; (6) Fausto Dacera and, (7) Alfonso
Caloy-on alias Pablo, were charged before the Court of First Instance of Lanao del Norte of the crime of
Robbery in Band with Rape, in an information filed by the City Fiscal of Iligan City. The crime charged was
allegedly committed as follows:
That on or about September 14, 1960 in the City of Iligan Philippines, and within the jurisdiction of this
Honorable Court, the said accused, in company with one Fred Ybañez alias Godofredo Camisic and one
John Doe, who are still-at-large, conspiring and confederating together and mutually helping one another,
and armed with deadly weapons, all unlicensed, to wit: carbines, revolvers, tommy guns, garand rifles
and knives, did then and there willfully, unlawfully and feloniously, with intent of gain and by means of
violence against and intimidation of persons, and with the use of force upon things, to wit: by passing
through an opening not intended for entrance or egress, enter the main building and office of the Kim
San Milling Company, an inhabited building, and once inside, did then and there willfully, unlawfully and
feloniously take, steal, rob and carry away therefrom, the following personal properties, to wit:
Cashmoney.................................................... P5,972.00
Wrist watch 'Technos'...................................... 100.00
Gold ring.......................................................... 20.00.
Sunglasses......................................................... 30.00
Four pieces of golden bracelets...................... 1,400.00
Chinese gold ring with dark blue stone......... 90.00
One gold ring with brilliant stone................... 400.00
One Chinese gold necklace with red stone... 150.00
One pair of earrings Chinese gold with.........
red stone....................................................... 60.00
Three pairs of earrings with pearls................ 120.00
7

Four Chinese gold rings with stones of........
different colors................................................. 140.00
Sweepstakes tickets......................................... 45.00
One American gold Lady's ring.....................
with dark pink stone........................... 30.00
Four men's rings............................................... 32.00
One and a half dozens handkerchiefs.......... 34.50
Lady's wrist watch.......................................... 30.00
Three ladies watches...................................... 69.00
One men's watch............................................. 60.00
One Chinese gold necklace........................... 58.00
One Lady's wrist watch.................................. 15.00
One Chinese gold necklace........................... 58.00
One Men's wrist watch................................... 60.00
One Men's wrist watch 'Tugaris'................... 65.00
Knife.................................................................. 12.00
One Men's wrist watch...................................
'Omega' Seamaster........................................... 385.00
with a total value of P9,435.50, belonging to the Kim San Milling Company, Bebencio Palang, Agapito Tan,
Restituta Boisano Panchita Maghanoy, Catalina Boisano Pua Lim Pin and Sy Chua Tian to the damage and
prejudice of the said owners in the said sum of P9,435.50, Philippine currency; and that on the occasion
or by reason of the said robbery, the above-named accused except William Tate alias Negro, conspiring
and confederating together and mutually helping one another, did then and there willfully, unlawfully
and feloniously have carnal knowledge of one Agripina Maglangit, a woman, by means of violence and
intimidation and against her will.
Contrary to and in violation of Article 294 paragraph 2 of the Revised Penal Code as amended by Republic
Act No. 18 and Article 296 of the Revised Penal Code as amended by Republic Act No. 12, Section 3, with
the following aggravating circumstances, to wit: that the said offense was committed during night time
and by a band; that it was committed with the use of disguise; and that it was committed with the use of
a motor vehicle.
Upon arraignment, the defendants pleaded not guilty. However, during the course of the trial, three (3)
of the accused, namely: William Tate Fausto Dacera and Alfonso Caloy-on were dropped on petition of
the City Fiscal and trial proceeded against the four (4) remaining accused, namely: Timoteo Cabural, alias
Romeo Cabural; Benjamin Lasponia, Leonide Cabual and Ciriaco Yangyang. As aforesaid, Cabural,
Lasponia, Cabual and Yangyang were convicted. Benjamin Lasponia did not appeal; however, Cabural,
Yangyang and Cabual did and claimed that the trial court erred:
I.
IN HOLDING THAT THE AFFIDAVITS OR EXTRA-JUDICIAL CONFESSIONS OF ACCUSED BENJAMIN LASPONIA,
LEONIDE CABUAL, AND CIRIACO YANGYANG WHICH WERE NOT OBTAINED THROUGH FORCE, VIOLENCE,
INTIMIDATIONS AND THREATS AND SERIOUS MALTREATMENTS ARE ADMISSIBLE AS EVIDENCE AND
THEREFORE COULD BE A LEGAL BASIS FOR THE CONVICTIONS OF ACCUSED.
II.
IN HOLDING THAT EVEN IF IN THE EXECUTION OF SAID AFFIDAVITS OF CONFESSIONS BY THE THREE
ACCUSED SOME PERSONAL INCONVENIENCE WERE MADE BY THE PC SOLDIERS BUT BECAUSE THE
CONTENTS OF SAID CONFESSIONS ARE TRUE SAID EXTRA-JUDICIAL CONFESSIONS ARE ADMISSIBLE AS
EVIDENCE AND COULD BE MADE A LEGAL, BASIS FOR THE CONVICTIONS OF ALL ACCUSED.
III.
IN HOLDING THAT THE THREE EXTRA-JUDICIAL CONFESSIONS BY THREE ACCUSED BEING INTERLOCKING
CONFESSIONS IS ENOUGH AND SUFFICIENT TO SUSTAIN THEIR CONVICTIONS ON PROOF BEYOND
REASONABLE DOUBT;
IV.
IN HOLDING THAT THE THREE EXTRA-JUDICIAL CONFESSIONS OF THREE ACCUSED INTERLOCKED WITH
EACH OTHER EVEN IF INADMISSIBLE AS EVIDENCE BECAUSE OBTAINED THROUGH FORCE, VIOLENCE,
INTIMIDATION, ETC. IS ENOUGH TO SUSTAIN THE CONVICTION OF ACCUSED TIMOTEO CABURAL
BECAUSE HE WAS SUFFICIENTLY IdENTIFIED BY VICTIM AGRIPINA MAGLANGIT AS HER RAPIST;
V.
IN HOLDING THAT THE PROSECUTION EVIDENCE FOR THE CONVICTIONS OF ACCUSED REACHED THE
LEGAL STANDARD OF PROOF BEYOND REASONABLE DOUBT AS REQUIRED BY LAW.
On October 14, 1971, this Court granted the motion of Leonide Cabual to withdraw his appeal (p. 60,
rollo).
Appellant Cabural declared that from 2:00 in the afternoon of September 13, 1960 to 3:00 in the early
morning of September 14, 1960, he was playing mahjong with Virginia Cruz Maruhom and one Gomer in
the store of Ason in Maigo, Lanao del Norte which is about 37 kilometers from Iligan City and would take
about two (2) hours by us or about one (1) hour by car to negotiate the distance between the two places;
that he could not have been present at complainant's place at 2:00 in the morning of September 14,
1960 when the robbery took place; that he was brought to the Philippine Constabulary Headquarters in
Iligan City by PC soldiers on September 15, 1960 and was subjected to all kinds of torture; and that after
he was severely maltreated, including the 7-Up treatment and threatened with pistol, he was asked to
sign an affidavit. Despite his insistence that he was innocent he was induced to sign a statement after he
was told: "if you obey us you may get free" and that "if you confess we will protect you."
Ciriaco Yangyang also denied participation in the commission of the crime considering that at that time
he was in Barrio Mentering attending the counting of votes for the muse of the barrio fiesta. He was
reading the ballots cast for each candidate at the microphone. It was only in the following morning of
September 14, 1960 when he returned to Maigo.
The Identity of appellant Timoteo Cabural as the rapist of Agripina Maglangit is established in the
testimony of the latter as follows:
Q After that man had told you that you would be separated from the rest, what happened next, if any?
A I was brought outside.
Q What do you mean by 'outside?'
A I was brought outside of the office of the Kim San .
Q After you have been taken outside, what happened, if any?
A I was threatened and I was forced.
Q How were you threatened?
A He pointed to me his pistol and let me lie down.
Q This place where he threatened you and made you lie down outside, was this place near to the place
where you had slept?
A It is very far but it is within the compound of the Kim San
Q After he had threatened you and made you lie down, what, if any, did you do?
A He raised my skirt.
8
Q At the time he was raising your skirt, what was your position?
A I was lying down with face upward.
Q After he had raised your skirt, what happened next, if any?
A When my skirt was raised and since I have no more strength because (as demonstrated by the witness),
her laps were numb, he took off my pantie.
Q How did your laps happen to be numb?
A Because my laps were pushed so that I cannot move.
Q What particular part of your body did he push to numbness?
A My laps.
Q After he had taken off your pantie, what, if any, did he do?
A I feel that he had what he wants.
Q What do you mean by that?
A To disgrace my honor.
Q How did he disgrace your honor?
A He had sexual intercourse.
Q How long did he have that sexual intercourse with you?
A I do not remember how long because of my fear.
Q Did he finish having sexual intercourse with you?
A Yes, sir.
Q After he had that sexual intercourse with you, what happened next, if any?
A (As demonstrated by th witness, her left Arm was pulled to stand up)
Q Were you able to stand up?
A Yes, sir.
Q After you have stood up, that man where, if any, did he go?
A I did not notice where the man go but I went back to our room.
Q Upon your arrival to your quarters, what, if any, did you do?
A I told my companions.
Q Who were they?
A They were Restituta Biosano, Pena Maglangit, Catalina Biosano
Q That man who had sexual intercourse with you, is he here now in the courtroom?
A Yes, sir.
Q Will you please point him out?
A (Witness went down from the stand and went to the accused seated in the courtroom and pointed to
the accused Timoteo Cabural). (tsn. pp. 32-35, May 29, 1961 hearing)
We agree with the lower court that Cabural alone was responsible for the rape on Agripina. There is no
evidence that his co-appellant Yangyang and the other malefactors made advances on her. Besides, the
extra-judicial confessions of Lasponia (Exhibits B, B-1, B-2 and B3 Leonide Cabual (Exhibits C, C-1 to C-5
and Ciriaco Yangyang (Exhibits H, H-1 and H-2) point to appellant Cabural as the mastermind and the role
each of them would play (as in fact they did) in the commission of the crime. Their interlocking
confessions indicate how they would go to the scene of the crime, the manner by which they would enter
into the premises of Kim San Milling Company and, as aptly observed by the trial court, the details which
only the participants could amply give.
Further, accused Cabual and Lasponia were sworn by Fiscal Leonardo Magsalin who instructed the PC
investigators to leave the room so that they (Cabual and Lasponia) would be able to speak their minds
freely. Fiscal Magsalin testified that said accused readily and without hesitation signed their respective
extra-judicial confessions.
Finally, We find no merit in the alibis interposed by appellants Cabural and Yangyang. As pointed out by
the Solicitor General in his brief:
The fact that Cabural played mahjong with Virginia Cruz Maruhom and a certain Gomer at the store of
Ason in Barrio Maigo from 2:00 P.M. of September 13, 1960 to 3:00 A.M. of September 14, 1960 is no
guarantee that he could not be at the scene of the crime (Kim San Milling Company, situated in Palao a
37-kilometer stretch which could be negotiated in one hour by car (tsn., p. 8, Sept. 20, 1966). Considering
the confessions of Lasponia, Cabual and Yangyang all pointing to Cabural as the one in control of the
vehicle utilized in the commission of the crime, the conclusion is not hard to reach that his presence at
the scene of the crime is much likelier than at Maigo.
Otherwise stated, appellants failed to show the plausibility and verity of their alibis and the crime is
aggravated by dwelling and nighttime.
As aforesaid, the trial court convicted Timoteo Cabural of the crime of robbery with rape, which is
penalized by Article 294(2) of the Revised Penal Code, by reclusion temporal medium to reclusion
perpetua. Effective August 15, 1975 (or subsequent to this date), Presidential Decree No. 767 imposes
the penalty of reclusion perpetua to death "when the robbery accompanied with rape is committed with
the use of a deadly weapon or by two or more persons.
In People vs. Perello, Jr., 111 SCRA 147, it was mentioned that "[t]he Chief Justice and the herein ponente
(Justice Ramon C. Aquino) are of the opinion that article 335 cannot be applied to robbery with rape and
that that offense should be penalized under article 294(2) in which case reclusion perpetua should be
imposed. As the accused was charged with a crime against property, he should not be convicted of a
crime against chastity, a private offense. (See People vs. Olden, L-27570-71, September 20, 1972, 47 SCRA
45)." However, also in the same case, "Justices Teehankee, Barredo and Makasiar believe that article 335
should be applied to this case. (See People vs. Carandang, L-310102, August 15, 1973, 52 SCRA 259,
People vs. Mabag, L-38548, July 24, 1980, 98 SCRA 730; People vs. Arias, L-40531, January 27, 1981, 102
SCRA 303; People vs. Boado, L- 44725, March 31, 1981, 103 SCRA 607; People vs. Canizares L- 32515,
September 10, 1981; People vs. Pizarras L-35915, October 30, 1981).
The writer of this decision is of the opinion that in robbery with rape, the accused should be penalized
under Article 294(2) of the Revised Penal Code because it is a crime against property and not a crime
against chastity a private offense.
WHEREFORE, the decision appealed from is hereby AFFIRMED in toto. With costs against both appellants.
SO ORDERED.
Aquino, Concepcion, Jr., Abad Santos, De Castro, Escolin, Vasquez and Gutierrez, Jr., JJ., concur.
Makasiar, J., accused Cabural should be sentenced to death under Art. 335, R. P.C.
Melencio-Herrera, J., I vote for the application of Art. 335 of the Revised Penal Code and. the imposition
of the death penalty.
Plana, J., is on leave
Separate Opinions
FERNANDO, C.J., concurring:
My concurrence in the opinion of the Court penned by Justice Relova is full, entire, and complete.
Nonetheless, I wish to express my gratification that this Court by a decisive vote 1 sustains the basic
postulate in both civil law and common law jurisdictions, expressed in the maximum Nullum crimen nulla
poena sine lege. It is undoubted, therefore, that unless there be a radical change in the thinking of the
Court, it is Article 294(2) not Article 335 of the Revised Penal Code that calls for application in the crime
of robbery with rape. 2 As noted in the opinion of the Court penned by Justice Aquino in People v.
Perello: 3 "Effective August 15, 1975 (or subsequent to this case) Presidential Decree No. 767 imposes the
penalty of reclusion perpetua to death 'when the robbery accompanied with rape is committed with the
use of a deadly weapon or by two or more persons.' That increased penalty cannot be retroactively
applied to this case. 4 As such offense of robbery was committed before that date, it is Article 294(2),
before its amendment, that supplies the governing rule. The applicable law then is clear and explicit. It
defined the offense and prescribed the penalty. The doctrine announced in Lizarraga Hermanos v. Yap
Tico 5 by Justice Moreland, in categorical language comes to mind. Thus: "The first and fundamental duty
of courts, in our judgment, is to apply the law. Construction and interpretation come only after it has
been demonstrated that application is impossible or inadequate without them." 6 There is relevance too
to this excerpt from Kapisanan ng mga Manggagawa sa Manila Railroad Company Credit Union Inc. v.
Manila Railroad Company: 7 "The applicable provision of Republic Act. No. 2023 quoted earlier, speaks
for itself. There is no ambiguity. As thus worded, it was so applied. Petitioner-appellant cannot therefore
raise any valid objection. For the lower court to view it otherwise would have been to alter the law. That
cannot be done by the judiciary. That is a function that properly appertains to the legislative branch. 8
Nothing more appropriately appertains to the legislative branch than the definition of a crime and the
prescription of the penalty to be imposed. That is not a doctrine of recent vintage. It is traceable to
United States v. Wiltberger, 9 an 1820 America. Supreme Court opinion. No less than the eminent Chief
Justice Marshall spoke for the Court. To quote his exact language: "The rule that penal laws are to be
construed strictly is perhaps not much less old than construction itself. It is founded on the tenderness of
the law for the rights of individuals; and on the plain principle that the power of punishment is vested in
9
the legislative, not in the judicial department. It is the legislature, not the court, which is to define a
crime, and ordain its punishment." 10 That ruling was followed in the Philippines in a 1906 decision,
United States v. Almond. 11
So it has been in the Philippines since then. It was the same Justice Moreland who in United States v.
Abad Santos 12 promulgated in 1917, gave expression to a variation of such a fundamental postulate in
this wise: "Criminal statutes are to be strictly construed. No person should be brought within their terms
who is not clearly within them, nor should any act be pronounced criminal which is not clearly made so
by the statute." 13 The same year, Justice Carson in United States v. Estapia 14 in rejecting the contention
that the application of a penal provision even if not covered by its terms should be viewed by the
judiciary as commendable, conducive as it is to the repression of a reprehensible practice" pointed out:
"To this it should be sufficient answer to say that neither the executive nor the judicial authorities are
authorized to impose fines and prison sentences in cases wherein such fines and prison sentences are
not clearly authorized by law, and this without regard to the end sought to be attained by the
enforcement of such unauthorized penalties."15
It is to be admitted that from the standpoint of logic alone, there is much to be said for the view that
since rape under certain circumstances is penalized with death, it is an affront to reason if robbery with
rape carries with it a lesser penalty. The latter offense is far more reprehensible, ergo it must be punished
at least with equal if not more severity. It is from that perspective that in People v. Carandang 16 while
the penalty imposed is that of reclusion perpetua there were two separate opinions one from Justice
Teehankee and the other from the late Chief Justice, then Justice, Castro. They would apply Article 335 of
the Revised Penal Code. Retired Chief Justice Makalintal, now Speaker of the Batasan Pambansa, then
Acting Chief Justice, concurred in the separate opinion of the late Chief Justice Castro. Less than a year
before, however, in September of 1972, Carandang being a 1973 decision, he penned the unanimous
opinion in People v. Olden 17 affirming the joint judgment of a Court of First Instance of Davao in two
cases, one of which was robbery in band with multiple rape. It was not the death sentence that was
imposed but reclusion perpetua. 18 That case is certainly later than People v. Obtinalia 19 decided in April
of 1971, where, in a per curiam opinion, Article 335 of the Revised Penal Code was applied, although the
offense for which the accused were found guilty was robbery with rape. It is, therefore, re-assuring that
with the decision of this case, the uncertainty which has beclouded the issue of the appropriate
imposable penalty has been removed.
One last word. The maximum Nullum crimen nulla poena sine lege has its roots in history. It is in
accordance with both centuries of civil law and common law tradition. Moreover, it is an indispensable
coronary to a regime of liberty enshrined in our Constitution. It is of the essence then that while anti-
social acts should be penalized, there must be a clear definition of the punishable offense as well as the
penalty that may be imposed a penalty, to repeat, that can be fixed by the legislative body, and the
legislative body alone. So constitutionalism mandates, with its stress on jurisdiction rather than
guvernaculum.The judiciary as the dispenser of justice through law must be aware of the limitation on its
own power.
Such a concept calls for undiminished respect from the judiciary. For it is the department by which the
other branches are held to strict accountability. It sees to it, in propriate cases of course, that they are
held within the bounds of their authority. Certainly, the judiciary is not devoid of discretion., It can, to
paraphrase Cardozo, fill in the gap and clear the ambiguities. To that extent. it is free but, to recall
Cardozo anew, it "is still not wholly free. [A judge] is no to innovate at pleasure. He is not a knight-errant,
roaming at will in pursuit of his own Ideal of beauty or of goodness. He is to draw his inspiration from
consecrated principles." 20
Tersely stated, the judiciary administers justice according to law. This is by no means to imply that in the
case at hand, justice according to law is at war with the concept of justice viewed from the layman's
standpoint. The system of criminal law followed in the Philippines, true to the ways of constitutionalism,
has always leaned toward the milder form of responsibility, whether as to the nature of the offense or
the penalty to be incurred by the wrongdoer. 21 Where, as in this case, the law speaks in clear and
categorical language, such a principle is impressed with greater weight.
TEEHANKEE, J, concurring:
I concur with the judgment at bar which affirms the trial court's decision convicting the accused-
appellant Timoteo Cabural alone of the crime of robbery with rape and imposing upon him the proper
penalty of reclusion perpetua under Article 294, par. 2 of the the Revised Penal Code. The record and
testimony of the victim of the rape show quite clearly that Cabural alone was responsible for and
committed the rape on the victim, so that his companions were likewise properly sentenced for the crime
of robbery alone. There is, therefore, no room for the application of my separate opinions in the cited
cases of Perello, Carandang, Mabag etc., that where robbery with rape is committed but the rape is
qualified by the use of a deadly weapon or is committed by two persons, either of these two actors is
singled out by the amendatory Act, R.A. 4111, as supplying the controlling qualification and mandates he
imposition of the death penalty for the crime of qualified rape under Art. 335 of the Penal Code (and not
the lesser penalty of perpetua under Art. 294 for the complex crime of robbery with rape).
Separate Opinions
FERNANDO, C.J., concurring:
My concurrence in the opinion of the Court penned by Justice Relova is full, entire, and complete.
Nonetheless, I wish to express my gratification that this Court by a decisive vote 1 sustains the basic
postulate in both civil law and common law jurisdictions, expressed in the maximum Nullum crimen nulla
poena sine lege. It is undoubted, therefore, that unless there be a radical change in the thinking of the
Court, it is Article 294(2) not Article 335 of the Revised Penal Code that calls for application in the crime
of robbery with rape. 2 As noted in the opinion of the Court penned by Justice Aquino in People v.
Perello: 3 "Effective August 15, 1975 (or subsequent to this case) Presidential Decree No. 767 imposes the
penalty of reclusion perpetua to death 'when the robbery accompanied with rape is committed with the
use of a deadly weapon or by two or more persons.' That increased penalty cannot be retroactively
applied to this case. 4 As such offense of robbery was committed before that date, it is Article 294(2),
before its amendment, that supplies the governing rule. The applicable law then is clear and explicit. It
defined the offense and prescribed the penalty. The doctrine announced in Lizarraga Hermanos v. Yap
Tico 5 by Justice Moreland, in categorical language comes to mind. Thus: "The first and fundamental duty
of courts, in our judgment, is to apply the law. Construction and interpretation come only after it has
been demonstrated that application is impossible or inadequate without them." 6 There is relevance too
to this excerpt from Kapisanan ng mga Manggagawa sa Manila Railroad Company Credit Union Inc. v.
Manila Railroad Company: 7 "The applicable provision of Republic Act. No. 2023 quoted earlier, speaks
for itself.1äwphï1.ñët There is no ambiguity. As thus worded, it was so applied. Petitioner-appellant
cannot therefore raise any valid objection. For the lower court to view it otherwise would have been to
alter the law. That cannot be done by the judiciary. That is a function that properly appertains to the
legislative branch. 8
Nothing more appropriately appertains to the legislative branch than the definition of a crime and the
prescription of the penalty to be imposed. That is not a doctrine of recent vintage. It is traceable to
United States v. Wiltberger, 9 an 1820 America. Supreme Court opinion. No less than the eminent Chief
Justice Marshall spoke for the Court. To quote his exact language: "The rule that penal laws are to be
construed strictly is perhaps not much less old than construction itself. It is founded on the tenderness of
the law for the rights of individuals; and on the plain principle that the power of punishment is vested in
the legislative, not in the judicial department. It is the legislature, not the court, which is to define a
crime, and ordain its punishment." 10 That ruling was followed in the Philippines in a 1906 decision,
United States v. Almond. 11
So it has been in the Philippines since then. It was the same Justice Moreland who in United States v.
Abad Santos 12 promulgated in 1917, gave expression to a variation of such a fundamental postulate in
this wise: "Criminal statutes are to be strictly construed. No person should be brought within their terms
who is not clearly within them, nor should any act be pronounced criminal which is not clearly made so
by the statute." 13 The same year, Justice Carson in United States v. Estapia 14 in rejecting the contention
that the application of a penal provision even if not covered by its terms should be viewed by the
judiciary as commendable, conducive as it is to the repression of a reprehensible practice" pointed out:
"To this it should be sufficient answer to say that neither the executive nor the judicial authorities are
authorized to impose fines and prison sentences in cases wherein such fines and prison sentences are
not clearly authorized by law, and this without regard to the end sought to be attained by the
enforcement of such unauthorized penalties."15
It is to be admitted that from the standpoint of logic alone, there is much to be said for the view that
since rape under certain circumstances is penalized with death, it is an affront to reason if robbery with
rape carries with it a lesser penalty. The latter offense is far more reprehensible, ergo it must be punished
at least with equal if not more severity. It is from that perspective that in People v. Carandang 16 while
10
the penalty imposed is that of reclusion perpetua there were two separate opinions one from Justice
Teehankee and the other from the late Chief Justice, then Justice, Castro. They would apply Article 335 of
the Revised Penal Code. Retired Chief Justice Makalintal, now Speaker of the Batasan Pambansa, then
Acting Chief Justice, concurred in the separate opinion of the late Chief Justice Castro. Less than a year
before, however, in September of 1972, Carandang being a 1973 decision, he penned the unanimous
opinion in People v. Olden 17 affirming the joint judgment of a Court of First Instance of Davao in two
cases, one of which was robbery in band with multiple rape. It was not the death sentence that was
imposed but reclusion perpetua. 18 That case is certainly later than People v. Obtinalia 19 decided in April
of 1971, where, in a per curiam opinion, Article 335 of the Revised Penal Code was applied, although the
offense for which the accused were found guilty was robbery with rape. It is, therefore, re-assuring that
with the decision of this case, the uncertainty which has beclouded the issue of the appropriate
imposable penalty has been removed.
One last word. The maximum Nullum crimen nulla poena sine lege has its roots in history. It is in
accordance with both centuries of civil law and common law tradition. Moreover, it is an indispensable
coronary to a regime of liberty enshrined in our Constitution. It is of the essence then that while anti-
social acts should be penalized, there must be a clear definition of the punishable offense as well as the
penalty that may be imposed a penalty, to repeat, that can be fixed by the legislative body, and the
legislative body alone. So constitutionalism mandates, with its stress on jurisdiction rather than
guvernaculum.The judiciary as the dispenser of justice through law must be aware of the limitation on its
own power.
Such a concept calls for undiminished respect from the judiciary. For it is the department by which the
other branches are held to strict accountability. It sees to it, in propriate cases of course, that they are
held within the bounds of their authority. Certainly, the judiciary is not devoid of discretion., It can, to
paraphrase Cardozo, fill in the gap and clear the ambiguities. To that extent. it is free but, to recall
Cardozo anew, it "is still not wholly free. [A judge] is no to innovate at pleasure. He is not a knight-errant,
roaming at will in pursuit of his own Ideal of beauty or of goodness. He is to draw his inspiration from
consecrated principles." 20
Tersely stated, the judiciary administers justice according to law. This is by no means to imply that in the
case at hand, justice according to law is at war with the concept of justice viewed from the layman's
standpoint. The system of criminal law followed in the Philippines, true to the ways of constitutionalism,
has always leaned toward the milder form of responsibility, whether as to the nature of the offense or
the penalty to be incurred by the wrongdoer. 21 Where, as in this case, the law speaks in clear and
categorical language, such a principle is impressed with greater weight.
TEEHANKEE, J, concurring:
I concur with the judgment at bar which affirms the trial court's decision convicting the accused-
appellant Timoteo Cabural alone of the crime of robbery with rape and imposing upon him the proper
penalty of reclusion perpetua under Article 294, par. 2 of the the Revised Penal Code. The record and
testimony of the victim of the rape show quite clearly that Cabural alone was responsible for and
committed the rape on the victim, so that his companions were likewise properly sentenced for the crime
of robbery alone. There is, therefore, no room for the application of my separate opinions in the cited
cases of Perello, Carandang, Mabag etc., that where robbery with rape is committed but the rape is
qualified by the use of a deadly weapon or is committed by two persons, either of these two actors is
singled out by the amendatory Act, R.A. 4111, as supplying the controlling qualification and mandates he
imposition of the death penalty for the crime of qualified rape under Art. 335 of the Penal Code (and not
the lesser penalty of perpetua under Art. 294 for the complex crime of robbery with rape).

11
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 151258 February 1, 2012
ARTEMIO VILLAREAL, Petitioner, vs.
PEOPLE OF THE PHILIPPINES, Respondent.
x-----------------------x
G.R. No. 154954
PEOPLE OF THE PHILIPPINES, Petitioner, vs.
The HONORABLE COURT OF APPEALS, ANTONIO MARIANO ALMEDA, DALMACIO LIM, Jr., JUNEL
ANTHONY AMA, ERNESTO JOSE MONTECILLO, VINCENT TECSON, ANTONIO GENERAL, SANTIAGO
RANADA III, NELSON VICTORINO, JAIME MARIA FLORES II, ZOSIMO MENDOZA, MICHAEL MUSNGI,
VICENTE VERDADERO, ETIENNE GUERRERO, JUDE FERNANDEZ, AMANTE PURISIMA II, EULOGIO
SABBAN, PERCIVAL BRIGOLA, PAUL ANGELO SANTOS, JONAS KARL B. PEREZ, RENATO BANTUG, JR.,
ADEL ABAS, JOSEPH LLEDO, and RONAN DE GUZMAN, Respondents.
x-----------------------x
G.R. No. 155101
FIDELITO DIZON, Petitioner, vs.
PEOPLE OF THE PHILIPPINES, Respondent.
x-----------------------x
G.R. Nos. 178057 & 178080
GERARDA H. VILLA, Petitioner, vs.
MANUEL LORENZO ESCALONA II, MARCUS JOEL CAPELLAN RAMOS, CRISANTO CRUZ SARUCA, Jr., and
ANSELMO ADRIANO, Respondents.
DECISION
SERENO, J.:
The public outrage over the death of Leonardo "Lenny" Villa – the victim in this case – on 10 February
1991 led to a very strong clamor to put an end to hazing.1 Due in large part to the brave efforts of his
mother, petitioner Gerarda Villa, groups were organized, condemning his senseless and tragic death. This
widespread condemnation prompted Congress to enact a special law, which became effective in 1995,
that would criminalize hazing.2 The intent of the law was to discourage members from making hazing a
requirement for joining their sorority, fraternity, organization, or association.3 Moreover, the law was
meant to counteract the exculpatory implications of "consent" and "initial innocent act" in the conduct of
initiation rites by making the mere act of hazing punishable or mala prohibita.4
Sadly, the Lenny Villa tragedy did not discourage hazing activities in the country.5 Within a year of his
death, six more cases of hazing-related deaths emerged – those of Frederick Cahiyang of the University
of Visayas in Cebu; Raul Camaligan of San Beda College; Felipe Narne of Pamantasan ng Araullo in
Cabanatuan City; Dennis Cenedoza of the Cavite Naval Training Center; Joselito Mangga of the Philippine
Merchant Marine Institute; and Joselito Hernandez of the University of the Philippines in Baguio City.6
Although courts must not remain indifferent to public sentiments, in this case the general condemnation
of a hazing-related death, they are still bound to observe a fundamental principle in our criminal justice
system – "[N]o act constitutes a crime… unless it is made so by law."7 Nullum crimen, nulla poena sine
lege. Even if an act is viewed by a large section of the populace as immoral or injurious, it cannot be
considered a crime, absent any law prohibiting its commission. As interpreters of the law, judges are
called upon to set aside emotion, to resist being swayed by strong public sentiments, and to rule strictly
based on the elements of the offense and the facts allowed in evidence.
Before the Court are the consolidated cases docketed as G.R. No. 151258 (Villareal v. People), G.R. No.
154954 (People v. Court of Appeals), G.R. No. 155101 (Dizon v. People), and G.R. Nos. 178057 and
178080 (Villa v. Escalona).
Facts
The pertinent facts, as determined by the Court of Appeals (CA)8 and the trial court,9 are as follows:
In February 1991, seven freshmen law students of the Ateneo de Manila University School of Law
signified their intention to join the Aquila Legis Juris Fraternity (Aquila Fraternity). They were Caesar
"Bogs" Asuncion, Samuel "Sam" Belleza, Bienvenido "Bien" Marquez III, Roberto Francis "Bert" Navera,
Geronimo "Randy" Recinto, Felix Sy, Jr., and Leonardo "Lenny" Villa (neophytes).
On the night of 8 February 1991, the neophytes were met by some members of the Aquila Fraternity
(Aquilans) at the lobby of the Ateneo Law School. They all proceeded to Rufo’s Restaurant to have dinner.
Afterwards, they went to the house of Michael Musngi, also an Aquilan, who briefed the neophytes on
what to expect during the initiation rites. The latter were informed that there would be physical beatings,
and that they could quit at any time. Their initiation rites were scheduled to last for three days. After
their "briefing," they were brought to the Almeda Compound in Caloocan City for the commencement of
their initiation.
Even before the neophytes got off the van, they had already received threats and insults from the
Aquilans. As soon as the neophytes alighted from the van and walked towards the pelota court of the
Almeda compound, some of the Aquilans delivered physical blows to them. The neophytes were then
subjected to traditional forms of Aquilan "initiation rites." These rites included the "Indian Run," which
required the neophytes to run a gauntlet of two parallel rows of Aquilans, each row delivering blows to
the neophytes; the "Bicol Express," which obliged the neophytes to sit on the floor with their backs
against the wall and their legs outstretched while the Aquilans walked, jumped, or ran over their legs; the
"Rounds," in which the neophytes were held at the back of their pants by the "auxiliaries" (the Aquilans
charged with the duty of lending assistance to neophytes during initiation rites), while the latter were
being hit with fist blows on their arms or with knee blows on their thighs by two Aquilans; and the
"Auxies’ Privilege Round," in which the auxiliaries were given the opportunity to inflict physical pain on
the neophytes. During this time, the neophytes were also indoctrinated with the fraternity principles.
They survived their first day of initiation.
On the morning of their second day – 9 February 1991 – the neophytes were made to present comic
plays and to play rough basketball. They were also required to memorize and recite the Aquila
Fraternity’s principles. Whenever they would give a wrong answer, they would be hit on their arms or
legs. Late in the afternoon, the Aquilans revived the initiation rites proper and proceeded to torment
them physically and psychologically. The neophytes were subjected to the same manner of hazing that
they endured on the first day of initiation. After a few hours, the initiation for the day officially ended.
After a while, accused non-resident or alumni fraternity members10 Fidelito Dizon (Dizon) and Artemio
Villareal (Villareal) demanded that the rites be reopened. The head of initiation rites, Nelson Victorino
(Victorino), initially refused. Upon the insistence of Dizon and Villareal, however, he reopened the
initiation rites. The fraternity members, including Dizon and Villareal, then subjected the neophytes to
"paddling" and to additional rounds of physical pain. Lenny received several paddle blows, one of which
was so strong it sent him sprawling to the ground. The neophytes heard him complaining of intense pain
and difficulty in breathing. After their last session of physical beatings, Lenny could no longer walk. He
had to be carried by the auxiliaries to the carport. Again, the initiation for the day was officially ended,
and the neophytes started eating dinner. They then slept at the carport.
After an hour of sleep, the neophytes were suddenly roused by Lenny’s shivering and incoherent
mumblings. Initially, Villareal and Dizon dismissed these rumblings, as they thought he was just
overacting. When they realized, though, that Lenny was really feeling cold, some of the Aquilans started
helping him. They removed his clothes and helped him through a sleeping bag to keep him warm. When
his condition worsened, the Aquilans rushed him to the hospital. Lenny was pronounced dead on arrival.
Consequently, a criminal case for homicide was filed against the following 35 Aquilans:
In Criminal Case No. C-38340(91)
1. Fidelito Dizon (Dizon)
2. Artemio Villareal (Villareal)
3. Efren de Leon (De Leon)
4. Vincent Tecson (Tecson)
5. Junel Anthony Ama (Ama)
6. Antonio Mariano Almeda (Almeda)
7. Renato Bantug, Jr. (Bantug)
8. Nelson Victorino (Victorino)
9. Eulogio Sabban (Sabban)
10. Joseph Lledo (Lledo)
11. Etienne Guerrero (Guerrero)
12
 12. Michael Musngi (Musngi) 9015318 reversed the trial court’s Orders and dismissed the criminal case against Escalona, Ramos,
13. Jonas Karl Perez (Perez) Saruca, and Adriano on the basis of violation of their right to speedy trial.19
14. Paul Angelo Santos (Santos) From the aforementioned Decisions, the five (5) consolidated Petitions were individually brought before
15. Ronan de Guzman (De Guzman) this Court.
16. Antonio General (General) G.R. No. 151258 – Villareal v. People
17. Jaime Maria Flores II (Flores) The instant case refers to accused Villareal’s Petition for Review on Certiorari under Rule 45. The Petition
18. Dalmacio Lim, Jr. (Lim) raises two reversible errors allegedly committed by the CA in its Decision dated 10 January 2002 in CA-
19. Ernesto Jose Montecillo (Montecillo) G.R. No. 15520 – first, denial of due process; and, second, conviction absent proof beyond reasonable
20. Santiago Ranada III (Ranada) doubt.20
21. Zosimo Mendoza (Mendoza) While the Petition was pending before this Court, counsel for petitioner Villareal filed a Notice of Death
22. Vicente Verdadero (Verdadero) of Party on 10 August 2011. According to the Notice, petitioner Villareal died on 13 March 2011. Counsel
23. Amante Purisima II (Purisima) thus asserts that the subject matter of the Petition previously filed by petitioner does not survive the
24. Jude Fernandez (J. Fernandez) death of the accused.
25. Adel Abas (Abas) G.R. No. 155101 – Dizon v. People
26. Percival Brigola (Brigola) Accused Dizon filed a Rule 45 Petition for Review on Certiorari, questioning the CA’s Decision dated 10
In Criminal Case No. C-38340 January 2002 and Resolution dated 30 August 2002 in CA-G.R. No. 15520.21 Petitioner sets forth two
1. Manuel Escalona II (Escalona) main issues – first, that he was denied due process when the CA sustained the trial court’s forfeiture of
2. Crisanto Saruca, Jr. (Saruca) his right to present evidence; and, second, that he was deprived of due process when the CA did not
3. Anselmo Adriano (Adriano) apply to him the same "ratio decidendi that served as basis of acquittal of the other accused."22
4. Marcus Joel Ramos (Ramos) As regards the first issue, the trial court made a ruling, which forfeited Dizon’s right to present evidence
5. Reynaldo Concepcion (Concepcion) during trial. The trial court expected Dizon to present evidence on an earlier date since a co-accused,
6. Florentino Ampil (Ampil) Antonio General, no longer presented separate evidence during trial. According to Dizon, his right should
7. Enrico de Vera III (De Vera) not have been considered as waived because he was justified in asking for a postponement. He argues
8. Stanley Fernandez (S. Fernandez) that he did not ask for a resetting of any of the hearing dates and in fact insisted that he was ready to
9. Noel Cabangon (Cabangon) present evidence on the original pre-assigned schedule, and not on an earlier hearing date.
Twenty-six of the accused Aquilans in Criminal Case No. C-38340(91) were jointly tried.11 On the other Regarding the second issue, petitioner contends that he should have likewise been acquitted, like the
hand, the trial against the remaining nine accused in Criminal Case No. C-38340 was held in abeyance other accused, since his acts were also part of the traditional initiation rites and were not tainted by evil
due to certain matters that had to be resolved first.12 motives.23 He claims that the additional paddling session was part of the official activity of the fraternity.
On 8 November 1993, the trial court rendered judgment in Criminal Case No. C-38340(91), holding the He also points out that one of the neophytes admitted that the chairperson of the initiation rites
26 accused guilty beyond reasonable doubt of the crime of homicide, penalized with reclusion temporal "decided that [Lenny] was fit enough to undergo the initiation so Mr. Villareal proceeded to do the
under Article 249 of the Revised Penal Code.13 A few weeks after the trial court rendered its judgment, paddling…."24 Further, petitioner echoes the argument of the Solicitor General that "the individual blows
or on 29 November 1993, Criminal Case No. C-38340 against the remaining nine accused commenced inflicted by Dizon and Villareal could not have resulted in Lenny’s death."25 The Solicitor General
anew.14 purportedly averred that, "on the contrary, Dr. Arizala testified that the injuries suffered by Lenny could
On 10 January 2002, the CA in (CA-G.R. No. 15520)15 set aside the finding of conspiracy by the trial court not be considered fatal if taken individually, but if taken collectively, the result is the violent death of the
in Criminal Case No. C-38340(91) and modified the criminal liability of each of the accused according to victim."26
individual participation. Accused De Leon had by then passed away, so the following Decision applied Petitioner then counters the finding of the CA that he was motivated by ill will. He claims that Lenny’s
only to the remaining 25 accused, viz: father could not have stolen the parking space of Dizon’s father, since the latter did not have a car, and
1. Nineteen of the accused-appellants – Victorino, Sabban, Lledo, Guerrero, Musngi, Perez, De Guzman, their fathers did not work in the same place or office. Revenge for the loss of the parking space was the
Santos, General, Flores, Lim, Montecillo, Ranada, Mendoza, Verdadero, Purisima, Fernandez, Abas, and alleged ill motive of Dizon. According to petitioner, his utterances regarding a stolen parking space were
Brigola (Victorino et al.) – were acquitted, as their individual guilt was not established by proof beyond only part of the "psychological initiation." He then cites the testimony of Lenny’s co-neophyte – witness
reasonable doubt. Marquez – who admitted knowing "it was not true and that he was just making it up…."27
2. Four of the accused-appellants – Vincent Tecson, Junel Anthony Ama, Antonio Mariano Almeda, and Further, petitioner argues that his alleged motivation of ill will was negated by his show of concern for
Renato Bantug, Jr. (Tecson et al.) – were found guilty of the crime of slight physical injuries and sentenced Villa after the initiation rites. Dizon alludes to the testimony of one of the neophytes, who mentioned
to 20 days of arresto menor. They were also ordered to jointly pay the heirs of the victim the sum of ₱ that the former had kicked the leg of the neophyte and told him to switch places with Lenny to prevent
30,000 as indemnity. the latter’s chills. When the chills did not stop, Dizon, together with Victorino, helped Lenny through a
3. Two of the accused-appellants – Fidelito Dizon and Artemio Villareal – were found guilty beyond sleeping bag and made him sit on a chair. According to petitioner, his alleged ill motivation is contradicted
reasonable doubt of the crime of homicide under Article 249 of the Revised Penal Code. Having found no by his manifestation of compassion and concern for the victim’s well-being.
mitigating or aggravating circumstance, the CA sentenced them to an indeterminate sentence of 10 years G.R. No. 154954 – People v. Court of Appeals
of prision mayor to 17 years of reclusion temporal. They were also ordered to indemnify, jointly and This Petition for Certiorari under Rule 65 seeks the reversal of the CA’s Decision dated 10 January 2002
severally, the heirs of Lenny Villa in the sum of ₱ 50,000 and to pay the additional amount of ₱ 1,000,000 and Resolution dated 30 August 2002 in CA-G.R. No. 15520, insofar as it acquitted 19 (Victorino et al.)
by way of moral damages. and convicted 4 (Tecson et al.) of the accused Aquilans of the lesser crime of slight physical injuries.28
On 5 August 2002, the trial court in Criminal Case No. 38340 dismissed the charge against accused According to the Solicitor General, the CA erred in holding that there could have been no conspiracy to
Concepcion on the ground of violation of his right to speedy trial.16 Meanwhile, on different dates commit hazing, as hazing or fraternity initiation had not yet been criminalized at the time Lenny died.
between the years 2003 and 2005, the trial court denied the respective Motions to Dismiss of accused In the alternative, petitioner claims that the ruling of the trial court should have been upheld, inasmuch
Escalona, Ramos, Saruca, and Adriano.17 On 25 October 2006, the CA in CA-G.R. SP Nos. 89060 & as it found that there was conspiracy to inflict physical injuries on Lenny. Since the injuries led to the

13
victim’s death, petitioner posits that the accused Aquilans are criminally liable for the resulting crime of
homicide, pursuant to Article 4 of the Revised Penal Code.29 The said article provides: "Criminal liability
shall be incurred… [b]y any person committing a felony (delito) although the wrongful act done be
different from that which he intended."
Petitioner also argues that the rule on double jeopardy is inapplicable. According to the Solicitor General,
the CA acted with grave abuse of discretion, amounting to lack or excess of jurisdiction, in setting aside
the trial court’s finding of conspiracy and in ruling that the criminal liability of all the accused must be
based on their individual participation in the commission of the crime.
G.R. Nos. 178057 and 178080 – Villa v. Escalona
Petitioner Villa filed the instant Petition for Review on Certiorari, praying for the reversal of the CA’s
Decision dated 25 October 2006 and Resolution dated 17 May 2007 in CA-G.R. S.P. Nos. 89060 and
90153.30 The Petition involves the dismissal of the criminal charge filed against Escalona, Ramos, Saruca,
and Adriano.
Due to "several pending incidents," the trial court ordered a separate trial for accused Escalona, Saruca,
Adriano, Ramos, Ampil, Concepcion, De Vera, S. Fernandez, and Cabangon (Criminal Case No. C-38340) to
commence after proceedings against the 26 other accused in Criminal Case No. C-38340(91) shall have
terminated. On 8 November 1993, the trial court found the 26 accused guilty beyond reasonable doubt.
As a result, the proceedings in Criminal Case No. C-38340 involving the nine other co-accused
recommenced on 29 November 1993. For "various reasons," the initial trial of the case did not
commence until 28 March 2005, or almost 12 years after the arraignment of the nine accused.
Petitioner Villa assails the CA’s dismissal of the criminal case involving 4 of the 9 accused, namely,
Escalona, Ramos, Saruca, and Adriano. She argues that the accused failed to assert their right to speedy
trial within a reasonable period of time. She also points out that the prosecution cannot be faulted for
the delay, as the original records and the required evidence were not at its disposal, but were still in the
appellate court.
We resolve herein the various issues that we group into five.
Issues
1. Whether the forfeiture of petitioner Dizon’s right to present evidence constitutes denial of due
process;
2. Whether the CA committed grave abuse of discretion, amounting to lack or excess of jurisdiction when
it dismissed the case against Escalona, Ramos, Saruca, and Adriano for violation of the right of the
accused to speedy trial;
3. Whether the CA committed grave abuse of discretion, amounting to lack or excess of jurisdiction,
when it set aside the finding of conspiracy by the trial court and adjudicated the liability of each accused
according to individual participation;
4. Whether accused Dizon is guilty of homicide; and
5. Whether the CA committed grave abuse of discretion when it pronounced Tecson, Ama, Almeda, and
Bantug guilty only of slight physical injuries.
Discussion
Resolution on Preliminary Matters
G.R. No. 151258 – Villareal v. People
In a Notice dated 26 September 2011 and while the Petition was pending resolution, this Court took note
of counsel for petitioner’s Notice of Death of Party.
According to Article 89(1) of the Revised Penal Code, criminal liability for personal penalties is totally
extinguished by the death of the convict. In contrast, criminal liability for pecuniary penalties is
extinguished if the offender dies prior to final judgment. The term "personal penalties" refers to the
service of personal or imprisonment penalties,31 while the term "pecuniary penalties" (las pecuniarias)
refers to fines and costs,32 including civil liability predicated on the criminal offense complained of (i.e.,
civil liability ex delicto).33 However, civil liability based on a source of obligation other than the delict
survives the death of the accused and is recoverable through a separate civil action.34
Thus, we hold that the death of petitioner Villareal extinguished his criminal liability for both personal
and pecuniary penalties, including his civil liability directly arising from the delict complained of.
Consequently, his Petition is hereby dismissed, and the criminal case against him deemed closed and
terminated.
G.R. No. 155101 (Dizon v. People)
In an Order dated 28 July 1993, the trial court set the dates for the reception of evidence for accused-
petitioner Dizon on the 8th, 15th, and 22nd of September; and the 5th and 12 of October 1993.35 The
Order likewise stated that "it will not entertain any postponement and that all the accused who have not
yet presented their respective evidence should be ready at all times down the line, with their evidence
on all said dates. Failure on their part to present evidence when required shall therefore be construed as
waiver to present evidence."36
However, on 19 August 1993, counsel for another accused manifested in open court that his client –
Antonio General – would no longer present separate evidence. Instead, the counsel would adopt the
testimonial evidence of the other accused who had already testified.37 Because of this development and
pursuant to the trial court’s Order that the parties "should be ready at all times down the line," the trial
court expected Dizon to present evidence on the next trial date – 25 August 1993 – instead of his
originally assigned dates. The original dates were supposed to start two weeks later, or on 8 September
1993.38 Counsel for accused Dizon was not able to present evidence on the accelerated date. To address
the situation, counsel filed a Constancia on 25 August 1993, alleging that he had to appear in a previously
scheduled case, and that he would be ready to present evidence on the dates originally assigned to his
clients.39 The trial court denied the Manifestation on the same date and treated the Constancia as a
motion for postponement, in violation of the three-day-notice rule under the Rules of Court.40
Consequently, the trial court ruled that the failure of Dizon to present evidence amounted to a waiver of
that right.41
Accused-petitioner Dizon thus argues that he was deprived of due process of law when the trial court
forfeited his right to present evidence. According to him, the postponement of the 25 August 1993
hearing should have been considered justified, since his original pre-assigned trial dates were not
supposed to start until 8 September 1993, when he was scheduled to present evidence. He posits that he
was ready to present evidence on the dates assigned to him. He also points out that he did not ask for a
resetting of any of the said hearing dates; that he in fact insisted on being allowed to present evidence on
the dates fixed by the trial court. Thus, he contends that the trial court erred in accelerating the schedule
of presentation of evidence, thereby invalidating the finding of his guilt.
The right of the accused to present evidence is guaranteed by no less than the Constitution itself.42
Article III, Section 14(2) thereof, provides that "in all criminal prosecutions, the accused … shall enjoy the
right to be heard by himself and counsel…" This constitutional right includes the right to present evidence
in one’s defense,43 as well as the right to be present and defend oneself in person at every stage of the
proceedings.44
In Crisostomo v. Sandiganbayan,45 the Sandiganbayan set the hearing of the defense’s presentation of
evidence for 21, 22 and 23 June 1995. The 21 June 1995 hearing was cancelled due to "lack of quorum in
the regular membership" of the Sandiganbayan’s Second Division and upon the agreement of the parties.
The hearing was reset for the next day, 22 June 1995, but Crisostomo and his counsel failed to attend.
The Sandiganbayan, on the very same day, issued an Order directing the issuance of a warrant for the
arrest of Crisostomo and the confiscation of his surety bond. The Order further declared that he had
waived his right to present evidence because of his nonappearance at "yesterday’s and today’s scheduled
hearings." In ruling against the Order, we held thus:
Under Section 2(c), Rule 114 and Section 1(c), Rule 115 of the Rules of Court, Crisostomo’s non-
appearance during the 22 June 1995 trial was merely a waiver of his right to be present for trial on such
date only and not for the succeeding trial dates…
xxx xxx xxx
Moreover, Crisostomo’s absence on the 22 June 1995 hearing should not have been deemed as a waiver
of his right to present evidence. While constitutional rights may be waived, such waiver must be clear
and must be coupled with an actual intention to relinquish the right. Crisostomo did not voluntarily waive
in person or even through his counsel the right to present evidence. The Sandiganbayan imposed the
waiver due to the agreement of the prosecution, Calingayan, and Calingayan's counsel.
In criminal cases where the imposable penalty may be death, as in the present case, the court is called
upon to see to it that the accused is personally made aware of the consequences of a waiver of the right
to present evidence. In fact, it is not enough that the accused is simply warned of the consequences of
another failure to attend the succeeding hearings. The court must first explain to the accused personally
in clear terms the exact nature and consequences of a waiver. Crisostomo was not even forewarned. The
14
Sandiganbayan simply went ahead to deprive Crisostomo of his right to present evidence without even
allowing Crisostomo to explain his absence on the 22 June 1995 hearing.
Clearly, the waiver of the right to present evidence in a criminal case involving a grave penalty is not
assumed and taken lightly. The presence of the accused and his counsel is indispensable so that the court
could personally conduct a searching inquiry into the waiver x x x.46 (Emphasis supplied)
The trial court should not have deemed the failure of petitioner to present evidence on 25 August 1993
as a waiver of his right to present evidence. On the contrary, it should have considered the excuse of
counsel justified, especially since counsel for another accused – General – had made a last-minute
adoption of testimonial evidence that freed up the succeeding trial dates; and since Dizon was not
scheduled to testify until two weeks later. At any rate, the trial court pre-assigned five hearing dates for
the reception of evidence. If it really wanted to impose its Order strictly, the most it could have done was
to forfeit one out of the five days set for Dizon’s testimonial evidence. Stripping the accused of all his pre-
assigned trial dates constitutes a patent denial of the constitutionally guaranteed right to due process.
Nevertheless, as in the case of an improvident guilty plea, an invalid waiver of the right to present
evidence and be heard does not per se work to vacate a finding of guilt in the criminal case or to enforce
an automatic remand of the case to the trial court.47 In People v. Bodoso, we ruled that where facts have
adequately been represented in a criminal case, and no procedural unfairness or irregularity has
prejudiced either the prosecution or the defense as a result of the invalid waiver, the rule is that a guilty
verdict may nevertheless be upheld if the judgment is supported beyond reasonable doubt by the
evidence on record.48
We do not see any material inadequacy in the relevant facts on record to resolve the case at bar. Neither
can we see any "procedural unfairness or irregularity" that would substantially prejudice either the
prosecution or the defense as a result of the invalid waiver. In fact, the arguments set forth by accused
Dizon in his Petition corroborate the material facts relevant to decide the matter. Instead, what he is
really contesting in his Petition is the application of the law to the facts by the trial court and the CA.
Petitioner Dizon admits direct participation in the hazing of Lenny Villa by alleging in his Petition that "all
actions of the petitioner were part of the traditional rites," and that "the alleged extension of the
initiation rites was not outside the official activity of the fraternity."49 He even argues that "Dizon did not
request for the extension and he participated only after the activity was sanctioned."50
For one reason or another, the case has been passed or turned over from one judge or justice to another
– at the trial court, at the CA, and even at the Supreme Court. Remanding the case for the reception of
the evidence of petitioner Dizon would only inflict further injustice on the parties. This case has been
going on for almost two decades. Its resolution is long overdue. Since the key facts necessary to decide
the case have already been determined, we shall proceed to decide it.
G.R. Nos. 178057 and 178080 (Villa v. Escalona)
Petitioner Villa argues that the case against Escalona, Ramos, Saruca, and Adriano should not have been
dismissed, since they failed to assert their right to speedy trial within a reasonable period of time. She
points out that the accused failed to raise a protest during the dormancy of the criminal case against
them, and that they asserted their right only after the trial court had dismissed the case against their co-
accused Concepcion. Petitioner also emphasizes that the trial court denied the respective Motions to
Dismiss filed by Saruca, Escalona, Ramos, and Adriano, because it found that "the prosecution could not
be faulted for the delay in the movement of this case when the original records and the evidence it may
require were not at its disposal as these were in the Court of Appeals."51
The right of the accused to a speedy trial has been enshrined in Sections 14(2) and 16, Article III of the
1987 Constitution.52 This right requires that there be a trial free from vexatious, capricious or oppressive
delays.53 The right is deemed violated when the proceeding is attended with unjustified postponements
of trial, or when a long period of time is allowed to elapse without the case being tried and for no cause
or justifiable motive.54 In determining the right of the accused to speedy trial, courts should do more
than a mathematical computation of the number of postponements of the scheduled hearings of the
case.55 The conduct of both the prosecution and the defense must be weighed.56 Also to be considered
are factors such as the length of delay, the assertion or non-assertion of the right, and the prejudice
wrought upon the defendant.57
We have consistently ruled in a long line of cases that a dismissal of the case pursuant to the right of the
accused to speedy trial is tantamount to acquittal.58 As a consequence, an appeal or a reconsideration of
the dismissal would amount to a violation of the principle of double jeopardy.59 As we have previously
discussed, however, where the dismissal of the case is capricious, certiorari lies.60 The rule on double
jeopardy is not triggered when a petition challenges the validity of the order of dismissal instead of the
correctness thereof.61 Rather, grave abuse of discretion amounts to lack of jurisdiction, and lack of
jurisdiction prevents double jeopardy from attaching.62
We do not see grave abuse of discretion in the CA’s dismissal of the case against accused Escalona,
Ramos, Saruca, and Adriano on the basis of the violation of their right to speedy trial. The court held
thus:
An examination of the procedural history of this case would reveal that the following factors contributed
to the slow progress of the proceedings in the case below:
xxx xxx xxx
5) The fact that the records of the case were elevated to the Court of Appeals and the prosecution’s
failure to comply with the order of the court a quo requiring them to secure certified true copies of the
same.
xxx xxx xxx
While we are prepared to concede that some of the foregoing factors that contributed to the delay of the
trial of the petitioners are justifiable, We nonetheless hold that their right to speedy trial has been utterly
violated in this case x x x.
xxx xxx xxx
[T]he absence of the records in the trial court [was] due to the fact that the records of the case were
elevated to the Court of Appeals, and the prosecution’s failure to comply with the order of the court a
quo requiring it to secure certified true copies of the same. What is glaring from the records is the fact
that as early as September 21, 1995, the court a quo already issued an Order requiring the prosecution,
through the Department of Justice, to secure the complete records of the case from the Court of
Appeals. The prosecution did not comply with the said Order as in fact, the same directive was repeated
by the court a quo in an Order dated December 27, 1995. Still, there was no compliance on the part of
the prosecution. It is not stated when such order was complied with. It appears, however, that even until
August 5, 2002, the said records were still not at the disposal of the trial court because the lack of it was
made the basis of the said court in granting the motion to dismiss filed by co-accused Concepcion x x x.
xxx xxx xxx
It is likewise noticeable that from December 27, 1995, until August 5, 2002, or for a period of almost
seven years, there was no action at all on the part of the court a quo. Except for the pleadings filed by
both the prosecution and the petitioners, the latest of which was on January 29, 1996, followed by
petitioner Saruca’s motion to set case for trial on August 17, 1998 which the court did not act upon, the
case remained dormant for a considerable length of time. This prolonged inactivity whatsoever is
precisely the kind of delay that the constitution frowns upon x x x.63 (Emphasis supplied)
This Court points out that on 10 January 1992, the final amended Information was filed against Escalona,
Ramos, Saruca, Ampil, S. Fernandez, Adriano, Cabangon, Concepcion, and De Vera.64 On 29 November
1993, they were all arraigned.65 Unfortunately, the initial trial of the case did not commence until 28
March 2005 or almost 12 years after arraignment.66
As illustrated in our ruling in Abardo v. Sandiganbayan, the unexplained interval or inactivity of the
Sandiganbayan for close to five years since the arraignment of the accused amounts to an unreasonable
delay in the disposition of cases – a clear violation of the right of the accused to a speedy disposition of
cases.67 Thus, we held:
The delay in this case measures up to the unreasonableness of the delay in the disposition of cases in
Angchangco, Jr. vs. Ombudsman, where the Court found the delay of six years by the Ombudsman in
resolving the criminal complaints to be violative of the constitutionally guaranteed right to a speedy
disposition of cases; similarly, in Roque vs. Office of the Ombudsman, where the Court held that the
delay of almost six years disregarded the Ombudsman's duty to act promptly on complaints before him;
and in Cervantes vs. Sandiganbayan, where the Court held that the Sandiganbayan gravely abused its
discretion in not quashing the information which was filed six years after the initiatory complaint was
filed and thereby depriving petitioner of his right to a speedy disposition of the case. So it must be in the
instant case, where the reinvestigation by the Ombudsman has dragged on for a decade already.68
(Emphasis supplied)
From the foregoing principles, we affirm the ruling of the CA in CA-G.R. SP No. 89060 that accused
Escalona et al.’s right to speedy trial was violated. Since there is nothing in the records that would show
15
that the subject of this Petition includes accused Ampil, S. Fernandez, Cabangon, and De Vera, the effects
of this ruling shall be limited to accused Escalona, Ramos, Saruca, and Adriano.
G.R. No. 154954 (People v. Court of Appeals)
The rule on double jeopardy is one of the pillars of our criminal justice system. It dictates that when a
person is charged with an offense, and the case is terminated – either by acquittal or conviction or in any
other manner without the consent of the accused – the accused cannot again be charged with the same
or an identical offense.69 This principle is founded upon the law of reason, justice and conscience.70 It is
embodied in the civil law maxim non bis in idem found in the common law of England and undoubtedly in
every system of jurisprudence.71 It found expression in the Spanish Law, in the Constitution of the United
States, and in our own Constitution as one of the fundamental rights of the citizen,72 viz:
Article III – Bill of Rights
Section 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is
punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another
prosecution for the same act.
Rule 117, Section 7 of the Rules of Court, which implements this particular constitutional right, provides
as follows:73
SEC. 7. Former conviction or acquittal; double jeopardy. — When an accused has been convicted or
acquitted, or the case against him dismissed or otherwise terminated without his express consent by a
court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in
form and substance to sustain a conviction and after the accused had pleaded to the charge, the
conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution
for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense
which necessarily includes or is necessarily included in the offense charged in the former complaint or
information.
The rule on double jeopardy thus prohibits the state from appealing the judgment in order to reverse the
acquittal or to increase the penalty imposed either through a regular appeal under Rule 41 of the Rules
of Court or through an appeal by certiorari on pure questions of law under Rule 45 of the same Rules.74
The requisites for invoking double jeopardy are the following: (a) there is a valid complaint or
information; (b) it is filed before a competent court; (c) the defendant pleaded to the charge; and (d) the
defendant was acquitted or convicted, or the case against him or her was dismissed or otherwise
terminated without the defendant’s express consent.75
As we have reiterated in People v. Court of Appeals and Galicia, "[a] verdict of acquittal is immediately
final and a reexamination of the merits of such acquittal, even in the appellate courts, will put the
accused in jeopardy for the same offense. The finality-of-acquittal doctrine has several avowed purposes.
Primarily, it prevents the State from using its criminal processes as an instrument of harassment to wear
out the accused by a multitude of cases with accumulated trials. It also serves the additional purpose of
precluding the State, following an acquittal, from successively retrying the defendant in the hope of
securing a conviction. And finally, it prevents the State, following conviction, from retrying the defendant
again in the hope of securing a greater penalty."76 We further stressed that "an acquitted defendant is
entitled to the right of repose as a direct consequence of the finality of his acquittal."77
This prohibition, however, is not absolute. The state may challenge the lower court’s acquittal of the
accused or the imposition of a lower penalty on the latter in the following recognized exceptions: (1)
where the prosecution is deprived of a fair opportunity to prosecute and prove its case, tantamount to a
deprivation of due process;78 (2) where there is a finding of mistrial;79 or (3) where there has been a
grave abuse of discretion.80
The third instance refers to this Court’s judicial power under Rule 65 to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch
or instrumentality of the government.81 Here, the party asking for the review must show the presence of
a whimsical or capricious exercise of judgment equivalent to lack of jurisdiction; a patent and gross abuse
of discretion amounting to an evasion of a positive duty or to a virtual refusal to perform a duty imposed
by law or to act in contemplation of law; an exercise of power in an arbitrary and despotic manner by
reason of passion and hostility;82 or a blatant abuse of authority to a point so grave and so severe as to
deprive the court of its very power to dispense justice.83 In such an event, the accused cannot be
considered to be at risk of double jeopardy.84
The Solicitor General filed a Rule 65 Petition for Certiorari, which seeks the reversal of (1) the acquittal of
Victorino et al. and (2) the conviction of Tecson et al. for the lesser crime of slight physical injuries, both
on the basis of a misappreciation of facts and evidence. According to the Petition, "the decision of the
Court of Appeals is not in accordance with law because private complainant and petitioner were denied
due process of law when the public respondent completely ignored the a) Position Paper x x x b) the
Motion for Partial Reconsideration x x x and c) the petitioner’s Comment x x x."85 Allegedly, the CA
ignored evidence when it adopted the theory of individual responsibility; set aside the finding of
conspiracy by the trial court; and failed to apply Article 4 of the Revised Penal Code.86 The Solicitor
General also assails the finding that the physical blows were inflicted only by Dizon and Villareal, as well
as the appreciation of Lenny Villa’s consent to hazing.87
In our view, what the Petition seeks is that we reexamine, reassess, and reweigh the probative value of
the evidence presented by the parties.88 In People v. Maquiling, we held that grave abuse of discretion
cannot be attributed to a court simply because it allegedly misappreciated the facts and the evidence.89
Mere errors of judgment are correctible by an appeal or a petition for review under Rule 45 of the Rules
of Court, and not by an application for a writ of certiorari.90 Therefore, pursuant to the rule on double
jeopardy, we are constrained to deny the Petition contra Victorino et al. – the 19 acquitted fraternity
members.
We, however, modify the assailed judgment as regards Tecson, Ama, Almeda, and Bantug – the four
fraternity members convicted of slight physical injuries.
Indeed, we have ruled in a line of cases that the rule on double jeopardy similarly applies when the state
seeks the imposition of a higher penalty against the accused.91 We have also recognized, however, that
certiorari may be used to correct an abusive judgment upon a clear demonstration that the lower court
blatantly abused its authority to a point so grave as to deprive it of its very power to dispense justice.92
The present case is one of those instances of grave abuse of discretion.
In imposing the penalty of slight physical injuries on Tecson, Ama, Almeda, and Bantug, the CA reasoned
thus:
Based on the medical findings, it would appear that with the exclusion of the fatal wounds inflicted by
the accused Dizon and Villareal, the injuries sustained by the victim as a result of the physical punishment
heaped on him were serious in nature. However, by reason of the death of the victim, there can be no
precise means to determine the duration of the incapacity or the medical attendance required. To do so,
at this stage would be merely speculative. In a prosecution for this crime where the category of the
offense and the severity of the penalty depend on the period of illness or incapacity for labor, the length
of this period must likewise be proved beyond reasonable doubt in much the same manner as the same
act charged [People v. Codilla, CA-G.R. No. 4079-R, June 26, 1950]. And when proof of the said period is
absent, the crime committed should be deemed only as slight physical injuries [People v. De los Santos,
CA, 59 O.G. 4393, citing People v. Penesa, 81 Phil. 398]. As such, this Court is constrained to rule that the
injuries inflicted by the appellants, Tecson, Ama, Almeda and Bantug, Jr., are only slight and not serious,
in nature.93 (Emphasis supplied and citations included)
The appellate court relied on our ruling in People v. Penesa94 in finding that the four accused should be
held guilty only of slight physical injuries. According to the CA, because of "the death of the victim, there
can be no precise means to determine the duration of the incapacity or medical attendance required."95
The reliance on Penesa was utterly misplaced. A review of that case would reveal that the accused
therein was guilty merely of slight physical injuries, because the victim’s injuries neither caused
incapacity for labor nor required medical attendance.96 Furthermore, he did not die.97 His injuries were
not even serious.98 Since Penesa involved a case in which the victim allegedly suffered physical injuries
and not death, the ruling cited by the CA was patently inapplicable.
On the contrary, the CA’s ultimate conclusion that Tecson, Ama, Almeda, and Bantug were liable merely
for slight physical injuries grossly contradicts its own findings of fact. According to the court, the four
accused "were found to have inflicted more than the usual punishment undertaken during such initiation
rites on the person of Villa."99 It then adopted the NBI medico-legal officer’s findings that the
antecedent cause of Lenny Villa’s death was the "multiple traumatic injuries" he suffered from the
initiation rites.100 Considering that the CA found that the "physical punishment heaped on [Lenny Villa
was] serious in nature,"101 it was patently erroneous for the court to limit the criminal liability to slight
physical injuries, which is a light felony.
16
Article 4(1) of the Revised Penal Code dictates that the perpetrator shall be liable for the consequences
of an act, even if its result is different from that intended. Thus, once a person is found to have
committed an initial felonious act, such as the unlawful infliction of physical injuries that results in the
death of the victim, courts are required to automatically apply the legal framework governing the
destruction of life. This rule is mandatory, and not subject to discretion.
The CA’s application of the legal framework governing physical injuries – punished under Articles 262 to
266 for intentional felonies and Article 365 for culpable felonies – is therefore tantamount to a whimsical,
capricious, and abusive exercise of judgment amounting to lack of jurisdiction. According to the Revised
Penal Code, the mandatory and legally imposable penalty in case the victim dies should be based on the
framework governing the destruction of the life of a person, punished under Articles 246 to 261 for
intentional felonies and Article 365 for culpable felonies, and not under the aforementioned provisions.
We emphasize that these two types of felonies are distinct from and legally inconsistent with each other,
in that the accused cannot be held criminally liable for physical injuries when actual death occurs.102
Attributing criminal liability solely to Villareal and Dizon – as if only their acts, in and of themselves,
caused the death of Lenny Villa – is contrary to the CA’s own findings. From proof that the death of the
victim was the cumulative effect of the multiple injuries he suffered,103 the only logical conclusion is that
criminal responsibility should redound to all those who have been proven to have directly participated in
the infliction of physical injuries on Lenny. The accumulation of bruising on his body caused him to suffer
cardiac arrest. Accordingly, we find that the CA committed grave abuse of discretion amounting to lack or
excess of jurisdiction in finding Tecson, Ama, Almeda, and Bantug criminally liable for slight physical
injuries. As an allowable exception to the rule on double jeopardy, we therefore give due course to the
Petition in G.R. No. 154954.
Resolution on Ultimate Findings
According to the trial court, although hazing was not (at the time) punishable as a crime, the intentional
infliction of physical injuries on Villa was nonetheless a felonious act under Articles 263 to 266 of the
Revised Penal Code. Thus, in ruling against the accused, the court a quo found that pursuant to Article
4(1) of the Revised Penal Code, the accused fraternity members were guilty of homicide, as it was the
direct, natural and logical consequence of the physical injuries they had intentionally inflicted.104
The CA modified the trial court’s finding of criminal liability. It ruled that there could have been no
conspiracy since the neophytes, including Lenny Villa, had knowingly consented to the conduct of hazing
during their initiation rites. The accused fraternity members, therefore, were liable only for the
consequences of their individual acts. Accordingly, 19 of the accused – Victorino et al. – were acquitted; 4
of them – Tecson et al. – were found guilty of slight physical injuries; and the remaining 2 – Dizon and
Villareal – were found guilty of homicide.
The issue at hand does not concern a typical criminal case wherein the perpetrator clearly commits a
felony in order to take revenge upon, to gain advantage over, to harm maliciously, or to get even with, the
victim. Rather, the case involves an ex ante situation in which a man – driven by his own desire to join a
society of men – pledged to go through physically and psychologically strenuous admission rituals, just so
he could enter the fraternity. Thus, in order to understand how our criminal laws apply to such situation
absent the Anti-Hazing Law, we deem it necessary to make a brief exposition on the underlying concepts
shaping intentional felonies, as well as on the nature of physical and psychological initiations widely
known as hazing.
Intentional Felony and Conspiracy
Our Revised Penal Code belongs to the classical school of thought.105 The classical theory posits that a
human person is essentially a moral creature with an absolute free will to choose between good and
evil.106 It asserts that one should only be adjudged or held accountable for wrongful acts so long as free
will appears unimpaired.107 The basic postulate of the classical penal system is that humans are rational
and calculating beings who guide their actions with reference to the principles of pleasure and pain.108
They refrain from criminal acts if threatened with punishment sufficient to cancel the hope of possible
gain or advantage in committing the crime.109 Here, criminal liability is thus based on the free will and
moral blame of the actor.110 The identity of mens rea – defined as a guilty mind, a guilty or wrongful
purpose or criminal intent – is the predominant consideration.111 Thus, it is not enough to do what the
law prohibits.112 In order for an intentional felony to exist, it is necessary that the act be committed by
means of dolo or "malice."113
The term "dolo" or "malice" is a complex idea involving the elements of freedom, intelligence, and
intent.114 The first element, freedom, refers to an act done with deliberation and with power to choose
between two things.115 The second element, intelligence, concerns the ability to determine the morality
of human acts, as well as the capacity to distinguish between a licit and an illicit act.116 The last element,
intent, involves an aim or a determination to do a certain act.117
The element of intent – on which this Court shall focus – is described as the state of mind accompanying
an act, especially a forbidden act.118 It refers to the purpose of the mind and the resolve with which a
person proceeds.119 It does not refer to mere will, for the latter pertains to the act, while intent
concerns the result of the act.120 While motive is the "moving power" that impels one to action for a
definite result, intent is the "purpose" of using a particular means to produce the result.121 On the other
hand, the term "felonious" means, inter alia, malicious, villainous, and/or proceeding from an evil heart
or purpose.122 With these elements taken together, the requirement of intent in intentional felony must
refer to malicious intent, which is a vicious and malevolent state of mind accompanying a forbidden act.
Stated otherwise, intentional felony requires the existence of dolus malus – that the act or omission be
done "willfully," "maliciously," "with deliberate evil intent," and "with malice aforethought."123 The
maxim is actus non facit reum, nisi mens sit rea – a crime is not committed if the mind of the person
performing the act complained of is innocent.124 As is required of the other elements of a felony, the
existence of malicious intent must be proven beyond reasonable doubt.125
In turn, the existence of malicious intent is necessary in order for conspiracy to attach. Article 8 of the
Revised Penal Code – which provides that "conspiracy exists when two or more persons come to an
agreement concerning the commission of a felony and decide to commit it" – is to be interpreted to refer
only to felonies committed by means of dolo or malice. The phrase "coming to an agreement" connotes
the existence of a prefaced "intent" to cause injury to another, an element present only in intentional
felonies. In culpable felonies or criminal negligence, the injury inflicted on another is unintentional, the
wrong done being simply the result of an act performed without malice or criminal design.126 Here, a
person performs an initial lawful deed; however, due to negligence, imprudence, lack of foresight, or lack
of skill, the deed results in a wrongful act.127 Verily, a deliberate intent to do an unlawful act, which is a
requisite in conspiracy, is inconsistent with the idea of a felony committed by means of culpa.128
The presence of an initial malicious intent to commit a felony is thus a vital ingredient in establishing the
commission of the intentional felony of homicide.129 Being mala in se, the felony of homicide requires
the existence of malice or dolo130 immediately before or simultaneously with the infliction of
injuries.131 Intent to kill – or animus interficendi – cannot and should not be inferred, unless there is
proof beyond reasonable doubt of such intent.132 Furthermore, the victim’s death must not have been
the product of accident, natural cause, or suicide.133 If death resulted from an act executed without
malice or criminal intent – but with lack of foresight, carelessness, or negligence – the act must be
qualified as reckless or simple negligence or imprudence resulting in homicide.134
Hazing and other forms of initiation rites
The notion of hazing is not a recent development in our society.135 It is said that, throughout history,
hazing in some form or another has been associated with organizations ranging from military groups to
indigenous tribes.136 Some say that elements of hazing can be traced back to the Middle Ages, during
which new students who enrolled in European universities worked as servants for upperclassmen.137 It
is believed that the concept of hazing is rooted in ancient Greece,138 where young men recruited into
the military were tested with pain or challenged to demonstrate the limits of their loyalty and to prepare
the recruits for battle.139 Modern fraternities and sororities espouse some connection to these values of
ancient Greek civilization.140 According to a scholar, this concept lends historical legitimacy to a
"tradition" or "ritual" whereby prospective members are asked to prove their worthiness and loyalty to
the organization in which they seek to attain membership through hazing.141
Thus, it is said that in the Greek fraternity system, custom requires a student wishing to join an
organization to receive an invitation in order to be a neophyte for a particular chapter.142 The neophyte
period is usually one to two semesters long.143 During the "program," neophytes are required to
interview and to get to know the active members of the chapter; to learn chapter history; to understand
the principles of the organization; to maintain a specified grade point average; to participate in the
organization’s activities; and to show dignity and respect for their fellow neophytes, the organization, and
its active and alumni members.144 Some chapters require the initiation activities for a recruit to involve
hazing acts during the entire neophyte stage.145
17
Hazing, as commonly understood, involves an initiation rite or ritual that serves as prerequisite for
admission to an organization.146 In hazing, the "recruit," "pledge," "neophyte," "initiate," "applicant" –
or any other term by which the organization may refer to such a person – is generally placed in
embarrassing or humiliating situations, like being forced to do menial, silly, foolish, or other similar tasks
or activities.147 It encompasses different forms of conduct that humiliate, degrade, abuse, or physically
endanger those who desire membership in the organization.148 These acts usually involve physical or
psychological suffering or injury.149
The concept of initiation rites in the country is nothing new. In fact, more than a century ago, our
national hero – Andres Bonifacio – organized a secret society named Kataastaasan Kagalanggalangang
Katipunan ng mga Anak ng Bayan (The Highest and Most Venerable Association of the Sons and
Daughters of the Nation).150 The Katipunan, or KKK, started as a small confraternity believed to be
inspired by European Freemasonry, as well as by confraternities or sodalities approved by the Catholic
Church.151 The Katipunan’s ideology was brought home to each member through the society’s initiation
ritual.152 It is said that initiates were brought to a dark room, lit by a single point of illumination, and
were asked a series of questions to determine their fitness, loyalty, courage, and resolve.153 They
were made to go through vigorous trials such as "pagsuot sa isang lungga" or "[pagtalon] sa balon."154
It would seem that they were also made to withstand the blow of "pangherong bakal sa pisngi" and to
endure a "matalas na punyal."155 As a final step in the ritual, the neophyte Katipunero was made to
sign membership papers with the his own blood.156
It is believed that the Greek fraternity system was transported by the Americans to the Philippines in the
late 19th century. As can be seen in the following instances, the manner of hazing in the United States
was jarringly similar to that inflicted by the Aquila Fraternity on Lenny Villa.
Early in 1865, upperclassmen at West Point Academy forced the fourth classmen to do exhausting
physical exercises that sometimes resulted in permanent physical damage; to eat or drink unpalatable
foods; and in various ways to humiliate themselves.157 In 1901, General Douglas MacArthur got involved
in a congressional investigation of hazing at the academy during his second year at West Point.158
In Easler v. Hejaz Temple of Greenville, decided in 1985, the candidate-victim was injured during the
shriner’s hazing event, which was part of the initiation ceremonies for Hejaz membership.159 The ritual
involved what was known as the "mattress-rotating barrel trick."160 It required each candidate to slide
down an eight to nine-foot-high metal board onto connected mattresses leading to a barrel, over which
the candidate was required to climb.161 Members of Hejaz would stand on each side of the mattresses
and barrel and fun-paddle candidates en route to the barrel.162
In a video footage taken in 1991, U.S. Marine paratroopers in Camp Lejeune, North Carolina, were seen
performing a ceremony in which they pinned paratrooper jump wings directly onto the neophyte
paratroopers’ chests.163 The victims were shown writhing and crying out in pain as others pounded the
spiked medals through the shirts and into the chests of the victims.164
In State v. Allen, decided in 1995, the Southeast Missouri State University chapter of Kappa Alpha Psi
invited male students to enter into a pledgeship program.165 The fraternity members subjected the
pledges to repeated physical abuse including repeated, open-hand strikes at the nape, the chest, and the
back; caning of the bare soles of the feet and buttocks; blows to the back with the use of a heavy book
and a cookie sheet while the pledges were on their hands and knees; various kicks and punches to the
body; and "body slamming," an activity in which active members of the fraternity lifted pledges up in the
air and dropped them to the ground.166 The fraternity members then put the pledges through a seven-
station circle of physical abuse.167
In Ex Parte Barran, decided in 1998, the pledge-victim went through hazing by fraternity members of the
Kappa Alpha Order at the Auburn University in Alabama.168 The hazing included the following: (1) having
to dig a ditch and jump into it after it had been filled with water, urine, feces, dinner leftovers, and vomit;
(2) receiving paddlings on the buttocks; (3) being pushed and kicked, often onto walls or into pits and
trash cans; (4) eating foods like peppers, hot sauce, butter, and "yerks" (a mixture of hot sauce,
mayonnaise, butter, beans, and other items); (5) doing chores for the fraternity and its members, such as
cleaning the fraternity house and yard, being designated as driver, and running errands; (6) appearing
regularly at 2 a.m. "meetings," during which the pledges would be hazed for a couple of hours; and (7)
"running the gauntlet," during which the pledges were pushed, kicked, and hit as they ran down a
hallway and descended down a flight of stairs.169
In Lloyd v. Alpha Phi Alpha Fraternity, decided in 1999, the victim – Sylvester Lloyd – was accepted to
pledge at the Cornell University chapter of the Alpha Phi Alpha Fraternity.170 He participated in initiation
activities, which included various forms of physical beatings and torture, psychological coercion and
embarrassment.171
In Kenner v. Kappa Alpha Psi Fraternity, decided in 2002, the initiate-victim suffered injuries from hazing
activities during the fraternity’s initiation rites.172 Kenner and the other initiates went through
psychological and physical hazing, including being paddled on the buttocks for more than 200 times.173
In Morton v. State, Marcus Jones – a university student in Florida – sought initiation into the campus
chapter of the Kappa Alpha Psi Fraternity during the 2005-06 academic year.174 The pledge’s efforts to
join the fraternity culminated in a series of initiation rituals conducted in four nights. Jones, together with
other candidates, was blindfolded, verbally harassed, and caned on his face and buttocks.175 In these
rituals described as "preliminaries," which lasted for two evenings, he received approximately 60 canings
on his buttocks.176 During the last two days of the hazing, the rituals intensified.177 The pledges
sustained roughly 210 cane strikes during the four-night initiation.178 Jones and several other candidates
passed out.179
The purported raison d’être behind hazing practices is the proverbial "birth by fire," through which the
pledge who has successfully withstood the hazing proves his or her worth.180 Some organizations even
believe that hazing is the path to enlightenment. It is said that this process enables the organization to
establish unity among the pledges and, hence, reinforces and ensures the future of the organization.181
Alleged benefits of joining include leadership opportunities; improved academic performance; higher
self-esteem; professional networking opportunities; and the esprit d’corp associated with close, almost
filial, friendship and common cause.182
Anti-Hazing laws in the U.S.
The first hazing statute in the U.S. appeared in 1874 in response to hazing in the military.183 The hazing
of recruits and plebes in the armed services was so prevalent that Congress prohibited all forms of
military hazing, harmful or not.184 It was not until 1901 that Illinois passed the first state anti-hazing law,
criminalizing conduct "whereby any one sustains an injury to his [or her] person therefrom."185
However, it was not until the 1980s and 1990s, due in large part to the efforts of the Committee to Halt
Useless College Killings and other similar organizations, that states increasingly began to enact legislation
prohibiting and/or criminalizing hazing.186 As of 2008, all but six states had enacted criminal or civil
statutes proscribing hazing.187 Most anti-hazing laws in the U.S. treat hazing as a misdemeanor and
carry relatively light consequences for even the most severe situations.188 Only a few states with anti-
hazing laws consider hazing as a felony in case death or great bodily harm occurs.189
Under the laws of Illinois, hazing is a Class A misdemeanor, except hazing that results in death or great
bodily harm, which is a Class 4 felony.190 In a Class 4 felony, a sentence of imprisonment shall be for a
term of not less than one year and not more than three years.191 Indiana criminal law provides that a
person who recklessly, knowingly, or intentionally performs hazing that results in serious bodily injury to
a person commits criminal recklessness, a Class D felony.192
The offense becomes a Class C felony if committed by means of a deadly weapon.193 As an element of a
Class C felony – criminal recklessness – resulting in serious bodily injury, death falls under the category of
"serious bodily injury."194 A person who commits a Class C felony is imprisoned for a fixed term of
between two (2) and eight (8) years, with the advisory sentence being four (4) years.195 Pursuant to
Missouri law, hazing is a Class A misdemeanor, unless the act creates a substantial risk to the life of the
student or prospective member, in which case it becomes a Class C felony.196 A Class C felony provides
for an imprisonment term not to exceed seven years.197
In Texas, hazing that causes the death of another is a state jail felony.198 An individual adjudged guilty of
a state jail felony is punished by confinement in a state jail for any term of not more than two years or
not less than 180 days.199 Under Utah law, if hazing results in serious bodily injury, the hazer is guilty of
a third-degree felony.200 A person who has been convicted of a third-degree felony may be sentenced to
imprisonment for a term not to exceed five years.201 West Virginia law provides that if the act of hazing
would otherwise be deemed a felony, the hazer may be found guilty thereof and subject to penalties
provided therefor.202 In Wisconsin, a person is guilty of a Class G felony if hazing results in the death of
another.203 A Class G felony carries a fine not to exceed $25,000 or imprisonment not to exceed 10
years, or both.204
18
In certain states in the U.S., victims of hazing were left with limited remedies, as there was no hazing
statute.205 This situation was exemplified in Ballou v. Sigma Nu General Fraternity, wherein Barry
Ballou’s family resorted to a civil action for wrongful death, since there was no anti-hazing statute in
South Carolina until 1994.206
The existence of animus interficendi or intent to kill not proven beyond reasonable doubt
The presence of an ex ante situation – in this case, fraternity initiation rites – does not automatically
amount to the absence of malicious intent or dolus malus. If it is proven beyond reasonable doubt that
the perpetrators were equipped with a guilty mind – whether or not there is a contextual background or
factual premise – they are still criminally liable for intentional felony.
The trial court, the CA, and the Solicitor General are all in agreement that – with the exception of Villareal
and Dizon – accused Tecson, Ama, Almeda, and Bantug did not have the animus interficendi or intent to
kill Lenny Villa or the other neophytes. We shall no longer disturb this finding.
As regards Villareal and Dizon, the CA modified the Decision of the trial court and found that the two
accused had the animus interficendi or intent to kill Lenny Villa, not merely to inflict physical injuries on
him. It justified its finding of homicide against Dizon by holding that he had apparently been motivated by
ill will while beating up Villa. Dizon kept repeating that his father’s parking space had been stolen by the
victim’s father.207 As to Villareal, the court said that the accused suspected the family of Bienvenido
Marquez, one of the neophytes, to have had a hand in the death of Villareal’s brother.208 The CA then
ruled as follows:
The two had their own axes to grind against Villa and Marquez. It was very clear that they acted with evil
and criminal intent. The evidence on this matter is unrebutted and so for the death of Villa, appellants
Dizon and Villareal must and should face the consequence of their acts, that is, to be held liable for the
crime of homicide.209 (Emphasis supplied)
We cannot subscribe to this conclusion.
The appellate court relied mainly on the testimony of Bienvenido Marquez to determine the existence of
animus interficendi. For a full appreciation of the context in which the supposed utterances were made,
the Court deems it necessary to reproduce the relevant portions of witness Marquez’s testimony:
Witness We were brought up into [Michael Musngi’s] room and we were briefed as to what to expect
during the next three days and we were told the members of the fraternity and their batch and we were
also told about the fraternity song, sir.
xxx xxx xxx
Witness We were escorted out of [Michael Musngi’s] house and we were made to ride a van and we
were brought to another place in Kalookan City which I later found to be the place of Mariano Almeda,
sir.
xxx xxx xxx
Witness Upon arrival, we were instructed to bow our head down and to link our arms and then the driver
of the van and other members of the Aquilans who were inside left us inside the van, sir.
xxx xxx xxx
Witness We heard voices shouted outside the van to the effect, "Villa akin ka," "Asuncion Patay ka" and
the people outside pound the van, rock the van, sir.
Atty. Tadiar Will you please recall in what tone of voice and how strong a voice these remarks uttered
upon your arrival?
Witness Some were almost shouting, you could feel the sense of excitement in their voices, sir.
xxx xxx xxx
Atty. Tadiar During all these times that the van was being rocked through and through, what were the
voices or utterances that you heard?
Witness "Villa akin ka," "Asuncion patay ka," "Recinto patay ka sa amin," etc., sir.
Atty. Tadiar And those utterances and threats, how long did they continue during the rocking of the van
which lasted for 5 minutes?
xxx xxx xxx
Witness Even after they rocked the van, we still kept on hearing voices, sir.
xxx xxx xxx
Atty. Tadiar During the time that this rounds [of physical beating] were being inflicted, was there any
utterances by anybody?
Witness Yes sir. Some were piercing, some were discouraging, and some were encouraging others who
were pounding and beating us, it was just like a fiesta atmosphere, actually some of them enjoyed
looking us being pounded, sir.
Atty. Tadiar Do you recall what were those voices that you heard?
Witness One particular utterance always said was, they asked us whether "matigas pa yan, kayang-kaya
pa niyan."
Atty. Tadiar Do you know who in particular uttered those particular words that you quote?
Witness I cannot particularly point to because there were utterances simultaneously, I could not really
pin point who uttered those words, sir.
xxx xxx xxx
Atty. Tadiar Were there any utterances that you heard during the conduct of this Bicol Express?
Witness Yes, sir I heard utterances.
Atty. Tadiar Will you please recall to this Honorable Court what were the utterances that you remember?
Witness For example, one person particularly Boyet Dizon stepped on my thigh, he would say that and I
quote "ito, yung pamilya nito ay pinapatay yung kapatid ko," so that would in turn sort of justifying him in
inflicting more serious pain on me. So instead of just walking, he would jump on my thighs and then after
on was Lenny Villa. He was saying to the effect that "this guy, his father stole the parking space of my
father," sir. So, that’s why he inflicted more pain on Villa and that went on, sir.
Atty. Tadiar And you were referring to which particular accused?
Witness Boyet Dizon, sir.
Atty. Tadiar When Boyet Dizon at that particular time was accusing you of having your family have his
brother killed, what was your response?
Witness Of course, I knew sir that it was not true and that he was just making it up sir. So he said that I
knew nothing of that incident. However, he just in fact after the Bicol Express, he kept on uttering those
words/statements so that it would in turn justify him and to give me harder blows, sir.
xxx xxx xxx
Atty. Tadiar You mentioned about Dizon in particular mentioning that Lenny Villa’s father stole the
parking space allotted for his father, do you recall who were within hearing distance when that utterance
was made?
Witness Yes, sir. All of the neophytes heard that utterance, sir.
xxx xxx xxx
Witness There were different times made this accusation so there were different people who heard from
time to time, sir.
xxx xxx xxx
Atty. Tadiar Can you tell the Honorable Court when was the next accusation against Lenny Villa’s father
was made?
Witness When we were line up against the wall, Boyet Dizon came near to us and when Lenny Villa’s
turn, I heard him uttered those statements, sir.
Atty. Tadiar What happened after he made this accusation to Lenny Villa’s father?
Witness He continued to inflict blows on Lenny Villa.
Atty. Tadiar How were those blows inflicted?
Witness There were slaps and he knelt on Lenny Villa’s thighs and sometime he stand up and he kicked
his thighs and sometimes jumped at it, sir.
xxx xxx xxx
Atty. Tadiar We would go on to the second day but not right now. You mentioned also that accusations
made by Dizon "you or your family had his brother killed," can you inform this Honorable Court what
exactly were the accusations that were charged against you while inflicting blows upon you in particular?
Witness While he was inflicting blows upon me, he told me in particular if I knew that his family who had
his brother killed, and he said that his brother was an NPA, sir so I knew that it was just a story that he
made up and I said that I knew nothing about it and he continued inflicting blows on me, sir. And another
incident was when a talk was being given, Dizon was on another part of the pelota court and I was sort of
looking and we saw that he was drinking beer, and he said and I quote: "Marquez, Marquez, ano ang
tinitingin-tingin mo diyan, ikaw yung pamilya mo ang nagpapatay sa aking kapatid, yari ka sa akin," sir.
Atty. Tadiar What else?
Witness That’s all, sir.
19
Atty. Tadiar And on that first night of February 8, 1991, did ever a doctor or a physician came around as Witness No, sir, because at one point, while he was telling this to Villareal, he was hitting me.
promised to you earlier? Atty. Jimenez But did you not say earlier that you [were] subjected to the same forms of initiation by all
Witness No, sir.210 (Emphasis supplied) the initiating masters? You said that earlier, right?
On cross-examination, witness Bienvenido Marquez testified thus: Witness Yes, sir.
Judge Purisima When you testified on direct examination Mr. Marquez, have you stated that there was a Atty. Jimenez Are you saying also that the others who jumped on you or kicked you said something
briefing that was conducted immediately before your initiation as regards to what to expect during the similar as was told to you by Mr. Dizon?
initiation, did I hear you right? Witness No, sir.
Witness Yes, sir. Atty. Jimenez But the fact remains that in the Bicol Express for instance, the masters would run on your
Judge Purisima Who did the briefing? thighs, right?
Witness Mr. Michael Musngi, sir and Nelson Victorino. Witness Yes, sir.
Judge Purisima Will you kindly tell the Honorable Court what they told you to expect during the Atty. Jimenez This was the regular procedure that was followed by the initiating masters not only on you
initiation? but also on the other neophytes?
Witness They told us at the time we would be brought to a particular place, we would be mocked at, sir. Witness Yes, sir.
Judge Purisima So, you expected to be mocked at, ridiculed, humiliated etc., and the likes? Atty. Jimenez In other words, it is fair to say that whatever forms of initiation was administered by one
Witness Yes, sir. master, was also administered by one master on a neophyte, was also administered by another master
Judge Purisima You were also told beforehand that there would be physical contact? on the other neophyte, this is correct?
Witness Yes, sir at the briefing. Witness Yes, sir.212 (Emphasis supplied)
xxx xxx xxx According to the Solicitor General himself, the ill motives attributed by the CA to Dizon and Villareal were
Witness Yes, sir, because they informed that we could immediately go back to school. All the bruises "baseless,"213 since the statements of the accused were "just part of the psychological initiation
would be limited to our arms and legs, sir. So, if we wear the regular school uniforms like long sleeves, it calculated to instill fear on the part of the neophytes"; that "[t]here is no element of truth in it as
would be covered actually so we have no thinking that our face would be slapped, sir. testified by Bienvenido Marquez"; and that the "harsh words uttered by Petitioner and Villareal are part
Judge Purisima So, you mean to say that beforehand that you would have bruises on your body but that of ‘tradition’ concurred and accepted by all the fraternity members during their initiation rites."214
will be covered? We agree with the Solicitor General.
Witness Yes, sir. The foregoing testimony of witness Marquez reveals a glaring mistake of substantial proportion on the
JudgePurisima So, what kind of physical contact or implements that you expect that would create bruises part of the CA – it mistook the utterances of Dizon for those of Villareal. Such inaccuracy cannot be
to your body? tolerated, especially because it was the CA’s primary basis for finding that Villarreal had the intent to kill
Witness At that point I am already sure that there would be hitting by a paddling or paddle, sir. Lenny Villa, thereby making Villareal guilty of the intentional felony of homicide. To repeat, according to
xxx xxx xxx Bienvenido Marquez’s testimony, as reproduced above, it was Dizon who uttered both "accusations"
Judge Purisima Now, will you admit Mr. Marquez that much of the initiation procedures is psychological against Villa and Marquez; Villareal had no participation whatsoever in the specific threats referred to by
in nature? the CA. It was "Boyet Dizon [who] stepped on [Marquez’s] thigh"; and who told witness Marquez, "[I]to,
Witness Combination, sir.211 (Emphasis supplied) yung pamilya nito ay pinapatay yung kapatid ko." It was also Dizon who jumped on Villa’s thighs while
xxx xxx xxx saying, "[T]his guy, his father stole the parking space of my father." With the testimony clarified, we find
Atty. Jimenez The initiation that was conducted did not consist only of physical initiation, meaning body that the CA had no basis for concluding the existence of intent to kill based solely thereon.
contact, is that correct? As to the existence of animus interficendi on the part of Dizon, we refer to the entire factual milieu and
Witness Yes, sir. contextual premise of the incident to fully appreciate and understand the testimony of witness Marquez.
Atty. Jimenez Part of the initiation was the so-called psychological initiation, correct? At the outset, the neophytes were briefed that they would be subjected to psychological pressure in
Witness Yes, sir. order to scare them. They knew that they would be mocked, ridiculed, and intimidated. They heard
Atty. Jimenez And this consisted of making you believe of things calculated to terrify you, scare you, fraternity members shout, "Patay ka, Recinto," "Yari ka, Recinto," "Villa, akin ka," "Asuncion, gulpi ka,"
correct? "Putang ina mo, Asuncion," "Putang ina nyo, patay kayo sa amin," or some other words to that effect.215
Witness Yes, sir. While beating the neophytes, Dizon accused Marquez of the death of the former’s purported NPA
Atty. Jimenez In other words, the initiating masters made belief situation intended to, I repeat, terrify brother, and then blamed Lenny Villa’s father for stealing the parking space of Dizon’s father. According to
you, frighten you, scare you into perhaps quitting the initiation, is this correct? the Solicitor General, these statements, including those of the accused Dizon, were all part of the
Witness Sometimes sir, yes. psychological initiation employed by the Aquila Fraternity.216
Atty. Jimenez You said on direct that while Mr. Dizon was initiating you, he said or he was supposed to Thus, to our understanding, accused Dizon’s way of inflicting psychological pressure was through hurling
have said according to you that your family were responsible for the killing of his brother who was an make-believe accusations at the initiates. He concocted the fictitious stories, so that he could "justify"
NPA, do you remember saying that? giving the neophytes harder blows, all in the context of fraternity initiation and role playing. Even one of
Witness Yes, sir. the neophytes admitted that the accusations were untrue and made-up.
Atty. Jimenez You also said in connection with that statement said to you by Dizon that you did not The infliction of psychological pressure is not unusual in the conduct of hazing. In fact, during the Senate
believe him because that is not true, correct? deliberations on the then proposed Anti-Hazing Law, former Senator Lina spoke as follows:
Witness Yes, sir. Senator Lina. -- so as to capture the intent that we conveyed during the period of interpellations on why
Atty. Jimenez In other words, he was only psychologizing you perhaps, the purpose as I have mentioned we included the phrase "or psychological pain and suffering."
before, terrifying you, scaring you or frightening you into quitting the initiation, this is correct? xxx xxx xxx
Witness No, sir, perhaps it is one but the main reason, I think, why he was saying those things was So that if no direct physical harm is inflicted upon the neophyte or the recruit but the recruit or neophyte
because he wanted to inflict injury. is made to undergo certain acts which I already described yesterday, like playing the Russian roulette
Atty. Jimenez He did not tell that to you. That is your only perception, correct? extensively to test the readiness and the willingness of the neophyte or recruit to continue his desire to

20
be a member of the fraternity, sorority or similar organization or playing and putting a noose on the neck
of the neophyte or recruit, making the recruit or neophyte stand on the ledge of the fourth floor of the
building facing outside, asking him to jump outside after making him turn around several times but the
reality is that he will be made to jump towards the inside portion of the building – these are the mental
or psychological tests that are resorted to by these organizations, sororities or fraternities. The doctors
who appeared during the public hearing testified that such acts can result in some mental aberration,
that they can even lead to psychosis, neurosis or insanity. This is what we want to prevent.217 (Emphasis
supplied)
Thus, without proof beyond reasonable doubt, Dizon’s behavior must not be automatically viewed as
evidence of a genuine, evil motivation to kill Lenny Villa. Rather, it must be taken within the context of
the fraternity’s psychological initiation. This Court points out that it was not even established whether
the fathers of Dizon and Villa really had any familiarity with each other as would lend credence to the
veracity of Dizon’s threats. The testimony of Lenny’s co-neophyte, Marquez, only confirmed this view.
According to Marquez, he "knew it was not true and that [Dizon] was just making it up…."218 Even the
trial court did not give weight to the utterances of Dizon as constituting intent to kill: "[T]he cumulative
acts of all the accused were not directed toward killing Villa, but merely to inflict physical harm as part of
the fraternity initiation rites x x x."219 The Solicitor General shares the same view.
Verily, we cannot sustain the CA in finding the accused Dizon guilty of homicide under Article 249 of the
Revised Penal Code on the basis of the existence of intent to kill. Animus interficendi cannot and should
not be inferred unless there is proof beyond reasonable doubt of such intent.220 Instead, we adopt and
reinstate the finding of the trial court in part, insofar as it ruled that none of the fraternity members had
the specific intent to kill Lenny Villa.221
The existence of animus iniuriandi or malicious intent to injure not proven beyond reasonable doubt
The Solicitor General argues, instead, that there was an intent to inflict physical injuries on Lenny Villa.
Echoing the Decision of the trial court, the Solicitor General then posits that since all of the accused
fraternity members conspired to inflict physical injuries on Lenny Villa and death ensued, all of them
should be liable for the crime of homicide pursuant to Article 4(1) of the Revised Penal Code.
In order to be found guilty of any of the felonious acts under Articles 262 to 266 of the Revised Penal
Code,222 the employment of physical injuries must be coupled with dolus malus. As an act that is mala in
se, the existence of malicious intent is fundamental, since injury arises from the mental state of the
wrongdoer – iniuria ex affectu facientis consistat. If there is no criminal intent, the accused cannot be
found guilty of an intentional felony. Thus, in case of physical injuries under the Revised Penal Code,
there must be a specific animus iniuriandi or malicious intention to do wrong against the physical
integrity or well-being of a person, so as to incapacitate and deprive the victim of certain bodily
functions. Without proof beyond reasonable doubt of the required animus iniuriandi, the overt act of
inflicting physical injuries per se merely satisfies the elements of freedom and intelligence in an
intentional felony. The commission of the act does not, in itself, make a man guilty unless his intentions
are.223
Thus, we have ruled in a number of instances224 that the mere infliction of physical injuries, absent
malicious intent, does not make a person automatically liable for an intentional felony. In Bagajo v.
People,225 the accused teacher, using a bamboo stick, whipped one of her students behind her legs and
thighs as a form of discipline. The student suffered lesions and bruises from the corporal punishment. In
reversing the trial court’s finding of criminal liability for slight physical injuries, this Court stated thus:
"Independently of any civil or administrative responsibility … [w]e are persuaded that she did not do
what she had done with criminal intent … the means she actually used was moderate and that she was
not motivated by ill-will, hatred or any malevolent intent." Considering the applicable laws, we then ruled
that "as a matter of law, petitioner did not incur any criminal liability for her act of whipping her pupil." In
People v. Carmen,226 the accused members of the religious group known as the Missionaries of Our Lady
of Fatima – under the guise of a "ritual or treatment" – plunged the head of the victim into a barrel of
water, banged his head against a bench, pounded his chest with fists, and stabbed him on the side with a
kitchen knife, in order to cure him of "nervous breakdown" by expelling through those means the bad
spirits possessing him. The collective acts of the group caused the death of the victim. Since malicious
intent was not proven, we reversed the trial court’s finding of liability for murder under Article 4 of the
Revised Penal Code and instead ruled that the accused should be held criminally liable for reckless
imprudence resulting in homicide under Article 365 thereof.
Indeed, the threshold question is whether the accused’s initial acts of inflicting physical pain on the
neophytes were attended by animus iniuriandi amounting to a felonious act punishable under the
Revised Penal Code, thereby making it subject to Article 4(1) thereof. In People v. Regato, we ruled that
malicious intent must be judged by the action, conduct, and external acts of the accused.227 What
persons do is the best index of their intention.228 We have also ruled that the method employed, the
kind of weapon used, and the parts of the body on which the injury was inflicted may be determinative
of the intent of the perpetrator.229 The Court shall thus examine the whole contextual background
surrounding the death of Lenny Villa.
Lenny died during Aquila’s fraternity initiation rites. The night before the commencement of the rites,
they were briefed on what to expect. They were told that there would be physical beatings, that the
whole event would last for three days, and that they could quit anytime. On their first night, they were
subjected to "traditional" initiation rites, including the "Indian Run," "Bicol Express," "Rounds," and the
"Auxies’ Privilege Round." The beatings were predominantly directed at the neophytes’ arms and legs.
In the morning of their second day of initiation, they were made to present comic plays and to play rough
basketball. They were also required to memorize and recite the Aquila Fraternity’s principles. Late in the
afternoon, they were once again subjected to "traditional" initiation rituals. When the rituals were
officially reopened on the insistence of Dizon and Villareal, the neophytes were subjected to another
"traditional" ritual – paddling by the fraternity.
During the whole initiation rites, auxiliaries were assigned to the neophytes. The auxiliaries protected the
neophytes by functioning as human barriers and shielding them from those who were designated to
inflict physical and psychological pain on the initiates.230 It was their regular duty to stop foul or
excessive physical blows; to help the neophytes to "pump" their legs in order that their blood would
circulate; to facilitate a rest interval after every physical activity or "round"; to serve food and water; to
tell jokes; to coach the initiates; and to give them whatever they needed.
These rituals were performed with Lenny’s consent.231 A few days before the "rites," he asked both his
parents for permission to join the Aquila Fraternity.232 His father knew that Lenny would go through an
initiation process and would be gone for three days.233 The CA found as follows:
It is worth pointing out that the neophytes willingly and voluntarily consented to undergo physical
initiation and hazing. As can be gleaned from the narration of facts, they voluntarily agreed to join the
initiation rites to become members of the Aquila Legis Fraternity. Prior to the initiation, they were given
briefings on what to expect. It is of common knowledge that before admission in a fraternity, the
neophytes will undergo a rite of passage. Thus, they were made aware that traditional methods such as
mocking, psychological tests and physical punishment would take place. They knew that the initiation
would involve beatings and other forms of hazing. They were also told of their right and opportunity to
quit at any time they wanted to. In fact, prosecution witness Navera testified that accused Tecson told
him that "after a week, you can already play basketball." Prosecution witness Marquez for his part,
admitted that he knew that the initiates would be hit "in the arms and legs," that a wooden paddle
would be used to hit them and that he expected bruises on his arms and legs…. Indeed, there can be no
fraternity initiation without consenting neophytes.234 (Emphasis supplied)
Even after going through Aquila’s grueling traditional rituals during the first day, Lenny continued his
participation and finished the second day of initiation.
Based on the foregoing contextual background, and absent further proof showing clear malicious intent,
we are constrained to rule that the specific animus iniuriandi was not present in this case. Even if the
specific acts of punching, kicking, paddling, and other modes of inflicting physical pain were done
voluntarily, freely, and with intelligence, thereby satisfying the elements of freedom and intelligence in
the felony of physical injuries, the fundamental ingredient of criminal intent was not proven beyond
reasonable doubt. On the contrary, all that was proven was that the acts were done pursuant to tradition.
Although the additional "rounds" on the second night were held upon the insistence of Villareal and
Dizon, the initiations were officially reopened with the consent of the head of the initiation rites; and the
accused fraternity members still participated in the rituals, including the paddling, which were performed
pursuant to tradition. Other than the paddle, no other "weapon" was used to inflict injuries on Lenny.
The targeted body parts were predominantly the legs and the arms. The designation of roles, including
the role of auxiliaries, which were assigned for the specific purpose of lending assistance to and taking
care of the neophytes during the initiation rites, further belied the presence of malicious intent. All those
who wished to join the fraternity went through the same process of "traditional" initiation; there is no
21
proof that Lenny Villa was specifically targeted or given a different treatment. We stress that Congress
itself recognized that hazing is uniquely different from common crimes.235 The totality of the
circumstances must therefore be taken into consideration.
The underlying context and motive in which the infliction of physical injuries was rooted may also be
determined by Lenny’s continued participation in the initiation and consent to the method used even
after the first day. The following discussion of the framers of the 1995 Anti-Hazing Law is enlightening:
Senator Guingona. Most of these acts, if not all, are already punished under the Revised Penal Code.
Senator Lina. That is correct, Mr. President.
Senator Guingona. If hazing is done at present and it results in death, the charge would be murder or
homicide.
Senator Lina. That is correct, Mr. President.
Senator Guingona. If it does not result in death, it may be frustrated homicide or serious physical injuries.
Senator Lina. That is correct, Mr. President.
Senator Guingona. Or, if the person who commits sexual abuse does so it can be penalized under rape or
acts of lasciviousness.
Senator Lina. That is correct, Mr. President.
Senator Guingona. So, what is the rationale for making a new offense under this definition of the crime of
hazing?
Senator Lina. To discourage persons or group of persons either composing a sorority, fraternity or any
association from making this requirement of initiation that has already resulted in these specific acts or
results, Mr. President.
That is the main rationale. We want to send a strong signal across the land that no group or association
can require the act of physical initiation before a person can become a member without being held
criminally liable.
xxx xxx xxx
Senator Guingona. Yes, but what would be the rationale for that imposition? Because the distinguished
Sponsor has said that he is not punishing a mere organization, he is not seeking the punishment of an
initiation into a club or organization, he is seeking the punishment of certain acts that resulted in death,
et cetera as a result of hazing which are already covered crimes.
The penalty is increased in one, because we would like to discourage hazing, abusive hazing, but it may
be a legitimate defense for invoking two or more charges or offenses, because these very same acts are
already punishable under the Revised Penal Code.
That is my difficulty, Mr. President.
Senator Lina. x x x
Another point, Mr. President, is this, and this is a very telling difference: When a person or group of
persons resort to hazing as a requirement for gaining entry into an organization, the intent to commit a
wrong is not visible or is not present, Mr. President. Whereas, in these specific crimes, Mr. President, let
us say there is death or there is homicide, mutilation, if one files a case, then the intention to commit a
wrong has to be proven. But if the crime of hazing is the basis, what is important is the result from the
act of hazing.
To me, that is the basic difference and that is what will prevent or deter the sororities or fraternities; that
they should really shun this activity called "hazing." Because, initially, these fraternities or sororities do
not even consider having a neophyte killed or maimed or that acts of lasciviousness are even committed
initially, Mr. President.
So, what we want to discourage is the so-called initial innocent act. That is why there is need to institute
this kind of hazing. Ganiyan po ang nangyari. Ang fraternity o ang sorority ay magre-recruit. Wala talaga
silang intensiyong makamatay. Hindi ko na babanggitin at buhay pa iyong kaso. Pero dito sa anim o pito
na namatay nitong nakaraang taon, walang intensiyong patayin talaga iyong neophyte. So, kung
maghihintay pa tayo, na saka lamang natin isasakdal ng murder kung namatay na, ay after the fact ho
iyon. Pero, kung sasabihin natin sa mga kabataan na: "Huwag ninyong gagawin iyong hazing. Iyan ay
kasalanan at kung mamatay diyan, mataas ang penalty sa inyo."
xxx xxx xxx
Senator Guingona. I join the lofty motives, Mr. President, of the distinguished Sponsor. But I am again
disturbed by his statement that the prosecution does not have to prove the intent that resulted in the
death, that resulted in the serious physical injuries, that resulted in the acts of lasciviousness or deranged
mind. We do not have to prove the willful intent of the accused in proving or establishing the crime of
hazing. This seems, to me, a novel situation where we create the special crime without having to go into
the intent, which is one of the basic elements of any crime.
If there is no intent, there is no crime. If the intent were merely to initiate, then there is no offense. And
even the distinguished Sponsor admits that the organization, the intent to initiate, the intent to have a
new society or a new club is, per se, not punishable at all. What are punishable are the acts that lead to
the result. But if these results are not going to be proven by intent, but just because there was hazing, I
am afraid that it will disturb the basic concepts of the Revised Penal Code, Mr. President.
Senator Lina. Mr. President, the act of hazing, precisely, is being criminalized because in the context of
what is happening in the sororities and fraternities, when they conduct hazing, no one will admit that
their intention is to maim or to kill. So, we are already criminalizing the fact of inflicting physical pain. Mr.
President, it is a criminal act and we want it stopped, deterred, discouraged.
If that occurs, under this law, there is no necessity to prove that the masters intended to kill or the
masters intended to maim. What is important is the result of the act of hazing. Otherwise, the masters or
those who inflict the physical pain can easily escape responsibility and say, "We did not have the
intention to kill. This is part of our initiation rites. This is normal. We do not have any intention to kill or
maim."
This is the lusot, Mr. President. They might as well have been charged therefore with the ordinary crime
of homicide, mutilation, et cetera, where the prosecution will have a difficulty proving the elements if
they are separate offenses.
xxx xxx xxx
Senator Guingona. Mr. President, assuming there was a group that initiated and a person died. The
charge is murder. My question is: Under this bill if it becomes a law, would the prosecution have to prove
conspiracy or not anymore?
Senator Lina. Mr. President, if the person is present during hazing x x x
Senator Guingona. The persons are present. First, would the prosecution have to prove conspiracy?
Second, would the prosecution have to prove intent to kill or not?
Senator Lina. No more. As to the second question, Mr. President, if that occurs, there is no need to prove
intent to kill.
Senator Guingona. But the charge is murder.
Senator Lina. That is why I said that it should not be murder. It should be hazing, Mr. President. 236
(Emphasis supplied)
During a discussion between Senator Biazon and Senator Lina on the issue of whether to include sodomy
as a punishable act under the Anti-Hazing Law, Senator Lina further clarified thus:
Senator Biazon. Mr. President, this Representation has no objection to the inclusion of sodomy as one of
the conditions resulting from hazing as necessary to be punished. However, the act of sodomy can be
committed by two persons with or without consent.
To make it clearer, what is being punished here is the commission of sodomy forced into another
individual by another individual. I move, Mr. President, that sodomy be modified by the phrase "without
consent" for purposes of this section.
Senator Lina. I am afraid, Mr. President, that if we qualify sodomy with the concept that it is only going to
aggravate the crime of hazing if it is done without consent will change a lot of concepts here. Because the
results from hazing aggravate the offense with or without consent. In fact, when a person joins a
fraternity, sorority, or any association for that matter, it can be with or without the consent of the
intended victim. The fact that a person joins a sorority or fraternity with his consent does not negate the
crime of hazing.
This is a proposed law intended to protect the citizens from the malpractices that attend initiation which
may have been announced with or without physical infliction of pain or injury, Mr. President. Regardless
of whether there is announcement that there will be physical hazing or whether there is none, and
therefore, the neophyte is duped into joining a fraternity is of no moment. What is important is that
there is an infliction of physical pain.
The bottom line of this law is that a citizen even has to be protected from himself if he joins a fraternity,
so that at a certain point in time, the State, the individual, or the parents of the victim can run after the
perpetrators of the crime, regardless of whether or not there was consent on the part of the victim.
xxx xxx xxx
22
Senator Lina. Mr. President, I understand the position taken by the distinguished Gentleman from Cavite
and Metro Manila. It is correct that society sometimes adopts new mores, traditions, and practices.
In this bill, we are not going to encroach into the private proclivities of some individuals when they do
their acts in private as we do not take a peek into the private rooms of couples. They can do their thing if
they want to make love in ways that are not considered acceptable by the mainstream of society. That is
not something that the State should prohibit.
But sodomy in this case is connected with hazing, Mr. President. Such that the act may even be entered
into with consent. It is not only sodomy. The infliction of pain may be done with the consent of the
neophyte. If the law is passed, that does not make the act of hazing not punishable because the
neophyte accepted the infliction of pain upon himself.
If the victim suffers from serious physical injuries, but the initiator said, "Well, he allowed it upon himself.
He consented to it." So, if we allow that reasoning that sodomy was done with the consent of the victim,
then we would not have passed any law at all. There will be no significance if we pass this bill, because it
will always be a defense that the victim allowed the infliction of pain or suffering. He accepted it as part
of the initiation rites.
But precisely, Mr. President that is one thing that we would want to prohibit. That the defense of consent
will not apply because the very act of inflicting physical pain or psychological suffering is, by itself, a
punishable act. The result of the act of hazing, like death or physical injuries merely aggravates the act
with higher penalties. But the defense of consent is not going to nullify the criminal nature of the act.
So, if we accept the amendment that sodomy can only aggravate the offense if it is committed without
consent of the victim, then the whole foundation of this proposed law will collapse.
Senator Biazon. Thank you, Mr. President.
Senator Lina. Thank you very much.
The President. Is there any objection to the committee amendment? (Silence.) The Chair hears none; the
same is approved.237
(Emphasis supplied)
Realizing the implication of removing the state’s burden to prove intent, Senator Lina, the principal
author of the Senate Bill, said:
I am very happy that the distinguished Minority Leader brought out the idea of intent or whether there it
is mala in se or mala prohibita. There can be a radical amendment if that is the point that he wants to go
to.
If we agree on the concept, then, maybe, we can just make this a special law on hazing. We will not
include this anymore under the Revised Penal Code. That is a possibility. I will not foreclose that
suggestion, Mr. President.238 (Emphasis supplied)
Thus, having in mind the potential conflict between the proposed law and the core principle of mala in se
adhered to under the Revised Penal Code, Congress did not simply enact an amendment thereto.
Instead, it created a special law on hazing, founded upon the principle of mala prohibita. This dilemma
faced by Congress is further proof of how the nature of hazing – unique as against typical crimes – cast a
cloud of doubt on whether society considered the act as an inherently wrong conduct or mala in se at the
time. It is safe to presume that Lenny’s parents would not have consented239 to his participation in
Aquila Fraternity’s initiation rites if the practice of hazing were considered by them as mala in se.
Furthermore, in Vedaña v. Valencia (1998), we noted through Associate Justice (now retired Chief Justice)
Hilario Davide that "in our nation’s very recent history, the people have spoken, through Congress, to
deem conduct constitutive of … hazing, [an] act[] previously considered harmless by custom, as
criminal."240 Although it may be regarded as a simple obiter dictum, the statement nonetheless shows
recognition that hazing – or the conduct of initiation rites through physical and/or psychological suffering
– has not been traditionally criminalized. Prior to the 1995 Anti-Hazing Law, there was to some extent a
lacuna in the law; hazing was not clearly considered an intentional felony. And when there is doubt on
the interpretation of criminal laws, all must be resolved in favor of the accused. In dubio pro reo.
For the foregoing reasons, and as a matter of law, the Court is constrained to rule against the trial court’s
finding of malicious intent to inflict physical injuries on Lenny Villa, there being no proof beyond
reasonable doubt of the existence of malicious intent to inflict physical injuries or animus iniuriandi as
required in mala in se cases, considering the contextual background of his death, the unique nature of
hazing, and absent a law prohibiting hazing.
The accused fraternity members guilty of reckless imprudence resulting in homicide
The absence of malicious intent does not automatically mean, however, that the accused fraternity
members are ultimately devoid of criminal liability. The Revised Penal Code also punishes felonies that
are committed by means of fault (culpa). According to Article 3 thereof, there is fault when the wrongful
act results from imprudence, negligence, lack of foresight, or lack of skill.
Reckless imprudence or negligence consists of a voluntary act done without malice, from which an
immediate personal harm, injury or material damage results by reason of an inexcusable lack of
precaution or advertence on the part of the person committing it.241 In this case, the danger is visible
and consciously appreciated by the actor.242 In contrast, simple imprudence or negligence comprises an
act done without grave fault, from which an injury or material damage ensues by reason of a mere lack of
foresight or skill.243 Here, the threatened harm is not immediate, and the danger is not openly visible.
244
The test245 for determining whether or not a person is negligent in doing an act is as follows: Would a
prudent man in the position of the person to whom negligence is attributed foresee harm to the person
injured as a reasonable consequence of the course about to be pursued? If so, the law imposes on the
doer the duty to take precaution against the mischievous results of the act. Failure to do so constitutes
negligence.246
As we held in Gaid v. People, for a person to avoid being charged with recklessness, the degree of
precaution and diligence required varies with the degree of the danger involved.247 If, on account of a
certain line of conduct, the danger of causing harm to another person is great, the individual who
chooses to follow that particular course of conduct is bound to be very careful, in order to prevent or
avoid damage or injury.248 In contrast, if the danger is minor, not much care is required.249 It is thus
possible that there are countless degrees of precaution or diligence that may be required of an
individual, "from a transitory glance of care to the most vigilant effort."250 The duty of the person to
employ more or less degree of care will depend upon the circumstances of each particular case.251
There was patent recklessness in the hazing of Lenny Villa.
According to the NBI medico-legal officer, Lenny died of cardiac failure secondary to multiple traumatic
injuries.252 The officer explained that cardiac failure refers to the failure of the heart to work as a pump
and as part of the circulatory system due to the lack of blood.253 In the present case, the victim’s heart
could no longer work as a pumping organ, because it was deprived of its requisite blood and oxygen.254
The deprivation was due to the "channeling" of the blood supply from the entire circulatory system –
including the heart, arteries, veins, venules, and capillaries – to the thigh, leg, and arm areas of Lenny,
thus causing the formation of multiple hematomas or blood clots.255 The multiple hematomas were
wide, thick, and deep,256 indicating that these could have resulted mainly from injuries sustained by the
victim from fist blows, knee blows, paddles, or the like.257 Repeated blows to those areas caused the
blood to gradually ooze out of the capillaries until the circulating blood became so markedly diminished
as to produce death. 258 The officer also found that the brain, liver, kidney, pancreas, intestines, and all
other organs seen in the abdominals, as well as the thoracic organ in the lungs, were pale due to the lack
of blood, which was redirected to the thighs and forearms.259 It was concluded that there was nothing
in the heart that would indicate that the victim suffered from a previous cardiac arrest or disease.260
The multiple hematomas or bruises found in Lenny Villa’s arms and thighs, resulting from repeated blows
to those areas, caused the loss of blood from his vital organs and led to his eventual death. These
hematomas must be taken in the light of the hazing activities performed on him by the Aquila Fraternity.
According to the testimonies of the co-neophytes of Lenny, they were punched, kicked, elbowed, kneed,
stamped on; and hit with different objects on their arms, legs, and thighs.261 They were also "paddled"
at the back of their thighs or legs;262 and slapped on their faces.263 They were made to play rough
basketball.264 Witness Marquez testified on Lenny, saying: "[T]inamaan daw sya sa spine."265 The NBI
medico-legal officer explained that the death of the victim was the cumulative effect of the multiple
injuries suffered by the latter.266 The relevant portion of the testimony is as follows:
Atty. Tadiar Doctor, there was, rather, it was your testimony on various cross examinations of defense
counsels that the injuries that you have enumerated on the body of the deceased Lenny Villa previously
marked as Exhibit "G-1" to "G-14" individually by themselves would not cause the death of the victim.
The question I am going to propound to you is what is the cumulative effect of all of these injuries
marked from Exhibit "G-1" to "G-14"?
Witness All together nothing in concert to cause to the demise of the victim. So, it is not fair for us to
isolate such injuries here because we are talking of the whole body. At the same manner that as a car
23
would not run minus one (1) wheel. No, the more humane in human approach is to interpret all those The heirs of the deceased may recover moral damages for the grief suffered on account of the victim’s
injuries in whole and not in part.267 death.278 This penalty is pursuant to Article 2206(3) of the Civil Code, which provides that the "spouse,
There is also evidence to show that some of the accused fraternity members were drinking during the legitimate and illegitimate descendants and the ascendants of the deceased may demand moral damages
initiation rites.268 for mental anguish by reason of the death of the deceased."279 Thus, we hereby we affirm the CA’s
Consequently, the collective acts of the fraternity members were tantamount to recklessness, which award of moral damages in the amount of ₱ 1,000,000.
made the resulting death of Lenny a culpable felony. It must be remembered that organizations owe to WHEREFORE, the appealed Judgment in G.R. No. 155101 finding petitioner Fidelito Dizon guilty of
their initiates a duty of care not to cause them injury in the process.269 With the foregoing facts, we rule homicide is hereby MODIFIED and set aside IN PART. The appealed Judgment in G.R. No. 154954 – finding
that the accused are guilty of reckless imprudence resulting in homicide. Since the NBI medico-legal Antonio Mariano Almeda, Junel Anthony Ama, Renato Bantug, Jr., and Vincent Tecson guilty of the crime
officer found that the victim’s death was the cumulative effect of the injuries suffered, criminal of slight physical injuries – is also MODIFIED and set aside in part. Instead, Fidelito Dizon, Antonio
responsibility redounds to all those who directly participated in and contributed to the infliction of Mariano Almeda, Junel Anthony Ama, Renato Bantug, Jr., and Vincent Tecson are found guilty beyond
physical injuries. reasonable doubt of reckless imprudence resulting in homicide defined and penalized under Article 365
It appears from the aforementioned facts that the incident may have been prevented, or at least in relation to Article 249 of the Revised Penal Code. They are hereby sentenced to suffer an
mitigated, had the alumni of Aquila Fraternity – accused Dizon and Villareal – restrained themselves from indeterminate prison term of four (4) months and one (1) day of arresto mayor, as minimum, to four (4)
insisting on reopening the initiation rites. Although this point did not matter in the end, as records would years and two (2) months of prision correccional, as maximum. In addition, accused are ORDERED jointly
show that the other fraternity members participated in the reopened initiation rites – having in mind the and severally to pay the heirs of Lenny Villa civil indemnity ex delicto in the amount of ₱ 50,000, and
concept of "seniority" in fraternities – the implication of the presence of alumni should be seen as a point moral damages in the amount of ₱ 1,000,000, plus legal interest on all damages awarded at the rate of
of review in future legislation. We further note that some of the fraternity members were intoxicated 12% from the date of the finality of this Decision until satisfaction.280 Costs de oficio.
during Lenny’s initiation rites. In this light, the Court submits to Congress, for legislative consideration, The appealed Judgment in G.R. No. 154954, acquitting Victorino et al., is hereby affirmed. The appealed
the amendment of the Anti-Hazing Law to include the fact of intoxication and the presence of non- Judgments in G.R. Nos. 178057 & 178080, dismissing the criminal case filed against Escalona, Ramos,
resident or alumni fraternity members during hazing as aggravating circumstances that would increase Saruca, and Adriano, are likewise affirmed. Finally, pursuant to Article 89(1) of the Revised Penal Code,
the applicable penalties. the Petition in G.R. No. 151258 is hereby dismissed, and the criminal case against Artemio Villareal
It is truly astonishing how men would wittingly – or unwittingly –impose the misery of hazing and employ deemed closed and TERMINATED.
appalling rituals in the name of brotherhood. There must be a better way to establish "kinship." A Let copies of this Decision be furnished to the Senate President and the Speaker of the House of
neophyte admitted that he joined the fraternity to have more friends and to avail himself of the benefits Representatives for possible consideration of the amendment of the Anti-Hazing Law to include the fact
it offered, such as tips during bar examinations.270 Another initiate did not give up, because he feared of intoxication and the presence of non-resident or alumni fraternity members during hazing as
being looked down upon as a quitter, and because he felt he did not have a choice.271 Thus, for Lenny aggravating circumstances that would increase the applicable penalties.
Villa and the other neophytes, joining the Aquila Fraternity entailed a leap in the dark. By giving consent SO ORDERED.
under the circumstances, they left their fates in the hands of the fraternity members. Unfortunately, the
hands to which lives were entrusted were barbaric as they were reckless.
Our finding of criminal liability for the felony of reckless imprudence resulting in homicide shall cover
only accused Tecson, Ama, Almeda, Bantug, and Dizon. Had the Anti-Hazing Law been in effect then,
these five accused fraternity members would have all been convicted of the crime of hazing punishable
by reclusion perpetua (life imprisonment).272 Since there was no law prohibiting the act of hazing when
Lenny died, we are constrained to rule according to existing laws at the time of his death. The CA found
that the prosecution failed to prove, beyond reasonable doubt, Victorino et al.’s individual participation
in the infliction of physical injuries upon Lenny Villa.273 As to accused Villareal, his criminal liability was
totally extinguished by the fact of his death, pursuant to Article 89 of the Revised Penal Code.
Furthermore, our ruling herein shall be interpreted without prejudice to the applicability of the Anti-
Hazing Law to subsequent cases. Furthermore, the modification of criminal liability from slight physical
injuries to reckless imprudence resulting in homicide shall apply only with respect to accused Almeda,
Ama, Bantug, and Tecson.
The accused liable to pay damages
The CA awarded damages in favor of the heirs of Lenny Villa in the amounts of ₱ 50,000 as civil indemnity
ex delicto and ₱ 1,000,000 as moral damages, to be jointly and severally paid by accused Dizon and
Villareal. It also awarded the amount of ₱ 30,000 as indemnity to be jointly and severally paid by accused
Almeda, Ama, Bantug, and Tecson.1âwphi1
Civil indemnity ex delicto is automatically awarded for the sole fact of death of the victim.274 In
accordance with prevailing jurisprudence,275 we sustain the CA’s award of indemnity in the amount of ₱
50,000.
The heirs of the victim are entitled to actual or compensatory damages, including expenses incurred in
connection with the death of the victim, so long as the claim is supported by tangible documents.276
Though we are prepared to award actual damages, the Court is prevented from granting them, since the
records are bereft of any evidence to show that actual expenses were incurred or proven during trial.
Furthermore, in the appeal, the Solicitor General does not interpose any claim for actual damages.277

24
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-9726 December 8, 1914
THE UNITED STATES, plaintiff-appellee, vs.
CARSON TAYLOR, defendant-appellant.
C. W. O'Brien for appellant.
Office of the Solicitor General Corpus for appellee.
JOHNSON, J.:
This was an action for criminal libel.
The complaint alleged:
That on the 25th day of September, 1913, the said Carson Taylor, being then and there the acting editor
and proprietor, manager, printer, and publisher in the city of Manila, Philippine Islands, of a certain daily
bilingual newspaper, edited in the English and Spanish languages, and known as the 'Manila Daily
Bulletin,' a paper of large circulation throughout the Philippine Islands, as well as in the United States and
other countries in all of which both languages are spoken and written, and having as such the supervision
and control of said newspaper, did then and there willfully, unlawfully, feloniously, maliciously, and with
intent to impeach the honesty, virtue, and reputation of one Ramon Sotelo as a member of the bar of the
Philippine Islands and as private individual, and to expose him to public hatred, contempt and ridicule,
compose, print, edit, publish, and circulate and procure to be composed, printed, edited, published, and
circulated in said newspaper's issue of the above mentioned date, September 25, 1913, a certain false
and malicious defamation and libel in the English language of and concerning the said Ramon Sotelo,
which reads as follows:
OWNERS FIRED BUILDING TO COLLECT INSURANCE. — CRIMINAL CHARGES FOLLOWS CIVIL SUIT.
'Conspiracy divulged in three sworn statements made by members of the party after a family
disagreement. Sensational statement sworn to. Mystery of Calle O'Donnell fire solved and papers served.
'Conspiracy to defraud the insurance company.'
'The building was fired to collect the amount of insurance.'
'The movable furniture of value was removed before the fire.'
'The full amount of the insurance was collected, and the conspiracy was a success.'
'The above is the gist of the sworn statements of Vicente Sotelo and Eugenio Martin in connection with
the fire that destroyed house No. 2157 Calle O'Donnell on April 4.'
'The case in question is a sensational one to say the least, and the court is being petitioned to set aside
the ruling and cite the parties to show cause why they should not be cited to answer charges of
conspiracy to defraud.'
'On April 4, 1913, the house located at 2157 Calle O'donnell was destroyed by fire.1awphil.net The house
was insured for P5,000, the contents for an additional P5,000, with the West of Scotland Insurance
Association, of which Lutz & Co. are the local agents, with an additional P1,500 with Smith, Bell & Co.'
'The full amount of the insurance on the property was paid by the paid by the agents of the insurance
companies and the matter apparently dropped from the records.'
'Then there was internal trouble and information began to leak out which resulted in sensational
statements to the effect that the destruction of the property had been an act of incendiarism in order to
collect the insurance. The there was an investigation started and it resulted in sworn statements of the
three persons above mentioned.'
'Notarial returns were made yesterday by the sheriff, based on the sworn statements and the parties are
cited to appear in court and show cause.'
'The investigation also showed that the furniture, which was supposed to be in line the house at the time
of the conflagration and which was paid for by the insurance agents, sworn statements having been
made that it was destroyed in the fire, was in certain house in Montalban, where it was identified upon
the sworn statements of the above mentioned. Implicated in the charges of conspiracy and fraud is the
name of the attorney for the plaintiff who made affidavit as to the burning of the house and against
whom criminal proceedings will be brought as well as against the original owners.'
'Attorney Burke, who represents Lutz & Co. in the proceedings, was seen last night and asked for a
statement as to the case. Mr. Burke refused to talk on the case and stated that when it came to trial it
would be time enough to obtain the facts.'
'The present action came before the court on motion of Attorney Burke to set aside the judgment, which,
in the original case, given the owners of the property judgment for the amount of the insurance.'
'Attorney Burke filed the sworn statements with the court and the notarial returns to the same were
made yesterday afternoon, the sworn statements as to the burning of the house being in the hands of
the sheriff.'
'It was stated yesterday that a criminal action would follow the civil proceedings instituted to recover the
funds in the case entitled on the court records, Maria Mortera de Eceiza and Manuel Eceiza versus the
West o Sctoland Association, Limited, No. 10191 on the court records.'1awphil.net
'It might be stated also that Eugenio Martin was one of the plaintiffs in the recent suit brought against Ex-
Governor W. Cameron Forbes for lumber supplied for his Boston home.'
That in this article is contained the following paragraph. To wit:
". . . Implicated in the charges of conspiracy and fraud is the name of the attorney for the plaintiff who
made affidavit as to the burning of the house and against whom criminal proceedings will be brought as
well as against the original owners," by which the said accused meant to refer and did refer to the said
Ramon Sotelo, who then and there was the attorney for the plaintiff in the case aforesaid, No. 10191 of
the Court of First Instance of the city of Manila, and so was understood by the public who read the same;
that the statements and allegations made in said paragraph are wholly false and untrue, thus impeaching
the honesty, virtue, and reputation of the said offended party as a member of the bar of the Philippine
Islands and as private individual, and exposing him to public hatred, contempt and ridicule. Contrary to
law.
Upon said complaint the defendant was arrested, arraigned, plead not guilty, was tried, found guilty of
the crime charged, and sentenced by the Honorable George N. Hurd, judge, to pay a fine of P200. From
the sentence the defendant appealed to this court and made the following assignment of error:
First. The court erred in finding that the defendant was responsible for and guilty of the alleged libel.
Second. The court erred in finding that the defendant was the proprietor and publisher of the "Manila
Daily Bulletin."
Third. The court erred in finding that the alleged libelous articles was libelous per se.
Fourth. The court erred in holding that the article was libelous, while finding that there was no malice.
Fifth. The court erred in finding that the alleged libelous article referred to attorney Ramon Sotelo.
Sixth. The court erred in finding that Ramon Sotelo was attorney for the plaintiffs in case No. 10191,
when the alleged libel was published.
After a careful examination of the record and the arguments presented by the appellant, we deem it
necessary to discuss only the first and second assignments of error.
In the Philippine Islands there exist no crimes such as are known in the United States and England as
common law crimes. No act constitutes a crime here unless it is made so by law. Libel is made a crime
here by Act No. 277 of the United States Philippine Commission. Said Act (No. 277) not only defines the
crime of libel and prescribes the particular conditions necessary to constitute it, but it also names the
persons who may be guilty of such crime. In the present case the complaint alleges that the defendant
was, at the time of the publication of said alleged article "the acting editor, proprietor, manager, printer,
publisher, etc. etc. of a certain bilingual newspaper, etc., known as the 'Manila Daily Bulletin,' a paper of
large circulation throughout the Philippine Islands, as well as in the United States and other countries."
It will be noted that the complaint charges the defendant as "the acting editor, proprietor, manager,
printer, and publisher." From an examination of said Act No. 277, we find that section 6 provides that:
"Every author, editor, or proprietor of any book, newspaper, or serial publication is chargeable with the
publication of any words contained in any part of said book or number of each newspaper or serial as
fully as if he were the author of the same."
By an examination of said article, with reference to the persons who may be liable for the publication of a
libel in a newspaper, we find that it only provides for a punishment of "the author, editor, or proprietor."
It would follow, therefore, that unless the proof shows that the defendant in the present case is the
"author, editor, or proprietor" of the newspaper in which the libel was published, he can not be held
liable.
25
In the present case the Solicitor-General in his brief said that — "No person is represented to be either investigation. He can not wear the toga of author of editor and hide his responsibility by giving himself
the 'author, editor, or proprietor.'" That statement of the Solicitor-General is fully sustained by the record. some other name. While the terms "author, editor, and proprietor" of a newspaper are terms well
There is not a word of proof in the record showing that the defendant was either the "author, the editor, defined, the particular words "author, editor, or proprietor" are not material or important, further than
or the proprietor." The proof shows that the defendant was the "manager." He must, therefore, be that they are words which are intended to show the relation of the responsible party to the publication.
acquitted of the crime charged against him, unless it is shown by the proof that he, as "manager" of the That relation may as well exist under some other name or denomination.
newspaper, was in some way directly responsible for the writing, editing, or publishing of the matter For the foregoing reasons, therefore, there being no proof whatever in the record showing that the
contained in said alleged libelous article. The prosecution presented the newspaper, the "Manila Daily defendant was the "author, the editor, or the proprietor" of the newspaper in question, the sentence of
Bulletin," for the purpose of showing the relation which the defendant had to it. That was the only proof the lower court must be reversed, the complaint dismissed and the defendant discharged from the
presented by the prosecution to show the relation which the defendant had to the publication of the libel custody of the law, with costs de officio. So ordered
in question. From an examination of the editorial page of said exhibit, we find that it shows that the
"Manila Daily Bulletin" is owned by the "Bulletin Publishing Company," and that the defendant was its
manager. There is not a word of proof in the record which shows what relation the manager had to the
publication of said newspaper. We might, by series of presumptions and assumptions, conclude that the
manager of a newspaper has some direct responsibility with its publication. We believe, however, that
such presumptions and assumptions, in the absence of a single letter of proof relating thereto, would be
unwarranted and unjustified. The prosecuting attorney had an opportunity to present proof or because
no such proof was obtainable, he presented none. It certainly is not difficult matter to ascertain who is
the real person responsible for the publication of a newspaper which is published daily and has a wide
circulation in a particular community. No question was asked the defendant concerning his particular
relation to the publication of the newspaper in question. We do not desire to be understood in our
conclusions here as holding that the "manager" or the "printer" may not, under certain conditions and
proper proof, he held to be the "author, editor, or proprietor" of a newspaper. He may nominate himself
as "manager" or "printer" simply, and be at the same time the "author, editor, or proprietor" of the
newspaper. He can not avoid responsibility by using some other term or word, indicating his relation to
the newspaper or the publication, when, as a matter of fact, he is the "author, the editor, or the
proprietor" of the same. His real relation to the said publication is a matter of proof. The Solicitor-
General, in his with the hope of evading legal responsibility, as the Libel Law places the responsibility for
publishing a libel, on "every author, editor, or proprietor of any book, etc." Had the prosecuting attorney
in the trial of the cause believed that the defendant, even though he called himself the "manager" was,
in fact, the "author, editor, or proprietor" of said publication, he should have presented some proof
supporting that contention. Neither do we desire to be understood as holding that simply because a
person connected with the publication of a newspaper who calls himself the "manager" or "printer" may
not, in fact and at the same time, be the "author, editor, or proprietor." The "author, editor, or proprietor"
can not avoid responsibility for the writing and publication of a libelous article, by simply calling himself
the "manager" or the "printer" of a newspaper. That, however, is a question of proof. The burden is upon
the prosecution to show that the defendant is, by whatever name he may call himself, in truth and in
fact, the "author, editor, or proprietor" of a newspaper. The courts cannot assume, in the absence of
proof, that one who called himself "manager" was in fact the "author, editor, or proprietor." We might
assume, perhaps, that the "manager" of a newspaper plays an important part in the publication of the
same by virtue of the general signification of the word "manager." Men can not, however, be sentenced
upon the basis of a mere assumption. There must be some proof. The word "manage" has been defined
by Webster to mean "to have under control and direction; to conduct; to guide; to administer; to treat; to
handle." Webster defines "manager" to be "one who manages; a conductor or director; as, the manager
of a theater." A manager, as that word is generally understood, we do not believe includes the idea of
ownership. Generally speaking it means one who is representing another as an agent. That being true, his
power and duties and obligations are generally defined by contract. He may have expressed as well as
implied powers, but whatever his powers and duties are they must be defendant upon the nature of the
business and the terms of his contract. There is no fixed rule which indicates particularly and definitely
his duties, powers and obligations. An examination into the character of the business and the contract of
his employment must be made for the purpose of ascertaining definitely what his duties and obligations
are. His exact relation is always a matter of proof. It is incumbent upon the prosecution is a case like the
present, to show that whatever title, name or designation the defendant may bear, he was, in fact, the
"author, the editor, or the proprietor" of the newspaper. If he was in fact the "author, editor, or
proprietor," he can not escape responsibility by calling the "manager" or "printer." It is the relation which
he bears to the publication and not the name or title he has assumed, which is important in an

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

30
JUSTICE PERALTA:
... and determine the value or the amount.
DEAN DIOKNO:
Yes, Your Honor.
JUSTICE PERALTA:
That will be equivalent to the incremental penalty of one (1) year in excess of Twenty-Two Thousand
(₱22,000.00) Pesos.
DEAN DIOKNO:
Yes, Your Honor.
JUSTICE PERALTA:
The amount in excess of Twenty-Two Thousand (₱22,000.00) Pesos.
Thank you, Dean.
DEAN DIOKNO:
Thank you.
x x x x29
Dean Diokno also contends that Article 315 of the Revised Penal Code constitutes cruel and unusual
punishment. Citing Solem v. Helm,30 Dean Diokno avers that the United States Federal Supreme Court
has expanded the application of a similar Constitutional provision prohibiting cruel and unusual
punishment, to the duration of the penalty, and not just its form. The court therein ruled that three
things must be done to decide whether a sentence is proportional to a specific crime, viz.; (1) Compare
the nature and gravity of the offense, and the harshness of the penalty; (2) Compare the sentences
imposed on other criminals in the same jurisdiction, i.e., whether more serious crimes are subject to the
same penalty or to less serious penalties; and (3) Compare the sentences imposed for commission of the
same crime in other jurisdictions.
However, the case of Solem v. Helm cannot be applied in the present case, because in Solem what
respondent therein deemed cruel was the penalty imposed by the state court of South Dakota after it
took into account the latter’s recidivist statute and not the original penalty for uttering a "no account"
check. Normally, the maximum punishment for the crime would have been five years imprisonment and
a $5,000.00 fine. Nonetheless, respondent was sentenced to life imprisonment without the possibility of
parole under South Dakota’s recidivist statute because of his six prior felony convictions. Surely, the
factual antecedents of Solem are different from the present controversy.
With respect to the crime of Qualified Theft, however, it is true that the imposable penalty for the
offense is high. Nevertheless, the rationale for the imposition of a higher penalty against a domestic
servant is the fact that in the commission of the crime, the helper will essentially gravely abuse the trust
and confidence reposed upon her by her employer. After accepting and allowing the helper to be a
member of the household, thus entrusting upon such person the protection and safekeeping of the
employer’s loved ones and properties, a subsequent betrayal of that trust is so repulsive as to warrant
the necessity of imposing a higher penalty to deter the commission of such wrongful acts.
There are other crimes where the penalty of fine and/or imprisonment are dependent on the subject
matter of the crime and which, by adopting the proposal, may create serious implications. For example,
in the crime of Malversation, the penalty imposed depends on the amount of the money malversed by
the public official, thus:
Art. 217. Malversation of public funds or property; Presumption of malversation. — Any public officer
who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate
the same or shall take or misappropriate or shall consent, through abandonment or negligence, shall
permit any other person to take such public funds, or property, wholly or partially, or shall otherwise be
guilty of the misappropriation or malversation of such funds or property, shall suffer:
1. The penalty of prision correccional in its medium and maximum periods, if the amount involved in the
misappropriation or malversation does not exceed two hundred pesos.
2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is more than
two hundred pesos but does not exceed six thousand pesos.
3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum
period, if the amount involved is more than six thousand pesos but is less than twelve
thousand pesos.
4. The penalty of reclusion temporal, in its medium and maximum periods, if the amount
involved is more than twelve thousand pesos but is less than twenty-two thousand pesos. If
the amount exceeds the latter, the penalty shall be reclusion temporal in its maximum period
to reclusion perpetua.
In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special
disqualification and a fine equal to the amount of the funds malversed or equal to the total value of the
property embezzled.
The failure of a public officer to have duly forthcoming any public funds or property with which he is
chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put
such missing funds or property to personal use.
The above-provisions contemplate a situation wherein the Government loses money due to the unlawful
acts of the offender. Thus, following the proposal, if the amount malversed is ₱200.00 (under the existing
law), the amount now becomes ₱20,000.00 and the penalty is prision correccional in its medium and
maximum periods (2 years 4 months and 1 day to 6 years). The penalty may not be commensurate to the
act of embezzlement of ₱20,000.00 compared to the acts committed by public officials punishable by a
special law, i.e., Republic Act No. 3019 or the Anti-Graft and Corrupt Practices Act, specifically Section
3,31 wherein the injury caused to the government is not generally defined by any monetary amount, the
penalty (6 years and 1 month to 15 years)32 under the Anti-Graft Law will now become higher. This
should not be the case, because in the crime of malversation, the public official takes advantage of his
public position to embezzle the fund or property of the government entrusted to him.
The said inequity is also apparent in the crime of Robbery with force upon things (inhabited or
uninhabited) where the value of the thing unlawfully taken and the act of unlawful entry are the bases of
the penalty imposable, and also, in Malicious Mischief, where the penalty of imprisonment or fine is
dependent on the cost of the damage caused.
In Robbery with force upon things (inhabited or uninhabited), if we increase the value of the thing
unlawfully taken, as proposed in the ponencia, the sole basis of the penalty will now be the value of the
thing unlawfully taken and no longer the element of force employed in entering the premises. It may
likewise cause an inequity between the crime of Qualified Trespass to Dwelling under Article 280, and
this kind of robbery because the former is punishable by prision correccional in its medium and
maximum periods (2 years, 4 months and 1 day to 6 years) and a fine not exceeding ₱1,000.00
(₱100,000.00 now if the ratio is 1:100) where entrance to the premises is with violence or intimidation,
which is the main justification of the penalty. Whereas in the crime of Robbery with force upon things, it
is punished with a penalty of prision mayor (6 years and 1 day to 12 years) if the intruder is unarmed
without the penalty of Fine despite the fact that it is not merely the illegal entry that is the basis of the
penalty but likewise the unlawful taking.
Furthermore, in the crime of Other Mischiefs under Article 329, the highest penalty that can be imposed
is arresto mayor in its medium and maximum periods (2 months and 1 day to 6 months) if the value of
the damage caused exceeds ₱1,000.00, but under the proposal, the value of the damage will now
become ₱100,000.00 (1:100), and still punishable by arresto mayor (1 month and 1 day to 6 months).
And, if the value of the damaged property does not exceed ₱200.00, the penalty is arresto menor or a
fine of not less than the value of the damage caused and not more than ₱200.00, if the amount involved
does not exceed ₱200.00 or cannot be estimated. Under the proposal, ₱200.00 will now become
₱20,000.00, which simply means that the fine of ₱200.00 under the existing law will now become
₱20,000.00. The amount of Fine under this situation will now become excessive and afflictive in nature
despite the fact that the offense is categorized as a light felony penalized with a light penalty under
Article 26 of the RPC.33 Unless we also amend Article 26 of the RPC, there will be grave implications on
the penalty of Fine, but changing the same through Court decision, either expressly or impliedly, may not
be legally and constitutionally feasible.
There are other crimes against property and swindling in the RPC that may also be affected by the
proposal, such as those that impose imprisonment and/or Fine as a penalty based on the value of the
damage caused, to wit: Article 311 (Theft of the property of the National Library and National Museum),
Article 312 (Occupation of real property or usurpation of real rights in property), Article 313 (Altering
boundaries or landmarks), Article 316 (Other forms of swindling), Article 317 (Swindling a minor), Article
318 (Other deceits), Article 328 (Special cases of malicious mischief) and Article 331 (Destroying or
damaging statues, public monuments or paintings). Other crimes that impose Fine as a penalty will also
31
be affected, such as: Article 213 (Frauds against the public treasury and similar offenses), Article 215
(Prohibited Transactions),
Article 216 (Possession of prohibited interest by a public officer), Article 218 (Failure of accountable
officer to render accounts), Article 219 (Failure of a responsible public officer to render accounts before
leaving the country).
In addition, the proposal will not only affect crimes under the RPC. It will also affect crimes which are
punishable by special penal laws, such as Illegal Logging or Violation of Section 68 of Presidential Decree
No. 705, as amended.34 The law treats cutting, gathering, collecting and possessing timber or other
forest products without license as an offense as grave as and equivalent to the felony of qualified theft.35
Under the law, the offender shall be punished with the penalties imposed under Articles 309 and 31036
of the Revised Penal Code, which means that the penalty imposable for the offense is, again, based on
the value of the timber or forest products involved in the offense. Now, if we accept the said proposal in
the crime of Theft, will this particular crime of Illegal Logging be amended also in so far as the penalty is
concerned because the penalty is dependent on Articles 309 and 310 of the RPC? The answer is in the
negative because the soundness of this particular law is not in question.
With the numerous crimes defined and penalized under the Revised Penal Code and Special Laws, and
other related provisions of these laws affected by the proposal, a thorough study is needed to determine
its effectivity and necessity. There may be some provisions of the law that should be amended;
nevertheless, this Court is in no position to conclude as to the intentions of the framers of the Revised
Penal Code by merely making a study of the applicability of the penalties imposable in the present times.
Such is not within the competence of the Court but of the Legislature which is empowered to conduct
public hearings on the matter, consult legal luminaries and who, after due proceedings, can decide
whether or not to amend or to revise the questioned law or other laws, or even create a new legislation
which will adopt to the times.
Admittedly, Congress is aware that there is an urgent need to amend the Revised Penal Code. During the
oral arguments, counsel for the Senate informed the Court that at present, fifty-six (56) bills are now
pending in the Senate seeking to amend the Revised Penal Code,37 each one proposing much needed
change and updates to archaic laws that were promulgated decades ago when the political, socio-
economic, and cultural settings were far different from today’s conditions.
Verily, the primordial duty of the Court is merely to apply the law in such a way that it shall not usurp
legislative powers by judicial legislation and that in the course of such application or construction, it
should not make or supervise legislation, or under the guise of interpretation, modify, revise, amend,
distort, remodel, or rewrite the law, or give the law a construction which is repugnant to its terms.38 The
Court should apply the law in a manner that would give effect to their letter and spirit, especially when
the law is clear as to its intent and purpose. Succinctly put, the Court should shy away from encroaching
upon the primary function of a co-equal branch of the Government; otherwise, this would lead to an
inexcusable breach of the doctrine of separation of powers by means of judicial legislation.
Moreover, it is to be noted that civil indemnity is, technically, not a penalty or a Fine; hence, it can be
increased by the Court when appropriate. Article 2206 of the Civil Code provides:
Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall be at least three
thousand pesos, even though there may have been mitigating circumstances. In addition:
(1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity
shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the
court, unless the deceased on account of permanent physical disability not caused by the defendant, had
no earning capacity at the time of his death;
(2) If the deceased was obliged to give support according to the provisions of Article 291, the recipient
who is not an heir called to the decedent's inheritance by the law of testate or intestate succession, may
demand support from the person causing the death, for a period not exceeding five years, the exact
duration to be fixed by the court;
(3) The spouse, legitimate and illegitimate descendants and ascendants of the deceased may demand
moral damages for mental anguish by reason of the death of the deceased.
In our jurisdiction, civil indemnity is awarded to the offended party as a kind of monetary restitution or
compensation to the victim for the damage or infraction that was done to the latter by the accused,
which in a sense only covers the civil aspect. Precisely, it is civil indemnity. Thus, in a crime where a
person dies, in addition to the penalty of imprisonment imposed to the offender, the accused is also
ordered to pay the victim a sum of money as restitution. Clearly, this award of civil indemnity due to the
death of the victim could not be contemplated as akin to the value of a thing that is unlawfully taken
which is the basis in the imposition of the proper penalty in certain crimes. Thus, the reasoning in
increasing the value of civil indemnity awarded in some offense cannot be the same reasoning that
would sustain the adoption of the suggested ratio. Also, it is apparent from Article 2206 that the law only
imposes a minimum amount for awards of civil indemnity, which is ₱3,000.00. The law did not provide
for a ceiling. Thus, although the minimum amount for the award cannot be changed, increasing the
amount awarded as civil indemnity can be validly modified and increased when the present circumstance
warrants it. Corollarily, moral damages under Article 222039 of the Civil Code also does not fix the
amount of damages that can be awarded. It is discretionary upon the court, depending on the mental
anguish or the suffering of the private offended party. The amount of moral damages can, in relation to
civil indemnity, be adjusted so long as it does not exceed the award of civil indemnity.
In addition, some may view the penalty provided by law for the offense committed as tantamount to
cruel punishment. However, all penalties are generally harsh, being punitive in nature. Whether or not
they are excessive or amount to cruel punishment is a matter that should be left to lawmakers. It is the
prerogative of the courts to apply the law, especially when they are clear and not subject to any other
interpretation than that which is plainly written.
Similar to the argument of Dean Diokno, one of Justice Antonio Carpio’s opinions is that the incremental
penalty provision should be declared unconstitutional and that the courts should only impose the
penalty corresponding to the amount of ₱22,000.00, regardless if the actual amount involved exceeds
₱22,000.00. As suggested, however, from now until the law is properly amended by Congress, all crimes
of Estafa will no longer be punished by the appropriate penalty. A conundrum in the regular course of
criminal justice would occur when every accused convicted of the crime of estafa will be meted penalties
different from the proper penalty that should be imposed. Such drastic twist in the application of the law
has no legal basis and directly runs counter to what the law provides.
It should be noted that the death penalty was reintroduced in the dispensation of criminal justice by the
Ramos Administration by virtue of Republic Act No. 765940 in December 1993. The said law has been
questioned before this Court. There is, arguably, no punishment more cruel than that of death. Yet still,
from the time the death penalty was re-imposed until its lifting in June 2006 by Republic Act No. 9346,41
the Court did not impede the imposition of the death penalty on the ground that it is a "cruel
punishment" within the purview of Section 19 (1),42 Article III of the Constitution. Ultimately, it was
through an act of Congress suspending the imposition of the death penalty that led to its non-imposition
and not via the intervention of the Court.
Even if the imposable penalty amounts to cruel punishment, the Court cannot declare the provision of
the law from which the proper penalty emanates unconstitutional in the present action. Not only is it
violative of due process, considering that the State and the concerned parties were not given the
opportunity to comment on the subject matter, it is settled that the constitutionality of a statute cannot
be attacked collaterally because constitutionality issues must be pleaded directly and not collaterally,43
more so in the present controversy wherein the issues never touched upon the constitutionality of any of
the provisions of the Revised Penal Code.
Besides, it has long been held that the prohibition of cruel and unusual punishments is generally aimed at
the form or character of the punishment rather than its severity in respect of duration or amount, and
applies to punishments which public sentiment has regarded as cruel or obsolete, for instance, those
inflicted at the whipping post, or in the pillory, burning at the stake, breaking on the wheel,
disemboweling, and the like. Fine and imprisonment would not thus be within the prohibition.44
It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be
obnoxious to the Constitution. The fact that the punishment authorized by the statute is severe does not
make it cruel and unusual. Expressed in other terms, it has been held that to come under the ban, the
punishment must be "flagrantly and plainly oppressive," "wholly disproportionate to the nature of the
offense as to shock the moral sense of the community."45
Cruel as it may be, as discussed above, it is for the Congress to amend the law and adapt it to our modern
time.
The solution to the present controversy could not be solved by merely adjusting the questioned
monetary values to the present value of money based only on the current inflation rate. There are other
factors and variables that need to be taken into consideration, researched, and deliberated upon before
32
the said values could be accurately and properly adjusted. The effects on the society, the injured party, eighty three years ago, but consider the proposed ratio of 1:100 as simply compensating for inflation.
the accused, its socio-economic impact, and the likes must be painstakingly evaluated and weighed upon Furthermore, the Court has in the past taken into consideration "changed conditions" or "significant
in order to arrive at a wholistic change that all of us believe should be made to our existing law. changes in circumstances" in its decisions.
Dejectedly, the Court is ill-equipped, has no resources, and lacks sufficient personnel to conduct public Similarly, the Chief Justice is of the view that the Court is not delving into the validity of the substance of
hearings and sponsor studies and surveys to validly effect these changes in our Revised Penal Code. This a statute. The issue is no different from the Court’s adjustment of indemnity in crimes against persons,
function clearly and appropriately belongs to Congress. Even Professor Tadiar concedes to this which the Court had previously adjusted in light of current times, like in the case of People v. Pantoja.47
conclusion, to wit: Besides, Article 10 of the Civil Code mandates a presumption that the lawmaking body intended right and
xxxx justice to prevail.
JUSTICE PERALTA: With due respect to the opinions and proposals advanced by the Chief Justice and my Colleagues, all the
Yeah, Just one question. You are suggesting that in order to determine the value of Peso you have to take proposals ultimately lead to prohibited judicial legislation. Short of being repetitious and as extensively
into consideration several factors. discussed above, it is truly beyond the powers of the Court to legislate laws, such immense power
PROFESSOR TADIAR: belongs to Congress and the Court should refrain from crossing this clear-cut divide. With regard to civil
Yes. indemnity, as elucidated before, this refers to civil liability which is awarded to the offended party as a
JUSTICE PERALTA: kind of monetary restitution. It is truly based on the value of money. The same cannot be said on
Per capita income. penalties because, as earlier stated, penalties are not only based on the value of money, but on several
PROFESSOR TADIAR: other factors. Further, since the law is silent as to the maximum amount that can be awarded and only
Per capita income. pegged the minimum sum, increasing the amount granted as civil indemnity is not proscribed. Thus, it
JUSTICE PERALTA: can be adjusted in light of current conditions.
Consumer price index. Now, with regard to the penalty imposed in the present case, the CA modified the ruling of the RTC. The
PROFESSOR TADIAR: RTC imposed the indeterminate penalty of four (4) years and two (2) months of prision correccional in its
Yeah. medium period, as minimum, to fourteen (14) years and eight (8) months of reclusion temporal in its
JUSTICE PERALTA: minimum period, as maximum. However, the CA imposed the indeterminate penalty of four (4) years and
Inflation ... two (2) months of prision correccional, as minimum, to eight (8) years of prision mayor, as maximum,
PROFESSOR TADIAR: plus one (1) year for each additional ₱10,000.00, or a total of seven (7) years.
Yes. In computing the penalty for this type of estafa, this Court's ruling in Cosme, Jr. v. People48 is highly
JUSTICE PERALTA: instructive, thus:
... and so on. Is the Supreme Court equipped to determine those factors? With respect to the imposable penalty, Article 315 of the Revised Penal Code provides:
PROFESSOR TADIAR: ART. 315 Swindling (estafa). - Any person who shall defraud another by any of the means mentioned
There are many ways by which the value of the Philippine Peso can be determined utilizing all of those hereinbelow shall be punished by:
economic terms. 1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if
JUSTICE PERALTA: the amount of the fraud is over 12,000 but does not exceed 22,000 pesos, and if such amount exceeds
Yeah, but ... the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period, adding
PROFESSOR TADIAR: one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not exceed
And I don’t think it is within the power of the Supreme Court to pass upon and peg the value to One twenty years. In such case, and in connection with the accessory penalties which may be imposed and for
Hundred (₱100.00) Pesos to ... the purpose of the other provisions of this Code, the penalty shall be termed prision mayor or reclusion
JUSTICE PERALTA: temporal, as the case may be.
Yeah. The penalty prescribed by Article 315 is composed of only two, not three, periods, in which case, Article
PROFESSOR TADIAR: 65 of the same Code requires the division of the time included in the penalty into three equal portions of
... One (₱1.00.00) Peso in 1930. time included in the penalty prescribed, forming one period of each of the three portions. Applying the
JUSTICE PERALTA: latter provisions, the maximum, medium and minimum periods of the penalty prescribed are:
That is legislative in nature. Maximum - 6 years, 8 months, 21 days to 8 years
PROFESSOR TADIAR: Medium - 5 years, 5 months, 11 days to 6 years, 8 months, 20 days
That is my position that the Supreme Court ... Minimum - 4 years, 2 months, 1 day to 5 years, 5 months, 10 days49
JUSTICE PERALTA: To compute the maximum period of the prescribed penalty, prisión correccional maximum to prisión
Yeah, okay. mayor minimum should be divided into three equal portions of time each of which portion shall be
PROFESSOR TADIAR: deemed to form one period in accordance with Article 6550 of the RPC.51 In the present case, the
... has no power to utilize the power of judicial review to in order to adjust, to make the adjustment that amount involved is ₱98,000.00, which exceeds ₱22,000.00, thus, the maximum penalty imposable should
is a power that belongs to the legislature. be within the maximum period of 6 years, 8 months and 21 days to 8 years of prision mayor. Article 315
JUSTICE PERALTA: also states that a period of one year shall be added to the penalty for every additional ₱10,000.00
Thank you, Professor. defrauded in excess of ₱22,000.00, but in no case shall the total penalty which may be imposed exceed
PROFESSOR TADIAR: 20 years.
Thank you.46 Considering that the amount of ₱98,000.00 is ₱76,000.00 more than the ₱22,000.00 ceiling set by law,
Finally, the opinion advanced by Chief Justice Maria Lourdes P. A. Sereno echoes the view that the role of then, adding one year for each additional ₱10,000.00, the maximum period of 6 years, 8 months and 21
the Court is not merely to dispense justice, but also the active duty to prevent injustice. Thus, in order to days to 8 years of prision mayor minimum would be increased by 7 years. Taking the maximum of the
prevent injustice in the present controversy, the Court should not impose an obsolete penalty pegged

33
prescribed penalty, which is 8 years, plus an additional 7 years, the maximum of the indeterminate
penalty is 15 years.
Applying the Indeterminate Sentence Law, since the penalty prescribed by law for the estafa charge
against petitioner is prision correccional maximum to prision mayor minimum, the penalty next lower
would then be prision correccional in its minimum and medium periods.
Thus, the minimum term of the indeterminate sentence should be anywhere from 6 months and 1 day to
4 years and 2 months.
One final note, the Court should give Congress a chance to perform its primordial duty of lawmaking. The
Court should not pre-empt Congress and usurp its inherent powers of making and enacting laws. While it
may be the most expeditious approach, a short cut by judicial fiat is a dangerous proposition, lest the
Court dare trespass on prohibited judicial legislation.
WHEREFORE, the Petition for Review on Certiorari dated November 5, 2007 of petitioner Lito Corpuz is
hereby DENIED. Consequently, the Decision dated March 22, 2007 and Resolution dated September 5,
2007 of the Court of Appeals, which affirmed with modification the Decision dated July 30, 2004 of the
Regional Trial Court, Branch 46, San Fernando City, finding petitioner guilty beyond reasonable doubt of
the crime of Estafa under Article 315, paragraph (1), sub-paragraph (b) of the Revised Penal Code, are
hereby AFFIRMED with MODIFICATION that the penalty imposed is the indeterminate penalty of
imprisonment ranging from THREE (3) YEARS, TWO (2) MONTHS and ELEVEN DAYS of prision
correccional, as minimum, to FIFTEEN (15) YEARS of reclusion temporal as maximum.
Pursuant to Article 5 of the Revised Penal Code, let a Copy of this Decision be furnished the President of
the Republic of the Philippines, through the Department of Justice.
Also, let a copy of this Decision be furnished the President of the Senate and the Speaker of the House of
Representatives.
SO ORDERED.

34
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 17584 March 8, 1922
THE PEOPLE OF THE PHILIPPINES ISLANDS, plaintiff-appellee, vs.
GREGORIO SANTIAGO, defendant-appellant.
L. Porter Hamilton for appellant.
Acting Attorney-General Tuason for appellee.
ROMUALDEZ, J.:
Having caused the death of Porfirio Parondo, a boy 7 years old, by striking him with automobile that he
was driving, the herein appellant was prosecuted for the crime of homicide by reckless negligence and
was sentenced to suffer one year and one day of prision correccional, and to pay the costs of the trial.
Not agreeable with that sentence he now comes to this court alleging that the court below committed
four errors, to wit:
1. The trial court erred in not taking judicial notice of the fact that the appellant was being prosecuted in
conformity with Act No. 2886 of the Philippine Legislature and that the Act is unconstitutional and gave
no jurisdiction in this case.
2. The lower court erred in not dismissing the complaint after the presentation of the evidence in the
case, if not before, for the reason that said Act No. 2886 is unconstitutional and the proceedings had in
the case under the provisions of the Act constitute a prosecution of appellant without due process of law.
3. The court a quo erred in not finding that it lacked jurisdiction over the person of the accused and over
the subject- matter of the complaint.
4. The trial court erred in finding the appellant guilty of the crime charged and in sentencing him to one
year and one day of prison correccional and to the payment of costs.
With regard to the questions of fact, we have to say that we have examined the record and find that the
conclusions of the trial judge, as contained in his well-written decision, are sufficiently sustained by the
evidence submitted.
The accused was driving an automobile at the rate of 30 miles an hour on a highway 6 meter wide,
notwithstanding the fact that he had to pass a narrow space between a wagon standing on one side of
the road and a heap of stones on the other side where the were two young boys, the appellant did not
take the precaution required by the circumstances by slowing his machine, and did not proceed with the
vigilant care that under the circumstances an ordinary prudent man would take in order to avoid possible
accidents that might occur, as unfortunately did occur, as his automobile ran over the boy Porfirio
Parondo who was instantly killed as the result of the accident.
These facts are so well established in the records that there cannot be a shade of doubt about them.
Coming now to the other assignments of error, it will be seen that they deal with the fundamental
questions as to whether or not Act No. 2886, under which the complaint in the present case was filed, is
valid and constitutional.
This Act is attacked on account of the amendments that it introduces in General Orders No. 58, the
defense arguing that the Philippine Legislature was, and is, not authorized to amend General Orders No.
58, as it did by amending section 2 thereof because its provisions have the character of constitutional
law. Said section 2 provides as follows:
All prosecutions for public offenses shall be in the name of the United States against the persons charged
with the offenses. (G. O. No. 58, sec. 2 ).
Act No. 2886, which amends it, by virtue of which the People of the Philippine Island is made the plaintiff
in this information, contains the following provisions in section 1:
SECTION 1. Section two of General Orders, Numbered Fifty-eight, series of nineteen hundred, is hereby
amended to read as follows:
"SEC. 2. All prosecutions for public offenses shall be in the name of the People of the Philippine Islands
against the persons charged with the offense."
Let us examine the question.
For practical reasons, the procedure in criminal matters is not incorporated in the Constitutions of the
States, but is left in the hand of the legislatures, so that it falls within the realm of public statutory law.
As has been said by Chief Justice Marshall:
A constitution, to contain an accurate detail of all the Subdivisions of which its great powers will admit,
and of all the means by which they may be carried into execution, would partake of a prolixity of a legal
code, and could scarcely be embraced by the human mind. It would probably never be understood by the
public. (M'Culloch vs. Maryland [1819], 4 Wheat., 316, 407; 4 L. ed., 579.)
That is why, in pursuance of the Constitution of the United States, each States, each State has the
authority, under its police power, to define and punish crimes and to lay down the rules of criminal
procedure.
The states, as a part of their police power, have a large measure of discretion in creating and defining
criminal offenses. . . .
A Statute relating to criminal procedure is void as a denial of the equal protection of the laws if it
prescribes a different procedure in the case of persons in like situation. Subject to this limitation,
however, the legislature has large measure of discretion in prescribing the modes of criminal procedure. .
. . (12 C.J., 1185, 1186. See Collins vs. Johnston, 237 U.S., 502; 35 s. Ct. Rep. 649; 59 L. ed., 1071; Shevlin-
Carpenter Co. vs. Minnesota, 218 U.S., 57; 30 S. Ct. Rep., 663; 54 L. ed., 930; Lynn vs. Flancders, 141 Ga.,
500; 81 S.E., 205.)
This power of the States of the North American Union was also granted to its territories such as the
Philippines:
The plenary legislative power which Congress possesses over the territories and possessions of the
United States may be exercised by that body itself, or, as is much more often the case, it may be
delegated to a local agency, such as a legislature, the organization of which proceeds upon much the
same lines as in the several States or in Congress, which is often taken as a model, and whose powers are
limited by the Organic Act; but within the scope of such act is has complete authority to legislate, . . . and
in general, to legislate upon all subjects within the police power of the territory. (38 Cyc., 205-207.)
The powers of the territorial legislatures are derived from Congress. By act of Congress their power
extends "to all rightful subjects of legislation not inconsistent with the Constitution and laws of the
United States;" and this includes the power to define and punish crimes. (16 C. J., 62.)
And in the exercise of such powers the military government of the army of occupation, functioning as a
territorial legislature, thought it convenient to establish new rules of procedure in criminal matters, by
the issuance of General Orders No. 58, the preamble of which reads:
In the interests of justice, and to safeguard the civil liberties of the inhabitants of these Islands, the
criminal code of procedure now in force therein is hereby amended in certain of its important provisions,
as indicated in the following enumerated sections. (Emphasis ours.)
Its main purpose is, therefore, limited to criminal procedure and its intention is to give to its provisions
the effect of law in criminal matters. For that reason it provides in section 1 that:
The following provisions shall have the force and effect of law in criminal matters in the Philippine Islands
from and after the 15th day of May, 1900, but existing laws on the same subjects shall remain valid
except in so far as hereinafter modified or repealed expressly or by necessary implication.
From what has been said it clearly follows that the provisions of this General Order do not the nature of
constitutional law either by reason of its character or by reason of the authority that enacted it into law.
It cannot be said that it has acquired this character because this order was made its own by the Congress
of the United States for, as a mater of fact, this body never adopted it as a law of its own creation either
before the promulgation of Act No. 2886, herein discussed, or, to our knowledge, to this date.
Since the provisions of this General Order have the character of statutory law, the power of the
Legislature to amend it is self-evident, even if the question is considered only on principle. Our present
Legislature, which has enacted Act No. 2886, the subject of our inquiry, is the legal successor to the
Military Government as a legislative body.
Since the advent of the American sovereignty in the Philippines the legislative branch of our government
has undergone transformations and has developed itself until it attained its present form. Firstly, it was
the Military Government of the army of occupation which, in accordance with international law and
practice, was vested with legislative functions and in fact did legislate; afterwards, complying with the
instructions of President McKinley which later were ratified by Congress (sec. 1 of the Act of July 1, 1902)
the legislative powers of the Military Government were transferred to the Philippine Commission; then,
under the provisions of section 7 of the Act of Congress of July 1, 1902, the Philippine Assembly was
created and it functioned as a colegislative body with the Philippine Commission. Finally, by virtue of the
provisions of sections 12 of the Act of Congress of August 29, 1916, known as the Jones Law, the
35
Philippine Commission gave way to the Philippine Senate, the Philippine Assembly became the House of
Representatives, and thus was formed the present Legislature composed of two Houses which has
enacted the aforesaid Act No. 2886.
As a matter of fact, Act No. 2886 is not the first law that amends General Orders No. 58. The Philippine
Commission, at various times, had amended it by the enactment of laws among which we may cite Act
No. 194, regarding preliminary investigation, Act No. 440 relating to counsels de oficio and Act No. 590
about preliminary investigations by justices of the peace of provincial capitals. Later on, and before the
enactment of Act No. 2886, herein controverted, the Legislature had also amended this General Orders
No. 58 by the enactment of Act No. 2677 regarding appeals to the Supreme Court of causes originating in
the justice of the peace courts and by Act No. 2709 which deals with the exclusion of accused persons
from the information in order to be utilized as state's witnesses.
These amendments repeatedly made by the Philippine Commission as well as by our present Legislature
are perfectly within the scope of the powers of the said legislative bodies as the successors of the
Military Government that promulgated General Orders No. 58.
No proof is required to demonstrate that the present Legislature had, and had, the power to enact and
amend laws. (U.S. vs. Bull. 15 Phil., 7.) That it has the power to legislate on criminal matters is very
evident from the wording of section 7 of the Jones Law which says:
That the legislative authority herein provided shall have power, when not inconsistent with this Act, by
due enactment to amend, alter, modify, or repeal any law, civil or criminal, continued in force by this Act
as it may from time to time see fit.
It is urged the right to prosecute and punish crimes is an attributed of sovereignty. This assertion is right;
but it is also true that by reason of the principle of territoriality as applied in the supression, of crimes,
such power is delegated to subordinate government subdivisions such as territories. As we have seen in
the beginning, the territorial legislatures have the power to define and punish crimes, a power also
possessed by the Philippine Legislature by virtue of the provisions of sections 7, already quoted, of the
Jones Law. These territorial governments are local agencies of the Federal Government, wherein
sovereignty resides; and when the territorial government of the Philippines prosecutes and punishes
public crimes it does so by virtue of the authority delegated to it by the supreme power of the Nation.
This delegation may be made either expressly as in the case of the several States of the Union and
incorporated territories like Porto Rico and Hawaii, or tacitly as is the case with the Philippines, which is
an organized territory though not incorporated with the Union. (Malcolm, Philippine Constitutional Law,
181-205.)
This tacit delegation to our Government needs no demonstration. As a matter of fact, the crimes
committed within our territory, even before section 2 of General Orders No. 58 was amended, were
prosecuted and punished in this jurisdiction as is done at present; but then as now the repression of
crimes was done, and is still done, under the sovereign authority of the United States, whose name
appears as the heading in all pleadings in criminal causes and in other judicial papers and notarial acts.
The use of such a heading is prescribed for civil cases in form 1 of section 784 of the Code of Civil
Procedure; in criminal causes the constant practice followed in this jurisdiction established its use; and in
notarial matters its use is provided by section 127 of Act No. 496. This long continued practice in criminal
matters and the legal provision relating to civil cases and notarial acts have not been amended by any
law, much less by Act No. 2886, the subject of the present inquiry.
There is not a single constitutional provision applicable to the Philippines prescribing the name to be
used as party plaintiff in criminal cases.
The fact that the political status of this country is as yet undetermined and in a transitory stage, is, in our
opinion, responsible for the fact that there is no positive provision in our constitutional law regarding the
use of the name of the People of the Philippine Islands, as party plaintiff, in criminal prosecutions, as is
otherwise the case in the respective constitutional charters of the States of the Union and incorporated
territories — a situation which must not be understood as depriving the Government of the Philippines
of its power, however delegated, to prosecute public crimes. The fact is undeniable that the present
government of the Philippines, created by the Congress of the United States, is autonomous.
This autonomy of the Government of the Philippines reaches all judicial actions, the case at bar being one
of them; as an example of such autonomy, this Government, the same as that of Hawaii and Porto Rico
(People of Porto Rico vs. Rosaly y Castillo [1913], 227 U.S., 270; 57 L. ed., 507; 33 Sup. Ct. Rep., 352)
cannot be sued without its consent. (Merritt vs. Government of the Philippine Islands, 34 Phil., 311; L. S.
Moon & Co. vs. Harrison, p. 27, ante.) The doctrine, laid down in these cases, acknowledges the
prerogative of personality in the Government of the Philippines, which, if it is sufficient to shield it from
any responsibility in court in its own name unless it consents thereto, it should be also, as sufficiently
authoritative in law, to give that government the right to prosecute in court in its own name whomsoever
violates within its territory the penal laws in force therein.
However, limiting ourselves to the question relative to the form of the complaint in criminal matters, it is
within the power of the Legislature to prescribe the form of the criminal complaint as long as the
constitutional provision of the accused to be informed of the nature of the accusation is not violated.
Under the Constitution of the United States and by like provisions in the constitutions of the
various states, the accused is entitled to be informed of the nature and cause of the
accusation against him . . .
It is within the power of the legislatures under such a constitutional provision to prescribe the
form of the indictment or information, and such form may omit averments regarded as
necessary at common law. (22 Cyc., 285.)
All these considerations a priori are strengthened a posteriori by the important reason disclosed by the
following fact — that the Congress has tacitly approved Act No. 2886. Both the Act of Congress of July 1,
1902, section 86, and the Jones Law, last paragraph of section 19, provide that all the laws enacted by the
Government of the Philippines or its Legislature shall be forwarded to the Congress of the United States,
which body reserves the right and power to annul them. And presuming, as legally we must, that the
provisions of these laws have been complied with, it is undisputed that the Congress of the United States
did not annul any of those acts already adverted to — Nos. 194, 440, 490 (of the Philippine Commission),
and 2677, 2709 and the one now in question No. 2886 (of the present Legislature) — all of which were
amendatory of General Orders No. 58. The Act now under discussion (No. 2886) took effect on February
24, 1920, and the criminal complaint in this case was filed on May 10, 1920. The silence of Congress
regarding those laws amendatory of the said General Order must be considered as an act of approval.
If Congress fails to notice or take action on any territorial legislation the reasonable inference
is that it approves such act. (26 R.C.L., 679; vide Clinton vs. Englebrcht, 13 Wall., 434; 20 [L.
ed.] 659; Tiaco vs. Forbes, 228 U.S., 549; 33 S. Ct. Rep., 585; 57 [L. ed.], 960; Nixon vs. Reid, 8
S.d., 507; 67 N.W., 57; 32 L.R.A., 315.)
Furthermore, supposing for the sake of argument, that the mention of the People of the Philippine
Islands as plaintiff in the title of the information constitutes a vice or defect, the same is not fatal when,
as in the present case, it was not objected to in the court below.
An indictment must, in many states under express statutory or constitutional provision, show
by its title or by proper recitals in the caption or elsewhere that the prosecution is in the name
and by the authority of the state, the commonwealth, or the people of the state, according to
the practice in the particular jurisdictions; but omissions or defects in this respect may be
supplied or cured by other parts of the records, and the omissions of such a recital or defects
therein, even when required by the constitution or by statute, is a defect of form within a
statute requiring exceptions for defect of form to be made before trial. (23 Cyc., 237, 238.)
We hold that the provisions of sections 2 of General Orders No. 58, as amended by Act No. 2886, do not
partake of the same character as the provisions of a constitution; that the said Act No. 2886 is valid and is
not violative of any constitutional provisions and that the court a quo did not commit any of the errors
assigned.
The sentence appealed from is hereby affirmed, the appellant being furthermore sentenced to the
accessory penalties prescribed in article 61 of the Penal Code, and to indemnify the heirs of the deceased
in the sum of P1,000 and to the payment of the costs of both instances. So ordered.
36
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-11676 October 17, 1916
THE UNITED STATES, plaintiff-appellee, vs.
ANDRES PABLO, defendant-appellant.
Alfonso E. Mendoza for appellant.
Attorney-General Avanceña for appellee.
TORRES, J.:
At about noon of the 21st of October, 1915, Andres Pablo, a policeman of the municipality of Balanga,
went by order of his chief to the barrio of Tuyo to raid a jueteng game which, according to the
information lodged, was being conducted in that place; but before the said officer arrived there the
players, perhaps advised of his approach by a spy, left and ran away; however, on his arrival at a vacant
lot the defendant there found Francisco Dato and, at a short distance away, a low table. After a search of
the premises he also found thereon a tambiolo (receptacle) and 37 bolas (balls). Notwithstanding that
the officer had seen the men Maximo Malicsi and Antonio Rodrigo leave the said lot, yet, as at first he
had seen no material proof that the game was being played, he refrained from arresting them, and on
leaving the place only arrested Francisco Daro, who had remained there.
In reporting to his chief what had occurred, the policeman presented a memorandum containing the
following statement: "In the barrio of Tuyo I raided a jueteng na bilat game, seized a tambiolo and bolas,
and saw the cabecillas Maximo MAlicsi and Antonio Rodrigo and the gambler Francisco Dato. I saw the
two cabecillas escape."
In consequence, chief of police Jose D. Reyes, on October 22, 1915, filed a complaint in the court of
justice of the peace charging the said Rodrigo, Malicsi, and Dato with having gambled at jueteng, in
violation of municipal ordinance No. 5. As a result of this complaint the accused were arrested, but were
afterwards admitted to bail.
At the hearing of the case Francisco Dato pleaded guilty. The other two accused, Maximo Malicsi and
Antonio Rodrigo, pleaded not guilty; therefore, during the trial the chief of police presented the
memorandum exhibited by the policeman Andres Pablo, who testified under oath that on the date
mentioned he and Tomas de Leon went to the said barrio to raid a jueteng game, but that before they
arrived there they saw from afar that some persons started to run toward the hills; that when witness
and his companion arrived at a vacant lot they saw Francisco Dato and a low table there, and the table
caused them to suspect that a jueteng game was being carried on; that in fact they did find on one side
of the lot a tambiolo and 37 bolas, but that they did not see the accused Rodrigo and Malicsi on the said
lot, nor did they see them run; and that only afterwards did the witness learn that these latter were the
cabecillas or ringleaders in the jueteng game, from information given him by an unknown person. In view
of this testimony by the police officer who made the arrest and of the other evidence adduced at the trial
the court acquitted the defendants Antonio Rodrigo and Maximo Malicsi and sentenced only Francisco
Dato, as a gambler.
Before the case came to trial in the justice of the peace court the policeman Andres Pablo had an
interview and conference with the accused Malicsi and ROdrigo in the house of Valentin Sioson. On this
occasion he was instructed not to testify against Malicsi and Rodrigo, and in fact received through
Gregorio Ganzon the sum of P5.
By reason of the foregoing and after making a preliminary investigation the provincial fiscal, on December
1, 1915, filed an information in the Court of First Instance of Bataan charging Andres Pablo with the crime
of perjury, under the provisions of section 3 of Act No. 1697. The following is an extract from the
complaint:
That on or about November 6, 1915, in the municipality of Balanga, Bataan, P.I., and within the
jurisdiction of this court, the said accused, Andres Pablo, during the hearing in the justice of the peace
court of Balanga of the criminal cause No. 787, entitled the United States vs. Antonio Rodrigo and
Maximo Malicsi, for violation of Municipal Ordinance No. 5 of the municipality of Balanga, did, willfully,
unlawfully and feloniously affirm and swear in legal form before the justice of the peace court as follow:
`We did not there overtake the accused Antonio Rodrigo and Maximo Malicsi, nor did we even see them
run,' the said statement being utterly false, as the accused well knew that it was, and material to the
decision of the said criminal cause No. 787, United States vs. Antonio Rodrigo and Maximo Malicsi. An act
committed with violation of law.
The case came to trial and on December 28, 1915, the court rendered judgment therein sentencing the
defendant to the penalty of two years' imprisonment, to pay a fine of P100 and, in case of insolvency, to
the corresponding subsidiary imprisonment, and to pay the costs. The defendant was also disqualified
from thereafter holding any public office and from testifying in the courts of the Philippine Islands until
the said disqualification should be removed. From this judgment he appealed.
Francisco Dato, on testifying as a witness, said that when the policemen Andres Pablo and Tomas de Leon
arrived at the place where the jueteng was being played, they found the defendant gamblers, Malicsi and
Rodrigo; that, prior to the hearing of the case in the justice of the peace court, Malicsi and Rodrigo
ordered him to call Andres Pablo, who, together with witness, went to the house of Valentin Sioson,
where they held a conference; that witness pleaded guilty in the justice of the peace court, in fulfillment
of his part of an agreement made between himself and his two coaccused, Malicsi and Rodrigo, who
promised him that they would support his family during the time he might be a prisoner in jail; that
Andres Pablo did not know that they were gamblers, because he did not find them in the place where the
game was in progress, but that when witness was being taken to the municipal building by the policemen
he told them who the gamblers were who had run away and whom Andres Pablo could have seen.
Maximo Malicsi corroborated the foregoing testimony and further stated that, on the arrival of the
policemen who made the arrest and while they were looking for the tambiolo, he succeeded in escaping;
that Andres Pablo had known him for a long time and could have arrested him had he wished to do so;
that prior to the hearing he and his codefendants, ROdrigo and Dato, did in fact meet in the house of
Valentin Sioson, on which occasion they agreed that they would give the policemen Andres Pablo P20,
provided witness and Rodrigo were excluded from the charge; and that only P15 was delivered to the
said Pablo, through Gregorio Ganzon. This statement was corroborated by the latter, though he said
nothing about what amount of money he delivered to the policeman Pablo.
The defendant Andres Pablo testified under oath that, on his being asked by the justice of the peace how
he could have seen Maximo Malicsi and Antonio Rodrigo, he replied that he did not see them at the place
where the game was being conducted nor did he see them run away from there, for he only found the
table, the tambiolo, the bolas, and Francisco Dato; that he did not surprise the game because the players
ran away before he arrived on the lot where, after fifteen minutes' search, he found only the tambiolo
and the bolas; that on arriving at the place where the game was played, they found only Francisco Dato
and some women in the Street, and as Dato had already gone away, witness' companion, the policeman
Tomas de Leon, got on his bicycle and went after him; and that he found the tambiolo at a distance of
about 6 meters from a low table standing on the lot.
From the facts above related, it is concluded that the defendant Andres Pablo, who pleaded not guilty,
falsely testified under oath in the justice of the peace court of Balanga, Bataan, in saying he had not seen
the alleged gamblers Maximo Malicsi and Antonio Rodrigo in the place where, according to the complaint
filed, the game of jueteng was being played and where the defendant and his companion, the policeman
Tomas de Leon, had found a table, tambiolo and bolas, used in the game of jueteng, while it was proved
at the trial that he did not them and did overtake them while they were still in the place where the game
was being played. But notwithstanding his having seen them there, upon testifying in the cause
prosecuted against these men and another for gambling, he stated that he had not seen them there,
knowing that he was not telling the truth and was false to the oath he had taken, and he did so willfully
and deliberately on account of his agreement with the men, Malicsi and Rodrigo, and in consideration of
a bribe of P15 which he had received in payment for his false testimony he afterwards gave.
Francisco Dato and Gregorio Ganzon corroborated the assertion that the policeman Andres Pablo
undertook to exclude the gamblers, Malicsi and Rodrigo, from the charge and from his testimony in
consideration for P15 which he received through Gregorio Ganzon.
Andres Pablo was charged with the crime of perjury and was afterwards convicted under Act No. 1697,
which (according to the principle laid down by this court in various decisions that are already well-settled
rules of law) repealed the provisions contained in articles 318 to 324 of the Penal Code relative to false
testimony.
By the second paragraph of the final section of the last article of the Administrative Code, or Act No.
2657, there was repealed, among the other statutes therein mentioned, the said Act No. 1697 relating to
37
perjury, and the repealing clause of the said Administrative Code does not say under what other penal hold that, in the commission of the crime of false testimony, there concurred the aggravating
law in force the crime of false testimony, at least, if not that of perjury, shall be punished. circumstance of price or reward, No. 3 of article 10 of the Code, with no mitigating circumstance to offset
Under these circumstances, may the crime of perjury or of false testimony go unpunished, and is there the effects of the said aggravating one; wherefore the defendant has incurred the maximum period of
no penal sanction whatever in this country for this crime? May the truth be freely perverted in testimony the penalty of arresto mayor in its maximum degree to prision correccional in its medium degree, and a
given under oath and which, for the very reason that it may save a guilty person from punishment, may fine.
also result in the conviction and punishment of an innocent person? If all this is not possible and is not For the foregoing reasons, we hereby reverse the judgment appealed from and sentence Andres Pablo to
right before the law and good morals in a society of even mediocre culture, it must be acknowledged that the penalty of two years four months and one day of prision correccional, to pay a fine of 1,000 pesetas,
it is imperatively necessary to punish the crime of perjury or of false testimony — a crime which can and, in case of insolvency, to suffer the corresponding subsidiary imprisonment, which shall not exceed
produce incalculable and far-reaching harm to society and cause infinite disturbance of social order. one-third of the principal penalty. He shall also pay the costs of both instances. So ordered.
The right of prosecution and punishment for a crime is one of the attributes that by a natural law belongs
to the sovereign power instinctively charged by the common will of the members of society to look after,
guard and defend the interests of the community, the individual and social rights and the liberties of
every citizen and the guaranty of the exercise of his rights.
The power to punish evildoers has never been attacked or challenged, as the necessity for its existence
has been recognized even by the most backward peoples. At times the criticism has been made that
certain penalties are cruel, barbarous, and atrocious; at other, that they are light and inadequate to the
nature and gravity of the offense, but the imposition of punishment is admitted to be just by the whole
human race, and even barbarians and savages themselves, who are ignorant of all civilization, are no
exception.lawphil.net
Notwithstanding that the said Act No. 1697 (which, as interpreted by this court in its decisions, was
deemed to have repealed the aforementioned article of the Penal Code relating to false testimony,
comprised within the term of perjury) did not expressly repeal the said articles of the Penal Code; and as
the said final article of the Administrative Code, in totally repealing Act No. 1697, does not explicitly
provide that the mentioned articles of the Penal Code are also repealed, the will of the legislation not
being expressly and clearly stated with respect to the complete or partial repeal of the said articles of the
Penal Code, in the manner that it has totally repealed the said Act No. 1697 relating its perjury; and,
furthermore, as it is imperative that society punish those of its members who are guilty of perjury or
false testimony, and it cannot be conceived that these crimes should go unpunished or be freely
committed without punishment of any kind, it must be conceded that there must be in this country some
prior, preexistent law that punishes perjury or false testimony.
There certainly are laws which deal with perjury or false testimony, like Law 7 et seq. of Title 2, third
Partida.
However, since the Penal Code went into force, the crime of false testimony has been punished under the
said articles of the said Code, which as we have already said, have not been specifically repealed by the
said Act No. 1697, but since its enactment, have not been applied, by the mere interpretation given to
them by this court in its decisions; yet, from the moment that Act was repealed by the Administrative
Code, the needs of society have made it necessary that the said articles 318 to 324 should be deemed to
be in force, inasmuch as the Administrative Code, in repealing the said Act relating to perjury, has not
explicitly provided that the said articles of the Penal Code have likewise been repealed.
This manner of understanding and construing the statutes applicable to the crime of false testimony or
perjury is in harmony with the provision of Law 11, Title 2, Book 3, of the Novisima Recopilacion which
says::
All the laws of the kingdom, not expressly repealed by other subsequent laws, must be
literally obeyed and the excuse that they are not in use cannot avail; for the Catholic kings and
their successors so ordered in numerous laws, and so also have I ordered on different
occasions, and even though they were repealed, it is seen that they have been revived by the
decree which I issued in conformity with them although they were not expressly designated.
The council will be informed thereof and will take account of the importance of the matter.
It is, then, assumed that the said articles of the Penal Code are in force and are properly applicable to
crimes of false testimony. Therefore, in consideration of the fact that in the case at bar the evidence
shows it to have been duly proven that the defendant, Andres Pablo, in testifying in the cause prosecuted
for gambling at jueteng, perverted the truth, for the purpose of favoring the alleged gamblers, Maximo
Malicsi and Antonio Rodrigo, with the aggravating circumstance of the crime being committed through
bribery, for it was also proved that the defendant Pablo received P15 in order that he should make no
mention of the said two gamblers in his sworn testimony, whereby he knowingly perverted the truth, we

38
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 169364 September 18, 2009
PEOPLE OF THE PHILIPPINES, Petitioner, vs.
EVANGELINE SITON y SACIL and KRYSTEL KATE SAGARANO y MEFANIA, Respondents.
DECISION
YNARES-SANTIAGO, J.:
If a man is called to be a street sweeper, he should sweep streets even as Michelangelo painted, or
Beethoven composed music, or Shakespeare wrote poetry. He should sweep streets so well that all the
hosts of Heaven and Earth will pause to say, here lived a great street sweeper who did his job well.
– Martin Luther King, Jr.
Assailed in this petition for review on certiorari is the July 29, 2005 Order1 of Branch 11, Davao City
Regional Trial Court in Special Civil Case No. 30-500-2004 granting respondents’ Petition for Certiorari
and declaring paragraph 2 of Article 202 of the Revised Penal Code unconstitutional.
Respondents Evangeline Siton and Krystel Kate Sagarano were charged with vagrancy pursuant to Article
202 (2) of the Revised Penal Code in two separate Informations dated November 18, 2003, docketed as
Criminal Case Nos. 115,716-C-2003 and 115,717-C-2003 and raffled to Branch 3 of the Municipal Trial
Court in Cities, Davao City. The Informations, read:
That on or about November 14, 2003, in the City of Davao, Philippines, and within the jurisdiction of this
Honorable Court, the above-mentioned accused, willfully, unlawfully and feloniously wandered and
loitered around San Pedro and Legaspi Streets, this City, without any visible means to support herself nor
lawful and justifiable purpose.2
Article 202 of the Revised Penal Code provides:
Art. 202. Vagrants and prostitutes; penalty. — The following are vagrants:
1. Any person having no apparent means of subsistence, who has the physical ability to work and who
neglects to apply himself or herself to some lawful calling;
2. Any person found loitering about public or semi-public buildings or places or tramping or wandering
about the country or the streets without visible means of support;
3. Any idle or dissolute person who lodges in houses of ill fame; ruffians or pimps and those who
habitually associate with prostitutes;
4. Any person who, not being included in the provisions of other articles of this Code, shall be found
loitering in any inhabited or uninhabited place belonging to another without any lawful or justifiable
purpose;
5. Prostitutes.
For the purposes of this article, women who, for money or profit, habitually indulge in sexual intercourse
or lascivious conduct, are deemed to be prostitutes.
Any person found guilty of any of the offenses covered by this articles shall be punished by arresto menor
or a fine not exceeding 200 pesos, and in case of recidivism, by arresto mayor in its medium period to
prision correccional in its minimum period or a fine ranging from 200 to 2,000 pesos, or both, in the
discretion of the court.
Instead of submitting their counter-affidavits as directed, respondents filed separate Motions to Quash3
on the ground that Article 202 (2) is unconstitutional for being vague and overbroad.
In an Order4 dated April 28, 2004, the municipal trial court denied the motions and directed respondents
anew to file their respective counter-affidavits. The municipal trial court also declared that the law on
vagrancy was enacted pursuant to the State’s police power and justified by the Latin maxim "salus populi
est suprem(a) lex," which calls for the subordination of individual benefit to the interest of the greater
number, thus:
Our law on vagrancy was enacted pursuant to the police power of the State. An authority on police
power, Professor Freund describes laconically police power "as the power of promoting public welfare by
restraining and regulating the use of liberty and property." (Citations omitted). In fact the person’s acts
and acquisitions are hemmed in by the police power of the state. The justification found in the Latin
maxim, salus populi est supreme (sic) lex" (the god of the people is the Supreme Law). This calls for the
subordination of individual benefit to the interests of the greater number.In the case at bar the affidavit
of the arresting police officer, SPO1 JAY PLAZA with Annex "A" lucidly shows that there was a prior
surveillance conducted in view of the reports that vagrants and prostitutes proliferate in the place where
the two accused (among other women) were wandering and in the wee hours of night and soliciting male
customer. Thus, on that basis the prosecution should be given a leeway to prove its case. Thus, in the
interest of substantial justice, both prosecution and defense must be given their day in Court: the
prosecution proof of the crime, and the author thereof; the defense, to show that the acts of the accused
in the indictment can’t be categorized as a crime.5
The municipal trial court also noted that in the affidavit of the arresting police officer, SPO1 Jay Plaza, it
was stated that there was a prior surveillance conducted on the two accused in an area reported to be
frequented by vagrants and prostitutes who solicited sexual favors. Hence, the prosecution should be
given the opportunity to prove the crime, and the defense to rebut the evidence.1avvphi1
Respondents thus filed an original petition for certiorari and prohibition with the Regional Trial Court of
Davao City,6 directly challenging the constitutionality of the anti-vagrancy law, claiming that the definition
of the crime of vagrancy under Article 202 (2), apart from being vague, results as well in an arbitrary
identification of violators, since the definition of the crime includes in its coverage persons who are
otherwise performing ordinary peaceful acts. They likewise claimed that Article 202 (2) violated the equal
protection clause under the Constitution because it discriminates against the poor and unemployed, thus
permitting an arbitrary and unreasonable classification.
The State, through the Office of the Solicitor General, argued that pursuant to the Court’s ruling in
Estrada v. Sandiganbayan,7 the overbreadth and vagueness doctrines apply only to free speech cases and
not to penal statutes. It also asserted that Article 202 (2) must be presumed valid and constitutional,
since the respondents failed to overcome this presumption.
On July 29, 2005, the Regional Trial Court issued the assailed Order granting the petition, the dispositive
portion of which reads:
WHEREFORE, PRESCINDING FROM THE FOREGOING, the instant Petition is hereby GRANTED. Paragraph 2
of Article 202 of the Revised Penal Code is hereby declared unconstitutional and the Order of the court a
quo, dated April 28, 2004, denying the petitioners’ Motion to Quash is set aside and the said court is
ordered to dismiss the subject criminal cases against the petitioners pending before it.
SO ORDERED.8
In declaring Article 202 (2) unconstitutional, the trial court opined that the law is vague and it violated
the equal protection clause. It held that the "void for vagueness" doctrine is equally applicable in testing
the validity of penal statutes. Citing Papachristou v. City of Jacksonville,9 where an anti vagrancy
ordinance was struck down as unconstitutional by the Supreme Court of the United States, the trial court
ruled:
The U.S. Supreme Court’s justifications for striking down the Jacksonville Vagrancy Ordinance are equally
applicable to paragraph 2 of Article 202 of the Revised Penal Code.
Indeed, to authorize a police officer to arrest a person for being "found loitering about public or semi-
public buildings or places or tramping or wandering about the country or the streets without visible
means of support" offers too wide a latitude for arbitrary determinations as to who should be arrested
and who should not.
Loitering about and wandering have become national pastimes particularly in these times of recession
when there are many who are "without visible means of support" not by reason of choice but by force of
circumstance as borne out by the high unemployment rate in the entire country.
To authorize law enforcement authorities to arrest someone for nearly no other reason than the fact that
he cannot find gainful employment would indeed be adding insult to injury.10
On its pronouncement that Article 202 (2) violated the equal protection clause of the Constitution, the
trial court declared:
The application of the Anti-Vagrancy Law, crafted in the 1930s, to our situation at present runs afoul of
the equal protection clause of the constitution as it offers no reasonable classification between those
covered by the law and those who are not.
Class legislation is such legislation which denies rights to one which are accorded to others, or inflicts
upon one individual a more severe penalty than is imposed upon another in like case offending.
Applying this to the case at bar, since the definition of Vagrancy under Article 202 of the Revised Penal
Code offers no guidelines or any other reasonable indicators to differentiate those who have no visible
39
means of support by force of circumstance and those who choose to loiter about and bum around, who
are the proper subjects of vagrancy legislation, it cannot pass a judicial scrutiny of its constitutionality.11
Hence, this petition for review on certiorari raising the sole issue of:
WHETHER THE REGIONAL TRIAL COURT COMMITTED A REVERSIBLE ERROR IN DECLARING
UNCONSTITUTIONAL ARTICLE 202 (2) OF THE REVISED PENAL CODE12
Petitioner argues that every statute is presumed valid and all reasonable doubts should be resolved in
favor of its constitutionality; that, citing Romualdez v. Sandiganbayan,13 the overbreadth and vagueness
doctrines have special application to free-speech cases only and are not appropriate for testing the
validity of penal statutes; that respondents failed to overcome the presumed validity of the statute,
failing to prove that it was vague under the standards set out by the Courts; and that the State may
regulate individual conduct for the promotion of public welfare in the exercise of its police power.
On the other hand, respondents argue against the limited application of the overbreadth and vagueness
doctrines. They insist that Article 202 (2) on its face violates the constitutionally-guaranteed rights to due
process and the equal protection of the laws; that the due process vagueness standard, as distinguished
from the free speech vagueness doctrine, is adequate to declare Article 202 (2) unconstitutional and void
on its face; and that the presumption of constitutionality was adequately overthrown.
The Court finds for petitioner.
The power to define crimes and prescribe their corresponding penalties is legislative in nature and
inherent in the sovereign power of the state to maintain social order as an aspect of police power. The
legislature may even forbid and penalize acts formerly considered innocent and lawful provided that no
constitutional rights have been abridged.14 However, in exercising its power to declare what acts
constitute a crime, the legislature must inform the citizen with reasonable precision what acts it intends
to prohibit so that he may have a certain understandable rule of conduct and know what acts it is his
duty to avoid.15 This requirement has come to be known as the void-for-vagueness doctrine which states
that "a statute which either forbids or requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning and differ as to its application, violates the
first essential of due process of law."16
In Spouses Romualdez v. COMELEC,17 the Court recognized the application of the void-for-vagueness
doctrine to criminal statutes in appropriate cases. The Court therein held:
At the outset, we declare that under these terms, the opinions of the dissent which seek to bring to the
fore the purported ambiguities of a long list of provisions in Republic Act No. 8189 can be deemed as a
facial challenge. An appropriate "as applied" challenge in the instant Petition should be limited only to
Section 45 (j) in relation to Sections 10 (g) and (j) of Republic Act No. 8189 – the provisions upon which
petitioners are charged. An expanded examination of the law covering provisions which are alien to
petitioners’ case would be antagonistic to the rudiment that for judicial review to be exercised, there
must be an existing case or controversy that is appropriate or ripe for determination, and not conjectural
or anticipatory.18
The first statute punishing vagrancy – Act No. 519 – was modeled after American vagrancy statutes and
passed by the Philippine Commission in 1902. The Penal Code of Spain of 1870 which was in force in this
country up to December 31, 1931 did not contain a provision on vagrancy.19 While historically an Anglo-
American concept of crime prevention, the law on vagrancy was included by the Philippine legislature as
a permanent feature of the Revised Penal Code in Article 202 thereof which, to repeat, provides:
ART. 202. Vagrants and prostitutes; penalty. – The following are vagrants:
1. Any person having no apparent means of subsistence, who has the physical ability to work and who
neglects to apply himself or herself to some lawful calling;
2. Any person found loitering about public or semi-public buildings or places, or tramping or wandering
about the country or the streets without visible means of support;
3. Any idle or dissolute person who lodges in houses of ill-fame; ruffians or pimps and those who
habitually associate with prostitutes;
4. Any person who, not being included in the provisions of other articles of this Code, shall be found
loitering in any inhabited or uninhabited place belonging to another without any lawful or justifiable
purpose;
5. Prostitutes.
For the purposes of this article, women who, for money or profit, habitually indulge in sexual intercourse
or lascivious conduct, are deemed to be prostitutes.
Any person found guilty of any of the offenses covered by this article shall be punished by arresto menor
or a fine not exceeding 200 pesos, and in case of recidivism, by arresto mayor in its medium period to
prision correccional in its minimum period or a fine ranging from 200 to 2,000 pesos, or both, in the
discretion of the court.
In the instant case, the assailed provision is paragraph (2), which defines a vagrant as any person found
loitering about public or semi-public buildings or places, or tramping or wandering about the country or
the streets without visible means of support. This provision was based on the second clause of Section 1
of Act No. 519 which defined "vagrant" as "every person found loitering about saloons or dramshops or
gambling houses, or tramping or straying through the country without visible means of support." The
second clause was essentially retained with the modification that the places under which the offense
might be committed is now expressed in general terms – public or semi-public places.
The Regional Trial Court, in asserting the unconstitutionality of Article 202 (2), take support mainly from
the U.S. Supreme Court’s opinion in the Papachristou v. City of Jacksonville20 case, which in essence
declares:
Living under a rule of law entails various suppositions, one of which is that "[all persons] are entitled to
be informed as to what the State commands or forbids." Lanzetta v. New Jersey, 306 U. S. 451, 306 U. S.
453.
Lanzetta is one of a well recognized group of cases insisting that the law give fair notice of the offending
conduct. See Connally v. General Construction Co., 269 U. S. 385, 269 U. S. 391; Cline v. Frink Dairy Co.,
274 U. S. 445; United States v. Cohen Grocery Co., 255 U. S. 81. In the field of regulatory statutes
governing business activities, where the acts limited are in a narrow category, greater leeway is allowed.
Boyce Motor Lines, Inc. v. United States, 342 U. S. 337; United States v. National Dairy Products Corp., 372
U. S. 29; United States v. Petrillo, 332 U. S. 1.
The poor among us, the minorities, the average householder, are not in business and not alerted to the
regulatory schemes of vagrancy laws; and we assume they would have no understanding of their
meaning and impact if they read them. Nor are they protected from being caught in the vagrancy net by
the necessity of having a specific intent to commit an unlawful act. See Screws v. United States, 325 U. S.
91; Boyce Motor Lines, Inc. v. United States, supra.
The Jacksonville ordinance makes criminal activities which, by modern standards, are normally innocent.
"Nightwalking" is one. Florida construes the ordinance not to make criminal one night's wandering,
Johnson v. State, 202 So.2d at 855, only the "habitual" wanderer or, as the ordinance describes it,
"common night walkers." We know, however, from experience that sleepless people often walk at night,
perhaps hopeful that sleep-inducing relaxation will result.
Luis Munoz-Marin, former Governor of Puerto Rico, commented once that "loafing" was a national virtue
in his Commonwealth, and that it should be encouraged. It is, however, a crime in Jacksonville.
xxxx
Persons "wandering or strolling" from place to place have been extolled by Walt Whitman and Vachel
Lindsay. The qualification "without any lawful purpose or object" may be a trap for innocent acts. Persons
"neglecting all lawful business and habitually spending their time by frequenting . . . places where
alcoholic beverages are sold or served" would literally embrace many members of golf clubs and city
clubs.
Walkers and strollers and wanderers may be going to or coming from a burglary. Loafers or loiterers may
be "casing" a place for a holdup. Letting one's wife support him is an intra-family matter, and normally of
no concern to the police. Yet it may, of course, be the setting for numerous crimes.
The difficulty is that these activities are historically part of the amenities of life as we have known them.
They are not mentioned in the Constitution or in the Bill of Rights. These unwritten amenities have been,
in part, responsible for giving our people the feeling of independence and self-confidence, the feeling of
creativity. These amenities have dignified the right of dissent, and have honored the right to be
nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits, rather
than hushed, suffocating silence.
xxxx
Where the list of crimes is so all-inclusive and generalized as the one in this ordinance, those convicted
may be punished for no more than vindicating affronts to police authority:
"The common ground which brings such a motley assortment of human troubles before the magistrates
in vagrancy-type proceedings is the procedural laxity which permits 'conviction' for almost any kind of
40
conduct and the existence of the House of Correction as an easy and convenient dumping-ground for
problems that appear to have no other immediate solution." Foote, Vagrancy-Type Law and Its
Administration, 104 U.Pa.L.Rev. 603, 631.
xxxx
Another aspect of the ordinance's vagueness appears when we focus not on the lack of notice given a
potential offender, but on the effect of the unfettered discretion it places in the hands of the Jacksonville
police. Caleb Foote, an early student of this subject, has called the vagrancy-type law as offering
"punishment by analogy." Such crimes, though long common in Russia, are not compatible with our
constitutional system.
xxxx
A presumption that people who might walk or loaf or loiter or stroll or frequent houses where liquor is
sold, or who are supported by their wives or who look suspicious to the police are to become future
criminals is too precarious for a rule of law. The implicit presumption in these generalized vagrancy
standards -- that crime is being nipped in the bud -- is too extravagant to deserve extended treatment. Of
course, vagrancy statutes are useful to the police. Of course, they are nets making easy the roundup of
so-called undesirables. But the rule of law implies equality and justice in its application. Vagrancy laws of
the Jacksonville type teach that the scales of justice are so tipped that even-handed administration of the
law is not possible. The rule of law, evenly applied to minorities as well as majorities, to the poor as well
as the rich, is the great mucilage that holds society together.21
The underlying principles in Papachristou are that: 1) the assailed Jacksonville ordinance "fails to give a
person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute;" and
2) it encourages or promotes opportunities for the application of discriminatory law enforcement.
The said underlying principle in Papachristou that the Jacksonville ordinance, or Article 202 (2) in this
case, fails to give fair notice of what constitutes forbidden conduct, finds no application here because
under our legal system, ignorance of the law excuses no one from compliance therewith. 22 This principle
is of Spanish origin, and we adopted it to govern and limit legal conduct in this jurisdiction. Under
American law, ignorance of the law is merely a traditional rule that admits of exceptions. 23
Moreover, the Jacksonville ordinance was declared unconstitutional on account of specific provisions
thereof, which are not found in Article 202 (2). The ordinance (Jacksonville Ordinance Code § 257)
provided, as follows:
Rogues and vagabonds, or dissolute persons who go about begging; common gamblers, persons who use
juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or
pickpockets, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places,
common railers and brawlers, persons wandering or strolling around from place to place without any
lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and
habitually spending their time by frequenting houses of ill fame, gaming houses, or places where
alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of
their wives or minor children shall be deemed vagrants and, upon conviction in the Municipal Court shall
be punished as provided for Class D offenses.
Thus, the U.S. Supreme Court in Jacksonville declared the ordinance unconstitutional, because such
activities or habits as nightwalking, wandering or strolling around without any lawful purpose or object,
habitual loafing, habitual spending of time at places where alcoholic beverages are sold or served, and
living upon the earnings of wives or minor children, which are otherwise common and normal, were
declared illegal. But these are specific acts or activities not found in Article 202 (2). The closest to Article
202 (2) – "any person found loitering about public or semi-public buildings or places, or tramping or
wandering about the country or the streets without visible means of support" – from the Jacksonville
ordinance, would be "persons wandering or strolling around from place to place without any lawful
purpose or object." But these two acts are still not the same: Article 202 (2) is qualified by "without
visible means of support" while the Jacksonville ordinance prohibits wandering or strolling "without any
lawful purpose or object," which was held by the U.S. Supreme Court to constitute a "trap for innocent
acts."
Under the Constitution, the people are guaranteed the right to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures of whatever nature and for any purpose, 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.24
Thus, as with any other act or offense, the requirement of probable cause provides an acceptable limit
on police or executive authority that may otherwise be abused in relation to the search or arrest of
persons found to be violating Article 202 (2). The fear exhibited by the respondents, echoing Jacksonville,
that unfettered discretion is placed in the hands of the police to make an arrest or search, is therefore
assuaged by the constitutional requirement of probable cause, which is one less than certainty or proof,
but more than suspicion or possibility.25
Evidently, the requirement of probable cause cannot be done away with arbitrarily without pain of
punishment, for, absent this requirement, the authorities are necessarily guilty of abuse. The grounds of
suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that
the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e.,
supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the
person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled
with good faith of the peace officers making the arrest.26
The State cannot in a cavalier fashion intrude into the persons of its citizens as well as into their houses,
papers and effects. The constitutional provision sheathes the private individual with an impenetrable
armor against unreasonable searches and seizures. It protects the privacy and sanctity of the person
himself against unlawful arrests and other forms of restraint, and prevents him from being irreversibly
cut off from that domestic security which renders the lives of the most unhappy in some measure
agreeable.27
As applied to the instant case, it appears that the police authorities have been conducting previous
surveillance operations on respondents prior to their arrest. On the surface, this satisfies the probable
cause requirement under our Constitution. For this reason, we are not moved by respondents’
trepidation that Article 202 (2) could have been a source of police abuse in their case.
Since the Revised Penal Code took effect in 1932, no challenge has ever been made upon the
constitutionality of Article 202 except now. Instead, throughout the years, we have witnessed the streets
and parks become dangerous and unsafe, a haven for beggars, harassing "watch-your-car" boys, petty
thieves and robbers, pickpockets, swindlers, gangs, prostitutes, and individuals performing acts that go
beyond decency and morality, if not basic humanity. The streets and parks have become the training
ground for petty offenders who graduate into hardened and battle-scarred criminals. Everyday, the news
is rife with reports of innocent and hardworking people being robbed, swindled, harassed or mauled – if
not killed – by the scourge of the streets. Blue collar workers are robbed straight from withdrawing hard-
earned money from the ATMs (automated teller machines); students are held up for having to use and
thus exhibit publicly their mobile phones; frail and helpless men are mauled by thrill-seeking gangs;
innocent passers-by are stabbed to death by rowdy drunken men walking the streets; fair-looking or
pretty women are stalked and harassed, if not abducted, raped and then killed; robbers, thieves,
pickpockets and snatchers case streets and parks for possible victims; the old are swindled of their life
savings by conniving streetsmart bilkers and con artists on the prowl; beggars endlessly pester and
panhandle pedestrians and commuters, posing a health threat and putting law-abiding drivers and
citizens at risk of running them over. All these happen on the streets and in public places, day or night.
The streets must be protected. Our people should never dread having to ply them each day, or else we
can never say that we have performed our task to our brothers and sisters. We must rid the streets of the
scourge of humanity, and restore order, peace, civility, decency and morality in them.
This is exactly why we have public order laws, to which Article 202 (2) belongs. These laws were crafted
to maintain minimum standards of decency, morality and civility in human society. These laws may be
traced all the way back to ancient times, and today, they have also come to be associated with the
struggle to improve the citizens’ quality of life, which is guaranteed by our Constitution.28 Civilly, they are
covered by the "abuse of rights" doctrine embodied in the preliminary articles of the Civil Code
concerning Human Relations, to the end, in part, that any person who willfully causes loss or injury to
another in a manner that is contrary to morals, good customs or public policy shall compensate the latter
for the damage.29 This provision is, together with the succeeding articles on human relations, intended to
embody certain basic principles "that are to be observed for the rightful relationship between human
beings and for the stability of the social order."30
In civil law, for example, the summary remedy of ejectment is intended to prevent criminal disorder and
breaches of the peace and to discourage those who, believing themselves entitled to the possession of
41
the property, resort to force rather than to some appropriate action in court to assert their claims. 31 Any No costs.
private person may abate a public nuisance which is specially injurious to him by removing, or if SO ORDERED.
necessary, by destroying the thing which constitutes the same, without committing a breach of the
peace, or doing unnecessary injury.32
Criminally, public order laws encompass a whole range of acts – from public indecencies and
immoralities, to public nuisances, to disorderly conduct. The acts punished are made illegal by their
offensiveness to society’s basic sensibilities and their adverse effect on the quality of life of the people of
society. For example, the issuance or making of a bouncing check is deemed a public nuisance, a crime
against public order that must be abated.33 As a matter of public policy, the failure to turn over the
proceeds of the sale of the goods covered by a trust receipt or to return said goods, if not sold, is a public
nuisance to be abated by the imposition of penal sanctions.34 Thus, public nuisances must be abated
because they have the effect of interfering with the comfortable enjoyment of life or property by
members of a community.
Article 202 (2) does not violate the equal protection clause; neither does it discriminate against the poor
and the unemployed. Offenders of public order laws are punished not for their status, as for being poor
or unemployed, but for conducting themselves under such circumstances as to endanger the public
peace or cause alarm and apprehension in the community. Being poor or unemployed is not a license or
a justification to act indecently or to engage in immoral conduct.
Vagrancy must not be so lightly treated as to be considered constitutionally offensive. It is a public order
crime which punishes persons for conducting themselves, at a certain place and time which orderly
society finds unusual, under such conditions that are repugnant and outrageous to the common
standards and norms of decency and morality in a just, civilized and ordered society, as would engender a
justifiable concern for the safety and well-being of members of the community.
Instead of taking an active position declaring public order laws unconstitutional, the State should train its
eye on their effective implementation, because it is in this area that the Court perceives difficulties. Red
light districts abound, gangs work the streets in the wee hours of the morning, dangerous robbers and
thieves ply their trade in the trains stations, drunken men terrorize law-abiding citizens late at night and
urinate on otherwise decent corners of our streets. Rugby-sniffing individuals crowd our national parks
and busy intersections. Prostitutes wait for customers by the roadside all around the metropolis, some
even venture in bars and restaurants. Drug-crazed men loiter around dark avenues waiting to pounce on
helpless citizens. Dangerous groups wander around, casing homes and establishments for their next hit.
The streets must be made safe once more. Though a man’s house is his castle, 35 outside on the streets,
the king is fair game.
The dangerous streets must surrender to orderly society.
Finally, we agree with the position of the State that first and foremost, Article 202 (2) should be
presumed valid and constitutional. When confronted with a constitutional question, it is elementary that
every court must approach it with grave care and considerable caution bearing in mind that every statute
is presumed valid and every reasonable doubt should be resolved in favor of its constitutionality.36 The
policy of our courts is to avoid ruling on constitutional questions and to presume that the acts of the
political departments are valid in the absence of a clear and unmistakable showing to the contrary. To
doubt is to sustain, this presumption is based on the doctrine of separation of powers which enjoins
upon each department a becoming respect for the acts of the other departments. The theory is that as
the joint act of Congress and the President of the Philippines, a law has been carefully studied, crafted
and determined to be in accordance with the fundamental law before it was finally enacted.37
It must not be forgotten that police power is an inherent attribute of sovereignty. It has been defined as
the power vested by the Constitution in the legislature to make, ordain, and establish all manner of
wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not
repugnant to the Constitution, as they shall judge to be for the good and welfare of the commonwealth,
and for the subjects of the same. The power is plenary and its scope is vast and pervasive, reaching and
justifying measures for public health, public safety, public morals, and the general welfare. 38 As an
obvious police power measure, Article 202 (2) must therefore be viewed in a constitutional light.
WHEREFORE, the petition is GRANTED. The Decision of Branch 11 of the Regional Trial Court of Davao
City in Special Civil Case No. 30-500-2004 declaring Article 202, paragraph 2 of the Revised Penal Code
UNCONSTITUTIONAL is REVERSED and SET ASIDE.
Let the proceedings in Criminal Cases Nos. 115,716-C-2003 and 115,717-C-2003 thus continue.

42
G.R. No. 148560 November 19, 2001
JOSEPH EJERCITO ESTRADA, petitioner, vs.
SANDIGANBAYAN (Third Division) and PEOPLE OF THE PHILIPPINES, respondents.
DECISION
BELLOSILLO, J.:
JOHN STUART MILL, in his essay On Liberty, unleashes the full fury of his pen in defense of the rights of
the individual from the vast powers of the State and the inroads of societal pressure. But even as he
draws a sacrosanct line demarcating the limits on individuality beyond which the State cannot tread -
asserting that "individual spontaneity" must be allowed to flourish with very little regard to social
interference - he veritably acknowledges that the exercise of rights and liberties is imbued with a civic
obligation, which society is justified in enforcing at all cost, against those who would endeavor to
withhold fulfillment. Thus he says -
The sole end for which mankind is warranted, individually or collectively, in interfering with the liberty of
action of any of their number, is self-protection. The only purpose for which power can be rightfully
exercised over any member of a civilized community, against his will, is to prevent harm to others.
Parallel to individual liberty is the natural and illimitable right of the State to self-preservation. With the
end of maintaining the integrity and cohesiveness of the body politic, it behooves the State to formulate
a system of laws that would compel obeisance to its collective wisdom and inflict punishment for non-
observance.
The movement from Mill's individual liberalism to unsystematic collectivism wrought changes in the
social order, carrying with it a new formulation of fundamental rights and duties more attuned to the
imperatives of contemporary socio-political ideologies. In the process, the web of rights and State
impositions became tangled and obscured, enmeshed in threads of multiple shades and colors, the skein
irregular and broken. Antagonism, often outright collision, between the law as the expression of the will
of the State, and the zealous attempts by its members to preserve their individuality and dignity,
inevitably followed. It is when individual rights are pitted against State authority that judicial conscience
is put to its severest test.
Petitioner Joseph Ejercito Estrada, the highest-ranking official to be prosecuted under RA 7080 (An Act
Defining and Penalizing the Crime of Plunder),1 as amended by RA 7659,2 wishes to impress upon us that
the assailed law is so defectively fashioned that it crosses that thin but distinct line which divides the
valid from the constitutionally infirm. He therefore makes a stringent call for this Court to subject the
Plunder Law to the crucible of constitutionality mainly because, according to him, (a) it suffers from the
vice of vagueness; (b) it dispenses with the "reasonable doubt" standard in criminal prosecutions; and, (c)
it abolishes the element of mens rea in crimes already punishable under The Revised Penal Code, all of
which are purportedly clear violations of the fundamental rights of the accused to due process and to be
informed of the nature and cause of the accusation against him.
Specifically, the provisions of the Plunder Law claimed by petitioner to have transgressed constitutional
boundaries are Secs. 1, par. (d), 2 and 4 which are reproduced hereunder:
Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property, business, enterprise or material
possession of any person within the purview of Section Two (2) hereof, acquired by him directly or
indirectly through dummies, nominees, agents, subordinates and/or business associates by any
combination or series of the following means or similar schemes:
(1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public
treasury;
(2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other
form of pecuniary benefit from any person and/or entity in connection with any government contract or
project or by reason of the office or position of the public office concerned;
(3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government
or any of its subdivisions, agencies or instrumentalities, or government owned or controlled corporations
and their subsidiaries;
(4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form
of interest or participation including the promise of future employment in any business enterprise or
undertaking;
(5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or
implementation of decrees and orders intended to benefit particular persons or special interests; or
(6) By taking advantage of official position, authority, relationship, connection or influence to unjustly
enrich himself or themselves at the expense and to the damage and prejudice of the Filipino people and
the Republic of the Philippines.
Section 2. Definition of the Crime of Plunder, Penalties. - Any public officer who, by himself or in
connivance with members of his family, relatives by affinity or consanguinity, business associates,
subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a
combination or series of overt or criminal acts as described in Section 1 (d) hereof, in the aggregate
amount or total value of at least fifty million pesos (P50,000,000.00) shall be guilty of the crime of
plunder and shall be punished by reclusion perpetua to death. Any person who participated with the said
public officer in the commission of an offense contributing to the crime of plunder shall likewise be
punished for such offense. In the imposition of penalties, the degree of participation and the attendance
of mitigating and extenuating circumstances as provided by the Revised Penal Code shall be considered
by the court. The court shall declare any and all ill-gotten wealth and their interests and other incomes
and assets including the properties and shares of stocks derived from the deposit or investment thereof
forfeited in favor of the State (underscoring supplied).
Section 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to
prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to
amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable
doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy
(underscoring supplied).
On 4 April 2001 the Office of the Ombudsman filed before the Sandiganbayan eight (8) separate
Informations, docketed as: (a) Crim. Case No. 26558, for violation of RA 7080, as amended by RA 7659;
(b) Crim. Cases Nos. 26559 to 26562, inclusive, for violation of Secs. 3, par. (a), 3, par. (a), 3, par. (e) and 3,
par. (e), of RA 3019 (Anti-Graft and Corrupt Practices Act), respectively; (c) Crim. Case No. 26563, for
violation of Sec. 7, par. (d), of RA 6713 (The Code of Conduct and Ethical Standards for Public Officials and
Employees); (d) Crim. Case No. 26564, for Perjury (Art. 183 of The Revised Penal Code); and, (e) Crim.
Case No. 26565, for Illegal Use Of An Alias (CA No. 142, as amended by RA 6085).
On 11 April 2001 petitioner filed an Omnibus Motion for the remand of the case to the Ombudsman for
preliminary investigation with respect to specification "d" of the charges in the Information in Crim. Case
No. 26558; and, for reconsideration/reinvestigation of the offenses under specifications "a," "b," and "c"
to give the accused an opportunity to file counter-affidavits and other documents necessary to prove lack
of probable cause. Noticeably, the grounds raised were only lack of preliminary investigation,
reconsideration/reinvestigation of offenses, and opportunity to prove lack of probable cause. The
purported ambiguity of the charges and the vagueness of the law under which they are charged were
never raised in that Omnibus Motion thus indicating the explicitness and comprehensibility of the
Plunder Law.
On 25 April 2001 the Sandiganbayan, Third Division, issued a Resolution in Crim. Case No. 26558 finding
that "a probable cause for the offense of PLUNDER exists to justify the issuance of warrants for the arrest
of the accused." On 25 June 2001 petitioner's motion for reconsideration was denied by the
Sandiganbayan.
On 14 June 2001 petitioner moved to quash the Information in Crim. Case No. 26558 on the ground that
the facts alleged therein did not constitute an indictable offense since the law on which it was based was
unconstitutional for vagueness, and that the Amended Information for Plunder charged more than one
(1) offense. On 21 June 2001 the Government filed its Opposition to the Motion to Quash, and five (5)
days later or on 26 June 2001 petitioner submitted his Reply to the Opposition. On 9 July 2001 the
Sandiganbayan denied petitioner's Motion to Quash.
As concisely delineated by this Court during the oral arguments on 18 September 2001, the issues for
resolution in the instant petition for certiorari are: (a) The Plunder Law is unconstitutional for being
vague; (b) The Plunder Law requires less evidence for proving the predicate crimes of plunder and
therefore violates the rights of the accused to due process; and, (c) Whether Plunder as defined in RA
7080 is a malum prohibitum, and if so, whether it is within the power of Congress to so classify it.
Preliminarily, the whole gamut of legal concepts pertaining to the validity of legislation is predicated on
the basic principle that a legislative measure is presumed to be in harmony with the Constitution.3
Courts invariably train their sights on this fundamental rule whenever a legislative act is under a
constitutional attack, for it is the postulate of constitutional adjudication. This strong predilection for
43
constitutionality takes its bearings on the idea that it is forbidden for one branch of the government to
encroach upon the duties and powers of another. Thus it has been said that the presumption is based on
the deference the judicial branch accords to its coordinate branch - the legislature.
If there is any reasonable basis upon which the legislation may firmly rest, the courts must assume that
the legislature is ever conscious of the borders and edges of its plenary powers, and has passed the law
with full knowledge of the facts and for the purpose of promoting what is right and advancing the
welfare of the majority. Hence in determining whether the acts of the legislature are in tune with the
fundamental law, courts should proceed with judicial restraint and act with caution and forbearance.
Every intendment of the law must be adjudged by the courts in favor of its constitutionality, invalidity
being a measure of last resort. In construing therefore the provisions of a statute, courts must first
ascertain whether an interpretation is fairly possible to sidestep the question of constitutionality.
In La Union Credit Cooperative, Inc. v. Yaranon4 we held that as long as there is some basis for the
decision of the court, the constitutionality of the challenged law will not be touched and the case will be
decided on other available grounds. Yet the force of the presumption is not sufficient to catapult a
fundamentally deficient law into the safe environs of constitutionality. Of course, where the law clearly
and palpably transgresses the hallowed domain of the organic law, it must be struck down on sight lest
the positive commands of the fundamental law be unduly eroded.
Verily, the onerous task of rebutting the presumption weighs heavily on the party challenging the validity
of the statute. He must demonstrate beyond any tinge of doubt that there is indeed an infringement of
the constitution, for absent such a showing, there can be no finding of unconstitutionality. A doubt, even
if well-founded, will hardly suffice. As tersely put by Justice Malcolm, "To doubt is to sustain."5 And
petitioner has miserably failed in the instant case to discharge his burden and overcome the presumption
of constitutionality of the Plunder Law.
As it is written, the Plunder Law contains ascertainable standards and well-defined parameters which
would enable the accused to determine the nature of his violation. Section 2 is sufficiently explicit in its
description of the acts, conduct and conditions required or forbidden, and prescribes the elements of the
crime with reasonable certainty and particularity. Thus -
1. That the offender is a public officer who acts by himself or in connivance with members of his family,
relatives by affinity or consanguinity, business associates, subordinates or other persons;
2. That he amassed, accumulated or acquired ill-gotten wealth through a combination or series of the
following overt or criminal acts: (a) through misappropriation, conversion, misuse, or malversation of
public funds or raids on the public treasury; (b) by receiving, directly or indirectly, any commission, gift,
share, percentage, kickback or any other form of pecuniary benefits from any person and/or entity in
connection with any government contract or project or by reason of the office or position of the public
officer; (c) by the illegal or fraudulent conveyance or disposition of assets belonging to the National
Government or any of its subdivisions, agencies or instrumentalities of Government owned or controlled
corporations or their subsidiaries; (d) by obtaining, receiving or accepting directly or indirectly any shares
of stock, equity or any other form of interest or participation including the promise of future employment
in any business enterprise or undertaking; (e) by establishing agricultural, industrial or commercial
monopolies or other combinations and/or implementation of decrees and orders intended to benefit
particular persons or special interests; or (f) by taking advantage of official position, authority,
relationship, connection or influence to unjustly enrich himself or themselves at the expense and to the
damage and prejudice of the Filipino people and the Republic of the Philippines; and,
3. That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or acquired is
at least ₱50,000,000.00.
As long as the law affords some comprehensible guide or rule that would inform those who are subject to
it what conduct would render them liable to its penalties, its validity will be sustained. It must sufficiently
guide the judge in its application; the counsel, in defending one charged with its violation; and more
importantly, the accused, in identifying the realm of the proscribed conduct. Indeed, it can be
understood with little difficulty that what the assailed statute punishes is the act of a public officer in
amassing or accumulating ill-gotten wealth of at least ₱50,000,000.00 through a series or combination of
acts enumerated in Sec. 1, par. (d), of the Plunder Law.
In fact, the amended Information itself closely tracks the language of the law, indicating with reasonable
certainty the various elements of the offense which petitioner is alleged to have committed:
"The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB, Office of the Ombudsman, hereby
accuses former PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, Joseph Ejercito Estrada, a.k.a.
'ASIONG SALONGA' and a.k.a. 'JOSE VELARDE,' together with Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang,
Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan
or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John DOES & Jane Does, of the crime of Plunder, defined and
penalized under R.A. No. 7080, as amended by Sec. 12 of R.A. No. 7659, committed as follows:
That during the period from June, 1998 to January 2001, in the Philippines, and within the jurisdiction of
this Honorable Court, accused Joseph Ejercito Estrada, THEN A PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO ARE
MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS ASSOCIATES,
SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION,
AUTHORITY, RELATIONSHIP, CONNECTION, OR INFLUENCE, did then and there willfully, unlawfully and
criminally amass, accumulate and acquire BY HIMSELF, DIRECTLY OR INDIRECTLY, ill-gotten wealth in the
aggregate amount or TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR
THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS (₱4,097,804,173.17),
more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE
DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES, through ANY OR A
combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as
follows:
(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN THE AGGREGATE
AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS (₱545,000,000.00), MORE OR LESS, FROM
ILLEGAL GAMBLING IN THE FORM OF GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF
PECUNIARY BENEFIT, BY HIMSELF AND/OR in connection with co-accused CHARLIE 'ATONG' ANG, Jose
'Jinggoy' Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in
consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;
(b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR INDIRECTLY, for
HIS OR THEIR PERSONAL gain and benefit, public funds in the amount of ONE HUNDRED THIRTY MILLION
PESOS (₱130,000,000.00), more or less, representing a portion of the TWO HUNDRED MILLION PESOS
(₱200,000,000.00) tobacco excise tax share allocated for the province of Ilocos Sur under R.A. No. 7171,
by himself and/or in connivance with co-accused Charlie 'Atong' Ang, Alma Alfaro, JOHN DOE a.k.a.
Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES & JANE DOES; (italic
supplied).
(c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT, the Government
Service Insurance System (GSIS) TO PURCHASE 351,878,000 SHARES OF STOCKS, MORE OR LESS, and the
Social Security System (SSS), 329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE BELLE
CORPORATION IN THE AMOUNT OF MORE OR LESS ONE BILLION ONE HUNDRED TWO MILLION NINE
HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS
(₱1,102,965,607.50) AND MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED
TWELVE THOUSAND AND FOUR HUNDRED FIFTY PESOS (₱744,612,450.00), RESPECTIVELY, OR A TOTAL
OF MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN MILLION FIVE HUNDRED SEVENTY
EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY CENTAVOS (₱1,847,578,057.50); AND BY COLLECTING
OR RECEIVING, DIRECTLY OR INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND
JANE DOES, COMMISSIONS OR PERCENTAGES BY REASON OF SAID PURCHASES OF SHARES OF STOCK IN
THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND PESOS
(₱189,700,000.00) MORE OR LESS, FROM THE BELLE CORPORATION WHICH BECAME PART OF THE
DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME 'JOSE VELARDE;'
(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES, KICKBACKS, OR
ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN DOES AND JANE DOES, in the
amount of MORE OR LESS THREE BILLION TWO HUNDRED THIRTY THREE MILLION ONE HUNDRED FOUR
THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS (₱3,233,104,173.17)
AND DEPOSITING THE SAME UNDER HIS ACCOUNT NAME 'JOSE VELARDE' AT THE EQUITABLE-PCI
BANK."
We discern nothing in the foregoing that is vague or ambiguous - as there is obviously none - that will
confuse petitioner in his defense. Although subject to proof, these factual assertions clearly show that
the elements of the crime are easily understood and provide adequate contrast between the innocent
44
and the prohibited acts. Upon such unequivocal assertions, petitioner is completely informed of the
accusations against him as to enable him to prepare for an intelligent defense.
Petitioner, however, bewails the failure of the law to provide for the statutory definition of the terms
"combination" and "series" in the key phrase "a combination or series of overt or criminal acts" found in
Sec. 1, par. (d), and Sec. 2, and the word "pattern" in Sec. 4. These omissions, according to petitioner,
render the Plunder Law unconstitutional for being impermissibly vague and overbroad and deny him the
right to be informed of the nature and cause of the accusation against him, hence, violative of his
fundamental right to due process.
The rationalization seems to us to be pure sophistry. A statute is not rendered uncertain and void merely
because general terms are used therein, or because of the employment of terms without defining them;6
much less do we have to define every word we use. Besides, there is no positive constitutional or
statutory command requiring the legislature to define each and every word in an enactment. Congress is
not restricted in the form of expression of its will, and its inability to so define the words employed in a
statute will not necessarily result in the vagueness or ambiguity of the law so long as the legislative will is
clear, or at least, can be gathered from the whole act, which is distinctly expressed in the Plunder Law.
Moreover, it is a well-settled principle of legal hermeneutics that words of a statute will be interpreted in
their natural, plain and ordinary acceptation and signification,7 unless it is evident that the legislature
intended a technical or special legal meaning to those words.8 The intention of the lawmakers - who are,
ordinarily, untrained philologists and lexicographers - to use statutory phraseology in such a manner is
always presumed. Thus, Webster's New Collegiate Dictionary contains the following commonly accepted
definition of the words "combination" and "series:"
Combination - the result or product of combining; the act or process of combining. To combine is to bring
into such close relationship as to obscure individual characters.
Series - a number of things or events of the same class coming one after another in spatial and temporal
succession.
That Congress intended the words "combination" and "series" to be understood in their popular
meanings is pristinely evident from the legislative deliberations on the bill which eventually became RA
7080 or the Plunder Law:
DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7 May 1991
REP. ISIDRO: I am just intrigued again by our definition of plunder. We say THROUGH A COMBINATION OR
SERIES OF OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION ONE HEREOF. Now when we say
combination, we actually mean to say, if there are two or more means, we mean to say that number one
and two or number one and something else are included, how about a series of the same act? For
example, through misappropriation, conversion, misuse, will these be included also?
REP. GARCIA: Yeah, because we say a series.
REP. ISIDRO: Series.
REP. GARCIA: Yeah, we include series.
REP. ISIDRO: But we say we begin with a combination.
REP. GARCIA: Yes.
REP. ISIDRO: When we say combination, it seems that -
REP. GARCIA: Two.
REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not twice of one
enumeration.
REP. GARCIA: No, no, not twice.
REP. ISIDRO: Not twice?
REP. GARCIA: Yes. Combination is not twice - but combination, two acts.
REP. ISIDRO: So in other words, that’s it. When we say combination, we mean, two different acts. It
cannot be a repetition of the same act.
REP. GARCIA: That be referred to series, yeah.
REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.
REP. GARCIA: A series.
REP. ISIDRO: That’s not series. Its a combination. Because when we say combination or series, we seem to
say that two or more, di ba?
REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That is why, I said, that is a very good
suggestion because if it is only one act, it may fall under ordinary crime but we have here a combination
or series of overt or criminal acts. So x x x x
REP. GARCIA: Series. One after the other eh di....
SEN. TANADA: So that would fall under the term "series?"
REP. GARCIA: Series, oo.
REP. ISIDRO: Now, if it is a combination, ano, two misappropriations....
REP. GARCIA: Its not... Two misappropriations will not be combination. Series.
REP. ISIDRO: So, it is not a combination?
REP. GARCIA: Yes.
REP. ISIDRO: When you say combination, two different?
REP. GARCIA: Yes.
SEN. TANADA: Two different.
REP. ISIDRO: Two different acts.
REP. GARCIA: For example, ha...
REP. ISIDRO: Now a series, meaning, repetition...
DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989
SENATOR MACEDA: In line with our interpellations that sometimes "one" or maybe even "two" acts may
already result in such a big amount, on line 25, would the Sponsor consider deleting the words "a series
of overt or," to read, therefore: "or conspiracy COMMITTED by criminal acts such as." Remove the idea of
necessitating "a series." Anyway, the criminal acts are in the plural.
SENATOR TANADA: That would mean a combination of two or more of the acts mentioned in this.
THE PRESIDENT: Probably two or more would be....
SENATOR MACEDA: Yes, because "a series" implies several or many; two or more.
SENATOR TANADA: Accepted, Mr. President x x x x
THE PRESIDENT: If there is only one, then he has to be prosecuted under the particular crime. But when
we say "acts of plunder" there should be, at least, two or more.
SENATOR ROMULO: In other words, that is already covered by existing laws, Mr. President.
Thus when the Plunder Law speaks of "combination," it is referring to at least two (2) acts falling under
different categories of enumeration provided in Sec. 1, par. (d), e.g., raids on the public treasury in Sec. 1,
par. (d), subpar. (1), and fraudulent conveyance of assets belonging to the National Government under
Sec. 1, par. (d), subpar. (3).
On the other hand, to constitute a series" there must be two (2) or more overt or criminal acts falling
under the same category of enumeration found in Sec. 1, par. (d), say, misappropriation, malversation
and raids on the public treasury, all of which fall under Sec. 1, par. (d), subpar. (1). Verily, had the
legislature intended a technical or distinctive meaning for "combination" and "series," it would have
taken greater pains in specifically providing for it in the law.
As for "pattern," we agree with the observations of the Sandiganbayan9 that this term is sufficiently
defined in Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2 -
x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a combination or series of overt or
criminal acts enumerated in subsections (1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the law, the
pattern of overt or criminal acts is directed towards a common purpose or goal which is to enable the
public officer to amass, accumulate or acquire ill-gotten wealth. And thirdly, there must either be an
'overall unlawful scheme' or 'conspiracy' to achieve said common goal. As commonly understood, the
term 'overall unlawful scheme' indicates a 'general plan of action or method' which the principal accused
and public officer and others conniving with him follow to achieve the aforesaid common goal. In the
alternative, if there is no such overall scheme or where the schemes or methods used by multiple accused
vary, the overt or criminal acts must form part of a conspiracy to attain a common goal.
Hence, it cannot plausibly be contended that the law does not give a fair warning and sufficient notice of
what it seeks to penalize. Under the circumstances, petitioner's reliance on the "void-for-vagueness"
doctrine is manifestly misplaced. The doctrine has been formulated in various ways, but is most
commonly stated to the effect that a statute establishing a criminal offense must define the offense with
sufficient definiteness that persons of ordinary intelligence can understand what conduct is prohibited by
the statute. It can only be invoked against that specie of legislation that is utterly vague on its face, i.e.,
that which cannot be clarified either by a saving clause or by construction.
45
A statute or act may be said to be vague when it lacks comprehensible standards that men of common
intelligence must necessarily guess at its meaning and differ in its application. In such instance, the
statute is repugnant to the Constitution in two (2) respects - it violates due process for failure to accord
persons, especially the parties targeted by it, fair notice of what conduct to avoid; and, it leaves law
enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the
Government muscle.10 But the doctrine does not apply as against legislations that are merely couched in
imprecise language but which nonetheless specify a standard though defectively phrased; or to those
that are apparently ambiguous yet fairly applicable to certain types of activities. The first may be "saved"
by proper construction, while no challenge may be mounted as against the second whenever directed
against such activities.11 With more reason, the doctrine cannot be invoked where the assailed statute is
clear and free from ambiguity, as in this case.
The test in determining whether a criminal statute is void for uncertainty is whether the language
conveys a sufficiently definite warning as to the proscribed conduct when measured by common
understanding and practice.12 It must be stressed, however, that the "vagueness" doctrine merely
requires a reasonable degree of certainty for the statute to be upheld - not absolute precision or
mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than meticulous specificity, is
permissible as long as the metes and bounds of the statute are clearly delineated. An act will not be held
invalid merely because it might have been more explicit in its wordings or detailed in its provisions,
especially where, because of the nature of the act, it would be impossible to provide all the details in
advance as in all other statutes.
Moreover, we agree with, hence we adopt, the observations of Mr. Justice Vicente V. Mendoza during the
deliberations of the Court that the allegations that the Plunder Law is vague and overbroad do not justify
a facial review of its validity -
The void-for-vagueness doctrine states that "a statute which either forbids or requires the doing of an act
in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to
its application, violates the first essential of due process of law."13 The overbreadth doctrine, on the
other hand, decrees that "a governmental purpose may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms."14
A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of
possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe
speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a
single prosecution, the transcendent value to all society of constitutionally protected expression is
deemed to justify allowing attacks on overly broad statutes with no requirement that the person making
the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow
specificity."15 The possible harm to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others may be deterred and perceived
grievances left to fester because of possible inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting
from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be
prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law
cannot take chances as in the area of free speech.
The overbreadth and vagueness doctrines then have special application only to free speech cases. They
are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief
Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited context of the
First Amendment."16 In Broadrick v. Oklahoma,17 the Court ruled that "claims of facial overbreadth have
been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words"
and, again, that "overbreadth claims, if entertained at all, have been curtailed when invoked against
ordinary criminal laws that are sought to be applied to protected conduct." For this reason, it has been
held that "a facial challenge to a legislative act is the most difficult challenge to mount successfully, since
the challenger must establish that no set of circumstances exists under which the Act would be valid."18
As for the vagueness doctrine, it is said that a litigant may challenge a statute on its face only if it is vague
in all its possible applications. "A plaintiff who engages in some conduct that is clearly proscribed cannot
complain of the vagueness of the law as applied to the conduct of others."19
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for
testing "on their faces" statutes in free speech cases or, as they are called in American law, First
Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With
respect to such statute, the established rule is that "one to whom application of a statute is constitutional
will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to
other persons or other situations in which its application might be unconstitutional."20 As has been
pointed out, "vagueness challenges in the First Amendment context, like overbreadth challenges typically
produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated
[only] 'as applied' to a particular defendant."21 Consequently, there is no basis for petitioner's claim that
this Court review the Anti-Plunder Law on its face and in its entirety.
Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that
they might be applied to parties not before the Court whose activities are constitutionally protected.22 It
constitutes a departure from the case and controversy requirement of the Constitution and permits
decisions to be made without concrete factual settings and in sterile abstract contexts.23 But, as the U.S.
Supreme Court pointed out in Younger v. Harris24
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these
deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact on the legislative process of the
relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of
detailed statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be decided.
For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong
medicine," to be employed "sparingly and only as a last resort,"25 and is generally disfavored.26 In
determining the constitutionality of a statute, therefore, its provisions which are alleged to have been
violated in a case must be examined in the light of the conduct with which the defendant is charged.27
In light of the foregoing disquisition, it is evident that the purported ambiguity of the Plunder Law, so
tenaciously claimed and argued at length by petitioner, is more imagined than real. Ambiguity, where
none exists, cannot be created by dissecting parts and words in the statute to furnish support to critics
who cavil at the want of scientific precision in the law. Every provision of the law should be construed in
relation and with reference to every other part. To be sure, it will take more than nitpicking to overturn
the well-entrenched presumption of constitutionality and validity of the Plunder Law. A fortiori,
petitioner cannot feign ignorance of what the Plunder Law is all about. Being one of the Senators who
voted for its passage, petitioner must be aware that the law was extensively deliberated upon by the
Senate and its appropriate committees by reason of which he even registered his affirmative vote with
full knowledge of its legal implications and sound constitutional anchorage.
The parallel case of Gallego v. Sandiganbayan28 must be mentioned if only to illustrate and emphasize
the point that courts are loathed to declare a statute void for uncertainty unless the law itself is so
imperfect and deficient in its details, and is susceptible of no reasonable construction that will support
and give it effect. In that case, petitioners Gallego and Agoncillo challenged the constitutionality of Sec. 3,
par. (e), of The Anti-Graft and Corrupt Practices Act for being vague. Petitioners posited, among others,
that the term "unwarranted" is highly imprecise and elastic with no common law meaning or settled
definition by prior judicial or administrative precedents; that, for its vagueness, Sec. 3, par. (e), violates
due process in that it does not give fair warning or sufficient notice of what it seeks to penalize.
Petitioners further argued that the Information charged them with three (3) distinct offenses, to wit: (a)
giving of "unwarranted" benefits through manifest partiality; (b) giving of "unwarranted" benefits
through evident bad faith; and, (c) giving of "unwarranted" benefits through gross inexcusable negligence
while in the discharge of their official function and that their right to be informed of the nature and cause
of the accusation against them was violated because they were left to guess which of the three (3)
offenses, if not all, they were being charged and prosecuted.
In dismissing the petition, this Court held that Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act
does not suffer from the constitutional defect of vagueness. The phrases "manifest partiality," "evident
bad faith," and "gross and inexcusable negligence" merely describe the different modes by which the
offense penalized in Sec. 3, par. (e), of the statute may be committed, and the use of all these phrases in
the same Information does not mean that the indictment charges three (3) distinct offenses.
The word 'unwarranted' is not uncertain. It seems lacking adequate or official support; unjustified;
unauthorized (Webster, Third International Dictionary, p. 2514); or without justification or adequate
46
reason (Philadelphia Newspapers, Inc. v. US Dept. of Justice, C.D. Pa., 405 F. Supp. 8, 12, cited in Words
and Phrases, Permanent Edition, Vol. 43-A 1978, Cumulative Annual Pocket Part, p. 19).
The assailed provisions of the Anti-Graft and Corrupt Practices Act consider a corrupt practice and make
unlawful the act of the public officer in:
x x x 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, x x x (Section 3 [e], Rep. Act 3019, as amended).
It is not at all difficult to comprehend that what the aforequoted penal provisions penalize is the act of a
public officer, in the discharge of his official, administrative or judicial functions, in giving any private
party benefits, advantage or preference which is unjustified, unauthorized or without justification or
adequate reason, through manifest partiality, evident bad faith or gross inexcusable negligence.
In other words, this Court found that there was nothing vague or ambiguous in the use of the term
"unwarranted" in Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act, which was understood in its
primary and general acceptation. Consequently, in that case, petitioners' objection thereto was held
inadequate to declare the section unconstitutional.
On the second issue, petitioner advances the highly stretched theory that Sec. 4 of the Plunder Law
circumvents the immutable obligation of the prosecution to prove beyond reasonable doubt the
predicate acts constituting the crime of plunder when it requires only proof of a pattern of overt or
criminal acts showing unlawful scheme or conspiracy -
SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to
prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to
amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a
pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy.
The running fault in this reasoning is obvious even to the simplistic mind. In a criminal prosecution for
plunder, as in all other crimes, the accused always has in his favor the presumption of innocence which is
guaranteed by the Bill of Rights, and unless the State succeeds in demonstrating by proof beyond
reasonable doubt that culpability lies, the accused is entitled to an acquittal.29 The use of the
"reasonable doubt" standard is indispensable to command the respect and confidence of the community
in the application of criminal law. It is critical that the moral force of criminal law be not diluted by a
standard of proof that leaves people in doubt whether innocent men are being condemned. It is also
important in our free society that every individual going about his ordinary affairs has confidence that his
government cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his
guilt with utmost certainty. This "reasonable doubt" standard has acquired such exalted stature in the
realm of constitutional law as it gives life to the Due Process Clause which protects the accused against
conviction except upon proof beyond reasonable doubt of every fact necessary to constitute the crime
with which he is charged.30 The following exchanges between Rep. Rodolfo Albano and Rep. Pablo
Garcia on this score during the deliberations in the floor of the House of Representatives are elucidating
DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA 7080, 9 October 1990
MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law that what is alleged in the
information must be proven beyond reasonable doubt. If we will prove only one act and find him guilty of
the other acts enumerated in the information, does that not work against the right of the accused
especially so if the amount committed, say, by falsification is less than ₱100 million, but the totality of the
crime committed is ₱100 million since there is malversation, bribery, falsification of public document,
coercion, theft?
MR. GARCIA: Mr. Speaker, not everything alleged in the information needs to be proved beyond
reasonable doubt. What is required to be proved beyond reasonable doubt is every element of the crime
charged. For example, Mr. Speaker, there is an enumeration of the things taken by the robber in the
information – three pairs of pants, pieces of jewelry. These need not be proved beyond reasonable doubt,
but these will not prevent the conviction of a crime for which he was charged just because, say, instead of
3 pairs of diamond earrings the prosecution proved two. Now, what is required to be proved beyond
reasonable doubt is the element of the offense.
MR. ALBANO: I am aware of that, Mr. Speaker, but considering that in the crime of plunder the totality of
the amount is very important, I feel that such a series of overt criminal acts has to be taken singly. For
instance, in the act of bribery, he was able to accumulate only ₱50,000 and in the crime of extortion, he
was only able to accumulate ₱1 million. Now, when we add the totality of the other acts as required
under this bill through the interpretation on the rule of evidence, it is just one single act, so how can we
now convict him?
MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an essential element of the crime,
there is a need to prove that element beyond reasonable doubt. For example, one essential element of
the crime is that the amount involved is ₱100 million. Now, in a series of defalcations and other acts of
corruption in the enumeration the total amount would be ₱110 or ₱120 million, but there are certain acts
that could not be proved, so, we will sum up the amounts involved in those transactions which were
proved. Now, if the amount involved in these transactions, proved beyond reasonable doubt, is ₱100
million, then there is a crime of plunder (underscoring supplied).
It is thus plain from the foregoing that the legislature did not in any manner refashion the standard
quantum of proof in the crime of plunder. The burden still remains with the prosecution to prove beyond
any iota of doubt every fact or element necessary to constitute the crime.
The thesis that Sec. 4 does away with proof of each and every component of the crime suffers from a
dismal misconception of the import of that provision. What the prosecution needs to prove beyond
reasonable doubt is only a number of acts sufficient to form a combination or series which would
constitute a pattern and involving an amount of at least ₱50,000,000.00. There is no need to prove each
and every other act alleged in the Information to have been committed by the accused in furtherance of
the overall unlawful scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth. To illustrate,
supposing that the accused is charged in an Information for plunder with having committed fifty (50)
raids on the public treasury. The prosecution need not prove all these fifty (50) raids, it being sufficient to
prove by pattern at least two (2) of the raids beyond reasonable doubt provided only that they amounted
to at least ₱50,000,000.00.31
A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical conclusion that "pattern of overt or
criminal acts indicative of the overall unlawful scheme or conspiracy" inheres in the very acts of
accumulating, acquiring or amassing hidden wealth. Stated otherwise, such pattern arises where the
prosecution is able to prove beyond reasonable doubt the predicate acts as defined in Sec. 1, par. (d).
Pattern is merely a by-product of the proof of the predicate acts. This conclusion is consistent with reason
and common sense. There would be no other explanation for a combination or series of
overt or criminal acts to stash ₱50,000,000.00 or more, than "a scheme or conspiracy to amass,
accumulate or acquire ill gotten wealth." The prosecution is therefore not required to make a deliberate
and conscious effort to prove pattern as it necessarily follows with the establishment of a series or
combination of the predicate acts.
Relative to petitioner's contentions on the purported defect of Sec. 4 is his submission that "pattern" is "a
very important element of the crime of plunder;" and that Sec. 4 is "two pronged, (as) it contains a rule
of evidence and a substantive element of the crime," such that without it the accused cannot be
convicted of plunder -
JUSTICE BELLOSILLO: In other words, cannot an accused be convicted under the Plunder Law without
applying Section 4 on the Rule of Evidence if there is proof beyond reasonable doubt of the commission of
the acts complained of?
ATTY. AGABIN: In that case he can be convicted of individual crimes enumerated in the Revised Penal
Code, but not plunder.
JUSTICE BELLOSILLO: In other words, if all the elements of the crime are proved beyond reasonable doubt
without applying Section 4, can you not have a conviction under the Plunder Law?
ATTY. AGABIN: Not a conviction for plunder, your Honor.
JUSTICE BELLOSILLO: Can you not disregard the application of Sec. 4 in convicting an accused charged for
violation of the Plunder Law?
ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays down a substantive element of the law x x
xx
JUSTICE BELLOSILLO: What I said is - do we have to avail of Section 4 when there is proof beyond
reasonable doubt on the acts charged constituting plunder?
ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it contains a rule of evidence and it
contains a substantive element of the crime of plunder. So, there is no way by which we can avoid Section
4.
JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt insofar as the predicate crimes charged
are concerned that you do not have to go that far by applying Section 4?
47
ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a very important element of the crime
of plunder and that cannot be avoided by the prosecution.32
We do not subscribe to petitioner's stand. Primarily, all the essential elements of plunder can be culled
and understood from its definition in Sec. 2, in relation to Sec. 1, par. (d), and "pattern" is not one of
them. Moreover, the epigraph and opening clause of Sec. 4 is clear and unequivocal:
SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder x x x x
It purports to do no more than prescribe a rule of procedure for the prosecution of a criminal case for
plunder. Being a purely procedural measure, Sec. 4 does not define or establish any substantive right in
favor of the accused but only operates in furtherance of a remedy. It is only a means to an end, an aid to
substantive law. Indubitably, even without invoking Sec. 4, a conviction for plunder may be had, for what
is crucial for the prosecution is to present sufficient evidence to engender that moral certitude exacted
by the fundamental law to prove the guilt of the accused beyond reasonable doubt. Thus, even granting
for the sake of argument that Sec. 4 is flawed and vitiated for the reasons advanced by petitioner, it may
simply be severed from the rest of the provisions without necessarily resulting in the demise of the law;
after all, the existing rules on evidence can supplant Sec. 4 more than enough. Besides, Sec. 7 of RA 7080
provides for a separability clause -
Sec. 7. Separability of Provisions. - If any provisions of this Act or the application thereof to any person or
circumstance is held invalid, the remaining provisions of this Act and the application of such provisions to
other persons or circumstances shall not be affected thereby.
Implicit in the foregoing section is that to avoid the whole act from being declared invalid as a result of
the nullity of some of its provisions, assuming that to be the case although it is not really so, all the
provisions thereof should accordingly be treated independently of each other, especially if by doing so,
the objectives of the statute can best be achieved.
As regards the third issue, again we agree with Justice Mendoza that plunder is a malum in se which
requires proof of criminal intent. Thus, he says, in his Concurring Opinion -
x x x Precisely because the constitutive crimes are mala in se the element of mens rea must be proven in
a prosecution for plunder. It is noteworthy that the amended information alleges that the crime of
plunder was committed "willfully, unlawfully and criminally." It thus alleges guilty knowledge on the part
of petitioner.
In support of his contention that the statute eliminates the requirement of mens rea and that is the
reason he claims the statute is void, petitioner cites the following remarks of Senator Tañada made
during the deliberation on S.B. No. 733:
SENATOR TAÑADA . . . And the evidence that will be required to convict him would not be evidence for
each and every individual criminal act but only evidence sufficient to establish the conspiracy or scheme
to commit this crime of plunder.33
However, Senator Tañada was discussing §4 as shown by the succeeding portion of the transcript quoted
by petitioner:
SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is contained in Section 4, Rule of
Evidence, which, in the Gentleman's view, would provide for a speedier and faster process of attending to
this kind of cases?
SENATOR TAÑADA: Yes, Mr. President . . .34
Senator Tañada was only saying that where the charge is conspiracy to commit plunder, the prosecution
need not prove each and every criminal act done to further the scheme or conspiracy, it being enough if
it proves beyond reasonable doubt a pattern of overt or ciminal acts indicative of the overall unlawful
scheme or conspiracy. As far as the acts constituting the pattern are concerned, however, the elements of
the crime must be proved and the requisite mens rea must be shown.
Indeed, §2 provides that -
Any person who participated with the said public officer in the commission of an offense contributing to
the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the
degree of participation and the attendance of mitigating and extenuating circumstances, as provided by
the Revised Penal Code, shall be considered by the court.
The application of mitigating and extenuating circumstances in the Revised Penal Code to prosecutions
under the Anti-Plunder Law indicates quite clearly that mens rea is an element of plunder since the
degree of responsibility of the offender is determined by his criminal intent. It is true that §2 refers to
"any person who participates with the said public officer in the commission of an offense contributing to
the crime of plunder." There is no reason to believe, however, that it does not apply as well to the public
officer as principal in the crime. As Justice Holmes said: "We agree to all the generalities about not
supplying criminal laws with what they omit, but there is no canon against using common sense in
construing laws as saying what they obviously mean."35
Finally, any doubt as to whether the crime of plunder is a malum in se must be deemed to have been
resolved in the affirmative by the decision of Congress in 1993 to include it among the heinous crimes
punishable by reclusion perpetua to death. Other heinous crimes are punished with death as a straight
penalty in R.A. No. 7659. Referring to these groups of heinous crimes, this Court held in People v.
Echegaray:36
The evil of a crime may take various forms. There are crimes that are, by their very nature, despicable,
either because life was callously taken or the victim is treated like an animal and utterly dehumanized as
to completely disrupt the normal course of his or her growth as a human being . . . . Seen in this light, the
capital crimes of kidnapping and serious illegal detention for ransom resulting in the death of the victim
or the victim is raped, tortured, or subjected to dehumanizing acts; destructive arson resulting in death;
and drug offenses involving minors or resulting in the death of the victim in the case of other crimes; as
well as murder, rape, parricide, infanticide, kidnapping and serious illegal detention, where the victim is
detained for more than three days or serious physical injuries were inflicted on the victim or threats to
kill him were made or the victim is a minor, robbery with homicide, rape or intentional mutilation,
destructive arson, and carnapping where the owner, driver or occupant of the carnapped vehicle is killed
or raped, which are penalized by reclusion perpetua to death, are clearly heinous by their very nature.
There are crimes, however, in which the abomination lies in the significance and implications of the
subject criminal acts in the scheme of the larger socio-political and economic context in which the state
finds itself to be struggling to develop and provide for its poor and underprivileged masses. Reeling from
decades of corrupt tyrannical rule that bankrupted the government and impoverished the population,
the Philippine Government must muster the political will to dismantle the culture of corruption,
dishonesty, greed and syndicated criminality that so deeply entrenched itself in the structures of society
and the psyche of the populace. [With the government] terribly lacking the money to provide even the
most basic services to its people, any form of misappropriation or misapplication of government funds
translates to an actual threat to the very existence of government, and in turn, the very survival of the
people it governs over. Viewed in this context, no less heinous are the effects and repercussions of crimes
like qualified bribery, destructive arson resulting in death, and drug offenses involving government
officials, employees or officers, that their perpetrators must not be allowed to cause further destruction
and damage to society.
The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is a malum in
se. For when the acts punished are inherently immoral or inherently wrong, they are mala in se37 and it
does not matter that such acts are punished in a special law, especially since in the case of plunder the
predicate crimes are mainly mala in se. Indeed, it would be absurd to treat prosecutions for plunder as
though they are mere prosecutions for violations of the Bouncing Check Law (B.P. Blg. 22) or of an
ordinance against jaywalking, without regard to the inherent wrongness of the acts.
To clinch, petitioner likewise assails the validity of RA 7659, the amendatory law of RA 7080, on
constitutional grounds. Suffice it to say however that it is now too late in the day for him to resurrect this
long dead issue, the same having been eternally consigned by People v. Echegaray38 to the archives of
jurisprudential history. The declaration of this Court therein that RA 7659 is constitutionally valid stands
as a declaration of the State, and becomes, by necessary effect, assimilated in the Constitution now as an
integral part of it.
Our nation has been racked by scandals of corruption and obscene profligacy of officials in high places
which have shaken its very foundation. The anatomy of graft and corruption has become more elaborate
in the corridors of time as unscrupulous people relentlessly contrive more and more ingenious ways to
bilk the coffers of the government. Drastic and radical measures are imperative to fight the increasingly
sophisticated, extraordinarily methodical and economically catastrophic looting of the national treasury.
Such is the Plunder Law, especially designed to disentangle those ghastly tissues of grand-scale
corruption which, if left unchecked, will spread like a malignant tumor and ultimately consume the moral
and institutional fiber of our nation. The Plunder Law, indeed, is a living testament to the will of the
legislature to ultimately eradicate this scourge and thus secure society against the avarice and other
venalities in public office.
48
These are times that try men's souls. In the checkered history of this nation, few issues of national
importance can equal the amount of interest and passion generated by petitioner's ignominious fall from
the highest office, and his eventual prosecution and trial under a virginal statute. This continuing saga has
driven a wedge of dissension among our people that may linger for a long time. Only by responding to
the clarion call for patriotism, to rise above factionalism and prejudices, shall we emerge triumphant in
the midst of ferment.
PREMISES CONSIDERED, this Court holds that RA 7080 otherwise known as the Plunder Law, as amended
by RA 7659, is CONSTITUTIONAL. Consequently, the petition to declare the law unconstitutional is
DISMISSED for lack of merit.
SO ORDERED.
Buena, and De Leon, Jr., JJ., concur.
Davide, Jr. C.J., Melo, Quisumbing, JJ., join concurring opinion of J. Mendoza.
Puno, Vitug, JJ., concurred and joins J. Mendoza's concurring opinion.
Kapunan, Pardo, Sandoval-Gutierrez, Ynares-Santiago, JJ., see dissenting opinion.
Mendoza, J., please see concurring opinion.
Panganiban J., please see separate concurring opinion.
Carpio, J., no part. Was one of the complainants before Ombudsman.
DISSENTING OPINION
KAPUNAN, J.:
The primary duty of the Court is to render justice. The resolution of the issues brought before it must be
grounded on law, justice and the basic tenets of due process, unswayed by the passions of the day or the
clamor of the multitudes, guided only by its members’ honest conscience, clean hearts and their
unsullied conviction to do what is right under the law.
The issues posed by the instant petition are quite difficult. The task of the Court to resolve the same is
made more daunting because the case involves a former President of the Republic who, in the eyes of
certain sectors of society, deserves to be punished. But the mandate of the Court is to decide these
issues solely on the basis of law and due process, and regardless of the personalities involved. For indeed,
the rule of law and the right to due process are immutable principles that should apply to all, even to
those we hate. As Fr. Joaquin G. Bernas, S.J., a noted constitutionalist, aptly puts it--
x x x the greater disaster would be if the Supreme Court should heed the clamor for conviction and
convict Estrada even under an unconstitutional law but of the belief that Estrada deserves to be
punished. That would be tantamount to a rule of men and not of law.1
The Basic Facts
The petition before us questions the constitutionality of Republic Act No. 7080 (R.A. No. 7080 or Plunder
Law), as amended by Republic Act No. 7659,2 entitled "An Act Defining and Penalizing the Crime of
Plunder."3 This original petition for certiorari and prohibition against Respondent Third Division of the
Sandiganbayan filed by petitioner Joseph Ejercito Estrada assails Respondent court’s Resolution, dated
July 9, 2001, denying his Motion to Quash the information against him in Criminal Case No. 26558 for
Plunder. Petitioner likewise prays that the Sandiganbayan be prohibited and enjoined from proceeding
with his arraignment and trial in Criminal Case No. 26558 due to the unconstitutionality of R. A. No. 7080.
On the heels of the finality of the joint decision of this Court in G.R. No. 146710 (Estrada vs. Desierto, et
al.) and in G.R. No. 146738 (Estrada vs. Macapagal-Arroyo), promulgated on April 3, 2001, upholding the
constitutionality of President Gloria Macapagal-Arroyo’s assumption of office as President of the Republic
of the Philippines and declaring that the former President Joseph Ejercito Estrada no longer enjoyed
immunity from suit, the Ombudsman filed eight (8) Informations against Estrada. These cases were
Criminal Case No. 26558 (for Plunder); Criminal Case No. 26559 (for Violation of Sec. 3[a] of Republic Act
No. 3019); Criminal Case No. 26560 (for Violation of Sec. 3[a] of R.A. No. 3019); Criminal Case No. 26561
(for Violation of Sec. 3[e] of R.A. 3019); Criminal Case No. 26562 (for Violation of Sec. 3[e] of R.A. No.
3019); Criminal Case No. 26563 (for Violation of Sec. 7[d] of R.A. No. 6713); Criminal Case No. 26564 (for
Perjury); and Criminal Case No. 26565 (for Illegal Use of Alias).
The aforementioned informations were raffled to the five divisions of the Sandiganbayan. Criminal Case
No. 26558 was raffled to the Third Division of said court. The amended information against petitioner
charging violations of Section 2, in relation to Section (d) (1) (2) of the statute reads:
That during the period from June, 1998 to January, 2001, in the Philippines, and within the jurisdiction of
this Honorable Court, accused Joseph Ejercito Estrada, by himself and in conspiracy with his co-accused,
business associates and persons heretofore named, by taking advantage of his official position, authority,
connection or influence as President of the Republic of the Philippines, did then and there wilfully,
unlawfully and criminally amass, accumulate and acquire ill-gotten wealth, and unjustly enrich himself in
the aggregate amount of P4,097,804,173.17, more or less, through a combination and series of overt and
criminal acts, described as follows:
(a) by receiving, collecting, directly or indirectly, on many instances, so-called "jueteng money" from
gambling operators in connivance with co-accused Jose ‘Jinggoy’ Estrada, Yolanda T. Ricaforte and Edward
Serapio, as witnessed by Gov. Luis ‘Chavit’ Singson, among other witnesses, in the aggregate amount of
FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000.000.00), more or less, in consideration of their
protection from arrest or interference by law enforcers in their illegal "jueteng" activities; and
(b) by misappropriating, converting and misusing for his gain and benefit public fund in the amount of
ONE HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or less, representing a portion of One
Hundred Seventy Million Pesos (P170,000,000.00) tobacco excise tax share allocated for the Province of
Ilocos Sur under R.A. No. 7171, in conspiracy with co-accused Charlie ‘Atong’ Ang, Alma Alfaro, Eleuterio
Tan a.k.a. Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a. Delia Rajas, as witnessed by Gov. Luis
‘Chavit’ Singson, among other witnesses; and
(c) by directing, ordering and compelling the Government Service Insurance System (GSIS) and the Social
Security System (SSS) to purchase and buy a combined total of 681,733,000 shares of stock of the Belle
Corporation in the aggregate gross value of One Billion Eight Hundred Forty-Seven Million Five Hundred
Seventy Eight Thousand Pesos and Fifty Centavos(P1,847,578,057.50), for the purpose of collecting for
his personal gain and benefit, as in fact he did collect and receive the sum of ONE HUNDRED EIGHTY NINE
MILLION SEVEN HUNDRED THOUSAND FIFTY SEVEN PESOS (P189,700,000.00) as commission for said
stock purchase; and
(d) by unjustly enriching himself in the amount of THREE BILLION TWO HUNDRED THIRTY THREE MILLION
ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS
(P3,233,104,173.17) comprising his unexplained wealth acquired, accumulated and amassed by him
under his account name "Jose Velarde" with Equitable PCI Bank:
to the damage and prejudice of the Filipino people and the Republic of the Philippines.
CONTRARY TO LAW.4
On April 16 and 17, 2001, the Ombudsman filed an Ex-Parte Manifestation to Withdraw Information in
Criminal Case Nos. 26559, 26560, 26561, 26562 and 26563. Petitioner registered his objection to the
Ombudsman’s motion to withdraw. The divisions of the Sandiganbayan to which said cases were assigned
granted the withdrawal of the informations, save for that in Criminal Case No. 26561. At present, the
Order of the First Division of the Sandiganbayan denying the Ombudsman’s motion to withdraw in
Criminal Case No. 26561 is still under reconsideration.
In Criminal Case No. 26558, petitioner filed on April 11, 2001 an Omnibus Motion for the remand of the
case to the Office of the Ombudsman for: (1) the conduct of a preliminary investigation as regards
specification "d" of the accusations in the information in said case; and (2)
reconsideration/reinvestigation of the offenses in specifications "a," "b" and "c" to enable petitioner to
file his counter-affidavits as well as other necessary documents.
On April 25, 2001, the Third Division of the Sandiganbayan issued a Resolution finding that:
(p)robable cause for the offense of PLUNDER exists to justify issuance of warrants of arrest of accused
former President Joseph Ejercito Estrada, Mayor Jose "Jinggoy" Estrada, Charlie "Atong" Ang, Edward
Serapio, Yolanda T. Ricaforte, Alma Alfaro, John Doe a.k.a Eleuterio Tan or Eleuterio Ramon Tan or Mr. Uy
and Jane Doe a.k.a. Delia Rajas.
Subsequently, on May 31, 2001, the Third Division of the Sandiganbayan issued a Resolution denying
petitioner’s Omnibus Motion.
On June 15, 2001, petitioner filed a Motion for Reconsideration of said Resolution but the same was
denied in a Resolution of June 25, 2001.
Meanwhile, on June 14, 2001, petitioner filed a Motion to Quash the information in Criminal Case No.
26558, invoking the following grounds: (1) the facts charged do not constitute an indictable offense as
R.A. No. 7080, the statute on which it is based, is unconstitutional; and (2) the information charges more
than one offense.
The People of the Philippines filed an Opposition thereto on June 21, 2001. Petitioner filed his Reply to
the Opposition on June 28, 2001.
49
On July 9, 2001, the Third Division of the Sandiganbayan issued its Resolution denying petitioner’s motion
to quash.
Petitioner thus filed the instant petition for certiorari and prohibition, claiming that the Sandiganbayan
committed grave abuse of discretion in denying his motion to quash the information in Criminal Case No.
26558. Petitioner argues that R.A. No. 7080 is unconstitutional on the following grounds:
I. IT VIOLATES THE DUE PROCESS CLAUSE FOR ITS VAGUENESS
II. IT VIOLATES THE CONSTITUTIONAL RIGHT OF THE ACCUSED TO KNOW THE NATURE AND CAUSE OF
THE ACCUSATION AGAINST HIM
III. IT VIOLATES THE DUE PROCESS CLAUSE AND THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE BY
LOWERING THE QUANTUM OF EVIDENCE NECESSARY FOR PROVING THE COMPONENT ELEMENTS OF
PLUNDER
IV. IT IS BEYOND THE CONSTITUTIONAL POWER OF THE LEGISLATURE TO DELIMIT THE REASONABLE
DOUBT STANDARD AND TO ABOLISH THE ELEMENT OF MENS REA IN MALA IN SE CRIMES BY
CONVERTING THESE TO MALA PROHIBITA, IN VIOLATION OF THE DUE PROCESS CONCEPT OF CRIMINAL
RESPONSIBILITY.5
The provisions of law involved
Section 2 of R.A. No. 7080 provides:
Definition of the Crime of Plunder; Penalties. - Any public officer who, by himself or in connivance with
members of his family, relatives by affinity or consanguinity, business associates, subordinates or other
persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or
criminal acts as described in Section 1(d) hereof in the aggregate amount or total value of at least Fifty
million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion
perpetua to death. Any person who participated with the said public officer in the commission of an
offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition
of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances,
as provided by the Revised Penal Code, shall be considered by the court. The court shall declare any and
all ill-gotten wealth and their interests and other incomes and assets including the properties and shares
of stocks derived from the deposit or investment thereof forfeited in favor of the State. (As amended by
Sec. 12, RA No. 7659.)
Section 1(d) of the same law defines "ill-gotten wealth" as "any asset, property, business enterprise or
material possession of any person within the purview of Section Two (2)" hereof, acquired by him directly
or indirectly through dummies, nominees, agents, subordinates, and/or business associates by any
combination or series of the following means or similar schemes:
1. Through misappropriation, conversion, misuse or malversation of public funds or raids on the public
treasury;
2. By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form
of pecuniary benefit from any person and/or entity in connection with any government contract or
project or by reason of the office or position of the public officer concerned;
3. By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government
or any of its subdivisions, agencies or instrumentalities or government-owned or controlled corporations
and their subsidiaries;
4. By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form
of interest or participation including the promise of future employment in any business enterprise or
undertaking;
5. By establishing agricultural, industrial or commercial monopolies or other combination and/or
implementation of decrees and orders intended to benefit particular persons or special interests; or
6. By taking undue advantage of official position, authority, relationship, connection or influence to
unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino
people and the Republic of the Philippines.6
On the other hand, Section 4 states:
Rule of Evidence - For purposes of establishing the crime of plunder, it shall not be necessary to prove
each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass,
accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a
pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy.
Petitioner’s theory
Petitioner asserts that R.A. No. 7080 is vague and overbroad on its face, and suffers from structural
deficiency and ambiguity.7 In sum, he maintains that the law does not afford an ordinary person
reasonable notice that his actuation will constitute a criminal offense. More particularly, petitioner
argues that the terms "combination" and "series" are not clearly defined, citing that in a number of
cases, the United States (U.S.) federal courts in deciding cases under the Racketeer Influenced and
Corrupt Organizations Act (RICO law), after which the Plunder Law was patterned, have given different
interpretations to "series of acts or transactions."8 In addition, he terms "raid on the public treasury,"
"receiving or accepting a gift," "commission," "kickbacks," "illegal or fraudulent conveyance or disposition
of assets," "monopolies or other combinations," "special interests," "taking undue advantage of official
position," "unjustly enrich" all suffer from overbreadth which is a form of vagueness.9
In arguing that the law on plunder is vague and impermissibly broad, petitioner points out that the terms
"combination" and ‘series" used in the phrase "any combination or series of the following means or
similar schemes" are not defined under the statute. The use of these terms in the law allegedly raises
several questions as to their meaning and import.
Petitioner posits the following queries: "Does it (referring to the term "series") mean two, three, four, of
the overt or criminal acts listed in Section 1(d)? Would it mean two or more related enterprises falling
under at least two of the means or ‘similar schemes’ listed in the law, or just a joint criminal enterprise?
Would it require substantial identity of facts and participants, or merely a common pattern of action?
Would it imply close connection between acts, or a direct relationship between the charges? Does the
term mean a factual relationship between acts or merely a common plan among conspirators?"10
The term "combination" is allegedly equally equivocal. According to petitioner, it is not clear from the law
if said term covers time, place, manner of commission, or the principal characters. Thus petitioner asks:
"Does it (referring to the term "combination") include any two or more acts, whether legal or illegal, or
does the law require that the combination must include at least two of the ‘means or similar schemes’
laid down in R.A. 7080? Does it cover transactions that have occurred in the same place or area, or in
different places, no matter how far apart? Does ‘combination’ include any two or more overt acts, no
matter how far apart in time, or does it contemplate acts committed within a short period of time?
Does the ‘combination’ cover the modus operandi of the crimes, or merely the evidence to be used at
the trial?"11
It is also argued that the phrase "pattern of overt or criminal acts indicative of the overall scheme or
conspiracy" adds to the vagueness of the law because "pattern" is not defined therein and is not included
in the definition of the crime of plunder even though it is an essential element of said crime. 12
Petitioner also maintains that the Plunder Law violates the due process clause and the constitutional
presumption of innocence by lowering the quantum of evidence necessary for proving the component
elements of plunder because Section 4 does not require that each and every criminal act done by the
accused in furtherance of the scheme or conspiracy be proved, "it being sufficient to establish beyond
reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful scheme or
conspiracy."13
Finally, petitioner alleges that it is beyond the power of Congress to delimit the reasonable doubt
standard and to abolish the element of mens rea in mala in se crimes by converting these to mala
prohibita, thereby making it easier for the prosecution to prove malversation, bribery, estafa and other
crimes committed by public officers since criminal intent need not be established.14
Considering the infringement to the constitutionally-guaranteed right to due process of an accused,
petitioner contends that R.A. No. 7080 cannot be accorded any presumption of constitutional validity.
Respondents’ theory
On the other hand, Respondents argue that the "particular elements constituting the crime of plunder"
are stated with "definiteness and certainty," as follows:
(1) There is a public officer who acts by himself or in connivance with members of his family, relatives by
affinity or consanguinity, business associates, subordinates or other persons;
(2) There is an amassing, accumulating or acquiring of ill-gotten wealth;
(3) The total amount of ill-gotten wealth so amassed, accumulated or acquired is at least Fifty Million
Pesos (P50,000,000.00); and
(4) The ill-gotten wealth, which is defined as any asset, property, business enterprise or material
possession of any person within the purview of Section Two (2) of R.A. No. 7080, was acquired by him
50
directly or indirectly through dummies, nominees, agents, subordinates, and/or business associates by
any combination or series of the means or similar schemes enumerated in Section 1(d). 15
Moreover, Respondents maintain that assuming that there is some vagueness in the law, it need not be
declared unconstitutional but may be clarified by judicial construction.16 Respondents further add that
the ordinary import of the terms combination" and "series" should prevail, as can be gleaned from the
deliberations of the Congress in the course of its passage of the law. According to respondents, "series of
overt criminal acts" simply mean a repetition of at least two of any of those enumerated acts found in
Section 1(d) of R.A. 7080. And "combination" means a product of combining of at least one of any of
those enumerated acts described in Section 1(d) with at least one of any of the other acts so
enumerated. Respondents score petitioner for arguing on the basis of federal courts’ decisions on the
RICO law, citing that the U.S. courts have consistently rejected the contention that said law is void for
being vague.17
Respondents deny that the Plunder Law dispenses with the requirement of proof beyond reasonable
doubt. While there may be no necessity to prove each and every other act done by the accused in
furtherance of the scheme to acquire ill-gotten wealth, it is still necessary for the prosecution to prove
beyond reasonable doubt the pattern of overt or criminal acts indicative of the overall scheme or
conspiracy, as well as all the other elements of the offense of plunder.18 Respondents also point out that
conspiracy itself is not punishable under the Plunder Law, which deals with conspiracy as a means of
incurring criminal liability.19
Respondents likewise contend that it is within the inherent powers and wisdom of the legislature to
determine which acts are mala prohibita in the same way that it can declare punishable an act which is
inherently not criminal in nature.20
In conclusion, Respondents assert that petitioner has failed to overcome the presumption of
constitutionality of R.A. No. 7080.
Petitioner’s Reply
Petitioner, in his Reply to Comment, draws attention to Section 4, arguing that the provision states the
"most important element, which is the common thread that ties the component acts together: "a pattern
of overt or criminal acts indicative of the overall unlawful scheme or conspiracy 21 and raises the following
questions:
(a) Reference is made to a "pattern of overt or criminal acts." The disjunctive "or" is used. Will a pattern
of acts, which are overt but not criminal in themselves, be indicative of an overall unlawful scheme or
conspiracy?
(b) Under what specific facts or circumstances will a "pattern" be "indicative" of the overall unlawful
scheme or conspiracy?
(c) Under what specific facts or circumstances will the required "pattern" or "scheme" even be said to be
present or to exist?
(d) When is there an "unlawful scheme or conspiracy?"22
Issues raised in the oral arguments
Oral arguments were heard on September 18, 2001. At said hearing, the Court defined the issues for
resolution as follows:
1.) WHETHER R.A. NO. 7080 IS UNCONSTITUTIONAL FOR BEING VAGUE;
2) WHETHER R.A. NO. 7080 REQUIRES LESS EVIDENCE FOR PROVING THE PREDICATE CRIMES OF
PLUNDER AND THEREFORE VIOLATES THE RIGHT OF THE ACCUSED TO DUE PROCESS; and
3) WHETHER PLUNDER AS DEFINED IN R.A. NO. 7080 IS A MALUM PROHIBITUM AND IF SO, WHETHER IT
IS WITHIN THE POWER OF CONGRESS TO SO CLASSIFY THE SAME.23
Thereafter, both parties filed their respective memoranda in which they discussed the points which they
raised in their earlier pleadings and during the hearing.
I believe that there is merit in the petition.
A penal statute which violates constitutional
guarantees of individual rights is void.
Every law enacted by Congress enjoys a presumption of constitutionality,24 and the presumption prevails
in the absence of contrary evidence.25 A criminal statute is generally valid if it does not violate
constitutional guarantees of individual rights.26 Conversely, when a constitutionally protected right of an
individual is in danger of being trampled upon by a criminal statute, such law must be struck down for
being void.27
One of the fundamental requirements imposed by the Constitution upon criminal statutes is that
pertaining to clarity and definiteness. Statutes, particularly penal laws, that fall short of this requirement
have been declared unconstitutional for being vague. This "void-for-vagueness" doctrine is rooted in the
basic concept of fairness as well as the due process clause of the Constitution.
The Constitution guarantees both substantive and procedural due process28 as well as the right of the
accused to be informed of the nature and cause of the accusation against him. 29 A criminal statute should
not be so vague and uncertain that "men of common intelligence must necessarily guess as to its
meaning and differ as to its application.30
There are three distinct considerations for the vagueness doctrine. First, the doctrine is designed to
ensure that individuals are properly warned ex ante of the criminal consequences of their conduct. This
"fair notice" rationale was articulated in United States v. Harriss:31
The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person
of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The
underlying principle is that no man shall be held criminally responsible for conduct which he could not
reasonably understand to be proscribed.32
Second, and viewed as more important, the doctrine is intended to prevent arbitrary and discriminatory
law enforcement.33 Vague laws are invariably "standardless" and as such, they afford too great an
opportunity for criminal enforcement to be left to the unfettered discretion of police officers and
prosecutors.34 Third, vague laws fail to provide sufficient guidance to judges who are charged with
interpreting statutes. Where a statute is too vague to provide sufficient guidance, the judiciary is arguably
placed in the position of usurping the proper function of the legislature by "making the law" rather than
interpreting it.35
While the dictum that laws be clear and definite does not require Congress to spell out with
mathematical certainty the standards to which an individual must conform his conduct,36 it is necessary
that statutes provide reasonable standards to guide prospective conduct.37 And where a statute imposes
criminal sanctions, the standard of certainty is higher. 38 The penalty imposable on the person found
guilty of violating R.A. No. 7080 is reclusion perpetua to death.39 Given such penalty, the standard of
clarity and definiteness required of R.A. No. 7080 is unarguably higher than that of other laws.40
Void-for-vagueness doctrine
applies to criminal laws.
A view has been proffered that "vagueness and overbreadth doctrines are not applicable to penal laws." 41
These two concepts, while related, are distinct from each other. 42 On one hand, the doctrine of
overbreadth applies generally to statutes that infringe upon freedom of speech.43 On the other hand, the
"void-for-vagueness" doctrine applies to criminal laws, not merely those that regulate speech or other
fundamental constitutional rights.44 The fact that a particular criminal statute does not infringe upon free
speech does not mean that a facial challenge to the statute on vagueness grounds cannot succeed.45
As earlier intimated, the "vagueness doctrine" is anchored on the constitutionally-enshrined right to due
process of law. Thus, as in this case that the "life, liberty and property" of petitioner is involved, the Court
should not hesitate to look into whether a criminal statute has sufficiently complied with the elementary
requirements of definiteness and clarity. It is an erroneous argument that the Court cannot apply the
vagueness doctrine to penal laws. Such stance is tantamount to saying that no criminal law can be
challenged however repugnant it is to the constitutional right to due process.
While admittedly, penal statutes are worded in reasonably general terms to accomplish the legislature’s
objective of protecting the public from socially harmful conduct, this should not prevent a vagueness
challenge in cases where a penal statute is so indeterminate as to cause the average person to guess at
its meaning and application. For if a statute infringing upon freedom of speech may be challenged for
being vague because such right is considered as fundamental, with more reason should a vagueness
challenge with respect to a penal statute be allowed since the latter involve deprivation of liberty, and
even of life which, inarguably, are rights as important as, if not more than, free speech.
It has been incorrectly suggested46 that petitioner cannot mount a "facial challenge" to the Plunder Law,
and that "facial" or "on its face" challenges seek the total invalidation of a statute.47 Citing Broadrick v.
Oklahoma,48 it is also opined that "claims of facial overbreadth have been entertained in cases involving
statutes which, by their terms, seek to regulate only spoken words" and that "overbreadth claims, if
entertained at all, have been curtailed when invoked against ordinary criminal laws that are sought to be
applied to protected conduct." For this reason, it is argued further that "on its face invalidation of
51
statutes has been described as ‘manifestly strong medicine,’ to be employed ‘sparingly and only as a last
resort.’" A reading of Broadrick, however, shows that the doctrine involved therein was the doctrine of
overbreadth. Its application to the present case is thus doubtful considering that the thrust at hand is to
determine whether the Plunder Law can survive the vagueness challenge mounted by petitioner. A noted
authority on constitutional law, Professor Lockhart, explained that "the Court will resolve them
(vagueness challenges) in ways different from the approaches it has fashioned in the law of
overbreadth."49 Thus, in at least two cases,50 the U.S. courts allowed the facial challenges to vague
criminal statutes even if these did not implicate free speech
In Kolender v. Lawson,51 petitioners assailed the constitutionality of a California criminal statute which
required persons who loiter or wander on the streets to provide a credible and reasonable identification
and to account for their presence when requested by a peace officer under circumstances that would
justify a valid stop. The U.S. Supreme Court held that said statute was unconstitutionally vague on its face
within the meaning of the due process clause of the Fourteenth Amendment because it encourages
arbitrary enforcement by failing to clarify what is contemplated by the requirement that a suspect
provide a "credible and reasonable identification." Springfield vs. Oklahoma52 on the other hand involved
a challenge to a Columbus city ordinance banning certain assault weapons. The court therein stated that
a criminal statute may be facially invalid even if it has some conceivable application. It went on to rule
that the assailed ordinance’s definition of "assault weapon" was unconstitutionally vague, because it was
"fundamentally irrational and impossible to apply consistently by the buying public, the sportsman, the
law enforcement officer, the prosecutor or the judge."53
It is incorrect to state that petitioner has made "little effort to show the alleged invalidity of the statute as
applied to him, as he allegedly "attacks ‘on their face’ not only §§ 1(d)(1) and (2) of R.A. 7080 under
which he is charged, but also its other provisions which deal with plunder committed by illegal or
fraudulent disposition of government assets (§1(d)(3)), acquisition of interest in business (§1(d)(4)), and
establishment of monopolies and combinations or implementation of decrees intended to benefit
particular persons or special interests (§ 1(d)(5))."54 Notably, much of petitioner’s arguments dealt with
the vagueness of the key phrases "combination or series" and "pattern of overt or criminal acts indicative
of the overall unlawful scheme or conspiracy" which go into the very nature of the crime for which he is
charged.
Taking into consideration that the Plunder Law is a penal statute that imposes the supreme penalty of
death, and that petitioner in this case clearly has standing to question its validity inasmuch as he has
been charged thereunder and that he has been for sometime now painfully deprived of his liberty, it
behooves this Court to address the challenge on the validity of R.A. No. 7080.
Men steeped in law find
difficulty in understanding plunder.
The basic question that arises, therefore, is whether the clauses in Section 2--
combination or series of overt or criminal acts as described in Section 1(d) hereof
and Section 1(d), which provides--
x x x by any combination or series of the following means or similar schemes:
1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public
treasury;
xxx
6) By taking undue advantage of official position, authority, relationship, connection or influence to
unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino
people and the Republic of the Philippines.
as qualified by Section 4 which also speaks of the "scheme or conspiracy to amass, accumulate or
acquire ill-gotten wealth" and of "a pattern of overt or criminal acts indicative of the overall unlawful
scheme or conspiracy," are clear enough that a person "of common intelligence" need not guess at their
meaning and differ as to their application.
The above raise several difficult questions of meaning which go to the very essence of the offense, such
as:
a. How many acts would constitute a "combination or series?"
b. Must the acts alleged to constitute the "combination or series" be similar in nature? Note that Section
1(d) speaks of "similar schemes" while Section 4 speaks of "the scheme" and of "a pattern of overt or
criminal acts indicative of the overall unlawful scheme or conspiracy."
c. Must the "combination or series" of "overt or criminal acts" involving the aggregate amount of at least
P50 million be conceived as such a scheme or a "pattern of overt or criminal acts" from inception by the
accused?
d. What would constitute a "pattern"? What linkage must there be between and among the acts to
constitute a "pattern"? Need there be a linkage as to the persons who conspire with one another, and a
linkage as to all the acts between and among them?
e. When Section 4 speaks of "indicative of the overall unlawful scheme or conspiracy," would this mean
that the "scheme" or "conspiracy" should have been conceived or decided upon in its entirety, and by all
of the participants?
f. When committed in connivance "with members of his family, relatives by affinity or consanguinity,
business associates, subordinates or other persons" or through "dummies, nominees, agents,
subordinates and/or business associates", would such fact be part of the "pattern of overt or criminal
acts" and of the "overall unlawful scheme or conspiracy" such that all of those who are alleged to have
participated in the crime of plunder must have participated in each and every act allegedly constituting
the crime of plunder? And as in conspiracy, conspired together from inception to commit the offense?
g. Within what time frame must the acts be committed so as to constitute a "combination or series"?
I respectfully disagree with the majority that "ascertainable standards and well-defined parameters" are
provided in the law55 to resolve these basic questions.
Even men steeped in the knowledge of the law are in a quandary as to what constitutes plunder. The
Presiding Justice of the Sandiganbayan, Justice Francis Garchitorena, admitted that the justices of said
court "have been quarrelling with each other in finding ways to determine what [they] understand by
plunder."56 Senator Neptali Gonzales also noted during the deliberations of Senate Bill No. 733 that the
definition of plunder under the law is vague. He bluntly declared: "I am afraid that it might be faulted for
being violative of the due process clause and the right to be informed of the nature and cause of the
accusation of an accused.57 Fr. Bernas, for his part, pointed to several problematical portions of the law
that were left unclarified. He posed the question: "How can you have a 'series' of criminal acts if the
elements that are supposed to constitute the series are not proved to be criminal?"58
The meanings of "combination" and "series"
as used in R.A. No. 7080 are not clear.
Although the law has no statutory definition of "combination" or "series", the majority is of the view that
resort can be had to the ordinary meaning of these terms. Thus, Webster's Third New International
Dictionary gives the meaning of "combination": "the result or product or product of combining: a union
or aggregate made of combining one thing with another."59
In the context of R.A. No. 7080, "combination" as suggested by the Solicitor General means that at least
two of the enumerated acts found in Section 1(d), i.e., one of any of the enumerated acts, combined with
another act falling under any other of the enumerated means may constitute the crime of plunder. With
respect to the term "series," the majority states that it has been understood as pertaining to "two or
more overt or criminal acts falling under the same category" 60 as gleaned from the deliberations on the
law in the House of Representatives and the Senate.
Further, the import of "combination" or "series" can be ascertained, the majority insists, 61 from the
following deliberations in the Bicameral Conference Committee on May 7, 1991:
REP. ISIDRO: I am just intrigued again by our definition of plunder. We say, THROUGH A COMBINATION OR
SERIES OF OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION ONE HEREOF. Now when we say
combination, we actually mean to say, if there are two or more means, we mean to say that number one
and two or number one and something else are included, how about a series of the same act? For
example, through misappropriation, conversion, misuse, will these be included also?
THE CHAIRMAN (REP. GARCIA): Yeah, because we say series.
REP. ISIDRO: Series.
THE CHAIRMAN (REP. GARCIA): Yeah, we include series.
REP. ISIDRO: But we say we begin with a combination.
THE CHAIRMAN: (REP. GARCIA): Yes.
REP. ISIDRO: When we say combination, it seems that-
THE CHAIRMAN (REP. GARCIA): Two.
REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not twice of one
enumeration.
52
THE CHAIRMAN: (REP. GARCIA): No, no, not twice.
REP. ISIDRO: Not twice?
THE CHAIRMAN (REP. GARCIA): Yes. Combination is not twice—but combination, two acts.
REP. ISIDRO: So in other words, that’s it. When we say combination, we mean two different acts. It can
not be a repetition of the same act.
THE CHAIRMAN (REP. GARCIA): That be referred to series. Yeah.
REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.
THE CHAIRMAN (REP. GARCIA): A series.
REP. ISIDRO: That’s not series. It’s a combination. Because when we say combination or series, we seem
to say that two or more, ‘di ba?
THE CHAIRMAN: (REP. GARCIA): Yes, This distinguishes it, really, from the ordinary crimes. That is why, I
said, that is a very good suggestion because if it is only one act, it may fall under ordinary crime but we
have here a combination or series of overt or criminal acts. So…
HON. ISIDRO: I know what you are talking about. For example, through misappropriation, conversion,
misuse or malversation of public funds who raids the public treasury, now, for example,
misappropriation, if there are a series of misappropriations?
xxx
THE CHAIRMAN (REP. GARCIA): Series. One after the other eh di…
THE CHAIRMAN (SEN TAÑADA): So that would fall under term "series"?
THE CHAIRMAN (REP. GARCIA): Series, oo.
REP. ISIDRO: Now, if it is combination, ano, two misappropriations…
THE CHAIRMAN (REP. GARCIA): It’s not… two misappropriations will not be combination. Series.
REP. ISIDRO: So, it is not a combination?
THE CHAIRMAN (REP. GARCIA): Yes.
REP. ISIDRO: When you say "combination", two different?
THE CHAIRMAN (REP. GARCIA): Yes.
THE CHAIRMAN (SEN. TAÑADA): Two different.
REP. ISIDRO: Two different acts.
THE CHAIRMAN (REP. GARCIA): For example, ha…
REP. ISIDRO: Now a series, meaning, repetition…62
The following deliberations in the Senate are pointed to by the majority 63 to show that the words
"combination" and "series" are given their ordinary meaning:
Senator Maceda. In line of our interpellations that sometimes "one" or maybe even "two" acts may
already result in such a big amount, on line 25, would the Sponsor consider deleting the words "a series
of overt or". To read, therefore: "or conspiracy COMMITTED by criminal acts such as". Remove the idea of
necessitating "a series". Anyway, the criminal acts are in the plural.
Senator Tañada. That would mean a combination of two or more of the acts mentioned in this.
The President. Probably, two or more would be….
Senator Maceda. Yes, because ‘a series’ implies several or many’ two or more.
Senator Tañada. Accepted, Mr. President.
xxx
The President. If there is only one, then he has to be prosecuted under the particular crime. But when we
say ‘acts of plunder’ there should be, at least, two or more.
Senator Romulo. In other words, that is already covered by existing laws, Mr. President. 64
To my mind, resort to the dictionary meaning of the terms "combination" and "series" as well as recourse
to the deliberations of the lawmakers only serve to prove that R.A. No. 7080 failed to satisfy the strict
requirements of the Constitution on clarity and definiteness. Note that the key element to the crime of
plunder is that the public officer, by himself or in conspiracy with others, amasses, accumulates, or
acquires "ill-gotten wealth" through a "combination or series of overt or criminal acts" as described in
Section 1(d) of the law. Senator Gonzales, during the deliberations in the Senate, already raised serious
concern over the lack of a statutory definition of what constitutes "combination" or "series",
consequently, expressing his fears that Section 2 of R.A. No. 7080 might be violative of due process:
Senator Gonzales. To commit the offense of plunder, as defined in this Act and while constituting a single
offense, it must consist of a series of overt or criminal acts, such as bribery, extortion, malversation of
public funds, swindling, illegal exaction, and graft or corrupt practices act and like offenses. Now, Mr.
President, I think, this provision, by itself will be vague. I am afraid that it might be faulted for being
violative of the due process clause and the right to be informed of the nature and cause of accusation of
an accused. Because, what is meant by "series of overt or criminal acts"? I mean, would 2, 3, 4 or 5
constitute a series? During the period of amendments, can we establish a minimum of overt acts like, for
example, robbery in band? The law defines what is robbery in band by the number of participants
therein. In this particular case probably, we can statutorily provide for the definition of "series" so that
two, for example, would that be already a series? Or, three, what would be the basis for such
determination?65 (Emphasis supplied.)
The point raised by Senator Gonzales is crucial and well-taken. I share petitioner’s observation that when
penal laws enacted by Congress make reference to a term or concept requiring a quantitative definition,
these laws are so crafted as to specifically state the exact number or percentage necessary to constitute
the elements of a crime. To cite a few:
"Band" – "Whenever more than three armed malefactors shall have acted together in the commission of
an offense, it shall be deemed to have been committed by a band." (Article 14[6], Revised Penal Code) 66
"Conspiracy" – "A conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it." (Article 8, Revised Penal Code)67
"Illegal Recruitment by a Syndicate" – "Illegal recruitment is deemed committed by a syndicate if carried
out by a group of three (3) or more persons conspiring and/or confederating with one another in carrying
out any unlawful or illegal transaction, enterprise or scheme x x x." (Section 38, Labor Code)
"Large-scale Illegal Recruitment" – "Illegal recruitment is deemed committed in large scale if committed
against three (3) or more persons individually or as a group." (Section 38, Labor Code)
"Organized/Syndicated Crime Group" – "[M]eans a group of two or more persons collaborating,
confederating or mutually helping one another for purposes of gain in the commission of any crime."
(Article 62 (1)(1a), Revised Penal Code)68
"Swindling by a Syndicate" – "x x x if the swindling (estafa) is committed by a syndicate consisting of five
or more persons formed with the intention of carrying out the unlawful or illegal act, transaction,
enterprise or scheme x x x ." (Section 1, P.D. No. 1689)69
The deliberations of the Bicameral Conference Committee and of the Senate cited by the majority,
consisting mostly of unfinished sentences, offer very little help in clarifying the nebulous concept of
plunder. All that they indicate is that Congress seemingly intended to hold liable for plunder a person
who: (1) commits at least two counts of any one of the acts mentioned in Section 1(d) of R.A. No. 7080,
in which case, such person commits plunder by a series of overt criminal acts; or (2) commits at least one
count of at least two of the acts mentioned in Section 1(d), in which case, such person commits plunder
by a combination of overt criminal acts. Said discussions hardly provide a window as to the exact nature
of this crime.
A closer look at the exchange between Representatives Garcia and Isidro and Senator Tañada would
imply that initially, combination was intended to mean "two or more means," 70 i.e., "number one and
two or number one and something else x x x,"71 "two of the enumerated means not twice of one
enumeration,"72 "two different acts."73 Series would refer to "a repetition of the same act."74 However,
the distinction was again lost as can be gleaned from the following:
THE CHAIRMAN (REP. GARCIA) Yes. Combination is not twice – but combination, two acts.
REP. ISIDRO. So in other words, that’s it. When we say combination, we mean, two different acts. It can
not be a repetition of the same act.
THE CHAIRMAN (REP. GARCIA). That be referred to series. Yeah.
REP. ISIDRO. No, no. Supposing one act is repeated, so there are two.
THE CHAIRMAN (REP. GARCIA). A series.
REP. ISIDRO. That’s not series. It’s a combination. Because when we say combination or series, we seem
to say that two or more, ‘di ba?
THE CHAIRMAN (REP. GARCIA). Yes. This distinguishes it really the ordinary --- That’s why I said, that’s a
very good suggestion, because if its’ only one act, it may fall under ordinary crime. But we have here a
combination or series, of overt or criminal acts" (Emphasis supplied). 75
xxx
THE CHAIRMAN (REP. GARCIA P.) Series. One after the other eh di…
THE CHAIRMAN (SEN. TAÑADA) So, that would fall under the term "series"?
THE CHAIRMAN (REP. GARCIA P) Series, oo.
53
REP. ISIDRO. Now, if it is combination, ano, two misappropriations…
THE CHAIRMAN (REP. GARCIA) It’s not… two misappropriations will not be combination. Series.
REP. ISIDRO. So, it is not a combination?
THE CHAIRMAN. (REP. GARCIA P.) Yes.
REP. ISIDRO. When we say "combination", two different?
THE CHAIRMAN (REP. GARCIA P.) Yes.
THE CHAIRMAN (SEN. TAÑADA) Two different.
REP. ISIDRO. Two different acts.
THE CHAIRMAN (REP. GARCIA P.) For example, ha…
REP. ISIDRO. Now a series, meaning, repetition…
THE CHAIRMAN (SEN. TAÑADA) Yes.
REP. ISIDRO. With that…
THE CHAIRMAN (REP. GARCIA P.) Thank you.
THE CHAIRMAN (SEN. TAÑADA) So, it could be a series of any of the acts mentioned in paragraphs 1, 3, 4,
5 of Section 2 (d), or… 1 (d) rather, or a combination of any of the acts mentioned in paragraph 1 alone,
or paragraph 2 alone or paragraph 3 or paragraph 4.
THE CHAIRMAN (REP. GARCIA P.) I think combination maybe…which one? Series?
THE CHAIRMAN (SEN. TAÑADA) Series or combination.
REP. ISIDRO. Which one, combination or series or series or combination?
THE CHAIRMAN (SEN. TAÑADA) Okay. Ngayon doon sa definition, ano, Section 2, definition, doon sa
portion ng… Saan iyon? As mentioned, as described…
THE CHAIRMAN (REP. GARCIA P.) Described. I think that is…
THE CHAIRMAN (SEN. TAÑADA) … better than "mentioned". Yes.
THE CHAIRMAN (REP. GARCIA P.) Okay?
REP. ISIDRO. Very good.
THE CHAIRMAN. (SEN. TAÑADA) Oo, marami pong salamat.
THE CHAIRMAN (REP. GARCIA P.) Maraming salamat po.
The meeting was adjourned at 1:33 p.m."76 (Emphasis supplied.)
The aforequoted deliberations, especially the latter part thereof, would show a dearth of focus to render
precise the definition of the terms. Phrases were uttered but were left unfinished. The examples cited
were not very definite. Unfortunately, the deliberations were apparently adjourned without the
Committee members themselves being clear on the concept of series and combination.
Moreover, if "combination" as used in the law simply refers to the amassing, accumulation and
acquisition of ill-gotten wealth amounting to at least P50 Million through at least two of the means
enumerated in Section 1(d), and "series," to at least two counts of one of the modes under said section,
the accused could be meted out the death penalty for acts which, if taken separately, i.e., not considered
as part of the combination or series, would ordinarily result in the imposition of correctional penalties
only. If such interpretation would be adopted, the Plunder law would be so oppressive and arbitrary as to
violate due process and the constitutional guarantees against cruel or inhuman punishment. 77 The
penalty would be blatantly disproportionate to the offense. Petitioner’s examples illustrate this absurdity:
a. One act of indirect bribery (penalized under Art. 211 of the Revised Penal Code with prision
correccional in its medium and maximum periods),
combined with -
one act of fraud against the public treasury (penalized under Art. 213 of the Revised Penal Code with
prision correccional in its medium period to prision mayor in its minimum period).
equals –
Plunder (punished by reclusion perpetua to death plus forfeiture of assets under R. A. 7080)
b. One act of prohibited transaction (penalized under Art. 215 of the Revised Penal Code with prision
correccional in its minimum period or a fine ranging from P200 to P1,000 or both).
combined with –
one act of establishing a commercial monopoly (penalized under Art. 186 of Revised Penal Code with
prision correccional in its minimum or a fine ranging from P200 to P6,00, or both.
equals –
Plunder (punished by reclusion perpetua to death, and forfeiture of assets under R.A. 7080).
c. One act of possession of prohibited interest by a public officer (penalized with prision correccional in
its minimum period or a fine of P200 to P1,000, or both under Art. 216 of the Revised Penal Code).
combined with –
one act of combination or conspiracy in restraint of trade (penalized under Art. 186 of the Revised Penal
Code with prision correccional in its minimum period, or a fine of P200 to P1,000, or both),
equals –
plunder (punished by reclusion perpetua to death, and forfeiture of assets).78
The argument that higher penalties may be imposed where two or more distinct criminal acts are
combined and are regarded as special complex crimes, i.e., rape with homicide, does not justify the
imposition of the penalty of reclusion perpetua to death in case plunder is committed. Taken singly, rape
is punishable by reclusion perpetua;79 and homicide, by reclusion temporal.80 Hence, the increase in the
penalty imposed when these two are considered together as a special complex crime is not too far from
the penalties imposed for each of the single offenses. In contrast, as shown by the examples above, there
are instances where the component crimes of plunder, if taken separately, would result in the imposition
of correctional penalties only; but when considered as forming part of a series or combination of acts
constituting plunder, could be punishable by reclusion perpetua to death. The disproportionate increase
in the penalty is certainly violative of substantive due process and constitute a cruel and inhuman
punishment.
It may also be pointed out that the definition of "ill-gotten wealth" in Section 1(d) has reference to the
acquisition of property (by the accused himself or in connivance with others) "by any combination or
series" of the "means" or "similar schemes" enumerated therein, which include the following:
xxx
4. By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other forms
of interest or participation including the promise of future employment or any business enterprise or
undertakings;
5. By establishing agricultural, industrial or commercial monopolies or other combination and/or
implementation of decrees and orders intended to benefit particular persons or special interests;
xxx
The above-mentioned acts are not, by any stretch of the imagination, criminal or illegal acts. They involve
the exercise of the right to liberty and property guaranteed by Article III, Section 1 of the Constitution
which provides that "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." Receiving or accepting any shares of
stock is not per se objectionable. It is in pursuance of civil liberty, which includes "the right of the citizen
to be free to use his faculties in all lawful ways; x x x to earn his livelihood by any lawful calling; to pursue
any avocation, and/or that purpose, to enter into all contracts which may be proper, necessary and
essential to his carrying out these purposes to a successful conclusion. 81 Nor is there any impropriety,
immorality or illegality in establishing agricultural, industrial or commercial monopolies or other
combination and/or implementation of decrees and orders even if they are intended to benefit particular
persons or special interests. The phrases "particular persons" and "special interests" may well refer to the
poor,82 the indigenous cultural communities,83 labor,84 farmers,85 fisherfolk,86 women,87 or those
connected with education, science and technology, arts, culture and sports.88
In contrast, the monopolies and combinations described in Article 186 of the Revised Penal Code are
punishable because, as specifically defined therein, they are "on restraint of trade or commerce or to
prevent by artificial means of free competition in the market, or the object is "to alter the price" of any
merchandise "by spreading false rumors," or to manipulate market prices in restraint of trade. There are
no similar elements of monopolies or combinations as described in the Plunder Law to make the acts
wrongful.
If, as interpreted by the Solicitor General, "series" means a "repetition" or pertains to "two or more" acts,
and "combination as defined in the Webster’s Third New International Dictionary is "the result or product
of combining one thing with another,"89 then, the commission of two or more acts falling under
paragraphs (4) and (5) of Section 1(d) would make innocent acts protected by the Constitution as
criminal, and punishable by reclusion perpetua to death.
R.A. No. 7080 does not define "pattern,"
an essential element of the crime of plunder.
54
Granting arguendo that, as asserted by the majority, "combination" and "series" simplistically mean the
commission of two or more of the acts enumerated in Section 1(d),90 still, this interpretation does not
cure the vagueness of R.A. No. 7080. In construing the definition of "plunder," Section 2 of R.A. No. 7080
must not be read in isolation but rather, must be interpreted in relation to the other provisions of said
law. It is a basic rule of statutory construction that to ascertain the meaning of a law, the same must be
read in its entirety.91 Section 1 taken in relation to Section 4 suggests that there is something to plunder
beyond simply the number of acts involved and that a grand scheme to amass, accumulate or acquire ill-
gotten wealth is contemplated by R.A. No. 7080. Sections 1 and 2 pertain only to the nature and
quantitative means or acts by which a public officer, by himself or in connivance with other persons,
"amasses, accumulates or acquires ill-gotten wealth." Section 4, on the other hand, requires the presence
of elements other than those enumerated in Section 2 to establish that the crime of plunder has been
committed because it speaks of the necessity to establish beyond reasonable doubt a "pattern of overt or
criminal acts indicative of the overall unlawful scheme or conspiracy."
Clearly, it will not suffice that the "illegal wealth" amassed is at least Fifty Million Pesos and that this was
acquired by any two or more of the acts described in Section 1(d); it is necessary that these acts
constitute a "combination or series" of acts done in furtherance of "the scheme or conspiracy to amass,
accumulate or acquire ill-gotten wealth", and which constitute "a pattern of overt or criminal acts
indicative of the overall scheme or conspiracy."
That pattern is an essential element of the crime of plunder is evident from a reading of the assailed law
in its entirety. It is that which would distinguish plunder from isolated criminal acts punishable under the
Revised Penal Code and other laws, for without the existence a "pattern of overt or criminal acts
indicative of the overall scheme or conspiracy" to acquire ill-gotten wealth, a person committing several
or even all of the acts enumerated in Section 1(d) cannot be convicted for plunder, but may be convicted
only for the specific crimes committed under the pertinent provisions of the Revised Penal Code or other
laws.
For this reason, I do not agree that Section 4 is merely a rule of evidence or a rule of procedure. It does
not become such simply because its caption states that it is, although its wording indicates otherwise. On
the contrary, it is of substantive character because it spells out a distinctive element of the crime which
has to be established, i.e., an overall unlawful "scheme or conspiracy" indicated by a "pattern of overt or
criminal acts" or means or similar schemes "to amass, accumulate or acquire ill-gotten wealth."
The meaning of the phrase "pattern of overt or criminal acts indicative of the overall unlawful scheme or
conspiracy," however, escapes me. As in "combination" and "series," R.A. No. 7080 does not provide a
definition of "pattern" as well as "overall unlawful scheme." Reference to the legislative history of R.A.
No. 7080 for guidance as to the meanings of these concepts would be unavailing, since the records of the
deliberations in Congress are silent as to what the lawmakers mean by these terms.
Resort to the dictionary meanings of "pattern" and "scheme" is, in this case, wholly inadequate. These
words are defined as:
pattern: an arrangement or order of things or activity.92
scheme: design; project; plot.93
At most, what the use of these terms signifies is that while multiplicity of the acts (at least two or more)
is necessary, this is not sufficient to constitute plunder. As stated earlier, without the element of "pattern"
indicative of an "overall unlawful scheme," the acts merely constitute isolated or disconnected criminal
offenses punishable by the Revised Penal Code or other special laws.
The commission of two or more of the acts falling under Section 1(d) is no guarantee that they fall into a
"pattern" or "any arrangement or order." It is not the number of acts but the relationship that they bear
to each other or to some external organizing principle that renders them "ordered" or "arranged":
A pattern is an arrangement or order of things, or activity, and the mere fact that there are a number of
predicates is no guarantee that they fall into an arrangement or order. It is not the number of predicates
but the relationship that they bear to each other or to some external organizing principle that renders
them ‘ordered’ or ‘arranged.’ 94
In any event, it is hardly possible that two predicate acts can form a pattern:
The implication is that while two acts are necessary, they may not be sufficient. Indeed, in common
parlance, two of anything will not generally form a ‘pattern.’ 95
In H. J. Inc. v. Northwestern Bell Telephone Co. et al.96 (hereinafter referred to as Northwestern), the U.S.
Court reiterated the foregoing doctrine:
xxx Nor can we agree with those courts that have suggested that a pattern is established merely by
proving two predicate acts.97
Respondents’ metaphorical illustration of "pattern" as a wheel with spokes (the overt or criminal acts of
the accused) meeting at a common center (the acquisition of ill-gotten wealth) and with a rim (the
overall unlawful scheme or conspiracy) of the wheel enclosing the spokes, is off tangent. Their position
that two spokes suffice to make a wheel, even without regard to the relationship the spokes bear to each
other clearly demonstrates the absurdity of their view, for how can a wheel with only two spokes which
are disjointed function properly?
That "pattern" is an amorphous concept even in U.S. jurisprudence where the term is reasonably defined
is precisely the point of the incisive concurring opinion of Justice Antonin Scalia in Northwestern where
he invited a constitutional challenge to the RICO law on "void-for-vagueness" ground. 98 The RICO law is a
federal statute in the United States that provides for both civil and criminal penalties for violation
therefor. It incorporates by reference twenty-four separate federal crimes and eight types of state
felonies.99 One of the key elements of a RICO violation is that the offender is engaged in a "pattern of
racketeering activity."100 The RICO law defines the phrase "pattern of racketeering activity" as requiring
"at least two acts of racketeering activity, one of which occurred after the effective date of 18 USCS §
1961, and within ten years (excluding any period of imprisonment) after the commission of a prior act of
racketeering activity."101 Incidentally, the Solicitor General claims that R.A. No. 7080 is an entirely
different law from the RICO law. The deliberations in Congress reveal otherwise. As observed by Rep.
Pablo Garcia, Chairman of the House of Representatives Committee on Justice, R.A. No. 7080 was
patterned after the RICO law.102
In Northwestern, conceding that "[the U.S. Congress] has done nothing . . . further to illuminate RICO’s
key requirement of a pattern of racketeering," the U.S. Supreme Court, through Justice William J.
Brennan, Jr., undertook the task of developing a meaningful concept of "pattern" within the existing
statutory framework.103 Relying heavily on legislative history, the US Supreme Court in that case
construed "pattern" as requiring "continuity plus relationship."104 The US Supreme Court formulated the
"relationship requirement" in this wise: "Criminal conduct forms a pattern if it embraces criminal acts
that have the same or similar purposes, results, participants, victims, or methods of commission, or
otherwise are interrelated by distinguishing characteristics and are not isolated events." 105 Continuity is
clarified as "both a closed and open-ended concept, referring either to a closed period of repeated
conduct, or to past conduct that by its nature projects into the future with a threat of repetition." 106
In his separate concurring opinion, Justice Scalia rejected the majority’s formulation. The "talismanic
phrase" of "continuity plus relationship" is, as put by Justice Scalia, about as helpful as advising the courts
that "life is a fountain." He writes:
x x x Thus, when §1961(5) says that a pattern "requires at least two acts of racketeering activity" it is
describing what is needful but not sufficient. (If that were not the case, the concept of "pattern" would
have been unnecessary, and the statute could simply have attached liability to "multiple acts of
racketeering activity"). But what that something more is, is beyond me. As I have suggested, it is also
beyond the Court. Today’s opinion has added nothing to improve our prior guidance, which has created a
kaleidoscope of Circuit positions, except to clarify that RICO may in addition be violated when there is a
"threat of continuity." It seems to me this increases rather than removes the vagueness. There is no
reason to believe that the Court of Appeals will be any more unified in the future, than they have in the
past, regarding the content of this law.
That situation is bad enough with respect to any statute, but it is intolerable with respect to RICO. For it is
not only true, as Justice Marshall commented in Sedima, S.P.R.L. vs. Imrex Co., 473 U.S. 479 x x x, that our
interpretation of RICO has "quite simply revolutionize[d] private litigation" and "validate[d] the
federalization of broad areas of state common law of frauds," x x x so that clarity and predictability in
RICO’s civil applications are particularly important; but it is also true that RICO, since it has criminal
applications as well, must, even in its civil applications, possess the degree of certainty required for
criminal laws x x x. No constitutional challenge to this law has been raised in the present case, and so that
issue is not before us. That the highest court in the land has been unable to derive from this statute
anything more than today’s meager guidance bodes ill for the day when that challenge is presented. 107
It bears noting that in Northwestern the constitutionality of the RICO law was not challenged.108 After
Northwestern, the U.S. Supreme Court has so far declined the opportunity to hear cases in which the
void-for-vagueness challenge to the pattern requirement was raised. 109
55
Admittedly, at the district courts level, the state statutes (referred to as Little RICOS)110 have so far
successfully survived constitutional challenge on void-for-vagueness ground. However, it must be
underscored that, unlike R.A. No. 7080, these state anti-racketeering laws have invariably provided for
a reasonably clear, comprehensive and understandable definition of "pattern." 111 For instance, in one
state, the pattern requirement specifies that the related predicate acts must have, among others, the
same or similar purpose, result, principal, victims or methods of commission and must be connected with
"organized crime.112 In four others, their pattern requirement provides that two or more predicate acts
should be related to the affairs of the enterprise, are not isolated, are not closely related to each other
and connected in point of time and place, and if they are too closely related, they will be treated as a
single act.113 In two other states, pattern requirements provide that if the acts are not related to a
common scheme, plan or purpose, a pattern may still exist if the participants have the mental capacity
required for the predicate acts and are associated with the criminal enterprise.114
All the foregoing state statutes require that the predicate acts be related and that the acts occur within
a specified time frame.
Clearly, "pattern" has been statutorily defined and interpreted in countless ways by circuit courts in the
United States. Their divergent conclusions have functioned effectively to create variant criminal
offenses.115 This confusion has come about notwithstanding that almost all these state laws have
respectively statutorily defined "pattern". In sharp contrast, R.A. No. 7080, as earlier pointed out, lacks
such crucial definition. As to what constitutes pattern within the meaning of R.A. No. 7080 is left to the
ad hoc interpretation of prosecutors and judges. Neither the text of R.A. No. 7080 nor legislative history
afford any guidance as to what factors may be considered in order to prove beyond reasonable doubt
"pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy."
Be that as it may, it is glaringly fallacious to argue that "series" simply means a "repetition" or "pertaining
to two or more" and "combination" is the "result or product or product of combining." Whether two or
more or at least three acts are involved, the majority would interpret the phrase "combinations' or
"series" only in terms of number of acts committed. They entirely overlook or ignore Section 4 which
requires "a pattern of overt of criminal acts indicative of the overall unlawful scheme or conspiracy" to
convict.
If the elements of the offense are as what the majority has suggested, the crime of plunder could have
been defined in the following manner:
Where a public official, by himself or in conspiracy with others, amasses or acquires money or property
by committing two or more acts in violation of Section 3 of the Anti-Graft and Corrupt Practices Act (R.A.
3019), or Articles 210, 211, 212, 213, 214, 215, 216 and 217 of the Revised Penal Code, he shall be guilty
of the crime of plunder and shall be punished by reclusion perpetua to death.
The above would be a straightforward and objective definition of the crime of plunder. However, this
would render meaningless the core phrases "a combination or series of" "overt or criminal acts indicative
of the overall unlawful scheme or conspiracy," or the phrase "any combination or series of the following
means or similar schemes" or "a pattern of overt or criminal acts indicative of the overall unlawful
scheme or conspiracy."
But that obviously is not the definition of the crime of plunder under R.A. 7080. There is something
more. A careful reading of the law would unavoidably compel a conclusion that there should be a
connecting link among the "means or schemes" comprising a "series or combination" for the purpose of
acquiring or amassing "ill-gotten wealth." The bond or link is an "overall unlawful scheme or conspiracy
mentioned in Section 4. The law contemplates a combination or series of criminal acts in plunder done by
the accused "in furtherance of the scheme or conspiracy to amass, accumulate or acquire ill-gotten
wealth." It does not postulate acts committed randomly, separately or independently or sporadically.
Otherwise stated, if the legislature intended to define plunder as the acquisition of ill-gotten wealth in
the manner espoused by the majority, the use in R.A. 7080 of such words and phrases as "combination"
and "series of overt or criminal acts" xxx "in furtherance of the scheme or conspiracy" is absolutely
pointless and meaningless.
R.A. No. 7080 makes it possible for a person
conspiring with the accused in committing
one of the acts constituting the charge
of plunder to be convicted for the same crime.
Section 2 of R.A. No. 7080 states that "[a]ny person who participated with the said public officer in the
commission of an offense contributing to the crime of plunder shall likewise be punished for such
offense. In the imposition of penalties, the degree of participation and the attendance of mitigating and
extenuating circumstances, as provided by the Revised Penal Code, shall be considered by the court."
Both parties share the view that the law as it is worded makes it possible for a person who participates in
the commission of only one of the component crimes constituting plunder to be liable as co-conspirator
for plunder, not merely the component crime in which he participated. 116 While petitioner concedes that
it is easy to ascertain the penalty for an accomplice or accessory under R.A. No. 7080, such is not the
case with respect to a co-principal of the accused.117 In other words, a person who conspires with the
accused in the commission of only one of the component crimes may be prosecuted as co-principal for
the component crime, or as co-principal for the crime of plunder, depending on the interpretation of the
prosecutor. The unfettered discretion effectively bestowed on law enforcers by the aforequoted clause in
determining the liability of the participants in the commission of one or more of the component crimes
of a charge for plunder undeniably poses the danger of arbitrary enforcement of the law.118
R.A. No. 7080 does not clearly state
the prescriptive period of the crime of plunder.
Section 6 of R.A. No. 7080 provides that the crime punishable under said Act shall prescribe in twenty
(20) years. Considering that the law was designed to cover a "combination or series of overt or criminal
acts," or "a pattern of overt or criminal acts," from what time shall the period of prescription be
reckoned? From the first, second, third or last act of the series or pattern? What shall be the time gap
between two succeeding acts? If the last act of a series or combination was committed twenty or more
years after the next preceding one, would not the crime have prescribed, thereby resulting in the total
extinction of criminal liability under Article 89(b) of the Revised Penal Code? In antithesis, the RICO law
affords more clarity and definiteness in describing "pattern of racketeering activity" as "at least two acts
of racketeering activity, one of which occurred within ten years (excluding any period of imprisonment)
after the commission of a prior act of racketeering activity."119119 119 The U.S. state statutes similarly
provide specific time frames within which racketeering acts are committed.
The Solicitor General enjoins the Court to rectify the deficiencies in the law by judicial construction.
However, it certainly would not be feasible for the Court to interpret each and every ambiguous provision
without falling into the trap of judicial legislation. A statute should be construed to avoid constitutional
question only when an alternative interpretation is possible from its language.120 Borrowing from the
opinion of the court121 in Northwestern,122 the law "may be a poorly drafted statute; but rewriting it is a
job for Congress, if it so inclined, and not for this Court." But where the law as the one in question is void
on its face for its patent ambiguity in that it lacks comprehensible standards that men of common
intelligence must necessarily guess at its meaning and differ as to its application, the Court cannot
breathe life to it through the guise of construction.
R.A. No. 7080 effectively eliminates mens rea
or criminal intent as an element of the crime of plunder.
Section 4 provides that for the purpose of establishing the crime of plunder, "it shall not be necessary to
prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to
amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable a
pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy."
The majority would interpret this section to mean that the prosecution has the burden of "showing a
combination or series resulting in the crime of plunder." And, once the minimum requirements for a
combination or a series of acts are met, there is no necessity for the prosecution to prove each and every
other act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate, or
acquire ill-gotten wealth.123
By its language, Section 4 eliminates proof of each and every component criminal act of plunder by the
accused and limits itself to establishing just the pattern of overt or criminal acts indicative of unlawful
scheme or conspiracy. The law, in effect, penalizes the accused on the basis of a proven scheme or
conspiracy to commit plunder without the necessity of establishing beyond reasonable doubt each and
every criminal act done by the accused in the crime of plunder. To quote Fr. Bernas again: "How can you
have a ‘series’ of criminal acts if the elements that are supposed to constitute the series are not proved
to be criminal?"124
56
Moreover, by doing away with proof beyond reasonable doubt of each and every criminal act done by
the accused in the furtherance of the scheme or conspiracy to acquire ill-gotten wealth, it being sufficient
just to prove a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy,
the Plunder Law effectively eliminated the mens rea or criminal intent as an element of the crime.
Because of this, it is easier to convict for plunder and sentence the accused to death than to convict him
for each of the component crimes otherwise punishable under the Revised Penal Code and other laws
which are bailable offenses. The resultant absurdity strikes at the very heart if the constitutional
guarantees of due process and equal protection.
Plunder is a malum in se.
The acts enumerated in Section 1(d) are mostly defined and penalized by the Revised Penal Code, e.g.
malversation, estafa, bribery and other crimes committed by public officers. As such, they are by nature
mala in se crimes. Since intent is an essential element of these crimes, then, with more reason that
criminal intent be established in plunder which, under R.A. No. 7659, is one of the heinous crimes125 as
pronounced in one of its whereas clauses.126
The fact that the acts enumerated in Section 1(d) of R.A. 7080 were made criminal by special law does
not necessarily make the same mala prohibita where criminal intent is not essential, although the term
refers generally to acts made criminal by special laws. For there is a marked difference between the two.
According to a well-known author on criminal law:
There is a distinction between crimes which are mala in se, or wrongful from their nature, such as theft,
rape, homicide, etc., and those that are mala prohibita, or wrong merely because prohibited by statute,
such as illegal possession of firearms.
Crimes mala in se are those so serious in their effects on society as to call for almost unanimous
condemnation of its members; while crimes mala prohibita are violations of mere rules of convenience
designed to secure a more orderly regulation of the affairs of society. (Bouvier’s Law Dictionary, Rawle’s
3rd Revision)
(1) In acts mala in se, the intent governs; but in those mala prohibit the only inquiry is, has the law been
violated? (People vs. Kibler, 106 N.Y., 321, cited in the case of U.S. vs. Go Chico, 14 Phil. 132)
Criminal intent is not necessary where the acts are prohibited for reasons of public policy, as in illegal
possession of firearms. (People vs. Conosa, C.A., 45 O.G. 3953)
(2) The term mala in se refers generally to felonies defined and penalized by the Revised Penal Code.
When the acts are inherently immoral, they are mala in se, even if punished by special laws. On the other
hand, there are crimes in the Revised Penal Code which were originally defined and penalized by special
laws. Among them are possession and use of opium, malversation, brigandage, and libel. 127
The component acts constituting plunder, a heinous crime, being inherently wrongful and immoral, are
patently mala in se, even if punished by a special law and accordingly, criminal intent must clearly be
established together with the other elements of the crime; otherwise, no crime is committed. By
eliminating mens rea, R.A. 7080 does not require the prosecution to prove beyond reasonable doubt the
component acts constituting plunder and imposes a lesser burden of proof on the prosecution, thus
paving the way for the imposition of the penalty of reclusion perpetua to death on the accused, in plain
violation of the due process and equal protection clauses of the Constitution. Evidently, the authority of
the legislature to omit the element of scienter in the proof of a crime refers to regulatory measures in the
exercise of police power, where the emphasis of the law is to secure a more orderly regulations of the
offense of society, rather than the punishment of the crimes. So that in mala prohibita prosecutions, the
element of criminal intent is a requirement for conviction and must be provided in the special law
penalizing what are traditionally mala in se crimes. As correctly pointed out by petitioner,128 citing U.S.
Supreme Court decisions, the Smith Act was ruled to require "intent" to advocate129 and held to require
knowledge of illegal advocacy.130 And in another case,131 and ordinance making illegal the possession of
obscene books was declared unconstitutional for lack of scienter requirement.
Mens rea is a substantive due process requirement under the Constitution, and this is a limitation on
police power. Additionally, lack of mens rea or a clarifying scienter requirement aggravates the vagueness
of a statute.
In Morisette v. U.S.132 the U.S. Supreme Court underscored the stultifying effect of eliminating mens rea,
thus:
The Government asks us by a feat of construction radically to change the weights and balances in the
scales of justice. The purpose and obvious effect of doing away with the requirement of a guilty intent is
to ease the prosecution’s party to conviction, to strip the defendant of such benefit as he derived at
common law from innocence of evil purpose, and to circumscribe the freedom heretofore allowed juries.
Such a manifest impairment of the immunities of the individual should not be extended to common law
crimes on judicial initiative.
In the same breath, Justice Florenz Regalado expreses serious doubts as to the authority of the
legislature to complex mala in se crimes with mala prohibita, saying:
x x x although there has been a tendency to penalize crimes under special laws with penalties
"borrowed" from the Code, there is still the question of legislative authority to consolidate crimes
punished under different statutes. Worse, where one is punished under the Code and the other by the
special law, both of these contingencies had not been contemplated when the concept of a delito
complejo was engrafted into the Code.133
Petitioner is not estopped from questioning
the constitutionality of R.A. No. 7080.
The case at bar has been subject to controversy principally due to the personalities involved herein. The
fact that one of petitioner’s counsels134 was a co-sponsor of the Plunder Law135 and petitioner himself
voted for its passage when he was still a Senator would not in any put him in estoppel to question its
constitutionality. The rule on estoppel applies to questions of fact, not of law.136 Moreover, estoppel
should be resorted to only as a means of preventing injustice.137 To hold that petitioner is estopped from
questioning the validity of R.A. No. 7080 because he had earlier voted for its passage would result in
injustice not only to him, but to all others who may be held liable under this statute. In People vs. Vera,138
citing the U.S. case of Attorney General v. Perkins, the Court held:
x x x The idea seems to be that the people are estopped from questioning the validity of a law enacted by
their representatives; that to an accusation by the people of Michigan of usurpation upon their
government, a statute enacted by the people of Michigan is an adequate statute relied on in justification
is unconstitutional, it is a statute only in form, and lacks the force of law, and is of no more saving effect
to justify action under it it had never been enacted. the constitution is the supreme law, and to its
behests the courts, the legislature, and the people must bow. x x x139
The Court should not sanction the use of an equitable remedy to defeat the ends of justice by permitting
a person to be deprived of his life and liberty under an invalid law.
Undoubtedly, the reason behind the enactment of R.A. 7080 is commendable. It was a response to the
felt need at the time that existing laws were inadequate to penalize the nature and magnitude of
corruption that characterized a "previous regime."140 However, where the law, such as R.A. 7080, is so
indefinite that the line between innocent and condemned conduct becomes a matter of guesswork, the
indefiniteness runs afoul of due process concepts which require that persons be given full notice of what
to avoid, and that the discretion of law enforcement officials, with the attendant dangers of arbitrary and
discriminatory enforcement, be limited by explicit legislative standards. 141 It obfuscates the mind to
ponder that such an ambiguous law as R.A. No. 7080 would put on the balance the life and liberty of the
accused against whom all the resources of the State are arrayed. It could be used as a tool against
political enemies and a weapon of hate and revenge by whoever wields the levers of power.
I submit that the charge against petitioner in the Amended Information in Criminal Case No. 26558 does
not constitute "plunder" under R.A. No. 7080, as amended by R.A. No. 7659. If at all, the acts charged
may constitute offenses punishable under the Anti-Graft and Corrupt Practices Act (R.A. No. 3019) or the
Revised Penal Code. Hence, the information charging petitioner with plunder must be quashed. Such
quashal, however, should be without prejudice to the filing of new informations for acts under R.A. No.
3019, of the Revised Penal Code and other laws. Double jeopardy would not bar the filing of the same
because the dismissal of the case is made with the express consent of the petitioner-accused. 142
In view of the foregoing, I vote to GRANT the petition.
SEPARATE DISSENTING OPINION
PARDO, J.:
With due respect, I vote to grant the petition on the second ground raised therein, that is, multiplicity of
offenses charged in the amended information.1 Consequently, the resolution of the Sandiganbayan must
be set aside, and the case remanded to the Ombudsman for the amendment of the information to
charge only a single offense.
57
In my view, it is unnecessary to rule on the unconstitutionality of the entire law, 2 R. A. No. 7080, as
amended by R. A. No. 7659, although I share the opinion of the dissenting justices in the case of People v.
Echagaray,3 that the heinous crime law is unconstitutional. Hence, the amendments to the plunder law
prescribing the death penalty therefor are unconstitutional. I am of the view that the plunder law
penalizes acts that are mala in se, and consequently, the charges must be the specific acts alleged to be
in violation of the law, committed with malice and criminal intent. At any rate, I venture the view that
Section 4, R. A. No. 7080, must be interpreted as requiring proof beyond reasonable doubt of all the
elements of plunder as prescribed in the law, including the elements of the component crimes,
otherwise, the section will be unconstitutional.
Footnotes
1
Petition, Annex "B", Motion to Quash, Ground II.
2
‘The Court will not pass upon a constitutional question although properly presented by the
record if the case can be disposed of on some other ground." (Laurel v. Garcia, 187 SCRA 797,
813 [1990], citing Siler v. Louisville and Nashville R. Co., 312 U.S. 175 [1909]; Railroad
Commission v. Pullman Co., 312 U.S. 496 [1941]; Lalican v. Vergara, 342 Phil. 485, 498 [1997];
Mirasol v. Court of Appeals, G. R. No. 128448, February 1, 2001.
3
335 Phil. 343 [1997].
DISSENTING OPINION
SANDOVAL–GUTIERREZ, J.:
At times when speaking against popular views can subject a member of this Court to all sorts of unfair
criticism and pressure from the media, the lure not to wield the judicial pen is at its crest. Nevertheless, I
cannot relent to such enticement. Silence under such circumstances may mean not only weakness, but
also insensibility to the legal consequence of a constitutional adjudication bound to affect not only the
litigants, but the citizenry as well. Indeed, the core issue in this case is highly significant, the resolution of
which is inevitably historical. Thus, today, I prefer to take a stand and, therefore, dissent from the
majority opinion.
It is beyond dispute that Republic Act No. 7080 (R.A. No. 7080),1 entitled "An Act Penalizing the Crime of
Plunder," is controversial and far-reaching. Nonetheless, it is my view that it is also vague and fuzzy,
inexact and sweeping. This brings us to the query - may R.A. No. 7080 be enforced as valid and its
shortcomings supplied by judicial interpretation? My answer, to be explained later, is "NO."
As a basic premise, we have to accept that even a person accused of a crime possesses inviolable rights
founded on the Constitution which even the welfare of the society as a whole cannot override. The rights
guaranteed to him by the Constitution are not subject to political bargaining or to the calculus of social
interest. Thus, no matter how socially-relevant the purpose of a law is, it must be nullified if it tramples
upon the basic rights of the accused.
Enshrined in our Constitution is the ultimate guaranty that "no person shall be deprived of life, liberty, or
property without due process of law."2 This provision in the Bill of Rights serves as a protection of the
Filipino people against any form of arbitrariness on the part of the government, whether committed by
the legislature, the executive or the judiciary. Any government act that militates against the ordinary
norms of justice and fair play is considered an infraction of the due process; and this is true whether the
denial involves violation merely of the procedure prescribed by law or affects the very validity of the law
itself.3
The same Due Process Clause protects an accused against conviction except upon proof beyond
reasonable doubt of every fact necessary to constitute the crime with which he is charged. The reason
for this was enunciated in In Re Winship:4 "[t]he accused during a criminal prosecution has at stake
interest of immense importance, both because of the possibility that he may lose his liberty (or life) upon
conviction and because of the certainty that he would be stigmatized by the conviction." In view thereof,
any attempt on the part of the legislature to diminish the requirement of proof in criminal cases should
be discouraged.
I proved by evidence beyond reasonable doubt. They do not have to agree unanimously on which two.
R.A. No. 7080, as amended, is unconstitutional. Albeit the legislature did not directly lower the degree of
proof required in the crime of plunder from proof beyond reasonable doubt to mere preponderance of
or substantial evidence, it nevertheless lessened the burden of the prosecution by dispensing with proof
of the essential elements of plunder. Let me quote the offending provision:
SEC. 4. Rule of Evidence. – For purposes of establishing the crime of plunder, it shall not be necessary to
prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to
amass, accumulate, or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt
a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy.
In every criminal prosecution, the law recognizes certain elements as material or essential. Calling a
particular fact an "essential element" carries certain legal consequences. In this case, the consequence
that matters is that the Sandiganbayan cannot convict the accused unless it unanimously 5 finds that the
prosecution has proved beyond reasonable doubt each element of the crime of plunder.
What factual elements must be proved beyond reasonable doubt to constitute the crime of plunder?
Ordinarily, the factual elements that make up a crime are specified in the law that defines it. Under R.A.
No 7080, as amended, the essential elements of the crime of plunder are: a) that the offender is a public
officer; b) that he amasses, accumulates or acquires ill-gotten wealth through a combination or series of
overt or criminal acts described in Section 1 (d), to wit:
1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public
treasury;
2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks, or any other
form of pecuniary benefit from any person and/or entity in connection with any government contract or
project or by reason of the office or position of the public officer concerned;
3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government
or any of its subdivision, agencies or instrumentalities or government –owned or controlled corporations
and their subsidiaries;
4) By obtaining, receiving or accepting directly, or indirectly any shares of stock, equity or any other form
of interest or participation including the promise of future employment in any business enterprise or
undertaking;
5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or
implementation of decrees and orders intended to benefit particular person or special interests; or
6) By taking undue advantage of official position, authority, relationship, connection, or influence to
unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino
people and the Republic of the Philippines.
and c) that the aggregate amount or total value of the ill-gotten wealth is at least Fifty Million Pesos
(P50,000,000.00).6
Does the phrase "combination or series of overt or criminal acts described in Section 1 (d)" mean that
the "criminal acts" merely constitute the means to commit plunder? Or does it mean that those "criminal
acts," are essential elements of plunder?
When Section 4 of R.A. No. 7080 mandates that it shall not be necessary for the prosecution to prove
each and every criminal act done by the accused, the legislature, in effect, rendered the enumerated
"criminal acts" under Section 1 (d) merely as means and not as essential elements of plunder. This is
constitutionally infirmed and repugnant to the basic idea of justice and fair play. 7 As a matter of due
process, the prosecution is required to prove beyond reasonable doubt every fact necessary to
constitute the crime with which the defendant is charged. The State may not specify a lesser burden of
proof for an element of a crime.8 With more reason, it should not be allowed to go around the principle
by characterizing an essential element of plunder merely as a "means" of committing the crime. For the
result is the reduction of the burden of the prosecution to prove the guilt of the accused beyond
reasonable doubt.
Let me elucidate on the vices that come with Section 4.
First, treating the specific "criminal acts" merely as means to commit the greater crime of plunder, in
effect, allows the imposition of the death penalty even if the Justices of the Sandiganbayan did not
"unanimously" find that the accused are guilty beyond reasonable doubt of those "criminal acts." The
three Justices need only agree that the accused committed at least two of the criminal acts, even if not
Let us consider the present case against former President Joseph Ejercito Estrada. The accusatory portion
of the information in Criminal Case No. 26558 charges Mr. Estrada and others of willfully, unlawfully and
criminally amassing, accumulating and acquiring ill-gotten wealth in the aggregate amount of
P4,097,804,173.17 more or less, through a combination and series of overt and criminal acts described
as follows:
58
"a) by receiving, collecting, directly or indirectly, on many instances, so called "jueteng money" from
gambling operators in connivance with co-accused Jose "Jinggoy" Estrada, Yolanda Ricaforte and Edward
Serapio, as witnessed by Gov. Luis Chavit Singson, among other witnesses, in the aggregate amount of
FIVE HUNDRED FORTY-FIVE MILLION PESOS (P545,000,000.00), more or less, in consideration of their
protection from arrest or interference by law enforcers in their illegal "jueteng" activities; and
b) by misappropriating, converting and misusing his gain and benefit public fund in the amount of ONE
HUNDRED THIRTY MILLION PESOS (P130,000,000.00), more or less, representing a portion of the One
Hundred Seventy Million Pesos (P170,000,000.00) tobacco excise tax share allocated for the Province of
Ilocos Sur under R.A. No. 7171, in conspiracy with co-accused Charlie "Atong" Ang, Alma Alfaro, Eleuterio
Tan a.k.a Eleuterio Ramos Tan or Mr. Uy., and Jane Doe a.k.a Delia Rajas as witnesses by Gov. Luis
"Chavit" Singson, among other witnesses; and
c) by directing, ordering and compelling the Government Service Insurance System (GSIS) and the Social
Security System (SSS) to purchase and buy a combined total of P681,733,000. shares of stock of Belle
Corporation in the aggregate value of One Billion Eight Hundred Forty Seven Pesos and Fifty Centavos
(P1,847,578,057.50), for the purpose of collecting for his personal gain and benefit, as in fact he did
collect and receive the sum of ONE HUNDRED EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND
PESOS (P189,700,000.00), as commission from said stock purchase; and
d) by unjustly enriching himself in the amount of THREE BILLION TWO HUNDRED THIRTY THREE MILLION
ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS
(P3,233,104,173.17) comprising his unexplained wealth, acquired, accumulated and amassed by him
under his account name "Jose Velarde" with Equitable PCI Bank."
Since it is not necessary to prove each criminal act, the inevitable conclusion is that Mr. Estrada may be
convicted of the crime of plunder without the Justices of the Sandiganbayan "unanimously" deciding
which two of the four criminal acts have actually been committed. In short, all that R.A. No. 7080
requires is that each Justice must be convinced of the existence of a "combination or series." As to which
criminal acts constitute a combination or series, the Justices need not be in full agreement. Surely, this
would cover-up a wide disagreement among them about just what the accused actually did or did not do.
Stated differently, even if the Justices are not unified in their determination on what criminal acts were
actually committed by the accused, which need not be proved under the law, still, they could convict him
of plunder.
Considering that what R.A. No. 7080 punishes is the plurality of criminal acts indicative of the grand
scheme or conspiracy to amass ill-gotten wealth, it is imperative to focus upon the individual "criminal
acts" in order to assure the guilt of the accused of plunder.
Second, R.A. No. 7080 lumps up into one new offense of plunder six (6) distinct crimes which by
themselves are currently punishable under separate statutes or provisions of law. The six (6) separate
crimes become mere "means or similar schemes" to commit the single offense of plunder. It bears
emphasis that each of the separate offenses is a crime mala in se. The commission of any offense mala in
se is inherently accompanied by a guilty mind or a criminal intent.9 Unfortunately, R.A. No. 7080
converted the six mala in se offenses into one crime which is mala prohibita wherein the intent becomes
insignificant. Upon the commission of the proscribed act, without proof of intent, the law is considered
violated.10 Consequently, even acts recklessly committed (i.e. without intent) can be punished by death.
Third, Section 4 mandates that it shall not be necessary for the prosecution to prove each and every
criminal act done by the accused x x x it being sufficient to prove beyond reasonable doubt a pattern of
overt or criminal acts. By its own terminology, Section 4 requires that the "pattern" be proved by
evidence beyond reasonable doubt. Initially, we must disassociate the specific "criminal acts" from the
"pattern of criminal acts." These two phrases do not refer to one and the same thing. Pattern, as defined
in the dictionary, means an established mode of behavior.11 In the crime of plunder, the existence of a
"pattern" can only be inferred from the specific "criminal acts" done by the accused. Several queries may
be raised to determine the existence of a "pattern." Are these criminal acts related or tied to one
another? Is the subsequent criminal act a mere continuation of the prior criminal act? Do these criminal
acts complement one another as to bring about a single result? Inevitably, one must focus first on each
criminal act to ascertain the relationship or connection it bears with the other criminal acts, and from
there determine whether a certain "pattern" exists. But how could "pattern" be proved beyond
reasonable doubt when in the first place the specific "criminal acts" from which such pattern may be
inferred are not even required to be proved?
And fourth, plunder is a very serious offense. What is at stake under the law is not only the liberty of the
accused but his life and property as well. Thus, it will be extremely unjust to lessen the prosecution’s
burden of proof to such a degree not commensurate to what the accused stands to suffer. If a person will
lose his life, justice requires that every fact on which his guilt may be inferred must be proved beyond
reasonable doubt.
Providing a rule of evidence which does not require proof beyond reasonable doubt to establish every
fact necessary to constitute the crime is a clear infringement of due process. While the principles of the
law of evidence are the same whether applied on civil or criminal trials, they are more strictly observed
in criminal cases.12 Thus, while the legislature of a state has the power to prescribe new or alter existing
rules of evidence, or to prescribe methods of proof, the same must not violate constitutional
requirements or deprive any person of his constitutional rights. 13 Unfortunately, under R.A. No. 7080,
the State did not only specify a lesser burden of proof to sustain an element of the crime; it even
dispensed with proof by not considering the specific "criminal acts" as essential elements. That it was
the clear intention of the legislature is evident from the Senate deliberation, thus:
"Senator Guingona. Since it is a series or a scheme,what amount of evidence will, therefore, be
required? Must there be a pattern of the criminal acts? Must there be a series of briberies, for example?
Or, can there be only one?
Senator Tanada. Under Section 4 of the bill, Mr. President, it is provided that:
"For purposes of establishing the OFFENSE, of plunder, it shall not be necessary to prove each and every
criminal act done by the accused in furtherance of the scheme or conspiracy to amass, accumulate, or
acquire ill-gotten wealth… But, there must be enough evidence "sufficient to establish beyond reasonable
doubt a pattern of overt or criminal acts of the overall unlawful scheme or conspiracy."
So, that is the quantum of evidence that would be required under this proposal measure.
Senator Guingona. That is sufficient to establish the prima facie case.14
xxxxxx
Senator Romulo. That, perhaps, is a good provision of the bill. But, may I ask, Mr. President, what is in
this bill that would insure that there would be a speedier process by which this crime of plunder would
readily and immediately processed and convicted or acquitted than is now existing in present laws?
Senator Tanada. Yes, x x x.
Now, on the second point, Mr. President, I believe that what could make faster and speedier prosecutions
of these grafters would be a change that will be authorized in this bill, at least, in the filing of information
against the perpetrators. Under the existing criminal procedure, as I said earlier, there can only be one
offense charged per information. So, if there is going to be a series of overt or criminal acts committed by
the grafter, then that would necessitate the filing of so many informations against him. Now, if this bill
becomes a law, then that means that there can be only one information filed against the alleged grafter.
And the evidence that will be required to convict him would not be evidence for each and every
individual criminal act but only evidence sufficient to establish the conspiracy or scheme to commit
this crime of plunder.15
xxxxxx
Senator Guingona. May I just be clarified Mr. President. In this Section 4, a pattern of the criminal acts is
all that is required. Would this pattern of criminal acts be also sufficient to establish a prima facie case?
Senator Tanada. Mr. President, under Section 4, it would not only be sufficient to establish a prima facie
case. It would be sufficient to establish guilt as long as the evidence, necessary to establish guilt beyond
reasonable doubt is presented."16
In dispensing with proof of each criminal act, the clear objective of Congress is to render it less difficult
for the prosecution to prove the crime of plunder. While this presupposes a noble intention, I do not
think there is a sufficient justification. I, too, have the strong desire to eliminate the sickness of
corruption pervading in the Philippine government, but more than anything else, I believe there are
certain principles which must be maintained if we want to preserve fairness in our criminal justice
system. If the prosecution is not mandated to prove the specific "criminal acts," then how can it establish
the existence of the requisite "combination or series" by proof beyond reasonable doubt?
II
Another valid constitutional objection to R.A. No. 7080 is the vagueness of the term "pattern." As stated
by Mr. Justice Kapunan, in his Dissent, the concept of "pattern of overt or criminal acts" embodied in the
law was derived by Congress from the RICO (Racketeer Influenced and Corrupt Organizations) statute. 17 I
59
am, therefore, constrained to refer to US law and jurisprudence. "Pattern" as defined in the RICO statute
means "as requiring at least two acts of racketeering activity….the last of which occurred within ten
years….after the commission of the prior act of racketeering activity.18
Mr. Justice Kapunan observed that unlike the RICO law, the law on plunder does not specify a) the
number of criminal acts necessary before there could be a "pattern," as well as b) the period within
which the succeeding criminal acts should be committed. These failures render the law void for its
vagueness and broadness.
Indeed, Congress left much to be desired. I am at a quandary on how many delictual acts are necessary
to give rise to a "pattern of overt or criminal acts" in the crime of plunder. If there is no numerical
standard, then, how should the existence of "pattern" be ascertained? Should it be by proximity of time
or of relationship? May an act committed two decades after the prior criminal act be linked with the
latter for the purpose of establishing a pattern?
It must be remembered that plunder, being a continuous offense, the "pattern of overt or criminal acts"
can extend indefinitely, i.e., as long as the succeeding criminal acts may be linked to the initial criminal
act. This will expose the person concerned to criminal prosecution ad infinitum. Surely, it will undermine
the purpose of the statute of limitations, i.e., to discourage prosecution based on facts obscured by the
passage of time, and to encourage law enforcement officials to investigate suspected criminal activity
promptly.19 All these undesirable consequences arise from the fact that the plunder law fails to provide
a period within which the next criminal act must be committed for the purpose of establishing a
pattern. I believe R.A. No. 7080 should have provided a cut-off period after which a succeeding act may
no longer be attached to the prior act for the purpose of establishing a pattern. In reiteration, the RICO
law defines "pattern" as requiring at least two acts of racketeering activity… the last of which occurred
within ten years… after the commission of the prior act of racketeering activity. Such limitation prevents
a subsequent racketeering activity, separated by more than a decade from the prior act of racketeering,
from being appended to the latter for the purpose of coming up with a pattern. We do not have the same
safeguard under our law.
Significantly, in Sedima, S.P.R.L v. Imrex Co.,20 the United States Supreme Court expressed dismay that
Congress has failed to properly define the term "pattern" at all but has simply required that a "pattern"
includes at least two acts of racketeering activity. The Court concluded that "pattern" involves something
more than two acts, and after examining RICO’s legislative history, settled on "continuity plus
relationship" as the additional requirement.
Years later, in H.C. Inc. v. The Northwestern Bell Tel.,21 the U.S. Supreme Court conceded that "the
continuity plus relationship" means different things to different circuits. Nevertheless, it held firm to the
Sedima requirement that "in order to establish a pattern, the government has to show "that the
racketeering predicates are related, and that they amount to or pose a threat of continued criminal
activity." Justice Scalia, in a concurring opinion in which three other justices joined, derided the
"relationship" requirement as not "much more helpful [to the lower courts] than telling them to look for
a "pattern" - - which is what the statute already says." As for the continuity requirement, Justice Scalia
said: "Today’s opinion has added nothing to improve our prior guidance, which has created a
kaleidoscope of circuit positions, except to clarify that RICO may in addition be violated when there is a
'threat of continuity'. It seems to me this increases rather than removes the vagueness. There is no
reason to believe that the Court of Appeals will be any more unified in the future, than they have in the
past, regarding the content of this law."
Aware of the ambiguities present in the RICO law the drafters of the New York "Organized Crime Control
Act" (a progeny of RICO) now more specifically define "pattern of criminal activity" as conduct engaged in
by persons charged in an enterprise corruption count constituting three or more criminal acts that (a)
were committed within ten years from the commencement of the criminal action; (b) are neither isolated
incidents, nor so closely related and connected in point of time or circumstance of commission as to
constitute a criminal offense or criminal transaction, as those terms are defined in section 40.10 of the
criminal procedure law; and (c) are either: (i) related to one another through a common scheme or plan
or (ii) were committed, solicited, requested, importuned or intentionally aided by persons acting with the
mental culpability required for the commission thereof and associated with or in the criminal
enterprise.22
If the term "pattern" as defined in the RICO law is continuously subjected to constitutional attacks
because of its alleged vagueness, how much more the term "pattern" in R.A. No. 7080 which does not
carry with it any limiting definition and can only be read in context. Indeed, there is no doubt that the
invalidity of the law based on vagueness is not merely debatable - it is manifest. Thus, this Court should
declare R.A. No. 7080 unconstitutional.
III
Lastly, the terms "combination" and "series" are likewise vague. Hence, on the basis of the law, a
conviction of an accused cannot be sustained. A statute that does not provide adequate standards for
adjudication, by which guilt or innocence may be determined, should be struck down. 23 Crimes must be
defined in a statute with appropriate certainty and definiteness.24 The standards of certainty in a statute
prescribing punishment for offenses are higher than in those depending primarily on civil sanctions for
their enforcement.25 A penal statute should therefore be clear and unambiguous.26 It should explicitly
establish the elements of the crime which it creates27 and provide some reasonably ascertainable
standards of guilt.28 It should not admit of such a double meaning that a citizen may act on one
conception of its requirements and the courts on another.29
I agree with the observation of Mr. Justice Kapunan that "resort to the dictionary meaning of the terms
‘combination’ and ‘series’ as well as recourse to the deliberations of the lawmakers only serve to prove
that R.A. No. 7080 failed to satisfy the requirement of the Constitution on clarity and definiteness." The
deliberations of our law-makers, as quoted verbatim in Justice Kapunan's Dissent, indeed, failed to shed
light on what constitute "combination" and "series."30
I believe this is fatal.
The essence of the law on plunder lies in the phrase "combination or series of overt or criminal acts." As
can be gleaned from the Record of the Senate, the determining factor of R.A. 7080 is the plurality of the
overt acts or criminal acts under a grand scheme or conspiracy to amass ill-gotten wealth. Thus, even if
the amassed wealth equals or exceeds fifty million pesos, a person cannot be prosecuted for the crime of
plunder if there is only a single criminal act.31
Considering that without plurality of overt or criminal acts, there can be no crime of plunder, due process
of law demands that the terms "combination" and "series" be defined with exactitude in the law itself.
Equating these terms with mere "plurality" or "two or more," is inaccurate and speculative. For one, a
"series" is a group of usually three or more things or events standing or succeeding in order and having
like relationship to each other.32 The Special Prosecution Division Panel defines it as "at least three of the
acts enumerated under Section 1(d) thereof."33 But it can very well be interpreted as only one act
repeated at least three times. And the Office of the Solicitor General, invoking the deliberations of the
House of Representatives, contends differently. It defines the term series as a "repetition" or pertaining
to "two or more."34 The disparity in the Prosecution and OSG’s positions clearly shows how imprecise the
term "series" is.
This should not be countenanced. Crimes are not to be created by inference.35 No one may be required,
at the peril of life, liberty or property to guess at, or speculate as to, the meaning of a penal statute. 36 An
accused, regardless of who he is, is entitled to be tried only under a clear and valid law.
Respondents argue that the vagueness of R.A. No. 7080, as amended, is cured when the Information
clearly specified the acts constituting the crime of plunder. I do not agree. It is the statute and not the
accusation under it that prescribes the rule to govern conduct and warns against aggression. 37 If on its
face, a statute is repugnant to the due process clause on account of vagueness, specification in the
Information of the details of the offense intended to be charged will not serve to validate it. 38
On the argument that this Court may clarify the vague terms or explain the limits of the overbroad
provisions of R.A. No. 7080, I should emphasize that this Court has no power to legislate.
Precision must be the characteristic of penal legislation. For the Court to define what is a crime is to go
beyond the so-called positive role in the protection of civil liberties or promotion of public interests. As
stated by Justice Frankfurter, the Court should be wary of judicial attempts to impose justice on the
community; to deprive it of the wisdom that comes from self-inflicted wounds and the strengths that
grow with the burden of responsibility.39
A statute which is so vague as to permit the infliction of capital punishment on acts already punished
with lesser penalties by clearly formulated law is unconstitutional. The vagueness cannot be cured by
judicial construction.
Also, not to be glossed over is the fact that R.A. 7080, as amended, is a novel law. Hence, there is greater
need for precision of terms. The requirement that law creating a crime must be sufficiently explicit to
inform those subject to it, what conduct on their part will render them liable to its penalties, has
60
particular force when applied to statutes creating new offenses. For that reason, those statutes may not
be generally understood, or may be subject of generally accepted construction.40
Today, I recall what James Madison remarked in presenting the Bill of Rights to the United States
Congress in 1789: "if they (Bill of Rights) are incorporated into the Constitution, independent tribunals of
justice will consider themselves in a peculiar manner the guardians of those rights; they will be an
impenetrable bulwark against every assumption of power in the legislative or executive; and they will be
naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the
declaration of rights."41 Time did not render his foreboding stale. Indeed, in every constitutional
democracy, the judiciary has become the vanguard of these rights. Now, it behooves this Court to strike
an unconstitutional law. The result, I concede, may not be politically desirable and acceptable,
nevertheless, I am fully convinced that it is constitutionally correct.
To recapitulate, R.A. No. 7080 is unconstitutional because it violates the DUE PROCESS CLAUSE of the
Constitution. The vagueness of its terms and its incorporation of a rule of evidence that reduces the
burden of the prosecution in proving the crime of plunder tramples upon the basic constitutional rights
of the accused.
In fine, I can only stress that the one on trial here is not Mr. Estrada, but R.A. No. 7080. The issue before
this Court is not the guilt or innocence of the accused, but the constitutionality of the law. I vote to grant
the petition, not because I favor Mr. Estrada, but because I look beyond today and I see that this law can
pose a serious threat to the life, liberty and property of anyone who may come under its unconstitutional
provisions. As a member of this Court, my duty is to see to it that the law conforms to the Constitution
and no other. I simply cannot, in good conscience, fortify a law that is patently unconstitutional.
WHEREFORE, I vote to grant the petition.
DISSENTING OPINION
YNARES-SANTIAGO, J.:
It is an ancient maxim in law that in times of frenzy and excitement, when the desire to do justice is
tarnished by anger and vengeance, there is always the danger that vital protections accorded an accused
may be taken away.
The Plunder Law and its amendment were enacted to meet a national problem demanding especially
immediate and effective attention. By its very nature, the law deserved or required legislative drafting of
the highest order of clarity and precision.
Substantive due process dictates that there should be no arbitrariness, unreasonableness or ambiguity in
any law which deprives a person of his life or liberty. The trial and other procedures leading to conviction
may be fair and proper. But if the law itself is not reasonable legislation, due process is violated. Thus, an
accused may not be sentenced to suffer the lethal injection or life imprisonment for an offense
understood only after judicial construction takes over where Congress left off, and interpretation supplies
its meaning.
The Constitution guarantees both substantive and procedural due process1 as well as the right of the
accused to be informed of the nature and cause of the accusation against him. 2 Substantive due process
requires that a criminal statute should not be vague and uncertain.3 More explicitly –
That the terms of a penal statute. . . must be sufficiently explicit to inform those who are subject to it
what conduct on their part will render them liable to penalties, is a well–recognized requirement,
consonant alike with ordinary notions of fair play and the settled rules of law. And a statute which either
forbids or requires the doing of an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application, violates the first essential of due process. 4
The doctrine of constitutional uncertainty is also based on the right of the accused to be informed of the
nature and cause of the accusation.5 Fundamental fairness dictates that a person cannot be sent to jail
for a crime that he cannot with reasonable certainty know he was committing.6 Statutes defining crimes
run afoul of the due process clause if they fail to give adequate guidance to those who would be law-
abiding, to advise defendants of the nature of the offense with which they are charged or to guide courts
trying those who are accused.7 In short, laws which create crime ought to be so explicit that all men
subject to their penalties may know what acts it is their duty to avoid. 8
A reading of the Plunder Law immediately shows that it is phrased in a manner not susceptible to ready
or clear understanding. In the desire to cover under one single offense of plunder every conceivable
criminal activity committed by a high government official in the course of his duties, Congress has come
out with a law unduly vague, uncertain and broad.
The doctrines of overbreadth and void-for-vagueness in Constitutional Law were developed in the
context of freedom of speech and of the press. However, they apply equally, if not more so, to capital
offenses. In the present case, what the law seeks to protect or regulate involves the deprivation of life
itself and not merely the regulation of expression.
In its early formulation, the overbreadth doctrine states that a governmental purpose to control or
prevent activities constitutionally subject to regulation may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms. 9
A statute, especially one involving criminal prosecution, must be definite to be valid. A statute is vague or
overbroad, in violation of the due process clause, where its language does not convey sufficiently definite
warning to the average person as to the prohibited conduct. A statute is unconstitutionally vague if
people of common intelligence must necessarily guess at its meaning.10
It is not only prosecutors and judges who are concerned. The need for definiteness applies with greater
force to the accused and those in positions where opportunities for them to commit the proscribed
offense are present. They must understand exactly what prohibited activity will be punished by capital
punishment. Sadly, even the record of deliberations in Congress cited in the motion to quash shows that
even the members of the Senate who are illustrious lawyers found the Plunder Law vague.
Under Section 1 of R.A. 7080 and Section 12 of R.A. 7659, the acquisition of at least P50,000,000.00 of ill-
gotten wealth is punished by reclusion perpetua to death, if committed as follows:
1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the public
treasury;
2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any other form
of pecuniary benefit from any person and/or entity in connection with any government contract or
project or by reason of the office or position of the public officer concerned;
3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National Government
or any of its subdivisions, agencies or instrumentalities or government-owned or controlled corporations
and their subsidiaries;
4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other form
of interest or participation including the promise of future employment in any business enterprise or
undertaking;
5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or
implementation of decrees and orders intended to benefit particular persons or special interests; or
6) By taking undue advantage of official position, authority, relationship, connection or influence to
unjustly enrich himself or themselves at the expense and to the damage and prejudice of the Filipino
people and the Republic of the Philippines.11
The crimes of malversation of public funds and bribery, which appear to be included among the modes of
committing plunder, have acquired well-defined meanings under our present penal statutes. The accused
immediately knows how to defend and justify his actions. The prosecution understands the quantum and
nature of the evidence he has to produce in court. The Judge can apply the law with straight and positive
judgment because there is no vagueness about it.
The Sandiganbayan, however, has ruled that the Plunder Law does not make any reference to any specific
provision of laws other than R.A. 7080, as amended. It is an entirely new offense where malversation or
bribery become "generic terms" according to the court. And since "generic" refers to an entire group or
class of related matters, the discretion given to the prosecutor and the judge figuratively runs riot.
Under the same paragraph of the Plunder Law, malversation is lumped with "misuse of public funds."
Misuse can be as innocuous as error or it can be as severe as corruption or embezzlement. The terms
"abuse," "distortion," "misapplication," "mismanagement," "poor stewardship," "malpractice,"
"debasement," or "breach of trust," all conceivably fall under the generic term "misuse." Exactly when
does an administrative offense of misuse become the capital crime of plunder? What degree of misuse is
contemplated under the law?
A penal law violates due process where inherently vague statutory language permits selective law
enforcement.12 Under the Plunder Law, a crusading public officer who steps on too many important toes
in the course of his campaign could be prosecuted for a capital offense, while for exactly the same acts,
an official who tries to please everybody can be charged whether administratively or for a much lighter
offense.
61
For instance, direct bribery under Article 210 of the Revised Penal Code is punished with prision mayor in
its medium or minimum periods, prision correccional in its medium period, or prision mayor in its
minimum period, depending on the manner of commission.13 Indirect bribery under Article 211 is
punished with prision correccional in its medium and maximum periods.14 Under the Plunder Law, the
penalty is reclusion perpetua to death. The void-for-vagueness infirmity becomes all the more apparent if
the proscribed activity is "misuse of public funds." The prosecutor is given broad powers of selective law
enforcement. For "misuse," exactly the same acts could be punished with death under the Plunder Law,
or mere dismissal with prejudice to future government employment under the Civil Service Law.
The provision in the Plunder Law on "implementation of decrees and orders intended to benefit
particular persons or special interests" also calls for more specific elucidation. If the only person
benefited is himself, does that fall under "particular person?" Decrees and orders issued by a top
government official may be intended to benefit certain segments of society such as farmers,
manufacturers, residents of a geographical area and the like. If in the process a close relative acquires
P50,000,000.00 because of development in that sector solely because of the decree and without lifting a
finger, is that plunder? The vagueness can be better appreciated by referring to petitioner’s arguments
that the element of mens rea in mala in se crimes has been abolished and the offenses have been
converted to mala prohibita. If the guilty intent is eliminated, even innocent acts can be plunder. The law
was not drafted for petitioner alone. It applies to all public officers.
As petitioner has stated, what Congress did in enacting the Plunder Law was to take out the provisions of
the Revised Penal Code on malversation, estafa, bribery, and other crimes committed by public officers,
mix these with special laws on graft and corruption and together with a couple of non-criminal acts,
combine them into a special law and call it "plunder."
Early in the history of this Court, it ruled that in acts mala in se, the criminal intent governs. But in those
acts mala prohibita, the only inquiry is: has the law been violated?15 Acts constituting malversation,
estafa, and bribery are mala in se. The courts must inquire into the criminal intent, the evil nature or
wrongful disposition behind the criminal acts. In mala prohibita crimes, there is a violation of a
prohibitory law and the inquiry is, therefore, has the law been violated?
In the crime of plunder, it is enough that the acts defining malversation or bribery are described. The
court then proceeds to determine whether the acts fall under the prohibitory terms of the law. Criminal
intent no longer has to be proved. The criminal intent to commit the crime is not required to be proved.
The desire to benefit particular persons does not have to spring from criminal intent under the special
law creating the crime of plunder. In malversation or bribery under the Revised Penal Code, the criminal
intent is an important element of the criminal acts. Under the Plunder Law, it is enough that the acts are
committed.
Thus, even if the accused can prove lack of criminal intent with respect to crimes mala in se, this will not
exonerate him under the crime mala prohibita. This violates substantive due process and the standards
of fair play because mens rea is a constitutional guarantee under the due process clause. Indeed, as
stated by the U.S. Supreme Court in Morisette v. U.S.:16
The Government asks us by a feat of construction radically to change the weights and balances in the
scales of justice. The purpose and obvious effect of doing away with the requirement of a guilty intent
is to ease the prosecution’s party to conviction, to strip the defendant of such benefit as he derived at
common law from innocence of evil purpose, and to circumscribe the freedom heretofore allowed
juries. Such a manifest impairment of the immunities of the individual should not be extended to
common law crimes on judicial initiative. (Emphasis ours)
By grafting several felonies, some mala in se and some mala prohibita, to constitute the crime of plunder
and by doing away with the standard of proof beyond reasonable doubt for the component elements,
the State would practically be given the judicial imprimatur to impose the extreme penalty of death on
the basis of proof only of the overall pattern of overt or criminal acts showing unlawful scheme or
conspiracy. This attempt of Congress to tip the scales of criminal justice in favor of the state by doing
away with the element of mens rea and to pave the way for the accused to be convicted by depriving him
of the defense of criminal intent as to mala in se components of plunder will be anathema to substantive
due process which insures "respect for those personal immunities which are so rooted in the traditions
and conscience of our people as to be ranked as fundamental."17
Equally disagreeable is the provision of the Plunder Law which does away with the requirement that each
and every component of the criminal act of plunder be proved and instead limits itself to proving only a
pattern of overt acts indicative of the unlawful scheme or conspiracy. 18 In effect, the law seeks to penalize
the accused only on the basis of a proven scheme or conspiracy, and does away with the rights of the
accused insofar as the component crimes are concerned. In other words, R.A. No. 7080 circumvents the
obligation of the prosecution to prove beyond reasonable doubt every fact necessary to constitute the
crime of plunder, because the law requires merely proof of a pattern of overt acts showing an unlawful
scheme or conspiracy. What aggravates matters on this point is that under controlling case law,
conspiracy to defraud is not punishable under the Revised Penal Code.19 Cutting corners on the burden of
proof is unconstitutional because the standard of reasonable doubt is part of the due process safeguard
accorded an accused. The due process clause protects the accused against conviction except upon proof
beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. 20
Under R.A. 7659, plunder is a heinous crime punishable by death. It is described as grievous, odious and
hateful because of its inherent or magnified wickedness, viciousness, atrocity, and perversity. There can
be no quarrel with the legislative objective of reducing the upsurge of such crimes which affect
sustainable economic development and undermine the people’s faith in Government and the latter’s
ability to maintain peace and order. Nevertheless, due process commands that even though the
governmental purpose is legitimate and substantial, that purpose cannot be pursued by means so vague
and broad that they infringe on life or stifle liberty when the end can be more narrowly achieved through
existing penal statutes.
Where the statute has an overbroad sweep just as when it is vague, the hazard of loss or impairment of
life or liberty is critical.21
The problem of vagueness is reduced or eliminated if the different schemes mentioned in the law as used
in the acquisition of ill-gotten wealth are prosecuted under existing penal law. The offenses are by their
nature distinct and separate from each other and have acquired established meanings.
Thus, the acts of misappropriation or malversation may be prosecuted as separate offenses. So may the
receipt of commissions, gifts, or kickbacks by higher officials in connection with government contracts.
The four other methods or schemes mentioned in the law may be the objects of separate penal statutes.
When the law creates a new crime of plunder through a combination or series of overt or criminal acts,
the courts have to supply missing elements if conviction is to be achieved.
Bribery is punished as plunder under the law only when there is a combination or series of criminal acts.
But when do certain acts constitute a combination or series? Does the Plunder law provide that two or
three acts of one crime of bribery constitute a combination or series which qualify bribery into plunder?
Or does bribery have to be conjoined with the separate offense of malversation to become a
combination? Or with malversation and fraudulent conveyance or disposition of public assets or one of
the other means or schemes before it becomes a series?
I find it difficult to accept the wide discretion given to the prosecution by the Plunder Law. An elective
official who is a political threat may be charged for plunder as one single offense punishable by death
while one in the good graces of the powers-that-be is charged only under the Revised Penal Code.
The confusion generated by a vague law is exemplified in the informations filed against petitioner in this
case. Petitioner was charged with eight crimes, namely: [1] plunder; [2] violation of Section 3 (e) of R.A.
3019; [3] violation of Section 3 (a) of R.A. 3019; [4] another violation of Section 3 (e) of R.A. 3019; [5]
violation of Section 3 (c) of R.A. 3019; [6] violation of Section 7 (d) of R.A. 6713; [7] perjury; [8] illegal use
of alias.
Only twelve days later, the prosecution withdrew five (5) of the informations which it consolidated into
only one offense of plunder. The prosecution was not clear about the steps to take in instances where the
words "combination" or "series" may or may not apply. It could not understand the coverage of the law
as acts repetitive of the same offense or acts constituting one crime lumped up with other crimes or both
criminal and non-criminal acts punished as one new offense of plunder.
In the following exchange during the deliberations on Senate Bill No. 733, Senators Neptali Gonzales and
Wigberto Tanada voiced serious doubts on the constitutionality of the definition of plunder, thus:
Senator Gonzales:
To commit the offense of plunder, as defined in this act, and while constituting a single offense, it must
consist of a series of overt or criminal acts, such as bribery, extortion, malversation of public funds,
swindling, falsification of public documents, coercion, theft, fraud, and illegal exaction and graft or
corrupt practices and like offenses. Now, Mr. President, I think this provision, by itself will be vague. I am
afraid that it may be faulted for being violative of the due process clause and the right to be informed
62
of the nature and cause of accusation of an accused. Because what is meant by "series of overt or
criminal acts?" I mean, would 2, 4, or 5 constitute a series? During the period of amendments, can we
establish a minimum of overt acts like, for example, robbery in band? The law defines what is robbery in
band by the number of participants therein. In this particular case, probably, we can statutorily provide
for the definition of "series" so that two, for example, would that already be a series? Or, three, what
would be the basis for such determination?
Senator Tanada:
I think, Mr. President, that would be called for, this being a penal legislation, we should be very clear as
to what it encompasses; otherwise, we may contravene the constitutional provision on the right of
accused to due process. (Emphasis ours)22
The foregoing concerns to statutorily provide for the definition of "series" or "combination" have,
however, not been addressed and the terms were left undefined. The law, as presently crafted, does not
specify whether a "series" means two, three, four or even more of the overt or criminal acts listed in
Section 1 (d) of R.A. 7080.
Even more difficult to accept is when the trial court has to supply the missing elements, in effect taking
over corrective or punitive legislation from Congress. The attempts of the Sandiganbayan in the
questioned Resolution do not clarify. They instead serve to confuse and increase the ambiguity even
more.
The Sandiganbayan interprets the words "combination" and "series" of overt or criminal acts through
terms found in American decisions like "pattern," "conspiracy," "over-all unlawful scheme," or "general
plan of action or method."
The above definitions are not found in the Plunder Law. The use of such phrases as "over-all scheme" or
"general plan" indicates that the Sandiganbayan is expanding the coverage of the law through the use of
ambiguous phrases capable of dual or multiple applications. When do two or three acts of the same
offense of malversation constitute a "pattern," "a general plan of action," or an "over-all scheme?" Would
one malversation in the first week of a public officer’s tenure and another similar act six (6) years later
become a "combination," a "pattern," or a "general plan of action?"
I agree with petitioner’s concern over the danger that the trial court may allow the specifications of
details in an information to validate a statute inherently void for vagueness. An information cannot rise
higher than the statute upon which it is based. Not even the construction by the Sandiganbayan of a
vague or ambiguous provision can supply the missing ingredients of the Plunder Law.
The right of an accused to be informed of the nature and cause of the accusation against him is most
often exemplified in the care with which a complaint or information should be drafted. However, the
clarity and particularity required of an information should also be present in the law upon which the
charges are based. If the penal law is vague, any particularity in the information will come from the
prosecutor. The prosecution takes over the role of Congress.
The fact that the details of the charges are specified in the Information will not cure the statute of its
constitutional infirmity. If on its face the challenged provision is repugnant to the due process clause,
specification of details of the offense intended to be charged would not serve to validate it.23 In other
words, it is the statute, not the accusation under it, that prescribes the rule to govern conduct and warns
against transgression. No one may be required at peril of life, liberty or property to speculate as to the
meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids. 24
Definiteness is a due process requirement. It is especially important in its application to penal statutes.
Vagueness and unintelligibility will invariably lead to arbitrary government action. The purpose of the due
process clause is to exclude everything that is arbitrary and capricious affecting the rights of the citizen. 25
Congress, in exercising its power to declare what acts constitute a crime, must inform the citizen with
reasonable precision what acts it intends to prohibit so that he may have a certain understandable rule of
conduct and know what acts it is his duty to avoid.26
The questioned statutes were enacted purportedly in the interest of justice, public peace and order, and
the rule of law. These purposes are not served by R.A. Nos. 7080 and 7659. These statutes allow the
prosecutors and the courts arbitrary and too broad discretionary powers in their enforcement. Fair, equal
and impartial justice would be denied.
For all the foregoing reasons, I vote to grant the petition and nullify the Plunder Law for being
unconstitutional.
MENDOZA, J., concurring in the judgment:
Before I explain my vote, I think it necessary to restate the basic facts.
Petitioner Joseph Ejercito Estrada was President of the Philippines until January 20, 2001 when he was
forced to vacate the presidency by people power and then Vice President Gloria Macapagal-Arroyo
succeeded him in office.1 He was charged, in eight cases filed with the Sandiganbayan, with various
offenses committed while in office, among them plunder, for allegedly having amassed ill-gotten wealth
in the amount of P4.1 billion, more or less. He moved to quash the information for plunder on the ground
that R.A. No. 7080, otherwise called the Anti-Plunder Law, is unconstitutional and that the information
charges more than one offense.
In its resolution dated July 9, 2001, the Sandiganbayan denied petitioner’s motion, along with those filed
by his co-accused, Edward Serapio, and his son, Jose "Jinggoy" Estrada. Petitioner brought this petition
for certiorari and prohibition under Rule 65 to set aside the Sandiganbayan’s resolution principally on the
ground that the Anti-Plunder Law is void for being vague and overbroad. We gave due course to the
petition and required respondents to file comments and later heard the parties in oral arguments on
September 18, 2001 and on their memoranda filed on September 28, 2001 to consider the constitutional
claims of petitioner.
I. THE ANTI-PLUNDER LAW
The Anti-Plunder Law (R.A. No. 7080) was enacted by Congress on July 12, 1991 pursuant to the
constitutional mandate that "the State shall maintain honesty and integrity in the public service and take
positive and effective measures against graft and corruption." 2 Section 2 of the statute provides:
Definition of the Crime of Plunder; Penalties. ¾ Any public officer who, by himself or in connivance with
members of his family, relatives by affinity or consanguinity, business associates, subordinates or other
persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or
criminal acts as described in Section 1(d) hereof in the aggregate amount or total value of at least Fifty
million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion
perpetua to death. Any person who participated with the said public officer in the commission of an
offense contributing to the crime of plunder shall likewise be punished for such offense. In the imposition
of penalties, the degree of participation and the attendance of mitigating and extenuating circumstances,
as provided by the Revised Penal Code, shall be considered by the court. The court shall declare any and
all ill-gotten wealth and their interests and other incomes and assets including the properties and shares
of stocks derived from the deposit or investment thereof forfeited in favor of the State. (As amended by
Sec. 12, R.A. No. 7659).
The term "ill-gotten wealth" is defined in §1(d) as follows:
"Ill-gotten wealth," means any asset, property, business enterprise or material possession of any person
within the purview of Section Two (2) hereof, acquired by him directly or indirectly through dummies,
nominees, agents, subordinates and/or business associates by any combination or series of the following
means or similar schemes:
1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on
the public treasury.
2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any
other form of pecuniary benefit from any person and/or entity in connection with any
government contract or project or by reason of the office or position of the public officer
concerned;
3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National
Government or any of its subdivisions, agencies or instrumentalities or government-owned or
controlled corporations and their subsidiaries.
4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any
other form of interest or participation including the promise of future employment in any
business enterprise or undertaking;
5) By establishing agricultural, industrial or commercial monopolies or other combinations
and/or implementation of decrees and orders intended to benefit particular persons or
special interests; or
6) By taking undue advantage of official position, authority, relationship, connection or
influence to unjustly enrich himself or themselves at the expense and to the damage and
prejudice of the Filipino people and the Republic of the Philippines.
Section 4 of the said law states:
63
Rule of Evidence. ¾ For purposes of establishing the crime of plunder, it shall not be necessary to prove
each and every criminal act done by the accused in furtherance of the scheme or conspiracy to amass,
accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a
pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy.
II. ANTI-PLUNDER LAW NOT TO BE JUDGED
"ON ITS FACE"
The amended information against petitioner charges violations of §2, in relation to §1(d)(1)(2), of the
statute. It reads:
AMENDED INFORMATION
The undersigned Ombudsman Prosecutor and OIC-Director, EPIB, Office of the Ombudsman, hereby
accuses former President of the Republic of the Philippines, Joseph Ejercito Estrada a.k.a "Asiong
Salonga" and a.k.a "Jose Velarde," together with Jose "Jinggoy" Estrada, Charlie "Atong" Ang, Edward
Serapio, Yolanda T. Ricaforte, Alma Alfaro, John Doe a.k.a. Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy,
Jane Doe a.k.a. Delia Rajas, and John Does & Jane Does, of the crime of plunder, defined and penalized
under R.A. No. 7080, as amended by Sec. 12 of R.A. No. 7659, committed as follows:
That during the period from June, 1998 to January, 2001, in the Philippines, and within the jurisdiction of
this Honorable Court, accused Joseph Ejercito Estrada, then a public officer, being then the President of
the Republic of the Philippines, by himself and/or in connivance/conspiracy with his co-accused, who are
members of his family, relatives by affinity or consanguinity, business associates, subordinates and/or
other persons, by taking undue advantage of his official position, authority, relationship, connection, or
influence, did then and there wilfully, unlawfully and criminally amass, accumulate and acquire by
himself, directly or indirectly, ill-gotten wealth in the aggregate amount or total value of four billion
ninety seven million eight hundred four thousand one hundred seventy three pesos and seventeen
centavos [₱4,097,804,173.17], more or less, thereby unjustly enriching himself or themselves at the
expense and to the damage of the Filipino people and the Republic of the Philippines, through any or a
combination or a series of overt or criminal acts, or similar schemes or means, described as follows:
(a) by receiving or collecting, directly or indirectly, on several instances, money in the
aggregate amount of five hundred forty-five million pesos (₱545,000,000.00), more or less,
from illegal gambling in the form of gift, share, percentage, kickback or any form of pecuniary
benefit, by himself and/or in connivance with co-accused Charlie "Atong" Ang, Jose "Jinggoy"
Estrada, Yolanda T. Ricaforte, Edward Serapio, and John Does and Jane Does, in consideration
of toleration or protection of illegal gambling;
(b) by diverting, receiving, misappropriating, converting or misusing directly or indirectly, for
his or their personal gain and benefit, public funds in the amount of ONE HUNDRED THIRTY
MILLION PESOS [₱130,000,000.00], more or less, representing a portion of the two hundred
million pesos [₱200,000,000.00] tobacco excise tax share allocated for the Province of Ilocos
Sur under R.A. No. 7171, by himself and/or in connivance with co-accused Charlie "Atong"
Ang, Alma Alfaro, John Doe a.k.a. Eleuterio Tan or Eleuterio Ramos Tan or Mr. Uy, and Jane
Doe a.k.a. Delia Rajas, and other John Does and Jane Does;
(c) by directing, ordering and compelling, for his personal gain and benefit, the Government
Service Insurance System (GSIS) to purchase 351,878,000 shares of stocks, more or less, and
the Social Security System (SSS), 329,855,000 shares of stocks, more or less, of the Belle
Corporation in the amount of more or less one billion one hundred two million nine hundred
sixty five thousand six hundred seven pesos and fifty centavos [₱1,102,965,607.50] and more
or less seven hundred forty four million six hundred twelve thousand and four hundred fifty
pesos [₱744,612,450.00], respectively, or a total of more or less one billion eight hundred
forty seven million five hundred seventy eight thousand fifty seven pesos and fifty centavos
[₱1,847,578,057.50]; and by collecting or receiving, directly or indirectly, by himself and/or in
connivance with John Does and Jane Does, commissions or percentages by reason of said
purchases of shares of stock in the amount of one hundred eighty nine million seven hundred
thousand pesos [₱189,700,000.00], more or less, from the Belle Corporation which became
part of the deposit in the Equitable-PCI Bank under the account name "Jose Velarde";
(d) by unjustly enriching himself from commissions, gifts, shares, percentages, kickbacks, or
any form of pecuniary benefits, in connivance with John Does and Jane Does, in the amount of
more or less three billion two hundred thirty three million one hundred four thousand one
hundred seventy three pesos and seventeen centavos [₱3,233,104,173.17] and depositing the
same under his account name "Jose Velarde" at the Equitable-PCI Bank.
CONTRARY TO LAW.
Manila for Quezon City, Philippines, 18 April 2001
But, although this is a prosecution under §2, in relation to §1(d)(1)(2), what we are seeing here is a
wholesale attack on the validity of the entire statute. Petitioner makes little effort to show the alleged
invalidity of the statute as applied to him. His focus is instead on the statute as a whole as he attacks "on
their face" not only §§1(d)(1)(2) of the statute but also its other provisions which deal with plunder
committed by illegal or fraudulent disposition of government assets (§1(d)(3)), acquisition of interest in
business (§1(d)(4)), and establishment of monopolies and combinations or implementation of decrees
intended to benefit particular persons or special interests (§1(d)(5)).
These other provisions of the statute are irrelevant to this case. What relevance do questions regarding
the establishment of monopolies and combinations, or the ownership of stocks in a business enterprise,
or the illegal or fraudulent dispositions of government property have to the criminal prosecution of
petitioner when they are not even mentioned in the amended information filed against him? Why should
it be important to inquire whether the phrase "overt act" in §1(d) and §2 means the same thing as the
phrase "criminal act" as used in the same provisions when the acts imputed to petitioner in the amended
information are criminal acts? Had the provisions of the Revised Penal Code been subjected to this kind
of line-by-line scrutiny whenever a portion thereof was involved in a case, it is doubtful if we would have
the jurisprudence on penal law that we have today. The prosecution of crimes would certainly have been
hampered, if not stultified. We should not even attempt to assume the power we are asked to exercise.
"The delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with
reference to hypothetical cases . . . . In determining the sufficiency of the notice a statute must of
necessity be examined in the light of the conduct with which a defendant is charged." 3
Nonetheless, it is contended that because these provisions are void for being vague and overbroad, the
entire statute, including the part under which petitioner is being prosecuted, is also void. And if the
entire statute is void, there is no law under which he can be prosecuted for plunder. Nullum crimen sine
lege, nullum poena sine lege.
Two justifications are advanced for this facial challenge to the validity of the entire statute. The first is
that the statute comes within the specific prohibitions of the Constitution and, for this reason, it must be
given strict scrutiny and the normal presumption of constitutionality should not be applied to it nor the
usual judicial deference given to the judgment of Congress. 4 The second justification given for the facial
attack on the Anti-Plunder Law is that it is vague and overbroad.5
We find no basis for such claims either in the rulings of this Court or of those of the U.S. Supreme Court,
from which petitioner’s counsel purports to draw for his conclusions. We consider first the claim that the
statute must be subjected to strict scrutiny.
A. Test of Strict Scrutiny Not Applicable to Penal Statutes
Petitioner cites the dictum in Ople v. Torres6 that "when the integrity of a fundamental right is at stake,
this Court will give the challenged law, administrative order, rule or regulation stricter scrutiny" and that
"It will not do for authorities to invoke the presumption of regularity in the performance of official
duties." As will presently be shown, "strict scrutiny," as used in that decision, is not the same thing as the
"strict scrutiny" urged by petitioner. Much less did this Court rule that because of the need to give
"stricter scrutiny" to laws abridging fundamental freedoms, it will not give such laws the presumption of
validity.
Petitioner likewise cites "the most celebrated footnote in [American] constitutional law," i.e., footnote 4
of the opinion in United States v. Carolene Products Co.,7 in which it was stated:
There may be narrower scope for operation of the presumption of constitutionality when legislation
appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten
amendments, which are deemed equally specific when held to be embraced within the Fourteenth.
It is unnecessary to consider now whether legislation which restricts those political processes which can
ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more
exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most
other types of legislation.
Nor need we inquire whether similar considerations enter into the review of statutes directed at
particular religious, or national, or racial minorities: whether prejudice against discrete and insular
64
minorities may be a special condition, which tends seriously to curtail the operation of those political
processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly
more searching judicial inquiry.
Again, it should be noted that what the U.S. Supreme Court said is that "there may be narrower scope for
the operation of the presumption of constitutionality" for legislation which comes within the first ten
amendments to the American Federal Constitution compared to legislation covered by the Fourteenth
Amendment Due Process Clause. The American Court did not say that such legislation is not to be
presumed constitutional, much less that it is presumptively invalid, but only that a "narrower scope" will
be given for the presumption of constitutionality in respect of such statutes. There is, therefore, no
warrant for petitioner’s contention that "the presumption of constitutionality of a legislative act is
applicable only where the Supreme Court deals with facts regarding ordinary economic affairs, not where
the interpretation of the text of the Constitution is involved."8
What footnote 4 of the Carolene Products case posits is a double standard of judicial review: strict
scrutiny for laws dealing with freedom of the mind or restricting the political process, and deferential or
rational basis standard of review for economic legislation. As Justice (later Chief Justice) Fernando
explained in Malate Hotel and Motel Operators Ass’n v. The City Mayor,9 this simply means 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 what are at the most
rights of property, the permissible scope of regulatory measures is wider."
Hence, strict scrutiny is used today to test the validity of laws dealing with the regulation of speech,
gender, or race and facial challenges are allowed for this purpose. But criminal statutes, like the Anti-
Plunder Law, while subject to strict construction, are not subject to strict scrutiny. The two (i.e., strict
construction and strict scrutiny) are not the same. The rule of strict construction is a rule of legal
hermeneutics which deals with the parsing of statutes to determine the intent of the legislature. On the
other hand, strict scrutiny is a standard of judicial review for determining the quality and the amount of
governmental interest brought to justify the regulation of fundamental freedoms. It is set opposite such
terms as "deferential review" and "intermediate review."
Thus, under deferential review, laws are upheld if they rationally further a legitimate governmental
interest, without courts seriously inquiring into the substantiality of such interest and examining the
alternative means by which the objectives could be achieved. Under intermediate review, the
substantiality of the governmental interest is seriously looked into and the availability of less restrictive
alternatives are considered. Under strict scrutiny, the focus is on the presence of compelling, rather than
substantial, governmental interest and on the absence of less restrictive means for achieving that
interest.10
Considering these degrees of strictness in the review of statutes, how many criminal laws can survive the
test of strict scrutiny to which petitioner proposes to subject them? How many can pass muster if, as
petitioner would have it, such statutes are not to be presumed constitutional? Above all, what will
happen to the State’s ability to deal with the problem of crimes, and, in particular, with the problem of
graft and corruption in government, if criminal laws are to be upheld only if it is shown that there is a
compelling governmental interest for making certain conduct criminal and if there is no other means less
restrictive than that contained in the law for achieving such governmental interest?
B. Vagueness and Overbreadth Doctrines, as Grounds for Facial Challenge,
Not Applicable to Penal Laws
Nor do allegations that the Anti-Plunder Law is vague and overbroad justify a facial review of its validity.
The void-for-vagueness doctrine states that "a statute which either forbids or requires the doing of an act
in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to
its application, violates the first essential of due process of law."11 The overbreadth doctrine, on the other
hand, decrees that "a governmental purpose may not be achieved by means which sweep unnecessarily
broadly and thereby invade the area of protected freedoms."12
A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of
possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe
speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a
single prosecution, the transcendent value to all society of constitutionally protected expression is
deemed to justify allowing attacks on overly broad statutes with no requirement that the person making
the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow
specificity."13 The possible harm to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others may be deterred and perceived
grievances left to fester because of possible inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting
from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be
prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law
cannot take chances as in the area of free speech.
The overbreadth and vagueness doctrines then have special application only to free speech cases. They
are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief
Justice Rehnquist, "we have not recognized an ‘overbreadth’ doctrine outside the limited context of the
First Amendment."14 In Broadrick v. Oklahoma,15 the Court ruled that "claims of facial overbreadth have
been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words"
and, again, that "overbreadth claims, if entertained at all, have been curtailed when invoked against
ordinary criminal laws that are sought to be applied to protected conduct." For this reason, it has been
held that "a facial challenge to a legislative Act is … the most difficult challenge to mount successfully,
since the challenger must establish that no set of circumstances exists under which the Act would be
valid."16 As for the vagueness doctrine, it is said that a litigant may challenge a statute on its face only if it
is vague in all its possible applications. "A plaintiff who engages in some conduct that is clearly proscribed
cannot complain of the vagueness of the law as applied to the conduct of others." 17
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for
testing "on their faces" statutes in free speech cases or, as they are called in American law, First
Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With
respect to such statute, the established rule is that "one to whom application of a statute is constitutional
will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to
other persons or other situations in which its application might be unconstitutional." 18 As has been
pointed out, "vagueness challenges in the First Amendment context, like overbreadth challenges typically
produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated
[only] ‘as applied’ to a particular defendant."19 Consequently, there is no basis for petitioner’s claim that
this Court review the Anti-Plunder Law on its face and in its entirety.
C. Anti-Plunder Law Should be Construed "As Applied"
Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that
they might be applied to parties not before the Court whose activities are constitutionally protected.20 It
constitutes a departure from the case and controversy requirement of the Constitution and permits
decisions to be made without concrete factual settings and in sterile abstract contexts. 21 But, as the U.S.
Supreme Court pointed out in Younger v. Harris:22
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these
deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact on the legislative process of the
relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of
detailed statutes,...ordinarily results in a kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be decided.
This is the reason "on its face" invalidation of statutes has been described as "manifestly strong
medicine," to be employed "sparingly and only as a last resort,"23 and is generally disfavored.24 In
determining the constitutionality of a statute, therefore, its provisions which are alleged to have been
violated in a case must be examined in the light of the conduct with which the defendant is charged. 25
This brings me to the question whether, as applied, §2, in relation to §1(d)(1)(2), of the Anti-Plunder Law
is void on the ground of vagueness and overbreadth.
III. ANTI-PLUNDER LAW NEITHER VAGUE NOR OVERBROAD
As earlier noted, the case against petitioner Joseph Ejercito Estrada in the Sandiganbayan is for violation
of §2, in relation to §1(d)(1)(2), of the Anti-Plunder Law, which, so far as pertinent, provide:
SEC. 2. Definition of the Crime of Plunder; Penalties. ¾ Any public officer who, by himself or in connivance
with members of his family, relatives by affinity or consanguinity, business associates, subordinates or
other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of
overt or criminal acts as described in Section 1(d) hereof in the aggregate amount or total value of at
65
least Fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by
reclusion perpetua to death....
SEC. 1. Definition of Terms. ¾ ...
(d) "Ill-gotten wealth," means any asset, property, business enterprise or material possession of any
person within the purview of Section Two (2) hereof, acquired by him directly or indirectly through
dummies, nominees, agents, subordinates and/or business associates by any combination or series of the
following means or similar schemes:
1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on
the public treasury.
2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any
other form of pecuniary benefit from any person and/or entity in connection with any
government contract or project or by reason of the office or position of the public officer
concerned;
The charge is that in violation of these provisions, during the period June 1998 to January 2001,
petitioner, then the President of the Philippines, willfully, unlawfully, and criminally amassed wealth in
the total amount of P4,097,804,173.17, more or less, through "a combination or series of overt or
criminal acts," to wit: (1) by receiving or collecting the total amount of P545,000,000.00, more or less,
from illegal gambling by himself and/or in connivance with his co-accused named therein, in exchange for
protection of illegal gambling; (2) by misappropriating, converting, or misusing, by himself or in
connivance with his co-accused named therein, public funds amounting to P130,000,000.00, more or
less, representing a portion of the share of the Province of Ilocos Sur in the tobacco excise tax; (3) by
ordering the GSIS and the SSS to buy shares of stocks of the Belle Corp., worth P1,102,965,607.50 and
P744,612,450.00 respectively, or the total amount of P1,847,578,057.50, for which he received as
commission the amount of P189,700,000.00, more or less, from Belle Corp.; (4) by unjustly enriching
himself from commissions, gifts, shares, percentages, and kickbacks in the amount of P3,233,104,173.17,
which he deposited in the Equitable-PCI Bank under the name of "Jose Velarde."
Anyone reading the law in relation to this charge cannot possibly be mistaken as to what petitioner is
accused of in Criminal Case No. 26558 of the Sandiganbayan. But, repeatedly, petitioner complains that
the law is vague and deprives him of due process. He invokes the ruling in Connally v. General Constr.
Co.26 that "a statute which either forbids or requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning and differ as to its application, violates the
first essential of due process of law." He does this by questioning not only §2, in relation to §1(d)(1)(2), as
applied to him, but also other provisions of the Anti-Plunder Law not involved in this case. In 55 out of 84
pages of discussion in his Memorandum, petitioner tries to show why on their face these provisions are
vague and overbroad by asking questions regarding the meaning of some words and phrases in the
statute, to wit:
1. Whether "series" means two, three, or four overt or criminal acts listed in §1(d) in view of
the alleged divergence of interpretation given to this word by the Ombudsman, the Solicitor
General, and the Sandiganbayan, and whether the acts in a series should be directly related to
each other;
2. Whether "combination" includes two or more acts or at least two of the "means or similar
schemes" mentioned in §1(d);
3. Whether "pattern" as used in §1(d) must be related to the word "pattern" in §4 which
requires that it be "indicative of an overall unlawful scheme or conspiracy";
4. Whether "overt" means the same thing as "criminal";
5. Whether "misuse of public funds" is the same as "illegal use of public property or technical
malversation";
6. Whether "raids on the public treasury" refers to raids on the National Treasury or the
treasury of a province or municipality;
7. Whether the receipt or acceptance of a gift, commission, kickback, or pecuniary benefits in
connection with a government contract or by reason of his office, as used in §1(d)(2), is the
same as bribery in the Revised Penal Code or those which are considered corrupt practices of
public officers;
8. Whether "illegal or fraudulent conveyance or disposition of assets belonging to the National
Government," as used in §1(d)(3), refers to technical malversation or illegal use of public
funds or property in the Revised Penal Code;
9. Whether mere ownership of stocks in a private corporation, such as a family firm engaged
in fishing, is prohibited under §1(d)(4);
10. Whether the phrase "monopolies or other combinations in restraint of trade" in §1(d)(5)
means the same thing as "monopolies and combinations in restraint of trade" in the Revised
Penal Code because the latter contemplates monopolies and combinations established by any
person, not necessarily a public officer; and
11. Whether under §1(d)(5) it is the public officer who intends to confer benefit on a
particular person by implementing a decree or it is the decree that is intended to benefit the
particular person and the public officer simply implements it.
Many more questions of this tenor are asked in the memorandum of petitioner27 as well as in the dissent
of MR. JUSTICE KAPUNAN. Not only are they irrelevant to this case, as already pointed out. It is also
evident from their examination that what they present are simply questions of statutory construction to
be resolved on a case-to-case basis. Consider, for example, the following words and phrases in §1(d) and
§2:
A. "Combination or series of overt or criminal acts"
Petitioner contends that the phrase "combination or series of overt, or criminal acts" in §1(d) and §2
should state how many acts are needed in order to have a "combination" or a "series." It is not really
required that this be specified. Petitioner, as well as MR. JUSTICE KAPUNAN, cites the following remarks
of Senators Gonzales and Tañada during the discussion of S. No. 733 in the Senate:
SENATOR GONZALES. To commit the offense of plunder, as defined in this Act while constituting a single
offense, it must consist of a series of overt or criminal acts, such as bribery, extortion, malversation of
public funds, swindling, falsification of public documents, coercion, theft, fraud, and illegal exaction, and
graft or corrupt practices act and like offenses. Now, Mr. President, I think, this provision, by itself, will be
vague. I am afraid that it might be faulted for being violative of the due process clause and the right to be
informed of the nature and cause of accusation of an accused. Because, what is meant by "series of overt
or criminal acts"? I mean, would 2, 3, 4 or 5 constitute a series? During the period of amendments, can
we establish a minimum of overt acts like, for example, robbery in band? The law defines what is robbery
in band by the number of participants therein.
In this particular case, probably, we can statutorily provide for the definition of "series" so that two, for
example, would that be already a series? Or, three, what would be the basis for such a determination?
SENATOR TAÑADA. I think, Mr. President, that would be called for, this being a penal legislation, we
should be very clear as to what it encompasses; otherwise, we may contravene the constitutional
provision on the right of the accused to due process.28
But, as the later discussion in the Senate shows, the senators in the end reached a consensus as to the
meaning of the phrase so that an enumeration of the number of acts needed was no longer proposed.
Thus, the record shows:
SENATOR MACEDA. In line with our interpellations that sometimes "one" or maybe even "two" acts may
already result in such a big amount, on line 25, would the Sponsor consider deleting the words "a series
of overt or." To read, therefore: "or conspiracy COMMITTED by criminal acts such." Remove the idea of
necessitating "a series." Anyway, the criminal acts are in the plural.
SENATOR TAÑADA. That would mean a combination of two or more of the acts mentioned in this.
THE PRESIDENT. Probably, two or more would be . . .
SENATOR MACEDA. Yes, because "a series" implies several or many; two or more.
SENATOR TAÑADA: Accepted, Mr. President.
....
THE PRESIDENT: If there is only one, then he has to be prosecuted under the particular crime. But when
we say "acts of plunder" there should be, at least, two or more.
SENATOR ROMULO: In other words, that is already covered by existing laws, Mr. President.29
Indeed, the record shows that no amendment to S. No. 733 was proposed to this effect. To the contrary,
Senators Gonzales and Tañada voted in favor of the bill on its third and final reading on July 25, 1989. The
ordinary meaning of the term "combination" as the "union of two things or acts" was adopted, although
in the case of "series," the senators agreed that a repetition of two or more times of the same thing or
66
act would suffice, thus departing from the ordinary meaning of the word as "a group of usually three or
more things or events standing or succeeding in order and having a like relationship to each other," or "a
spatial or temporal succession of persons or things," or "a group that has or admits an order of
arrangement exhibiting progression."30
In the Bicameral Conference Committee on Justice meeting held on May 7, 1991, the same meanings
were given to the words "combination" and "series." Representative Garcia explained that a combination
is composed of two or more of the overt or criminal acts enumerated in §1(d), while a series is a
repetition of any of the same overt or criminal acts. Thus:
REP. ISIDRO: I am just intrigued again by our definition of plunder. We say, THROUGH A COMBINATION OR
SERIES OF OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION ONE HEREOF. Now when we say
combination, we actually mean to say, if there are two or more means, we mean to say that number one
and two or number one and something else are included, how about a series of the same act? For
example, through misappropriation, conversion, misuse, will these be included also?
....
REP. ISIDRO: When we say combination, it seems that ¾
THE CHAIRMAN (REP. GARCIA): Two.
REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not twice of one
enumeration.
THE CHAIRMAN (REP. GARCIA): No, no, not twice.
REP. ISIDRO: Not twice?
THE CHAIRMAN (REP. GARCIA): Yes, combination is not twice ¾ but combination, two acts.
REP. ISIDRO: So in other words, that’s it. When we say combination, we mean, two different acts. It can
not be a repetition of the same act.
THE CHAIRMAN (REP. GARCIA): That be referred to series. Yeah.
REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.
THE CHAIRMAN (REP. GARCIA): A series.
REP. ISIDRO: That’s not [a] series. It’s a combination. Because when we say combination or series, we
seem to say that two or more, ‘di ba?
THE CHAIRMAN (REP. GARCIA): Yes, this distinguishes it, really, from ordinary crimes. That is why, I said,
that is a very good suggestion because if it is only one act, it may fall under ordinary crime but we have
here a combination or series of overt or criminal acts. So. . .
....
REP. ISIDRO: When you say "combination", two different?
THE CHAIRMAN (REP. GARCIA): Yes.
THE CHAIRMAN (SEN. TAÑADA): Two different. . . .
REP. ISIDRO: Two different acts.
THE CHAIRMAN (REP. GARCIA): For example, ha. . .
REP. ISIDRO: Now a series, meaning, repetition. . .31
Thus, resort to the deliberations in Congress will readily reveal that the word "combination" includes at
least two different overt or criminal acts listed in R.A. No. 7080, such as misappropriation (§1(d)(1)) and
taking undue advantage of official position (§1(d)(6)). On the other hand, "series" is used when the
offender commits the same overt or criminal act more than once. There is no plunder if only one act is
proven, even if the ill-gotten wealth acquired thereby amounts to or exceeds the figure fixed by the law
for the offense (now P50,000,000.00). The overt or criminal acts need not be joined or separated in space
or time, since the law does not make such a qualification. It is enough that the prosecution proves that a
public officer, by himself or in connivance with others, amasses wealth amounting to at least P50 million
by committing two or more overt or criminal acts.
Petitioner also contends that the phrase "series of acts or transactions" is the subject of conflicting
decisions of various Circuit Courts of Appeals in the United Sates. It turns out that the decisions
concerned a phrase in Rule 8(b) of the Federal Rules of Criminal Procedure which provides:
(b) Joinder of Defendants: Two or more defendants may be charged in the same indictment or
information if they are alleged to have participated in the same act or transaction or in the same series of
acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more
counts together or separately and all of the defendants need not be charged on each count. (Emphasis
added)
The fact that there is a conflict in the rulings of the various courts does not mean that Rule 8(b) is void for
being vague but only that the U.S. Supreme Court should step in, for one of its essential functions is to
assure the uniform interpretation of federal laws.
We have a similar provision in Rule 3, §6 of the 1997 Code of Civil Procedure. It reads:
SEC. 6. Permissive joinder of parties. ¾ All persons in whom or against whom any right to relief in respect
to or arising out of the same transaction or series of transactions is alleged to exist, whether jointly,
severally, or in the alternative, may, except as otherwise provided in these Rules, join as plaintiffs or be
joined as defendants in one complaint, where any question of law or fact common to all such plaintiffs or
to all such defendants may arise in the action; but the court may make such orders as may be just to
prevent any plaintiff or defendant from being embarrassed or put to expense in connection with any
proceedings in which he may have no interest. (Emphasis added)
This provision has been in our Rules of Court since 1940 but it has never been thought of as vague. It will
not do, therefore, to cite the conflict of opinions in the United States as evidence of the vagueness of the
phrase when we do not have any conflict in this country.
B. "Pattern of overt or criminal acts"
Petitioner contends that it is not enough that there be at least two acts to constitute either a
combination or series because §4 also mentions "a pattern of overt or criminal acts indicative of the
overall scheme or conspiracy," and "pattern" means "an arrangement or order of things or activity."
A "pattern of overt or criminal acts" is required in §4 to prove "an unlawful scheme or conspiracy." In
such a case, it is not necessary to prove each and every criminal act done in furtherance of the scheme or
conspiracy so long as those proven show a pattern indicating the scheme or conspiracy. In other words,
when conspiracy is charged, there must be more than a combination or series of two or more acts. There
must be several acts showing a pattern which is "indicative of the overall scheme or conspiracy." As
Senate President Salonga explained, if there are 150 constitutive crimes charged, it is not necessary to
prove beyond reasonable doubt all of them. If a pattern can be shown by proving, for example, 10
criminal acts, then that would be sufficient to secure conviction.32
The State is thereby enabled by this device to deal with several acts constituting separate crimes as just
one crime of plunder by allowing their prosecution by means of a single information because there is a
common purpose for committing them, namely, that of "amassing, accumulating or acquiring wealth
through such overt or criminal acts." The pattern is the organizing principle that defines what otherwise
would be discreet criminal acts into the single crime of plunder.
As thus applied to petitioner, the Anti-Plunder Law presents only problems of statutory construction, not
vagueness or overbreadth. In Primicias v. Fugoso,33 an ordinance of the City of Manila, prohibiting the
holding of parades and assemblies in streets and public places unless a permit was first secured from the
city mayor and penalizing its violation, was construed to mean that it gave the city mayor only the power
to specify the streets and public places which can be used for the purpose but not the power to ban
absolutely the use of such places. A constitutional doubt was thus resolved through a limiting
construction given to the ordinance.
Nor is the alleged difference of opinion among the Ombudsman, the Solicitor General, and the
Sandiganbayan as to the number of acts or crimes needed to constitute plunder proof of the vagueness
of the statute and, therefore, a ground for its invalidation. For sometime it was thought that under Art.
134 of the Revised Penal Code convictions can be had for the complex crime of rebellion with murder,
arson, and other common crimes. The question was finally resolved in 1956 when this Court held that
there is no such complex crime because the common crimes were absorbed in rebellion. 34 The point is
that Art. 134 gave rise to a difference of opinion that nearly split the legal profession at the time, but no
one thought Art. 134 to be vague and, therefore, void.
Where, therefore, the ambiguity is not latent and the legislative intention is discoverable with the aid of
the canons of construction, the void for vagueness doctrine has no application.
In Connally v. General Constr. Co.35 the test of vagueness was formulated as follows:
[A] statute which either forbids or requires the doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ as to its application, violates the first
essential of due process of law.
Holmes’s test was that of the viewpoint of the bad man. In The Path of the Law, Holmes said:
67
If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the
material consequences which such knowledge enables him to predict, not as a good one, who finds his
reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.36
Whether from the point of view of a man of common intelligence or from that of a bad man, there can
be no mistaking the meaning of the Anti-Plunder Law as applied to petitioner.
IV. PLUNDER A COMPLEX CRIME REQUIRING PROOF OF MENS REA
Petitioner argues that, in enacting the statute in question, Congress eliminated the element of mens rea,
or the scienter, thus reducing the burden of evidence required for proving the crimes which are mala in
se.37
There are two points raised in this contention. First is the question whether the crime of plunder is a
malum in se or a malum prohibitum. For if it is a malum prohibitum, as the Ombudsman and the Solicitor
General say it is,38 then there is really a constitutional problem because the predicate crimes are mainly
mala in se.
A. Plunder A Malum In Se Requiring Proof of Mens Rea
Plunder is a malum in se, requiring proof of criminal intent. Precisely because the constitutive crimes are
mala in se the element of mens rea must be proven in a prosecution for plunder. It is noteworthy that the
amended information alleges that the crime of plunder was committed "willfully, unlawfully and
criminally." It thus alleges guilty knowledge on the part of petitioner.
In support of his contention that the statute eliminates the requirement of mens rea and that is the
reason he claims the statute is void, petitioner cites the following remarks of Senator Tañada made
during the deliberation on S. No. 733:
SENATOR TAÑADA. . . . And the evidence that will be required to convict him would not be evidence for
each and every individual criminal act but only evidence sufficient to establish the conspiracy or scheme
to commit this crime of plunder.39
However, Senator Tañada was discussing §4 as shown by the succeeding portion of the transcript quoted
by petitioner:
SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is contained in Section 4, Rule of
Evidence, which, in the Gentleman’s view, would provide for a speedier and faster process of attending to
this kind of cases?
SENATOR TAÑADA. Yes, Mr. President . . .40
Señator Tañada was only saying that where the charge is conspiracy to commit plunder, the prosecution
need not prove each and every criminal act done to further the scheme or conspiracy, it being enough if
it proves beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful
scheme or conspiracy. As far as the acts constituting the pattern are concerned, however, the elements of
the crime must be proved and the requisite mens rea must be shown.
Indeed, §2 provides that ¾
Any person who participated with the said public officer in the commission of an offense contributing to
the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the
degree of participation and the attendance of mitigating and extenuating circumstances, as provided by
the Revised Penal Code, shall be considered by the court.
The application of mitigating and extenuating circumstances in the Revised Penal Code to prosecutions
under the Anti-Plunder Law indicates quite clearly that mens rea is an element of plunder since the
degree of responsibility of the offender is determined by his criminal intent. It is true that §2 refers to
"any person who participates with the said public officers in the commission of an offense contributing to
the crime of plunder." There is no reason to believe, however, that it does not apply as well to the public
officer as principal in the crime. As Justice Holmes said: "We agree to all the generalities about not
supplying criminal laws with what they omit, but there is no canon against using common sense in
construing laws as saying what they obviously mean."41
Finally, any doubt as to whether the crime of plunder is a malum in se must be deemed to have been
resolved in the affirmative by the decision of Congress in 1993 to include it among the heinous crimes
punishable by reclusion perpetua to death. Other heinous crimes are punished with death as a straight
penalty in R.A. No. 7659. Referring to these groups of heinous crimes, this Court held in People v.
Echagaray:42
The evil of a crime may take various forms. There are crimes that are, by their very nature, despicable,
either because life was callously taken or the victim is treated like an animal and utterly dehumanized as
to completely disrupt the normal course of his or her growth as a human being. . . . Seen in this light, the
capital crimes of kidnapping and serious illegal detention for ransom resulting in the death of the victim
or the victim is raped, tortured, or subjected to dehumanizing acts; destructive arson resulting in death;
and drug offenses involving minors or resulting in the death of the victim in the case of other crimes; as
well as murder, rape, parricide, infanticide, kidnapping and serious illegal detention, where the victim is
detained for more than three days or serious physical injuries were inflicted on the victim or threats to
kill him were made or the victim is a minor, robbery with homicide, rape or intentional mutilation,
destructive arson, and carnapping where the owner, driver or occupant of the carnapped vehicle is killed
or raped, which are penalized by reclusion perpetua to death, are clearly heinous by their very nature.
There are crimes, however, in which the abomination lies in the significance and implications of the
subject criminal acts in the scheme of the larger socio-political and economic context in which the state
finds itself to be struggling to develop and provide for its poor and underprivileged masses. Reeling from
decades of corrupt tyrannical rule that bankrupted the government and impoverished the population,
the Philippine Government must muster the political will to dismantle the culture of corruption,
dishonesty, greed and syndicated criminality that so deeply entrenched itself in the structures of society
and the psyche of the populace. [With the government] terribly lacking the money to provide even the
most basic services to its people, any form of misappropriation or misapplication of government funds
translates to an actual threat to the very existence of government, and in turn, the very survival of the
people it governs over. Viewed in this context, no less heinous are the effects and repercussions of crimes
like qualified bribery, destructive arson resulting in death, and drug offenses involving government
officials, employees or officers, that their perpetrators must not be allowed to cause further destruction
and damage to society.
The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is a malum in
se. For when the acts punished are inherently immoral or inherently wrong, they are mala in se43 and it
does not matter that such acts are punished in a special law, especially since in the case of plunder the
predicate crimes are mainly mala in se. Indeed, it would be absurd to treat prosecutions for plunder as
though they are mere prosecutions for violations of the Bouncing Check Law (B.P. Blg. 22) or of an
ordinance against jaywalking, without regard to the inherent wrongness of the acts.
B. The Penalty for Plunder
The second question is whether under the statute the prosecution is relieved of the duty of proving
beyond reasonable doubt the guilt of the defendant. It is contended that, in enacting the Anti-Plunder
Law, Congress simply combined several existing crimes into a single one but the penalty which it provided
for the commission of the crime is grossly disproportionate to the crimes combined while the quantum of
proof required to prove each predicate crime is greatly reduced.
We have already explained why, contrary to petitioner’s contention, the quantum of proof required to
prove the predicate crimes in plunder is the same as that required were they separately prosecuted. We,
therefore, limit this discussion to petitioner’s claim that the penalty provided in the Anti-Plunder Law is
grossly disproportionate to the penalties imposed for the predicate crimes. Petitioner cites the following
examples:
For example, please consider the following ‘combination’ or ‘series’ of overt or criminal acts (assuming
the P50 M minimum has been acquired) in light of the penalties laid down in the Penal Code:
a. One act of indirect bribery (penalized under Art. 211 of the Revised Penal Code with prision
correccional in its medium and maximum periods),
– combined with –
one act of fraud against the public treasury (penalized under Art. 213 of the Revised Penal Code with
prision correccional in its medium period to prision mayor in its minimum period,
- equals -
plunder (punished by reclusion perpetua to death plus forfeiture of assets under R.A. 7080)
b. One act of prohibited transaction (penalized under Art. 215 of the revised Penal Code with prision
correccional in its minimum period or a fine ranging from P200 to P1,000 or both),
– combined with –
one act of establishing a commercial monopoly (penalized under Art. 186 of Revised Penal Code with
prision correccional in its minimum period or a fine ranging from P200 to P6,000, or both),
-equals-
plunder (punished by reclusion perpetua to death, and forfeiture of assets under R.A. 7080.
68
c. One act of possession of prohibited interest by a public officer (penalized with prision correccional in
its minimum period or a fine of P200 to P1,000, or both under Art. 216 of the Revised Penal Code),
– combined with –
one act of combination or conspiracy in restraint of trade (penalized under Art. 186 of the Revised penal
Code with prision correccional in its minimum period, or a fine of P200 to P1,000, or both,
- equals -
plunder, punished by reclusion perpetua to death, and forfeiture of assets)44
But this is also the case whenever other special complex crimes are created out of two or more existing
crimes. For example, robbery with violence against or intimidation of persons under Art. 294, par. 5 of
the Revised Penal Code is punished with prision correccional in its maximum period (4 years, 2 months,
and 1 day) to prision mayor in its medium period (6 years and 1 day to 8 years). Homicide under Art. 249
of the same Code is punished with reclusion temporal (12 years and 1 day to 20 years). But when the two
crimes are committed on the same occasion, the law treats them as a special complex crime of robbery
with homicide and provides the penalty of reclusion perpetua to death for its commission. Again, the
penalty for simple rape under Art. 266-B of the Revised Penal Code is reclusion perpetua, while that for
homicide under Art. 249 it is reclusion temporal (12 years and 1 day to 20 years). Yet, when committed on
the same occasion, the two are treated as one special complex crime of rape with homicide and
punished with a heavier penalty of reclusion perpetua to death. Obviously, the legislature views plunder
as a crime as serious as robbery with homicide or rape with homicide by punishing it with the same
penalty. As the explanatory note accompanying S. No. 733 explains:
Plunder, a term chosen from other equally apt terminologies like kleptocracy and economic treason,
punishes the use of high office for personal enrichment, committed thru a series of acts done not in the
public eye but in stealth and secrecy over a period of time, that may involve so many persons, here and
abroad, and which touch so many states and territorial units. The acts and/or omissions sought to be
penalized do not involve simple cases of malversation of public funds, bribery, extortion, theft and graft
but constitute the plunder of an entire nation resulting in material damage to the national economy. The
above-described crime does not yet exist in Philippine statute books. Thus, the need to come up with a
legislation as a safeguard against the possible recurrence of the depravities of the previous regime and as
a deterrent to those with similar inclination to succumb to the corrupting influences of power.
Many other examples drawn from the Revised Penal Code and from special laws may be cited to show
that, when special complex crimes are created out of existing crimes, the penalty for the new crime is
heavier.
______________________
To recapitulate, had R.A. No. 7080 been a law regulating speech, I would have no hesitation examining it
on its face on the chance that some of its provisions ¾ even though not here before us ¾ are void. For
then the risk that some state interest might be jeopardized, i.e., the interest in the free flow of
information or the prevention of "chill" on the freedom of expression, would trump any marginal interest
in security.
But the Anti-Plunder Law is not a regulation of speech. It is a criminal statute designed to combat graft
and corruption, especially those committed by highly-placed public officials. As conduct and not speech is
its object, the Court cannot take chances by examining other provisions not before it without risking vital
interests of society. Accordingly, such statute must be examined only "as applied" to the defendant and, if
found valid as to him, the statute as a whole should not be declared unconstitutional for overbreadth or
vagueness of its other provisions. Doing so, I come to the following conclusions:
1. That the validity of R.A. No. 7080, otherwise known as the Anti-Plunder Law, cannot be
determined by applying the test of strict scrutiny in free speech cases without disastrous
consequences to the State’s effort to prosecute crimes and that, contrary to petitioner’s
contention, the statute must be presumed to be constitutional;
2. That in determining the constitutionality of the Anti-Plunder Law, its provisions must be
considered in light of the particular acts alleged to have been committed by petitioner;
3. That, as applied to petitioner, the statute is neither vague nor overbroad;
4. That, contrary to the contention of the Ombudsman and the Solicitor General, the crime of
plunder is a malum in se and not a malum prohibitum and the burden of proving each and
every predicate crime is on the prosecution.
For these reasons, I respectfully submit that R.A. No. 7080 is valid and that, therefore, the petition should
be dismissed.
SEPARATE OPINION
(Concurring)
PANGANIBAN, J.:
In his Petition for Certiorari under Rule 65 of the Rules of Court, former President Joseph Ejercito Estrada
seeks the annulment of the Sandiganbayan Resolution dated July 9, 2001, which denied his Motion to
Quash. He further prays to prohibit the anti-graft court from conducting the trial of petitioner in Criminal
Case No. 26558, on the ground that the statute under which he has been charged – the Anti-Plunder Law
or Republic Act (RA) 7080 -- is unconstitutional.
In sum, he submits three main arguments to support his thesis, as follows:
1. "RA 7080 is vague and overbroad on its face and suffers from structural deficiency and
ambiguity."1
2. "RA 7080 reduces the standard of proof necessary for criminal conviction, and dispenses
with proof beyond reasonable doubt of each and every criminal act done in furtherance of the
crime of plunder."2
3. "RA 7080 has been admitted by respondent to be malum prohibita which deprives
petitioner of a basic defense in violation of due process."3
I have read former President Estrada’s Petition, Reply, Memorandum and other pleadings and listened
carefully to his Oral Argument. However, I cannot agree with his thesis, for the following reasons:
(1) RA 7080 is not vague or overbroad. Quite the contrary, it is clear and specific especially on
what it seeks to prohibit and to penalize.
(2) The Anti-Plunder Law does not lessen the degree of proof necessary to convict its violator
-- in this case, petitioner.
(3) Congress has the constitutional power to enact laws that are mala prohibita and, in
exercising such power, does not violate due process of law.
First Issue: "Void for Vagueness" Not Applicable
In the main, petitioner attacks RA 7080 for being allegedly vague and ambiguous, for "wanting in its
essential terms," and for failing to "define what degree of participation means as [it] relates to the person
or persons charged with having participated with a public officer in the commission of plunder." 4
In Dans v. People,5 reiterated recently in Sajul v. Sandiganbayan,6 this Court debunked the "void for
vagueness" challenge to the constitutionality of Section 3(g) of the Anti-Graft Law (RA 3019, as amended)
and laid down the test to determine whether a statute is vague. It has decreed that as long as a penal law
can answer the basic query "What is the violation?," it is constitutional. "Anything beyond this, the
‘hows’ and the ‘whys,’ are evidentiary matters which the law cannot possibly disclose in view of the
uniqueness of every case x x x."
Elements of Plunder
The Anti-Plunder Law more than adequately answers the question "What is the violation?" Indeed, to
answer this question, any law student -- using basic knowledge of criminal law -- will refer to the
elements of the crime, which in this case are plainly and certainly spelled out in a straightforward manner
in Sections 2 and 1(d) thereof. Those elements are:
1. The offender is a public officer acting by himself or in connivance with members of his
family, relatives by affinity or consanguinity, business associates, subordinates or other
persons.
2. The offender amasses, accumulates or acquires ill-gotten wealth.
3. The aggregate amount or total value of the ill-gotten wealth so amassed, accumulated or
acquired is at least fifty million pesos (₱50,000,000).
4. Such ill-gotten wealth -- defined as any asset, property, business enterprise or material
possession of any of the aforesaid persons (the persons within the purview of Section 2, RA
7080) -- has been acquired directly or indirectly through dummies, nominees, agents,
subordinates and/or business associates by any combination or series of the following means
or similar schemes:
(i) through misappropriation, conversion, misuse or malversation of public funds or
raids on the public treasury;
69
 (ii) by receiving, directly or indirectly, any commission, gift, share, percentage,
kickbacks or any other form of pecuniary benefit from any person and/or entity in
connection with any government contract or project or by reason of the office or
position of the public officer concerned;
(iii) by the illegal or fraudulent conveyance or disposition of assets belonging to the
national government or any of its subdivisions, agencies or instrumentalities or
government-owned or controlled corporations and their subsidiaries;
(iv) by obtaining, receiving or accepting directly or indirectly any shares of stock,
equity or any other form of interest or participation including the promise of future
employment in any business enterprise or undertaking;
(v) by establishing agricultural, industrial or commercial monopolies or other
combination and/or implementation of decrees and orders intended to benefit
particular persons or special interests; or
(vi) by taking undue advantage of official position, authority, relationship,
connection or influence to unjustly enrich himself or themselves at the expense
and to the damage and prejudice of the Filipino people and the Republic of the
Philippines.7
Petitioner argues that, notwithstanding the above-detailed statement of the elements of the crime, there
is still vagueness because of the absence of definitions of the terms combination, series and pattern in
the text of the law.
Citing People v. Nazario,8 petitioner adds that "a statute or act may be said to be vague when it lacks
comprehensible standards that men of common intelligence must necessarily guess at its meaning and
differ as to its application."
I say, however, that in that very case cited by petitioner, the Court cautioned that "the act (or law) must
be utterly vague on its face." When it can be "clarified either by a saving clause or by construction," the
law cannot be decreed as invalid. In other words, the absence of statutory definitions of words used in a
statute will not render the law "void for vagueness," if the meanings of such words can be determined
through the judicial function of construction.9
Solution: Simple
Statutory Construction
Indeed, simple statutory construction, not a declaration of unconstitutionality, is the key to the allegedly
vague words of the Anti-Plunder Law. And the most basic rule in statutory construction is to ascertain the
meaning of a term from the legislative proceedings. Verily, in the judicial review of a law’s meaning, the
legislative intent is paramount.10
Pervading the deliberations of the Bicameral Conference Committee on Justice held on May 7, 1991 was
the common understanding of combination as a joining or combining of at least two dissimilar things or
acts, and series as a repetition or recurrence of the same thing at least twice. 11 As a matter of fact, the
same understanding of those terms also prevailed during the Senate deliberations on Senate Bill No. 733
(Plunder) earlier held on June 6, 1989.12 The Records of those deliberations speak for themselves.
It is true that during the deliberations in the Senate, the late Senator Neptali A. Gonzales initially raised
concerns over the alleged vagueness in the use of the terms combination and series. I respectfully
submit, however, that the reliance13 of petitioner on such concerns is misplaced. That portion of the
interpellations, evincing the late senator’s reservations on the matter, had taken place during the session
of June 5, 1989.14 And the clarificatory remarks of Senate President Jovito R. Salonga and Senators
Wigberto Tañada, Alberto Romulo and Ernesto Maceda, which threw light on the matters in doubt,
happened the following day, June 6, 1989.15 In brief, the misgivings voiced by Senator Gonzales as to the
use of the two terms were adequately addressed, answered and disposed of the following day.
Thus, Senate Bill No. 733, defining and penalizing plunder, was passed and approved on third reading on
July 25, 1989, with 19 affirmative votes (including those of Senators Gonzales, Tañada, Maceda, and
petitioner himself) sans any negative vote or abstention. Indeed, some of the sharpest legal minds in the
country voted to approve the bill, even though it was bereft of statutory definitions. Likewise, it would
certainly be inconceivable for Senator Gonzales to have voted for the approval of the Bill had he believed
that it was vague to the point of constitutional infirmity; or at the very least, if he believed that his earlier
reservations or apprehensions were not fully satisfied.
At this juncture, may I call attention to the Record of the Joint Conference Meeting held on May 7,
1991.16 The portion thereof relied upon by petitioner17 features the exchanges involving Representatives
Garcia and Isidro and Senator Tañada on the meanings of the terms combination and series. The quoted
part of the Record would suggest that, somehow, particularly towards the end of the meeting, the
discussion among the legislators seemed to have degenerated into a clutch of unfinished sentences and
unintelligible phrases. Still, I believe that the deliberations did not actually sound the way they were
subsequently transcribed or as they now appear on the Record. Even more reluctant am I to agree with
petitioner that the apparent tenor of the deliberations evinced "a dearth of focus to render precise the
definition of the terms," or that the Committee members themselves were not clear on the meanings of
the terms in question.
Most of us in the legal profession are all too familiar with the vagaries of stenographic note-taking,
especially in courtrooms and legislative halls. Too often, lawyers, parties-litigants and even judges find
themselves at the mercy of stenographers who are unfamiliar with certain legal terms; or who cannot
hear well enough or take notes fast enough; or who simply get confused, particularly when two or more
persons happen to be speaking at the same time. Often, transcripts of stenographic notes have portrayed
lawyers, witnesses, legislators and judges as blithering idiots, spouting utterly nonsensical jargon and
plain inanities in the course of a proceeding. The Record in question is no exception.
Rather than believe that the distinguished lawmakers went about their business uttering senseless half-
sentences to one another, I think that these learned and intelligent legislators of both chambers knew
what they were talking about, spoke their minds, and understood each other well, for the Record itself
does not indicate the contrary. Neither does it show any details or minutiae that would indicate that they
abandoned their earlier common understanding of the terms combination and series.
Specific Number or
Percentage Not Always Necessary
Regrettably, I shall also have to take issue with petitioner’s disquisition to the effect that "when penal
laws enacted by Congress make reference to a term or concept requiring a quantitative definition, these
laws are so crafted as to specifically state the exact number or percentage necessary to constitute the
elements of a crime," followed by a recitation of the minimum number of malefactors mentioned in the
statutory definitions of band, conspiracy, illegal recruitment by syndicate, large-scale illegal recruitment,
organized/syndicated crime group, and swindling by a syndicate. Thus, he insinuates that, because RA
7080 has failed to specify precisely the minimum number of malefactors needed for an offense to be
properly classified as plunder, the law is vague or has somehow failed to meet the standard for penal
laws.
The aforequoted discourse would appear to be incongruous, if not totally misleading. As pointed out
during the Oral Argument on September 18, 2001, the crime of plunder can be committed by a public
officer acting alone. Section 2 of RA 7080 reads as follows: "Definition of the Crime of Plunder; Penalties.
– Any public officer who, by himself or in connivance with x x x." Thus, the insistence on a mathematical
specification or precise quantification is essentially without basis. And lest anyone believe that the Anti-
Plunder Law is unusual in this respect, let me just recall that the RICO law, to which petitioner made
repeated references in his Amended Petition, can likewise be violated by a single individual. 18
Not Oppressive
or Arbitrary
Neither can it be said that RA 7080 is oppressive or arbitrary for imposing a more severe penalty on a
combination or series of the offenses enumerated in Section 1(d) of the law, than would otherwise be
imposed if the said offenses were taken separately. As Mr. Justice Mendoza lucidly pointed out in his
interpellation during the Oral Argument, the Anti-Plunder Law is merely employing a familiar technique
or feature of penal statutes, when it puts together what would otherwise be various combinations of
traditional offenses already proscribed by existing laws and attaching thereto higher or more severe
penalties than those prescribed for the same offenses taken separately.
Here, Mr. Justice Mendoza is referring to special complex crimes like rape with homicide or robbery with
homicide. During the Oral Argument, he asked whether petitioner’s counsel was in fact suggesting that
such special complex crimes -- a very important part of the Revised Penal Code and well-entrenched in
our penal system -- were violative of due process and the constitutional guarantees against cruel and
unusual punishment and should also be struck down. It goes without saying that the legislature is well
70
within its powers to provide higher penalties in view of the grave evils sought to be prevented by RA
7080.
Innocent Acts Not
Penalized by RA 7080
Petitioner insists that innocent acts are in effect criminalized by RA 7080, because it allegedly penalizes
combinations or series of acts coming within the purview of the means or similar schemes enumerated
under items 4 and 5 of Section 1(d) of the law, which reads as follows:
"4. By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other
forms of interest or participation including the promise of future employment in any business enterprise
or undertaking;
"5. By establishing agricultural, industrial or commercial monopolies or other combinations and/or
implementation of decrees and orders intended to benefit particular persons or special interests"
That such contention "deserves scant attention" is an understatement of the extreme sort. The claim of
"innocent acts" is possible only because items 4 and 5 have been taken completely out of context and
read in isolation instead of in relation to the other provisions of the same law, particularly Section 2. The
above-enumerated acts, means or similar schemes must be understood as having reference to or
connection with the acquisition of ill-gotten wealth by a public officer, by himself or in connivance with
others. Those acts are therefore not innocent acts. Neither are those prohibitions new or unfamiliar. The
proscribed acts under item 4, for instance, may to some extent be traced back to some of the
prohibitions in RA 3019 (the Anti-Graft Law). Section 3, the pertinent part of such law, reads as follows:
"SEC. 3. Corrupt practices of public officers. - In addition to acts or omissions of public officers already
penalized by existing law, the following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful:
"(a) x x x x x x x x x
"(b) Directly or indirectly requesting or receiving 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.
"(c) Directly or indirectly requesting or receiving 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, without prejudice to Section Thirteen of this Act.
"(d) 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.
xxx xxx xxx
"(h) Directly or indirectly having 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 interest.
x x x x x x x x x."
On the other hand, the prohibited acts under item 5 have antecedents in the Revised Penal Code’s
interdiction against monopolies and combinations in restraint of trade. Clearly, the acts dealt with in
Items 4 and 5 of Section 1(d) are in no wise the innocent or innocuous deeds that petitioner would have
us mistake them for.
RA 7080 Not Suffering from Overbreadth
In connection with the foregoing discussion, petitioner also charges that RA 7080 suffers from
"overbreadth." I believe petitioner misconstrues the concept. In the very recent case People v. Dela
Piedra,19 this Court held:
"A statute may be said to be overbroad where it operates to inhibit the exercise of individual freedoms
affirmatively guaranteed by the Constitution, such as the freedom of speech or religion. A generally
worded statute, when construed to punish conduct which cannot be constitutionally punished, is
unconstitutionally vague to the extent that it fails to give adequate warning of the boundary between the
constitutionally permissible and the constitutionally impermissible applications of the statute.
"In Blo Umpar Adiong vs. Commission on Elections, for instance, we struck down as void for overbreadth
provisions prohibiting the posting of election propaganda in any place – including private vehicles – other
than in the common poster areas sanctioned by the COMELEC. We held that the challenged provisions
not only deprived the owner of the vehicle the use of his property but also deprived the citizen of his
right to free speech and information. The prohibition in Adiong, therefore, was so broad that it covered
even constitutionally guaranteed rights and, hence, void for overbreadth. In the present case, however,
appellant did not even specify what constitutionally protected freedoms are embraced by the definition
of ‘recruitment and placement’ that would render the same constitutionally overbroad." (Italics supplied)
Similarly, in the instant case, petitioner has not identified which of his constitutionally protected
freedoms, if any, are allegedly being violated by the Anti-Plunder Law. As Mr. Justice Mendoza pointed
out to petitioner’s counsel during the Oral Argument, specious and even frivolous is the contention that
RA 7080 infringes on the constitutional right of petitioner by depriving him of his liberty pending trial and
by paving the way for his possible conviction because, following that line of argument, the entire Revised
Penal Code would be reckoned to be an infringement of constitutional rights.
"Pattern of Overt or Criminal Acts"
Petitioner, in line with his "void for vagueness" attack on RA 7080, faults the statute for failing to provide
a definition of the phrase a pattern of overt or criminal acts indicative of the overall unlawful scheme or
conspiracy used in Section 4 of the law. This definition is crucial since, according to him, such pattern is
an essential element of the crime of plunder.
A plain reading of the law easily debunks this contention. First, contrary to petitioner’s suggestions, such
pattern of overt or criminal acts and so on is not and should not be deemed an essential or substantive
element of the crime of plunder. It is possible to give full force and effect to RA 7080 without applying
Section 4 -- an accused can be charged and convicted under the Anti-Plunder Law without resorting to
that specific provision. After all, the heading and the text of Section 4, which I quote below, leave no
room for doubt that it is not substantive in nature:
"SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to
prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to
amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt a
pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy." (Boldface
supplied)
As Mr. Chief Justice Davide very astutely pointed out during the Oral Argument, Section 2 in relation to
Section 1(d) deals with how the crime of plunder is committed. Hence, these two sections constitute the
substantive elements, whereas Section 4 deals with how the crime is proved and is therefore not
substantive, but merely procedural. It may be disregarded or discarded if found defective or deficient,
without impairing the rest of the statute.
Actually, the root of this problem may be traced to an observation made by Rep. Pablo Garcia, chair of
the House Committee on Justice, that RA 7080 had been patterned after the RICO Law. 20 Petitioner
apparently seized on this statement and on the assertions in H.J. Inc. v. Northwestern Bell21 and other
cases that a pattern of racketeering is a "key requirement" in the RICO Law and a "necessary element" of
violations thereof. He then used these as the springboard for his vagueness attacks on RA 7080. However,
his reliance on the RICO law is essentially misplaced. Respondent Sandiganbayan correctly held that the
said legislation was essentially different from our Anti-Plunder Law, as it pointed out in its Resolution of
July 9, 2001, which I quote:
"Accused Joseph E. Estrada claims that the Anti-Plunder Law does not define ‘pattern of overt or criminal
acts’ indicative of the overall scheme or conspiracy, thereby giving prosecutors and judges unlimited
discretion to determine the nature and extent of evidence that would show ‘pattern.’" (Motion to Quash
dated June 7, 2001, p. 13) The Court disagrees with this contention.
"x x x. According to the sponsors of the Anti-Plunder Law in Congress, the said law is similar to the U.S.
RICO (Deliberations of the House of Representatives Committee on Revision of Law and Justice, May 24,
1990). However, the similarities extend only insofar as both laws penalize with severe penalties the
commission by a single accused or multiple accused of a pattern of overt or criminal acts as one
continuing crime. However, the legislative policies and objectives as well as the nature of the crimes
penalized respectively by the RICO and the Anti-Plunder Law are different." (Boldface and underscoring
supplied)
Indeed, a careful reading of RICO vis-à-vis RA 7080 can lead to no other conclusion than that the crimes
being penalized are completely different in nature and character, and that the legislative objectives and
policies involved are quite dissimilar.
71
In the case of RICO, legislative concern focused on the threat of continued racketeering activity, and that
was why pattern was imbued with such importance. "Congress was concerned in RICO with long-term
criminal conduct,"22 as the following quote indicates:
"RICO’s legislative history reveals Congress’ intent that to prove a pattern of racketeering activity a
plaintiff or prosecutor must show that the racketeering predicates are related, and that they amount to
or pose a threat of continued criminal activity.23
xxx xxx xxx
"What a plaintiff or prosecutor must prove is continuity of racketeering activity, or its threat, simpliciter.
This may be done in a variety of ways, thus making it difficult to formulate in the abstract any general test
for continuity. We can, however, begin to delineate the requirement.
"‘Continuity’ is both a closed and open-ended concept, referring either to a closed period of repeated
conduct, or to past conduct that by its nature projects into the future with a threat of repetition. x x x. It
is, in either case, centrally a temporal concept – and particularly so in the RICO context, where what must
be continuous, RICO’s predicate acts or offenses, and the relationship these predicates must bear one to
another, are distinct requirements. A party alleging a RICO violation may demonstrate continuity over a
closed period by proving a series of related predicates extending over a substantial period of time.
Predicate acts extending over a few weeks or months and threatening no future criminal conduct do not
satisfy this requirement. Congress was concerned in RICO with long-term criminal conduct. Often a RICO
action will be brought before continuity can be established in this way. In such cases, liability depends on
whether the threat of continuity is demonstrated."24 (italics and underscoring supplied)
However, in RA 7080, precisely because of the sheer magnitude of the crimes in question and their
extremely deleterious effects on society, the legislative sentiment of great urgency – the necessity of
immediate deterrence of such crimes -- was incompatible with the RICO concept of "pattern" as
connoting either continuity over a substantial period of time or threat of continuity or repetition. The
legislative intent25 and policy of RA 7080 centered on imposing a heavy penalty in order to achieve a
strong, if not permanent, deterrent effect -- the sooner the better. The following Senate deliberations are
instructive:
"Senator Paterno. Mr. President, [I’m] not too clear yet on the reason for trying to define a crime of
plunder. Could I get some further clarification?
"Senator Tañada. Yes, Mr. President.
"Because of our experience in the former regime, we feel that there is a need for Congress to pass the
legislation which would cover a crime of this magnitude. While it is true, we already have the Anti-Graft
Law. But that does not directly deal with plunder. That covers only the corrupt practices of public officials
as well as their spouses and relatives within the civil degree, and the Anti-Graft law as presently worded
would not adequately or sufficiently address the problems that we experienced during the past regime.
"Senator Paterno. May I try to give the Gentleman, Mr. President, my understanding of the bill?
"Senator Tañada. Yes.
"Senator Paterno. I envision that this bill or this kind of plunder would cover a discovered interconnection
of certain acts, particularly, violations of Anti-Graft and Corrupt Practices Act when, after the different
acts are looked at, a scheme or conspiracy can be detected, such scheme or conspiracy consummated by
the different criminal acts or violations of Anti-Graft and Corrupt Practices Act, such that the scheme or
conspiracy becomes a sin, as a large scheme to defraud the public or rob the public treasury. It is parang
robo and banda. It is considered as that. And, the bill seeks to define or says that P100 million is that level
at which ay talagang sobra na, dapat nang parusahan ng husto. Would it be a correct interpretation or
assessment of the intent of the bill?
"Senator Tañada. Yes, Mr. President. X x x x x.
"Senator Paterno. Would the Author not agree that this crime of plunder should be considered a heinous
crime, Mr. President?
"Senator Tañada. Yes, Mr. President. That is why, the penalty imposed under this bill is life imprisonment,
and permanent disqualification from holding public office.
"Senator Paterno. I would really ask, Mr. President, whether the Author would not consider that this is a
heinous crime which, for compelling reasons, namely to try and dampen the graft and corruption,
Congress should provide the death penalty for the crime of plunder.
"Senator Tañada. I personally would have some problem with that, Mr. President, because I am against
the restoration of death penalty in our criminal code. I would submit that to this Body.
"Senator Paterno. I respect the ministerial attitude and the respect for human life of the author, Mr.
President, but I just feel that graft and corruption is such a large problem in our society that, perhaps, it is
necessary for this Congress to express itself that this crime of plunder is a heinous crime which should be
levied the death penalty, Mr. President."26
Thus, it is clear and unarguable that "pattern," a key requirement or necessary element of RICO, is in no
wise an essential element of RA 7080.
This conclusion is further bolstered by the fact that pattern, in the RICO law context, is nowhere to be
found in the language of RA 7080 or in the deliberations of Congress. Indeed, the legislators were well
aware of the RICO Act; hence, they could have opted to adopt its concepts, terms and definitions and
installed pattern in the RICO sense as an essential element of the crime of plunder, if that were their
intent. At the very least, they would not have relegated the term pattern to a procedural provision such as
Section 4.
Second, to answer petitioner’s contention directly, the Anti-Plunder Law does in fact provide sufficient
basis to get at the meaning of the term pattern as used in Section 4. This meaning is brought out in the
disquisition of Respondent Sandiganbayan in its challenged Resolution, reproduced hereunder:
"The term ‘pattern’ x x x is sufficiently defined in the Anti-Plunder Law, specifically through Section 4 x x
x, read in relation to Section 1(d) and Section 2 of the same law. Firstly, under Section 1(d) x x x, a pattern
consists of at least a combination or a series of overt or criminal acts enumerated in subsections (1) to (6)
of Section 1(d). Secondly, pursuant to Section 2 of the law, the ‘pattern’ of overt or criminal acts is
directed towards a common purpose or goal which is to enable a public officer to amass, accumulate or
acquire ill-gotten wealth; and [t]hirdly, there must either be an ‘overall unlawful scheme’ or ‘conspiracy’
to achieve said common goal. As commonly understood, the term ‘overall unlawful scheme’ indicates ‘a
general plan of action or method’ which the principal accused and public officer and others conniving
with him follow to achieve the aforesaid common goal. In the alternative, if there is no such overall
scheme or where the schemes or methods used by multiple accused vary, the overt or criminal acts must
form part of a conspiracy to attain said common goal.
"Parenthetically, it can be said that the existence of a pattern indicating an overall scheme or a single
conspiracy would serve as the link that will tie the overt or criminal acts into one continuing crime of
plunder. A conspiracy exists when two or more persons come into an agreement concerning the
commission of a felony and decide to commit it. (Art. 8, Revised Penal Code). To use an analogy made by
U.S. courts in connection with RICO violations, a pattern may be likened to a wheel with spokes (the overt
or criminal acts which may be committed by a single or multiple accused), meeting at a common center
(the acquisition or accumulation of ill-gotten wealth by a public officer) and with the rim (the over-all
unlawful scheme or conspiracy) of the wheel enclosing the spokes. In this case, the information charges
only one count of [the] crime of plunder, considering the prosecution’s allegation in the amended
information that the series or combination of overt or criminal acts charged form part of a conspiracy
among all the accused."27
Judiciary Empowered to Construe and Apply the Law
At all events, let me stress that the power to construe law is essentially judicial. To declare what the law
shall be is a legislative power, but to declare what the law is or has been is judicial.28 Statutes enacted by
Congress cannot be expected to spell out with mathematical precision how the law should be interpreted
under any and all given situations. The application of the law will depend on the facts and circumstances
as adduced by evidence which will then be considered, weighed and evaluated by the courts. Indeed, it is
the constitutionally mandated function of the courts to interpret, construe and apply the law as would
give flesh and blood to the true meaning of legislative enactments.
Moreover, a statute should be construed in the light of the objective to be achieved and the evil or
mischief to be suppressed and should be given such construction as will advance the purpose, suppress
the mischief or evil, and secure the benefits intended.29 A law is not a mere composition, but an end to
be achieved; and its general purpose is a more important aid to its meaning than any rule that grammar
may lay down.30 A construction should be rejected if it gives to the language used in a statute a meaning
that does not accomplish the purpose for which the statute was enacted and that tends to defeat the
ends that are sought to be attained by its enactment.31
As can be gleaned from the legislative deliberations, the Plunder Law was enacted to curb the
"despoliation of the National Treasury by some public officials who have held the levers of power" and to
penalize "this predatory act which has reached unprecedented heights and has been developed by its
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practitioners to a high level of sophistication during the past dictatorial regime." Viewed broadly,
"plunder involves not just plain thievery but economic depredation which affects not just private parties
or personal interests but the nation as a whole." Invariably, plunder partakes of the nature of "a crime
against national interest which must be stopped, and if possible, stopped permanently."32
No Patent and Clear Conflict with Constitution
Against the foregoing backdrop, I believe petitioner’s heavy reliance on the void-for-vagueness concept
cannot prevail, considering that such concept, while mentioned in passing in Nazario and other cases,
has yet to find direct application in our jurisdiction. To this date, the Court has not declared any penal law
unconstitutional on the ground of ambiguity.33 On the other hand, the constitutionality of certain penal
statutes has been upheld in several cases, notwithstanding allegations of ambiguity in the provisions of
law. In Caram Resources Corp. v. Contreras34 and People v. Morato,35 the Court upheld the validity of BP
22 (Bouncing Checks Law) and PD 1866 (Illegal Possession of Firearms), respectively, despite
constitutional challenges grounded on alleged ambiguity.
Similarly, the cases cited by petitioner involving U.S. federal court decisions relative to the RICO Law did
not at all arrive at a finding of unconstitutionality of the questioned statute. To repeat, reference to these
U.S. cases is utterly misplaced, considering the substantial differences in the nature, policies and
objectives between the RICO Law and the Anti-Plunder Law. Verily, "the RICO Law does not create a new
type of substantive crime since any acts which are punishable under the RICO Law also are punishable
under existing federal and state statutes."36 Moreover, the main purpose of the RICO Law is "to seek the
eradication of organized crime in the United States."37
On the other hand, the Plunder Law creates an entirely new crime that may consist of both (a) criminal
acts already punished by the Revised Penal Code or special laws and (b) acts that may not be punishable
by previously existing laws. Furthermore, unlike in the RICO Law, the motivation behind the enactment of
the Anti-Plunder Law is "the need to for a penal law that can adequately cope with the nature and
magnitude of the corruption of the previous regime"38 in accordance with the constitutional duty of the
State "to take positive and effective measures against graft and corruption."39
In sum, the law must be proven to be clearly and unequivocally repugnant to the Constitution before this
Court may declare its unconstitutionality. To strike down the law, there must be a clear showing that
what the fundamental law prohibits, the statute allows to be done.40 To justify the nullification of the law,
there must be a clear, unequivocal breach of the Constitution; not a doubtful, argumentative
implication.41 Of some terms in the law which are easily clarified by judicial construction, petitioner has,
at best, managed merely to point out alleged ambiguities. Far from establishing, by clear and
unmistakable terms, any patent and glaring conflict with the Constitution, the constitutional challenge to
the Anti-Plunder law must fail. For just as the accused is entitled to the presumption of innocence in the
absence of proof beyond reasonable doubt, so must a law be accorded the presumption of
constitutionality without the same requisite quantum of proof.
Second Issue:
Quantum of Evidence Not Lowered by RA 7080
I will now tackle petitioner’s impassioned asseverations that the Anti-Plunder Law violates the due
process clause and the constitutional presumption of innocence.
Section 4 of RA 7080 provides that, for purposes of establishing the crime of plunder, it shall not be
necessary to prove each and every criminal act done by the accused in furtherance of the scheme or
conspiracy to amass, accumulate or acquire ill-gotten wealth. This is because it would be sufficient to
establish beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall unlawful
scheme or conspiracy.
Hence, petitioner now concludes that the Anti-Plunder Law "eliminates proof of each and every
component criminal act of plunder by the accused and limits itself to establishing just the pattern of
overt or criminal acts indicative of unlawful scheme or conspiracy." He thus claims that the statute
penalizes the accused on the basis of a proven scheme or conspiracy to commit plunder, without the
necessity of establishing beyond reasonable doubt each and every criminal act done by the accused.
From these premises, he precipitately, albeit inaccurately, concludes that RA 7080 has ipso facto lowered
the quantum of evidence required to secure a conviction under the challenged law. This is clearly
erroneous.
First, petitioner’s allegation as to the meaning and implications of Section 4 can hardly be taken seriously,
because it runs counter to certain basic common sense presumptions that apply to the process of
interpreting statutes: that in the absence of evidence to the contrary, it will be presumed that the
legislature intended to enact a valid, sensible and just law; that the law-making body intended right and
justice to prevail;42 and that the legislature aimed to impart to its enactments such meaning as would
render them operative and effective and prevent persons from eluding or defeating them.
Second, petitioner’s allegation is contradicted by the legislative Records that manifest the real intent
behind Section 4, as well as the true meaning and purpose of the provision therein. This intent is
carefully expressed by the words of Senate President Salonga:
"Senate Pres. Salonga. Is that, if there are let’s say 150 crimes all in all, criminal acts, whether bribery,
misappropriation, malversation, extortion, you need not prove all of those beyond reasonable doubt. If
you can prove by pattern, let’s say 10, but each must be proved beyond reasonable doubt, you do not
have to prove 150 crimes. That’s the meaning of this."43 (italics supplied)
All told, the above explanation is in consonance with what is often perceived to be the reality with
respect to the crime of plunder -- that "the actual extent of the crime may not, in its breadth and
entirety, be discovered, by reason of the ‘stealth and secrecy’ in which it is committed and the
involvement of ‘so many persons here and abroad and [the fact that it] touches so many states and
territorial units.’"44 Hence, establishing a pattern indicative of the overall unlawful scheme becomes
relevant and important.
Proof of Pattern Beyond Reasonable Doubt
Nevertheless, it should be emphasized that the indicative pattern must be proven beyond reasonable
doubt. To my mind, this means that the prosecution’s burden of proving the crime of plunder is, in
actuality, much greater than in an ordinary criminal case. The prosecution, in establishing a pattern of
overt or criminal acts, must necessarily show a combination or series of acts within the purview of
Section 1(d) of the law.
These acts which constitute the combination or series must still be proven beyond reasonable doubt. On
top of that, the prosecution must establish beyond reasonable doubt such pattern of overt or criminal
acts indicative of the overall scheme or conspiracy, as well as all the other elements thereof.
Thus, Respondent Sandiganbayan was correct in its ratiocination on that point:
"The accused misread the import and meaning of the above-quoted provision (Sec. 4). The latter did not
lower the quantum of evidence necessary to prove all the elements of plunder, which still remains proof
beyond reasonable doubt. For a clearer understanding of the import of Section 4 of the Anti-Plunder Law,
quoted hereunder are pertinent portions of the legislative deliberations on the subject:
‘MR. ALBANO. Now, Mr. Speaker, it is also elementary in our criminal law that what is alleged in the
information must be proven beyond reasonable doubt. If we will prove only one act and find him guilty of
the other acts enumerated in the information, does that not work against the right of the accused
especially so if the amount committed, say, by falsification is less than P100 million, but the totality of the
crime committed is P100 million since there is malversation, bribery, falsification of public document,
coercion, theft?
‘MR. GARCIA (P). Mr. Speaker, not everything alleged in the information needs to be proved beyond
reasonable doubt. What is required to be proved beyond reasonable doubt is every element of the crime
charged. For example, Mr. Speaker, there is an enumeration of the things taken by the robber in the
information – three pairs of pants, pieces of jewelry. These need not be proved beyond reasonable
doubt, but these will not prevent the conviction of a crime for which he was charged just because, say,
instead of 3 pairs of diamond earrings the prosecution proved only two. Now, what is required to be
proved beyond reasonable doubt is the element of the offense.
‘MR. ALBANO. I am aware of that, Mr. Speaker, but considering that in the crime of plunder the totality of
the amount is very important, I feel that such a series of overt (or) criminal acts has to be taken singly.
For instance, in the act of bribery, he was able to accumulate only ₱50,000 and in the crime of extortion,
he was only able to accumulate P1 million. Now, when we add the totality of the other acts as required
under this bill through the interpretation on the rule of evidence, it is just one single act, so how can we
now convict him?
‘MR. GARCIA (P). With due respect, Mr. Speaker, for purposes of proving an essential element of the
crime, there is a need to prove that element beyond reasonable doubt. For example, one essential
element of the crime is that the amount involved is P100 million. Now, in a series of defalcations and
other acts of corruption and in the enumeration the total amount would be P110 or P120 million, but
there are certain acts that could not be proved, so, we will sum up the amounts involved in these
73
transactions which were proved. Now, if the amount involved in these transactions, proved beyond
reasonable doubt, is P100 million, then there is a crime of plunder.’ (Deliberations of House of
Representatives on RA 7080, dated October 9, 1990).’
xxx xxx xxx
"According to the Explanatory Note of Senate Bill No. 733, the crime of plunder, which is a ‘term chosen
from other equally apt terminologies like kleptocracy and economic treason, punishes the use of high
office for personal enrichment, committed through a series [or combination] of acts done not in the
public eye but in stealth or secrecy over a period of time, that may involve so many persons, here and
abroad, and which touch so many states and territorial units.’ For this reason, it would be unreasonable
to require the prosecution to prove all the overt and criminal acts committed by the accused as part of an
‘over-all unlawful scheme or conspiracy’ to amass ill-gotten wealth as long as all the elements of the
crime of plunder have been proven beyond reasonable doubt, such as, the combination or series of overt
or criminal acts committed by a public officer alone or in connivance with other persons to accumulate
ill-gotten wealth in the amount of at least Fifty Million Pesos.
"The statutory language does not evince an intent to do away with the constitutional presumption of
guilt nor to lower the quantum of proof needed to establish each and every element or ingredient of the
crime of plunder."45
In connection with the foregoing, I emphasize that there is no basis for petitioner’s concern that the
conspiracy to defraud, which is not punishable under the Revised Penal Code, may have been
criminalized under RA 7080. The Anti-Plunder Law treats conspiracy as merely a mode of incurring
criminal liability, but does not criminalize or penalize it per se.
In sum, it is clear that petitioner has misunderstood the import of Section 4. Apropos the foregoing, I
maintain that, between an interpretation that produces questionable or absurd results and one that gives
life to the law, the choice for this Court is too obvious to require much elucidation or debate.
Even granting arguendo that Section 4 of the Anti-Plunder law suffers from some constitutional infirmity,
the statute may nonetheless survive the challenge of constitutionality in its entirety. Considering that this
provision pertains only to a rule on evidence or to a procedural matter that does not bear upon or form
any part of the elements of the crime of plunder, the Court may declare the same unconstitutional and
strike it off the statute without necessarily affecting the essence of the legislative enactment. For even
without the assailed provision, the law can still stand as a valid penal statute inasmuch as the elements of
the crime, as well as the penalties therein, may still be clearly identified or sufficiently derived from the
remaining valid portions of the law. This finds greater significance when one considers that Section 7 of
the law provides for a separability clause declaring the validity, the independence and the applicability of
the other remaining provisions, should any other provision of the law be held invalid or unconstitutional.
Third Issue:
The Constitutional Power of Congress to Enact Mala Prohibita Laws
Petitioner maintains that RA 7080 "eliminated the element of mens rea from crimes which are mala in se
and converted these crimes which are components of plunder into mala prohibita, thereby rendering it
easier to prove" since, allegedly, "the prosecution need not prove criminal intent."
This asseveration is anchored upon the postulate (a very erroneous one, as already discussed above) that
the Anti-Plunder Law exempts the prosecution from proving beyond reasonable doubt the component
acts constituting plunder, including the element of criminal intent. It thus concludes that RA 7080 violates
the due process and the equal protection clauses of the Constitution.
While I simply cannot agree that the Anti-Plunder Law eliminated mens rea from the component crimes
of plunder, my bottom-line position still is: regardless of whether plunder is classified as mala prohibita
or in se, it is the prerogative of the legislature -- which is undeniably vested with the authority -- to
determine whether certain acts are criminal irrespective of the actual intent of the perpetrator.
The Power of the Legislature to Penalize Certain Acts
Jurisprudence dating as far back as United States v. Siy Cong Bieng46 has consistently recognized and
upheld "the power of the legislature, on grounds of public policy and compelled by necessity, ‘the great
master of things,’ to forbid in a limited class of cases the doing of certain acts, and to make their
commission criminal without regard to the intent of the doer." Even earlier, in United States v. Go Chico,47
Justice Moreland wrote that the legislature may enact criminal laws that penalize certain acts, like the
"discharge of a loaded gun," without regard for the criminal intent of the wrongdoer. In his words:
"In the opinion of this Court it is not necessary that the appellant should have acted with criminal intent.
In many crimes, made such by statutory enactment, the intention of the person who commits the crime
is entirely immaterial. This is necessarily so. If it were not, the statute as a deterrent influence would be
substantially worthless. It would be impossible of execution. In many cases the act complained of is itself
that which produces the pernicious effect which the statute seeks to avoid. In those cases the pernicious
effect is produced with precisely the same force and result whether the intention of the person
performing the act is good or bad. The case at bar is a perfect illustration of this. The display of a flag or
emblem used, particularly within a recent period, by the enemies of the Government tends to incite
resistance to governmental functions and insurrection against governmental authority just as effectively
if made in the best of good faith as if made with the most corrupt intent. The display itself, without the
intervention of any other factor, is the evil. It is quite different from that large class of crimes, made such
by the common law or by statute, in which the injurious effect upon the public depends upon the corrupt
intention of the person perpetrating the act. If A discharges a loaded gun and kills B, the interest which
society has in the act depends, not upon B’s death, but upon the intention with which A consummated
the act. If the gun were discharged intentionally, with the purpose of accomplishing the death of B, then
society has been injured and its security violated; but if the gun was discharged accidentally on the part
of A, the society, strictly speaking, has no concern in the matter, even though the death of B results. The
reason for this is that A does not become a danger to society and its institutions until he becomes a
person with a corrupt mind. The mere discharge of the gun and the death of B do not of themselves
make him so. With those two facts must go the corrupt intent to kill. In the case at bar, however, the evil
to society and to the Government does not depend upon the state of mind of the one who displays the
banner, but upon the effect which that display has upon the public mind. In the one case the public is
affected by the intention of the actor; in the other by the act itself."
Without being facetious, may I say that, unlike the act of discharging a gun, the acts mentioned in Section
1(d) -- bribery, conversion, fraudulent conveyance, unjust enrichment and the like -- cannot be
committed sans criminal intent. And thus, I finally arrive at a point of agreement with petitioner: that the
acts enumerated in Section 1(d) are by their nature mala in se, and most of them are in fact defined and
penalized as such by the Revised Penal Code. Having said that, I join the view that when we speak of
plunder, we are referring essentially to two or more instances of mala in se constituting one malum
prohibitum. Thus, there should be no difficulty if each of the predicate acts be proven beyond reasonable
doubt as mala in se, even if the defense of lack of intent be taken away as the solicitor general has
suggested.
In brief, the matter of classification is not really significant, contrary to what petitioner would have us
believe. The key, obviously, is whether the same burden of proof -- proof beyond reasonable doubt --
would apply.
Furthermore, I also concur in the opinion of the solicitor general: if it is conceded that the legislature
possesses the requisite power and authority to declare, by legal fiat, that acts not inherently criminal in
nature are punishable as offenses under special laws, then with more reason can it punish as offenses
under special laws those acts that are already inherently criminal. "This is so because the greater (power
to punish not inherently criminal acts) includes the lesser (power to punish inherently criminal acts). In
eo plus sit, semper inest et minus."48
Epilogue
"The constitutionality of laws is presumed. To justify nullification of a law, there must be a clear and
unequivocal breach of the Constitution, not a doubtful or argumentative implication; a law shall not be
declared invalid unless the conflict with the Constitution is clear beyond a reasonable doubt. ‘The
presumption is always in favor of constitutionality x x x. To doubt is to sustain.’ x x x."49
A law should not be overturned on the basis of speculation or conjecture that it is unconstitutionally
vague. Everyone is duty-bound to adopt a reasonable interpretation that will uphold a statute, carry out
its purpose and render harmonious all its parts. Indeed, the constitutionality of a statute must be
sustained if, as in this case, a ground therefor can possibly be found. For the unbending teaching is that a
law cannot be declared invalid, unless the conflict with the Constitution is shown to be clearly beyond
reasonable doubt.
To lend color and vividness to the otherwise boring legalese that has been used to dissect RA 7080, the
parties to this case laced their arguments with interesting little stories. Thus, petitioner opened his Oral
74
Argument with an admittedly apocryphal account of a befuddled student of law who could not make
heads or tails of the meanings of series, combination and pattern.
On the other hand, the solicitor general compares petitioner with Hans Christian Andersen’s fabled
tailors who tried to fool the emperor into walking around naked by making him believe that anyone who
did not see the invisible garment, which they had supposedly sewn for him, was "too stupid and
incompetent to appreciate its quality." This is no doubt a parody of the alleged vagueness of RA 7080,
which is purportedly "invisible only to anyone who is too dull or dense to appreciate its quality."50
I do not begrudge petitioner (or his lawyers) for exhausting every known and knowable legal tactic to
exculpate himself from the clutches of the law. Neither do I blame the solicitor general, as the Republic’s
counsel, for belittling the attempt of petitioner to shortcut his difficult legal dilemmas. However, this
Court has a pressing legal duty to discharge: to render justice though the heavens may fall.
By the Court’s Decision, petitioner is now given the occasion to face squarely and on the merits the
plunder charges hurled at him by the Ombudsman. He may now use this opportunity to show the courts
and the Filipino people that he is indeed innocent of the heinous crime of plunder – to do so, not by
resorting to mere legalisms, but by showing the sheer falsity of the wrongdoings attributed to him.
I think that, given his repeated claims of innocence, petitioner owes that opportunity to himself, his
family, and the teeming masses he claims to love. In short, the Court has rendered its judgment, and the
heavens have not fallen. Quite the contrary, petitioner is now accorded the opportunity to prove his clear
conscience and inculpability.
WHEREFORE, I vote to DISMISS the Petition and to uphold the constitutionality of RA 7080.

75
G.R. No. 152259 July 29, 2004
ALFREDO T. ROMUALDEZ, petitioner, vs.
THE HONORABLE SANDIGANBAYAN (Fifth Division) and the PEOPLE of the PHILIPPINES, respondents.
DECISION
PANGANIBAN, J.:
Repetitive motions to invalidate or summarily terminate a criminal indictment prior to plea and trial,
however they may be named or identified -- whether as a motion to quash or motion to dismiss or by any
other nomenclature -- delay the administration of justice and unduly burden the court system. Grounds
not included in the first of such repetitive motions are generally deemed waived and can no longer be
used as bases of similar motions subsequently filed.
Section 5 of the Anti-Graft Law is constitutional. It penalizes certain presidential relatives who "intervene,
directly or indirectly, in any business, transaction, contract or application with the Government." This
provision is not vague or "impermissibly broad," because it can easily be understood with the use of
simple statutory construction. Neither may the constitutionality of a criminal statute such as this be
challenged on the basis of the "overbreadth" and the "void-for-vagueness" doctrines, which apply only to
free-speech cases.
The Case
Before us is a Petition for Certiorari1 under Rule 65 of the Rules of Court, seeking to set aside the
November 20, 20012 and the March 1, 20023 Resolutions of the Sandiganbayan in Criminal Case No.
13736. The first Resolution disposed thus:
"WHEREFORE, for lack of merit, the Motion to Dismiss is hereby DENIED. The arraignment of the accused
and the pre-trial of the case shall proceed as scheduled."4
The second Resolution denied reconsideration.
The Facts
The facts of the case are narrated by the Sandiganbayan as follows:
"[The People of the Philippines], through the Presidential Commission on Good Government (PCGG), filed
on July 12, 1989 an information before [the anti-graft court] charging the accused [with] violation of
Section 5, Republic Act No. 3019,5 as amended. The Information reads:
'That on or about and during the period from July 16, 1975 to July 29, 1975, in Metro Manila, Philippines,
and within the jurisdiction of [the Sandiganbayan], said [petitioner], brother-in-law of Ferdinand E.
Marcos, former President of the Philippines, and therefore, related to the latter by affinity within the
third civil degree, did then and there wil[l]fully and unlawfully, and with evident bad faith, for the
purpose of promoting his self-interested [sic] and/or that of others, intervene directly or indirectly, in a
contract between the National Shipyard and Steel Corporation (NASSCO), a government-owned and
controlled corporation and the Bataan Shipyard and Engineering Company (BASECO), a private
corporation, the majority stocks of which is owned by former President Ferdinand E. Marcos, whereby
the NASSCO sold, transferred and conveyed to the BASECO its ownership and all its titles and interests
over all equipment and facilities including structures, buildings, shops, quarters, houses, plants and
expendable and semi-expendable assets, located at the Engineer Island known as the Engineer Island
Shops including some of its equipment and machineries from Jose Panganiban, Camarines Norte needed
by BASECO in its shipbuilding and ship repair program for the amount of P5,000,000.00.
'Contrary to law.'
"On December 27, 1996, the accused filed his first 'MOTION TO DISMISS AND TO DEFER ARRAIGNMENT'
claiming that no valid preliminary investigation was conducted in the instant case. He asserts that if a
preliminary investigation could be said to have been conducted, the same was null and void having been
undertaken by a biased and partial investigative body.
"On January 9, 1997, [the Sandiganbayan], through the First Division, issued an order giving the accused
fifteen days to file a Motion for Reinvestigation with the Office of the Special Prosecutor.
"[Petitioner] questioned said order before the Supreme Court via a petition for Certiorari and Prohibition
with prayer for temporary restraining order. On January 21, 1998, the Supreme Court dismissed the
petition for failure to show that [the Sandiganbayan] committed grave abuse of discretion in issuing the
assailed order.
"On November 9, 1998, the [petitioner] filed with the Office of the Special Prosecutor a Motion to Quash.
"On September 22, 1999, x x x Special Prosecution Officer (SPO) III Victorio U. Tabanguil, manifested that
the prosecution had already concluded the reinvestigation of the case. He recommended the dismissal of
the instant case. Both the Deputy Special Prosecutor and the Special Prosecutor approved the
recommendation. However, Ombudsman Aniano A. Desierto disagreed and directed the prosecutors to
let the [petitioner] present his evidence in Court.
"Subsequently, [petitioner] filed on October 8, 1999 his second 'MOTION TO QUASH AND TO DEFER
ARRAIGNMENT'.
"On February 9, 2000, the [Sandiganbayan] denied the motion for lack of merit.
"On June 19, 2001, [the] accused filed a 'MOTION FOR LEAVE TO FILE MOTION TO DISMISS'. On June 29,
2001, the [Sandiganbayan] admitted the motion and admitted the attached (third) Motion to Dismiss.
"The [Motion to Dismiss] raise[d] the following grounds:
'I. THE CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW OF [PETITIONER] WAS VIOLATED DURING THE
PRELIMINARY INVESTIGATION STAGE IN THE FOLLOWING WAYS:
'A. NO VALID PRELIMINARY INVESTIGATION WAS CONDUCTED IN THE INSTANT CASE; AND
'B. THE PRELIMINARY INVESTIGATION WAS CONDUCTED BY A BIASED AND PARTIAL INVESTIGATOR
'II. THE CONSTITUTIONAL RIGHT OF [PETITIONER] TO BE INFORMED OF THE NATURE AND CAUSE OF THE
ACCUSATION AGAINST HIM WAS VIOLATED
'III. PURSUANT TO ARTICLE VII, SECTION 17 OF THE 1973 CONSTITUTION, [PETITIONER] IS IMMUNE FROM
CRIMINAL PROSECUTION
'IV. THE CRIMINAL ACTION OR LIABILITY HAS BEEN EXTINGUISHED BY PRESCRIPTION'"6
Ruling of the Sandiganbayan
The Sandiganbayan explained that all the grounds invoked by petitioner, except the third one, had
already been raised by him and passed upon in its previous Resolutions.7 In resolving the third ground,
the anti-graft court pointed out that Section 17 of the 1973 Constitution became effective only in 1981
when the basic law was amended. Since his alleged illegal intervention had been committed on or about
1975, the amended provision was inapplicable to him.8
In denying the Motion for Reconsideration filed by petitioner, the Sandiganbayan passed upon the other
grounds he had raised. It ruled that his right to a preliminary investigation was not violated, because he
had been granted a reinvestigation.9 It further held that his right to be informed of the nature and cause
of the accusation was not trampled upon, either, inasmuch as the Information had set forth the essential
elements of the offense charged.10
Hence, this Petition.11
The Issues
In his Memorandum, petitioner assigns the following errors for our consideration:
"Whether or not the Honorable Sandiganbayan erred and gravely abused its discretion amounting to lack
of, or in excess of jurisdiction –
I. In not dismissing and/or quashing Criminal Case No. 13736 despite clear and incontrovertible evidence
that:
A. Section 5 of Republic Act No. 3019 is unconstitutional because its vagueness violates the due process
right of an individual to be informed of the nature and the cause of the accusation against him;
B. Section 5 of Republic Act No. 3019 is unconstitutional because it violates the due process right of an
individual to be presumed innocent until the contrary is proved;
C. The constitutional right of petitioner x x x to be informed of the nature and the cause of the accusation
against him was violated;
D. The constitutional right to due process of law of petitioner x x x was violated during the preliminary
investigation stage in the following ways:
[i] No valid preliminary investigation was con-ducted for Criminal Case No. 13736; and
[ii] The preliminary investigation was conducted by a biased and partial investigator.
E. The criminal action or liability has been extinguished by prescription; and
F. Pursuant to Article VII, Section 17 of the 1973 Constitution, petitioner x x x is immune from criminal
prosecution. And
II. In light of the foregoing, in denying petitioner['s] x x x right to equal protection of the laws."12
Simply stated, the issues are as follows: (1) whether Section 5 of Republic Act 3019 is unconstitutional;
(2) whether the Information is vague; (3) whether there was a valid preliminary investigation; (4) whether
the criminal action or liability has been extinguished by prescription; and (5) whether petitioner is
immune from criminal prosecution under then Section 17 of Article VII of the 1973 Constitution.
The Court's Ruling
76
The Petition has no merit.
First Issue:
Constitutionality of Section 5,
Republic Act 3019
Petitioner challenged the constitutionality of Section 5 of RA 3019 for the first time in the Sandiganbayan
through a Supplemental Motion to Dismiss. Attached to his December 7, 2001 Motion for
Reconsideration of the Order denying his Motion to Dismiss was this Supplemental Motion which was, in
effect, his third motion to quash.13 We note that the Petition for Certiorari before us challenges the
denial of his original, not his Supplemental, Motion to Dismiss.
Upon the denial of his original Motion to Quash on February 9, 2000, petitioner could have filed a motion
for reconsideration of the denial. Had reconsideration been turned down, the next proper remedy would
have been either (1) a petition for certiorari14 -- if there was grave abuse of discretion -- which should be
filed within 60 days from notice of the assailed order;15 or (2) to proceed to trial without prejudice to his
right, if final judgment is rendered against him, to raise the same questions before the proper appellate
court.16 But instead of availing himself of these remedies, he filed a "Motion to Dismiss" on June 19,
2001.
Impropriety of
Repetitive Motions
There is no substantial distinction between a "motion to quash" and a "motion to dismiss." Both pray for
an identical relief, which is the dismissal of the case. Such motions are employed to raise preliminary
objections, so as to avoid the necessity of proceeding to trial. A motion to quash is generally used in
criminal proceedings to annul a defective indictment. A motion to dismiss, the nomenclature ordinarily
used in civil proceedings, is aimed at summarily defeating a complaint. Thus, our Rules of Court use the
term "motion to quash" in criminal,17 and "motion to dismiss" in civil, proceedings.18
In the present case, however, both the "Motion to Quash" and the "Motion to Dismiss" are anchored on
basically the same grounds and pray for the same relief. The hairsplitting distinction posited by petitioner
does not really make a difference.
By filing a Motion to Dismiss, petitioner submitted in effect a prohibited second motion to quash. A party
is not permitted to raise issues, whether similar or different, by installment. The Rules abhor repetitive
motions. Otherwise, there would be no end to preliminary objections, and trial would never commence.
A second motion to quash delays the administration of justice and unduly burdens the courts. Moreover,
Rule 117 provides that grounds not raised in the first motion to quash are generally deemed waived.19
Petitioner's "Motion to Dismiss" violates this rule.
Constitutionality of
the Challenged Provision
If only for the foregoing procedural lapses, the Petition deserves to be dismissed outright. However, given
the importance of this case in curtailing graft and corruption, the Court will nevertheless address the
other issues on their merit. Petitioner challenges the validity of Section 5 of Republic Act 3019, a penal
statute, on the ground that the act constituting the offense is allegedly vague and "impermissibly broad."
It is best to stress at the outset that the overbreadth20 and the vagueness21 doctrines have special
application only to free-speech cases. They are not appropriate for testing the validity of penal statutes.
Mr. Justice Vicente V. Mendoza explained the reason as follows:
"A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of
possible 'chilling effect' upon protected speech. The theory is that '[w]hen statutes regulate or proscribe
speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a
single prosecution, the transcendent value to all society of constitutionally protected expression is
deemed to justify allowing attacks on overly broad statutes with no requirement that the person making
the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow
specificity.' The possible harm to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others may be deterred and perceived
grievances left to fester because of possible inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting
from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be
prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law
cannot take chances as in the area of free speech.
xxxxxxxxx
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for
testing "on their faces" statutes in free speech cases or, as they are called in American law, First
Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With
respect to such statute, the established rule is that 'one to whom application of a statute is constitutional
will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to
other persons or other situations in which its application might be unconstitutional.' As has been pointed
out, 'vagueness challenges in the First Amendment context, like overbreadth challenges typically produce
facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only]
'as applied' to a particular defendant.'"22 (underscoring supplied)
"To this date, the Court has not declared any penal law unconstitutional on the ground of ambiguity."23
While mentioned in passing in some cases, the void-for-vagueness concept has yet to find direct
application in our jurisdiction. In Yu Cong Eng v. Trinidad,24 the Bookkeeping Act was found
unconstitutional because it violated the equal protection clause, not because it was vague. Adiong v.
Comelec25 decreed as void a mere Comelec Resolution, not a statute. Finally, Santiago v. Comelec26 held
that a portion of RA 6735 was unconstitutional because of undue delegation of legislative powers, not
because of vagueness.
Indeed, an "on-its-face" invalidation of criminal statutes would result in a mass acquittal of parties whose
cases may not have even reached the courts. Such invalidation would constitute a departure from the
usual requirement of "actual case and controversy" and permit decisions to be made in a sterile abstract
context having no factual concreteness. In Younger v. Harris, this evil was aptly pointed out by the U.S.
Supreme Court in these words:
"[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these
deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact on the legislative process of the
relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of
detailed statutes, x x x ordinarily results in a kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be decided."
For this reason, generally disfavored is an on-its-face invalidation of statutes, described as a "manifestly
strong medicine" to be employed "sparingly and only as a last resort." In determining the
constitutionality of a statute, therefore, its provisions that have allegedly been violated must be
examined in the light of the conduct with which the defendant has been charged.28
As conduct -- not speech -- is its object, the challenged provision must be examined only "as applied" to
the defendant, herein petitioner, and should not be declared unconstitutional for overbreadth or
vagueness.
The questioned provision reads as follows:
"Section 5. Prohibition on certain relatives. — It shall be unlawful for the spouse or for any relative, by
consanguinity or affinity, within the third civil degree, of the President of the Philippines, the Vice-
President of the Philippines, the President of the Senate, or the Speaker of the House of Representatives,
to intervene, directly or indirectly, in any business, transaction, contract or application with the
Government: Provided, That this section shall not apply to any person who, prior to the assumption of
office of any of the above officials to whom he is related, has been already dealing with the Government
along the same line of business, nor to any transaction, contract or application already existing or
pending at the time of such assumption of public office, nor to any application filed by him the approval
of which is not discretionary on the part of the official or officials concerned but depends upon
compliance with requisites provided by law, or rules or regulations issued pursuant to law, nor to any act
lawfully performed in an official capacity or in the exercise of a profession."
Petitioner also claims that the phrase "to intervene directly or indirectly, in any business, transaction,
contract or application with the Government" is vague and violates his right to be informed of the cause
and nature of the accusation against him.29 He further complains that the provision does not specify
what acts are punishable under the term intervene, and thus transgresses his right to be presumed
innocent.30 We disagree.
Every statute is presumed valid.31 On the party challenging its validity weighs heavily the onerous task of
rebutting this presumption.32 Any reasonable doubt about the validity of the law should be resolved in
favor of its constitutionality.33 To doubt is to sustain, as tersely put by Justice George Malcolm. In Garcia
77
v. Executive Secretary,34 the rationale for the presumption of constitutionality was explained by this
Court thus:
"The policy of the courts is to avoid ruling on constitutional questions and to presume that the acts of the
political departments are valid in the absence of a clear and unmistakable showing to the contrary. To
doubt is to sustain. This presumption is based on the doctrine of separation of powers which enjoins
upon each department a becoming respect for the acts of the other departments. The theory is that as
the joint act of Congress and the President of the Philippines, a law has been carefully studied and
determined to be in accordance with the fundamental law before it was finally enacted."35
In the instant case, petitioner has miserably failed to overcome such presumption. This Court has
previously laid down the test for determining whether a statute is vague, as follows:
"x x x [A] statute establishing a criminal offense must define the offense with sufficient definiteness that
persons of ordinary intelligence can understand what conduct is prohibited by the statute. It can only be
invoked against that species of legislation that is utterly vague on its face, i.e., that which cannot be
clarified either by a saving clause or by construction.
"A statute or act may be said to be vague when it lacks comprehensible standards that men of common
intelligence must necessarily guess at its meaning and differ in its application. In such instance, the
statute is repugnant to the Constitution in two (2) respects - it violates due process for failure to accord
persons, especially the parties targeted by it, fair notice of what conduct to avoid; and, it leaves law
enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the
Government muscle.36 But the doctrine does not apply as against legislations that are merely couched in
imprecise language but which nonetheless specify a standard though defectively phrased; or to those
that are apparently ambiguous yet fairly applicable to certain types of activities. The first may be 'saved'
by proper construction, while no challenge may be mounted as against the second whenever directed
against such activities.37 With more reason, the doctrine cannot be invoked where the assailed statute is
clear and free from ambiguity, as in this case.
"The test in determining whether a criminal statute is void for uncertainty is whether the language
conveys a sufficiently definite warning as to the proscribed conduct when measured by common
understanding and practice.38 It must be stressed, however, that the 'vagueness' doctrine merely
requires a reasonable degree of certainty for the statute to be upheld - not absolute precision or
mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than meticulous specificity, is
permissible as long as the metes and bounds of the statute are clearly delineated. An act will not be held
invalid merely because it might have been more explicit in its wordings or detailed in its provisions,
especially where, because of the nature of the act, it would be impossible to provide all the details in
advance as in all other statutes."39
A simpler test was decreed in Dans v. People,40 in which the Court said that there was nothing vague
about a penal law that adequately answered the basic query "What is the violation?"41 Anything beyond
-- the hows and the whys -- are evidentiary matters that the law itself cannot possibly disclose, in view of
the uniqueness of every case.42
The question "What is the violation?" is sufficiently answered by Section 5 of RA 3019, as follows:
1. The offender is a spouse or any relative by consanguinity or affinity within the third civil degree of the
President of the Philippines, the Vice-President of the Philippines, the President of the Senate, or the
Speaker of the House of Representatives; and
2. The offender intervened directly or indirectly in any business, transaction, contract or application with
the government.
Applicability of
Statutory Construction
As to petitioner's claim that the term intervene is vague, this Court agrees with the Office of the Solicitor
General that the word can easily be understood through simple statutory construction. The absence of a
statutory definition of a term used in a statute will not render the law "void for vagueness," if the
meaning can be determined through the judicial function of construction.43 Elementary is the principle
that words should be construed in their ordinary and usual meaning.
"x x x. A statute is not rendered uncertain and void merely because general terms are used therein, or
because of the employment of terms without defining them;44 much less do we have to define every
word we use. Besides, there is no positive constitutional or statutory command requiring the legislature
to define each and every word in an enactment. Congress is not restricted in the form of expression of its
will, and its inability to so define the words employed in a statute will not necessarily result in the
vagueness or ambiguity of the law so long as the legislative will is clear, or at least, can be gathered from
the whole act x x x.
"x x x [I]t is a well-settled principle of legal hermeneutics that words of a statute will be interpreted in
their natural, plain and ordinary acceptation and signification,45 unless it is evident that the legislature
intended a technical or special legal meaning to those words.46 The intention of the lawmakers - who
are, ordinarily, untrained philologists and lexicographers - to use statutory phraseology in such a manner
is always presumed."47
The term intervene should therefore be understood in its ordinary acceptation, which is to "to come
between."48 Criminally liable is anyone covered in the enumeration of Section 5 of RA 3019 -- any person
who intervenes in any manner in any business, transaction, contract or application with the government.
As we have explained, it is impossible for the law to provide in advance details of how such acts of
intervention could be performed. But the courts may pass upon those details once trial is concluded.
Thus, the alleged vagueness of intervene is not a ground to quash the information prior to the
commencement of the trial.
In sum, the Court holds that the challenged provision is not vague, and that in any event, the
"overbreath" and "void for vagueness" doctrines are not applicable to this case.
Second Issue:
Allegedly Vague Information
Other than arguing on the alleged intrinsic vagueness of intervene, petitioner further contends that the
Information itself is also unconstitutionally vague, because it does not specify the acts of intervention
that he supposedly performed.49 Again, we disagree.
When allegations in the information are vague or indefinite, the remedy of the accused is not a motion to
quash, but a motion for a bill of particulars.50 The pertinent provision in the Rules of Court is Section 9 of
Rule 116, which we quote:
"Section 9. Bill of particulars. -- The accused may, before arraignment, move for a bill of particulars to
enable him properly to plead and prepare for trial. The motion shall specify the alleged defects of the
complaint or information and the details desired."
The rule merely requires the information to describe the offense with sufficient particularity as to apprise
the accused of what they are being charged with and to enable the court to pronounce judgment. 51 The
particularity must be such that persons of ordinary intelligence may immediately know what is meant by
the information.52
While it is fundamental that every element of the offense must be alleged in the information,53 matters
of evidence -- as distinguished from the facts essential to the nature of the offense -- need not be
averred.54 Whatever facts and circumstances must necessarily be alleged are to be determined by
reference to the definition and the essential elements of the specific crimes.55
In the instant case, a cursory reading of the Information shows that the elements of a violation of Section
5 of RA 3019 have been stated sufficiently. Likewise, the allegations describe the offense committed by
petitioner with such particularity as to enable him to prepare an intelligent defense. Details of the acts he
committed are evidentiary matters that need not be alleged in the Information.
Third Issue:
Preliminary Investigation
Clearly, petitioner already brought the issue of lack of preliminary investigation when he questioned
before this Court in GR No. 128317 the Sandiganbayan's Order giving him 15 days to file a Motion for
Reinvestigation with the Office of the Special Prosecutor.56 Citing Cojuangco v. Presidential Commission
on Good Government,57 he undauntedly averred that he was deprived of his right to a preliminary
investigation, because the PCGG acted both as complainant and as investigator.58
In the case cited above, this Court declared that while PCGG had the power to conduct a preliminary
investigation, the latter could not do so with the "cold neutrality of an impartial judge" in cases in which
it was the agency that had gathered evidence and subsequently filed the complaint.59 On that basis, this
Court nullified the preliminary investigation conducted by PCGG and directed the transmittal of the
records to the Ombudsman for appropriate action.
It is readily apparent that Cojuangco does not support the quashal of the Information against herein
petitioner. True, the PCGG initiated the present Complaint against him; hence, it could not properly
conduct the preliminary investigation. However, he was accorded his rights -- the Sandiganbayan
78
suspended the trial and afforded him a reinvestigation by the Ombudsman. The procedure outlined in
Cojuangco was thus followed.
The Sandiganbayan's actions are in accord also with Raro v. Sandiganbayan,60 which held that the failure
to conduct a valid preliminary investigation would not warrant the quashal of an information. If the
information has already been filed, the proper procedure is for the Sandiganbayan to hold the trial in
abeyance while the preliminary investigation is being conducted or completed.61
Fourth Issue:
Prescription
The issue of prescription was the principal basis of the Motion to Quash filed by petitioner with the
Sandiganbayan on October 8, 1999.62 Such issue should be disregarded at this stage, since he failed to
challenge its ruling debunking his Motion within the 60-day period for the filing of a petition for
certiorari. A party may not circumvent this rule by filing a subsequent motion that raises the same issue
and the same arguments.
Furthermore, it is easy to see why this argument being raised by petitioner is utterly unmeritorious. He
points out that according to the Information, the offense was committed "during the period from July 16,
1975 to July 29, 1975." He argues that when the Information was filed on July 12, 1989,63 prescription
had already set in, because the prescriptive period for a violation of Republic Act No. 3019 is only ten (10)
years from the time the offense was allegedly committed. The increase of this prescriptive period to
fifteen (15) years took effect only on March 16, 1982, upon the enactment of Batas Pambansa Blg. 195.64
Act No. 3326, as amended,65 governs the prescription of offenses penalized by special laws. Its pertinent
provision reads:
"Sec. 2. Prescription shall begin to run from the day of the commission of the violation of the law, and if
the same not be known at the time, from the discovery thereof and the institution of judicial proceedings
for its investigation and punishment.
"The prescription shall be interrupted when proceedings are instituted against the guilty person, and
shall begin to run again if the proceedings are dismissed for reasons not constituting jeopardy."
Consistent with the provision quoted above, this Court has previously reckoned the prescriptive period of
cases involving RA 3019 (committed prior to the February 1986 EDSA Revolution) from the discovery of
the violation.66 In Republic v. Desierto, the Court explained:
"This issue confronted this Court anew, albeit in a larger scale, in Presidential Ad Hoc Fact-Finding
Committee on Behest Loans v. Desierto. In the said recent case, the Board of Directors of the Philippine
Seeds, Inc. and Development Bank of the Philippines were charged with violation of paragraphs (e) and
(g) of Section 3 of RA No. 3019, by the Presidential Ad Hoc Fact-Finding Committee on Behest Loans,
created by then President Fidel V. Ramos to investigate and to recover the so-called 'Behest Loans',
where the Philippine Government guaranteed several foreign loans to corporations and entities
connected with the former President Marcos. x x x In holding that the case had not yet prescribed, this
Court ruled that:
'In the present case, it was well-nigh impossible for the State, the aggrieved party, to have known the
violations of RA No. 3019 at the time the questioned transactions were made because, as alleged, the
public officials concerned connived or conspired with the 'beneficiaries of the loans.' Thus, we agree with
the COMMITTEE that the prescriptive period for the offenses with which the respondents in OMB-0-96-
0968 were charged should be computed from the discovery of the commission thereof and not from the
day of such commission.
xxx xxx xxx
'People v. Duque is more in point, and what was stated there stands reiteration: In the nature of things,
acts made criminal by special laws are frequently not immoral or obviously criminal in themselves; for
this reason, the applicable statute requires that if the violation of the special law is not known at the
time, the prescription begins to run only from the discovery thereof, i.e., discovery of the unlawful nature
of the constitutive act or acts.' (Italics supplied)
"There are striking parallelisms between the said Behest Loans Case and the present one which lead us to
apply the ruling of the former to the latter. First, both cases arose out of seemingly innocent business
transactions; second, both were 'discovered' only after the government created bodies to investigate
these anomalous transactions; third, both involve prosecutions for violations of RA No. 3019; and, fourth,
in both cases, it was sufficiently raised in the pleadings that the respondents conspired and connived
with one another in order to keep the alleged violations hidden from public scrutiny.
"This Court's pronouncement in the case of Domingo v. Sandiganbayan is quite relevant and instructive
as to the date when the discovery of the offense should be reckoned, thus:
'In the present case, it was well-nigh impossible for the government, the aggrieved party, to have known
the violations committed at the time the questioned transactions were made because both parties to the
transactions were allegedly in conspiracy to perpetuate fraud against the government. The alleged
anomalous transactions could only have been discovered after the February 1986 Revolution when one
of the original respondents, then President Ferdinand Marcos, was ousted from office. Prior to said date,
no person would have dared to question the legality or propriety of those transactions. Hence, the
counting of the prescriptive period would commence from the date of discovery of the offense, which
could have been between February 1986 after the EDSA Revolution and 26 May 1987 when the initiatory
complaint was filed.'"67
The above pronouncement is squarely applicable to the present case. The general rule that prescription
shall begin to run from the day of the commission of the crime cannot apply to the present case. It is not
legally prudent to charge the State, the aggrieved party, with knowledge of the violation of RA 3019 at
the time the alleged intervention was made. The accused is the late President Ferdinand E. Marcos'
brother-in-law. He was charged with intervening in a sale involving a private corporation, the majority
stocks of which was allegedly owned by President Marcos.
Prior to February 1986, no person was expected to have seriously dared question the legality of the sale
or would even have thought of investigating petitioner's alleged involvement in the transaction. It was
only after the creation68 of PCGG69 and its exhaustive investigations that the alleged crime was
discovered. This led to the initiation on November 29, 1988 of a Complaint against former President
Marcos and petitioner for violation of the Anti-Graft and Corrupt Practices Act. Consequently, the filing of
the Information on July 12, 1989 was well within the prescriptive period of ten years from the discovery
of the offense.
Fifth Issue
Immunity from Prosecution
Petitioner argues that he enjoys derivative immunity, because he allegedly served as a high-ranking naval
officer -- specifically, as naval aide-de-camp -- of former President Marcos.70 He relies on Section 17 of
Article VII of the 1973 Constitution, as amended, which we quote:
"The President shall be immune from suit during his tenure. Thereafter, no suit whatsoever shall lie for
official acts done by him or by others pursuant to his specific orders during his tenure.
"x x x xxx x x x"
As the Sandiganbayan aptly pointed out, the above provision is not applicable to petitioner because the
immunity amendment became effective only in 1981 while the alleged crime happened in 1975.
In Estrada v. Desierto,71 this Court exhaustively traced the origin of executive immunity in order to
determine the extent of its applicability. We explained therein that executive immunity applied only
during the incumbency of a President. It could not be used to shield a non-sitting President from
prosecution for alleged criminal acts done while sitting in office. The reasoning of petitioner must
therefore fail, since he derives his immunity from one who is no longer sitting as President. Verily, the
felonious acts of public officials and their close relatives "are not acts of the State, and the officer who
acts illegally is not acting as such but stands on the same footing as any other trespasser."
In sum, petitioner utterly fails to show that the Sandiganbayan gravely abused its discretion in issuing the
assailed Resolutions.72 On the contrary, it acted prudently, in accordance with law and jurisprudence.
WHEREFORE, the Petition is DISMISSED, and the questioned Resolutions of the Sandiganbayan
AFFIRMED. Costs against petitioner.
SO ORDERED.
Davide, Jr., C.J., Quisumbing, Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr., and Azcuna, JJ.,
concur.
Puno, Ynares-Santiago, and Sandoval-Gutierrez, JJ., in the result.
Corona, J., on leave.
Tinga, J., in the result. Please see separate opinion.
Chico-Nazario, J., no part. Ponente of assailed SB Resolutions.
x-------------------------------------------------------------------x
SEPARATE OPINION
TINGA, J.:
79
I concur in the result of the ponencia and the proposition that Section 5 of the Anti-Plunder Law is
constitutional. The validity of the provision has been passed upon by the Court before in Estrada v.
Sandiganbayan.1 I also agree with the ponencia's reiteration of the ruling in Estrada that Section 5 is
receptive to the basic principle in statutory construction that words should be construed in their ordinary
and usual meaning.2
However, with all due respect, I raise serious objections to the ponencia's holding that the so-called "void
for vagueness" doctrine has special application only to free speech cases,3 and the undeclared
proposition that penal
laws may not be stricken down on the ground of ambiguity.4 I am aware that the assertions rely upon the
separate opinions of the herein ponente5 and Mr. Justice Vicente Mendoza6 in Estrada. I am also aware
that the critical portion of Mr. Justice Mendoza's separate opinion in Estrada was cited with approval by
Mr. Justice Bellosillo's ponencia therein.7
The incontrovertible reality though is that the majority's pronouncement in Estrada that penal statutes
cannot be challenged on vagueness grounds did not form part of the ratio decidendi. The ratio, in the
words of Justice Bellosillo, was: "as it is written, the Plunder Law contains ascertainable standards and
well-defined parameters which would enable the accused to determine the nature of his violation," 8 and
thus the law does not suffer from unconstitutionality. The discussion on the vagueness aspect was not
decisive of the main issue and, therefore, clearly obiter dictum. I submit that it is erroneous to resolve the
present petition on the basis of that dictum in Estrada.
As the obiter dictum in Estrada is needlessly made a ratio in the present case, the ponencia herein has
even unwittingly elevated to doctrinal level the proposition that the constitutionality of penal laws
cannot be challenged on the ground of vagueness. I humbly submit that the stance is flawed and contrary
to fundamental principles of due process.
The Bill of Rights occupies a position of primacy in the fundamental law. 9 It is thus sacrosanct in this
jurisdiction that no person shall be deprived of life, liberty or property without due process of law.10
A challenge to a penal statute premised on the argument that the law is vague is a proper invocation of
the due process clause. A statute that lacks comprehensible standards that men of common intelligence
must necessarily guess at its meaning and differ as to its application violates the due process clause, for
failure to accord persons fair notice of the conduct to avoid.11 As held by the Court in People v. Dela
Piedra:12
Due process requires that the terms of a penal statute must be sufficiently explicit to inform those who
are subject to it what conduct on their part will render them liable to its penalties. A criminal statute that
"fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by
the statute," or is so indefinite that "it encourages arbitrary and erratic arrests and convictions," is void
for vagueness. The constitutional vice in a vague or indefinite statute is the injustice to the accused in
placing him on trial for an offense, the nature of which he is given no fair warning. 13
It should also be reckoned that the Bill of Rights likewise guarantees that no person shall be held to
answer for a criminal offense without due process of law,14 and that the accused enjoys the right to be
informed of the nature and cause of the accusation against him or her.15 The Bill of Rights ensures the
fullest measure of protection to an accused. If a particular mode of constitutional challenge, such as one
predicated on the "void for vagueness" doctrine, is available to an ordinary person deprived of property
or means of expression, then more so should it be accessible to one who is in jeopardy of being deprived
of liberty or of life.16
"Vagueness" and "Overbreadth" Are Distinct Concepts
A fundamental flaw, to my mind, in the analysis employed by the ponencia and some of the separate
opinions in Estrada is the notion that the "vagueness" and "overbreadth" doctrines are the same and
should be accorded similar treatment. This is erroneous.
Mr. Justice Kapunan, in his dissenting opinion in Estrada, offers a correct distinction between "vagueness"
and "overbreadth":
A view has been proferred that "vagueness and overbreadth doctrines are not applicable to penal laws."
These two concepts, while related, are distinct from each other. On one hand, the doctrine of
overbreadth applies generally to statutes that infringe upon freedom of speech. On the other hand,
the "void-for-vagueness" doctrine applies to criminal laws, not merely those that regulate speech or
other fundamental constitutional right. (not merely those that regulate speech or other fundamental
constitutional rights.) The fact that a particular criminal statute does not infringe upon free speech does
not mean that a facial challenge to the statute on vagueness grounds cannot succeed.17
This view should be sustained, especially in light of the fact that the "void for vagueness" doctrine has
long been sanctioned as a means to invalidate penal statutes.
"Void For Vagueness" Invalidation of Penal Statutes has Long-Standing Jurisprudential History
As early as 1926, the United States Supreme Court held in Connally v. General Construction Co., thus: 18
That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who
are subject to it what conduct on their part will render them liable to its penalties is a well- recognized
requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute
which either forbids or requires the doing of an act in terms so vague that men of common intelligence
must necessarily guess at its meaning and differ as to its application violates the first essential of due
process of law.
Thus in Connally, a statute prescribing penalties for violation of an eight-hour workday law was voided,
presenting as it did, a "double uncertainty, fatal to its validity as a criminal statute." 19
In Lanzetta v. State of New Jersey,20 a challenge was posed to a statute defining a "gangster" and
prescribing appropriate penalties, for being void for vagueness. The U.S. Supreme Court ruled that the
definition of a "gang" under the statute was vague, and the statute void for vagueness. It was of no
moment that the information against the accused described the offense with particularity.
If on its face the challenged provision is repugnant to the due process clause, specification of details of
the offense intended to be charged would not serve to validate it. (United States v. Reese, 92 U.S. 214,
221; Czarra v. Board of Medical Supervisors, 25 App.D.C. 443, 453.) It is the statute, not the accusation
under it, that prescribes the rule to govern conduct and warns against transgression. (See Stromberg v.
California, 283 U.S. 359, 368 , 51 S.Ct. 532, 535, 73 A.L. R. 1484; Lovell v. Griffin, 303 U.S. 444 , 58 S.Ct.
666.) No one may be required at peril of life, liberty or property to speculate as to the meaning of penal
statutes. All are entitled to be informed as to what the State commands or forbids.21 (Emphasis supplied)
In Bouie v. City of Columbia,22 civil rights protesters were charged with violating a criminal trespass
statute proscribing entry upon the lands of another after notice prohibiting such entry. A state court
construed the statute as applicable to the act of remaining on the premises of another after receiving
notice to leave. The U.S. Supreme Court reversed, applying again the "void for vagueness" doctrine. Said
Court admitted that "typical applications of the principle, the uncertainty as to the statute's prohibition
resulted from vague or overbroad language in the statute itself." 23 Yet the Court noted that "[t]here can
be no doubt that a deprivation of the right of fair warning can result not only from vague statutory
language but also from an unforeseeable and retroactive judicial expansion of narrow and precise
statutory language."24 Accordingly, the Court overturned the convictions, holding that "the crime for
which [they] were convicted was not enumerated in the statute at the time of their conduct," thus
denying the accused due process of law.25
In Papachristou v. City of Jacksonville,26 a statute penalizing vagrancy was voided by the U.S. Supreme
Court, again for being vague:
This ordinance is void for vagueness, both in the sense that it "fails to give a person of ordinary
intelligence fair notice that his contemplated conduct is forbidden by the statute," (United States v.
Harriss, 347 U.S. 612, 617), and because it encourages arbitrary and erratic arrests and convictions
(Thornhill v. Alabama, 310 U.S. 88; Herndon v. Lowry, 301 U.S. 242).27
Kolender v. Lawson28 involves another affirmation of the well-established doctrine. There, the US
Supreme Court invalidated a loitering statute requiring a loiterer to produce credible and reliable
identification when requested by a peace officer. It elucidated:
Although the doctrine focuses on both actual notice to citizens and arbitrary enforcement, we have
recognized recently that the more important aspect of the vagueness doctrine "is not actual notice, but
the other principal element of the doctrine-the requirement that a legislature establish minimal
guidelines to govern law enforcements. Where the legislature fails to provide such minimal guidelines, a
criminal statute may permit "a standardless sweep [that] allows policemen, prosecutors and juries to
pursue their personal predilections.29
In the fairly recent case of City of Chicago v. Morales,30 the U.S. Supreme Court affirmed a lower court
ruling invalidating as void for vagueness an ordinance prohibiting "criminal street gang members" from
loitering in public places, as well as the conviction based on the invalidated ordinance. The US Court
again asserted:
80
For it is clear that the vagueness of this enactment makes a facial challenge appropriate. This is not an
ordinance that "simply regulates business behavior and contains a scienter requirement." (See Hoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 499 (1982)). It is a criminal law that contains no
mens rea requirement (see Colautti v. Franklin , 439 U. S. 379, 395 (1979)), and infringes on
constitutionally protected rights (see id. , at 391). When vagueness permeates the text of such a law, it is
subject to facial attack.
Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to
provide the kind of notice that will enable ordinary people to understand what conduct it prohibits;
second, it may authorize and even encourage arbitrary and discriminatory enforcement. (See Kolender v.
Lawson, 461 U. S., at 357).31
Given the wealth of jurisprudence invalidating penal statutes for suffering from vagueness, it is mystifying
why the notion that the doctrine applies only to "free-speech" cases has gained a foothold in this Court.
It might be argued that the above-cited cases are foreign jurisprudence, inapplicable to this jurisdiction.
Yet it is submitted that the rule is applicable here, not because of its repeated affirmation by American
courts, but because such rule is lucidly consistent with our own fundamental notions of due process, as
enunciated in our own Constitution.
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 government 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 reasons 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." 32
The dissent of Justice White, joined by Justice Rehnquist, in Kolender v. Lawson finds some kinship with
Mr. Justice Mendoza's views in Estrada, insofar as they point out a distinction between the "vagueness"
doctrine, as applied to criminal statutes, on one hand, and as applied to US First Amendment cases, on
the other.
The usual rule is that the alleged vagueness of a criminal statute must be judged in light of the conduct
that is charged to be violative of the statute. If the actor is given sufficient notice that his conduct is
within the proscription of the statute, his conviction is not vulnerable on vagueness grounds, even if as
applied to other conduct, the law would be unconstitutionally vague. None of our cases "suggests that
one who has received fair warning of the criminality of his own conduct from the statute in question is
nonetheless entitled to attack it because the language would not give similar fair warning ;with respect to
other conduct which might be within its broad and literal ambit. One to whose conduct a statute clearly
applies may not successfully challenge it for vagueness." The correlative rule is that a criminal statute is
not unconstitutionally vague on its face unless it is "impermissibly vague in all of its applications."
These general rules are equally applicable to cases where First Amendment or other "fundamental"
interests are involved. The Court has held that in such circumstances "more precision in drafting may be
required because of the vagueness doctrine in the case of regulation of expression, a "greater degree of
specificity" is demanded than in other contexts. But the difference in such cases "relates to how strict a
test of vagueness shall be applied in judging a particular criminal statute." It does not permit the
challenger of the statute to confuse vagueness and overbreadth by attacking the enactment as being
vague as applied to conduct other than his own. Of course, if his own actions are themselves protected
by the First Amendment or other constitutional provision, or if the statute does not fairly warn that it
is proscribed, he may not be convicted. But it would be unavailing for him to claim that although he
knew his own conduct was unprotected and was plainly enough forbidden by the statute, others may be
in doubt as to whether their acts are banned by the law.33 (Emphasis supplied)
Still, the quoted dissenting opinion concedes the applicability of the "void for vagueness" rule in striking
infirm criminal statutes. It just enunciates a greater demand for "specificity" in statutes which may
infringe on free speech protections.
Moreover, Mr. Justice Mendoza likewise invoked American jurisprudence in support of his view that the
overbreadth and vagueness doctrines apply only to free speech cases. 34 He cites, among others, U.S. v.
Salerno35
and Broadrick v. Oklahoma.36 In Salerno, the US Supreme Court notes that the "overbreadth" doctrine
was inapplicable outside the context of the First Amendment.37 Notably though, the US Court did not
make the same assertion as to the "vagueness" doctrine. Had it done so in Salerno, it would have been
incongruent with its previous rulings, as well as with its subsequent ones.
Broadrick v. Oklahoma did not pertain to a challenge to a penal statute, but rather an Oklahoma law
restricting the political activities of that state's classified civil servants.38 Again, Broadrick may advert to a
correct interpretation of the "overbreadth" doctrine. However, in the face of numerous jurisprudence
affirming the "vagueness" challenge of American penal laws neither Broadrick nor Salerno can be utilized
to assert a converse rule.
Mr. Justice Mendoza's opinion also cites from the American constitutional law textbook of Sullivan and
Gunther, to assert that "vagueness challenges in the First Amendment context, like overbreadth
challenges, typically produce facial invalidation, while statutes found vague as a matter of due process
typically are invalidated only as
applied to a particular defendant."39 This may be a correct restatement of the American rule. Yet, it does
not necessarily mean that penal laws are not susceptible to a "void for vagueness" challenge. In fact, in
the same page cited in Mr. Justice Mendoza's opinion, Sullivan and Gunther cite cases wherein American
penal laws were stricken down for being vague, such as Connally v. General Construction Co., Kolender v.
Lawson, and Papachristou v. Jacksonville.40
The same citation likewise refers to the odd situation wherein unlike in First Amendment cases, due
process invalidations for vagueness apply only to a particular defendant. Sullivan and Gunther posit that
the broader protection afforded in First Amendment cases follow from "a special concern about the
'chilling effect' of vague statutes on protected speech."41 However, the ponencia latches onto this
distinction in order to foist the bugaboo of "mass acquittal" of criminals due to the facial invalidation of
criminal statutes.42 Moreover, the ponencia asserts that such invalidation would constitute a departure
from the usual requirement of actual case and controversy and permit decisions to be made in a sterile
abstract context having no factual concreteness.43
Such concerns are overwrought. In this jurisdiction, judicial review over the constitutionality of statutes,
penal or otherwise, avails only upon the concurrence of (1) the existence of an appropriate case; (2) an
interest personal and substantial by the party raising the constitutional question; (3) a plea that the
function be exercised at the earliest opportunity; and (4) a necessity that the constitutional question be
passed upon in order to decide the case.44 Challenges to the validity of laws are not lightly undertaken,
and the non-existence of any of the four conditions precedent bar a successful challenge. Surely, not just
anybody picked off the street prepossesses the requisite standing, nor could just any case present itself
as the proper vehicle for a constitutional attack.
These conditions precedent successfully weigh the concerns of the State, fearful of instabilities brought
by frequent invalidations of the laws it passes, and with the basic component of justice that a person to
whom a wrong is done by the State can seek vindication from the courts. Our basic jurisprudential barrier
has shielded this Court for generations from exercising unwarranted and unmitigated judicial review.
There is no need to further raise the bar for review, especially on such flimsy foundations, lest we insulate
ourselves from the pleas of the truly prejudiced, truly injured, truly violated.
At the same time, the ponencia raises the concern that the invalidation of a void law will unnecessarily
benefit those without actual cases or controversies. It must be remembered though that the Court will
not unhesitatingly strike down a statute if a narrower alternative affording the same correct relief is
available. Within the confines of this discretion, all the tools of searching inquiry are at the Court's
disposal to carve as narrow a rule as necessary.
Still and all, if there is no alternative but to strike down a void law, there should be no hesitation on the
part of this Court in ruling it so, no matter the effective scope and reach of the decision. The State has no
business promulgating void laws, which stick out like a cancer infecting our constitutional order. When
faced with the proper opportunity, it is the Court's duty to excise the tumor no matter how painful.
Unfortunately, the solution advocated by the ponencia barring penal statutes from "void for vagueness"
assaults hides the patient from the doctor.
81
People v. Dela Piedra, earlier cited,45 did not invalidate the statute questioned therein on the "void for
vagueness" ground. Yet it affirms that the "void for vagueness" challenge to a penal law may be sustained
if the statute contravenes due process. The circumstance, as the ponencia herein points out, that no
penal law has been declared unconstitutional on the ground of ambiguity, does not mean that no penal
law can ever be invalidated on that ground.
As long as the due process clause remains immanent in our Constitution, its long reach should be applied
to deter and punish unwarranted deprivations of life, liberty or property. Violations of due process are
myriad, ranging as they do from the simple to the complicated, from the isolated to the intermittent,
from the abashed to the brazen. No advance statement can outrightly cast an act as beyond the ambit of
the due process clause, especially when applied to the lot of an accused, for such is simply presumptuous
and anathema to the spirit of fair play.
I may disagree with the eventual conclusions of Justices Kapunan, Ynares-Santiago and Sandoval-
Gutierrez in the Estrada case that Section 5 of the Anti-Plunder Law is void for vagueness. Yet, I submit
that their inquiry as to whether the said criminal statute was void for being vague is a juristic exercise
worth pursuing. If the ponencia affirms the earlier erroneous pronouncement as asserted in the main by
Mr. Justice Mendoza in Estrada, then I express the same fear articulated by Mr. Justice Kapunan in his
dissent, that "such stance is tantamount to saying that no criminal law can be challenged however
repugnant it is to the constitutional right to due process."46

82
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 178552 October 5, 2010
SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC., on behalf of the South-South Network (SSN)
for Non-State Armed Group Engagement, and ATTY. SOLIMAN M. SANTOS, JR., Petitioners, vs.
ANTI-TERRORISM COUNCIL, THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY
OF FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF THE INTERIOR AND
LOCAL GOVERNMENT, THE SECRETARY OF FINANCE, THE NATIONAL SECURITY ADVISER, THE CHIEF OF
STAFF OF THE ARMED FORCES OF THE PHILIPPINES, AND THE CHIEF OF THE PHILIPPINE NATIONAL
POLICE, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178554
KILUSANG MAYO UNO (KMU), represented by its Chairperson Elmer Labog, NATIONAL FEDERATION OF
LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-KMU), represented by its National President Joselito V.
Ustarez and Secretary General Antonio C. Pascual, and CENTER FOR TRADE UNION AND HUMAN
RIGHTS, represented by its Executive Director Daisy Arago, Petitioners, vs.
HON. EDUARDO ERMITA, in his capacity as Executive Secretary, NORBERTO GONZALES, in his capacity
as Acting Secretary of National Defense, HON. RAUL GONZALES, in his capacity as Secretary of Justice,
HON. RONALDO PUNO, in his capacity as Secretary of the Interior and Local Government, GEN.
HERMOGENES ESPERON, in his capacity as AFP Chief of Staff, and DIRECTOR GENERAL OSCAR
CALDERON, in his capacity as PNP Chief of Staff, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178581
BAGONG ALYANSANG MAKABAYAN (BAYAN), GENERAL ALLIANCE BINDING WOMEN FOR REFORMS,
INTEGRITY, EQUALITY, LEADERSHIP AND ACTION (GABRIELA), KILUSANG MAGBUBUKID NG PILIPINAS
(KMP), MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL), CONFEDERATION FOR
UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE), KALIPUNAN NG
DAMAYANG MAHIHIRAP (KADAMAY), SOLIDARITY OF CAVITE WORKERS, LEAGUE OF FILIPINO
STUDENTS (LFS), ANAKBAYAN, PAMBANSANG LAKAS NG KILUSANG MAMAMALAKAYA (PAMALAKAYA),
ALLIANCE OF CONCERNED TEACHERS (ACT), MIGRANTE, HEALTH ALLIANCE FOR DEMOCRACY (HEAD),
AGHAM, TEOFISTO GUINGONA, JR., DR. BIENVENIDO LUMBERA, RENATO CONSTANTINO, JR., SISTER
MARY JOHN MANANSAN OSB, DEAN CONSUELO PAZ, ATTY. JOSEFINA LICHAUCO, COL. GERRY
CUNANAN (ret.), CARLITOS SIGUION-REYNA, DR. CAROLINA PAGADUAN-ARAULLO, RENATO REYES,
DANILO RAMOS, EMERENCIANA DE LESUS, RITA BAUA, REY CLARO CASAMBRE, Petitioners, vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE
SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALES, DEPARTMENT
OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING
SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT SECRETARY
RONALDO PUNO. DEPARTMENT OF FINANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY
ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE
NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL
DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-
MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE
CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence
and investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178890
KARAPATAN, ALLIANCE FOR THE ADVANCEMENT OF PEOPLE'S RIGHTS, represented herein by Dr.
Edelina de la Paz, and representing the following organizations: HUSTISYA, represented by Evangeline
Hernandez and also on her own behalf; DESAPARECIDOS, represented by Mary Guy Portajada and also
on her own behalf, SAMAHAN NG MGA EX-DETAINEES LABAN SA DETENSYON AT PARA SA AMNESTIYA
(SELDA), represented by Donato Continente and also on his own behalf, ECUMENICAL MOVEMENT FOR
JUSTICE AND PEACE (EMJP), represented by Bishop Elmer M. Bolocon, UCCP, and PROMOTION OF
CHURCH PEOPLE'S RESPONSE, represented by Fr. Gilbert Sabado, OCARM, Petitioners, vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE
SECRETARTY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALEZ, DEPARTMENT
OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING
SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT SECRETARY
RONALDO PUNO, DEPARTMENT OF FINANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY
ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE
NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL
DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-
MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE
CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence
and investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 179157
THE INTEGRATED BAR OF THE PHILIPPINES (IBP), represented by Atty. Feliciano M. Bautista, COUNSELS
FOR THE DEFENSE OF LIBERTY (CODAL), SEN. MA. ANA CONSUELO A.S. MADRIGAL and FORMER
SENATORS SERGIO OSMEÑA III and WIGBERTO E. TAÑADA, Petitioners, vs.
EXECUTIVE SECRETARY EDUARDO ERMITA AND THE MEMBERS OF THE ANTI-TERRORISM COUNCIL
(ATC), Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 179461
BAGONG ALYANSANG MAKABAYAN-SOUTHERN TAGALOG (BAYAN-ST), GABRIELA-ST, KATIPUNAN NG
MGA SAMAHYANG MAGSASAKA-TIMOG KATAGALUGAN (KASAMA-TK), MOVEMENT OF CONCERNED
CITIZENS FOR CIVIL LIBERTIES (MCCCL), PEOPLES MARTYRS, ANAKBAYAN-ST, PAMALAKAYA-ST,
CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES
(COURAGE-ST), PAGKAKAISA'T UGNAYAN NG MGA MAGBUBUKID SA LAGUNA (PUMALAG), SAMAHAN
NG MGA MAMAMAYAN SA TABING RILES (SMTR-ST), LEAGUE OF FILIPINO STUDENTS (LFS), BAYAN
MUNA-ST, KONGRESO NG MGA MAGBUBUKID PARA SA REPORMANG AGRARYO KOMPRA, BIGKIS AT
LAKAS NG MGA KATUTUBO SA TIMOG KATAGALUGAN (BALATIK), SAMAHAN AT UGNAYAN NG MGA
MAGSASAKANG KABABAIHAN SA TIMOG KATAGALUGAN (SUMAMAKA-TK), STARTER, LOSÑOS RURAL
POOR ORGANIZATION FOR PROGRESS & EQUALITY, CHRISTIAN NIÑO LAJARA, TEODORO REYES,
FRANCESCA B. TOLENTINO, JANNETTE E. BARRIENTOS, OSCAR T. LAPIDA, JR., DELFIN DE CLARO, SALLY
P. ASTRERA, ARNEL SEGUNE BELTRAN, Petitioners, vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE
SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALEZ, DEPARTMENT
OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL DEFENSE ACTING
SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMEN T SECRETARY
RONALDO PUNO, DEPARTMENT OF FINCANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY
ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE
NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL
DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-
MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE
CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence
and investigative elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents.
DECISION
CARPIO MORALES, J.:
Before the Court are six petitions challenging the constitutionality of Republic Act No. 9372 (RA 9372),
"An Act to Secure the State and Protect our People from Terrorism," otherwise known as the Human
Security Act of 2007,1 signed into law on March 6, 2007.
Following the effectivity of RA 9372 on July 15, 2007,2 petitioner Southern Hemisphere Engagement
Network, Inc., a non-government organization, and Atty. Soliman Santos, Jr., a concerned citizen, taxpayer
and lawyer, filed a petition for certiorari and prohibition on July 16, 2007 docketed as G.R. No. 178552.
On even date, petitioners Kilusang Mayo Uno (KMU), National Federation of Labor Unions-Kilusang Mayo
Uno (NAFLU-KMU), and Center for Trade Union and Human Rights (CTUHR), represented by their
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respective officers3 who are also bringing the action in their capacity as citizens, filed a petition for
certiorari and prohibition docketed as G.R. No. 178554.
The following day, July 17, 2007, organizations Bagong Alyansang Makabayan (BAYAN), General Alliance
Binding Women for Reforms, Integrity, Equality, Leadership and Action (GABRIELA), Kilusang Magbubukid
ng Pilipinas (KMP), Movement of Concerned Citizens for Civil Liberties (MCCCL), Confederation for Unity,
Recognition and Advancement of Government Employees (COURAGE), Kalipunan ng Damayang
Mahihirap (KADAMAY), Solidarity of Cavite Workers (SCW), League of Filipino Students (LFS), Anakbayan,
Pambansang Lakas ng Kilusang Mamamalakaya (PAMALAKAYA), Alliance of Concerned Teachers (ACT),
Migrante, Health Alliance for Democracy (HEAD), and Agham, represented by their respective officers, 4
and joined by concerned citizens and taxpayers Teofisto Guingona, Jr., Dr. Bienvenido Lumbera, Renato
Constantino, Jr., Sister Mary John Manansan, OSB, Dean Consuelo Paz, Atty. Josefina Lichauco, Retired
Col. Gerry Cunanan, Carlitos Siguion-Reyna, Dr. Carolina Pagaduan-Araullo, Renato Reyes, Danilo Ramos,
Emerenciana de Jesus, Rita Baua and Rey Claro Casambre filed a petition for certiorari and prohibition
docketed as G.R. No. 178581.
On August 6, 2007, Karapatan and its alliance member organizations Hustisya, Desaparecidos, Samahan
ng mga Ex-Detainees Laban sa Detensyon at para sa Amnestiya (SELDA), Ecumenical Movement for
Justice and Peace (EMJP), and Promotion of Church People’s Response (PCPR), which were represented
by their respective officers5 who are also bringing action on their own behalf, filed a petition for certiorari
and prohibition docketed as G.R. No. 178890.
On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels for the Defense of Liberty
(CODAL),6 Senator Ma. Ana Consuelo A.S. Madrigal, Sergio Osmeña III, and Wigberto E. Tañada filed a
petition for certiorari and prohibition docketed as G.R. No. 179157.
Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other regional chapters and organizations
mostly based in the Southern Tagalog Region,7 and individuals8 followed suit by filing on September 19,
2007 a petition for certiorari and prohibition docketed as G.R. No. 179461 that replicates the allegations
raised in the BAYAN petition in G.R. No. 178581.
Impleaded as respondents in the various petitions are the Anti-Terrorism Council 9 composed of, at the
time of the filing of the petitions, Executive Secretary Eduardo Ermita as Chairperson, Justice Secretary
Raul Gonzales as Vice Chairperson, and Foreign Affairs Secretary Alberto Romulo, Acting Defense
Secretary and National Security Adviser Norberto Gonzales, Interior and Local Government Secretary
Ronaldo Puno, and Finance Secretary Margarito Teves as members. All the petitions, except that of the
IBP, also impleaded Armed Forces of the Philippines (AFP) Chief of Staff Gen. Hermogenes Esperon and
Philippine National Police (PNP) Chief Gen. Oscar Calderon.
The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President Gloria Macapagal-Arroyo
and the support agencies for the Anti-Terrorism Council like the National Intelligence Coordinating
Agency, National Bureau of Investigation, Bureau of Immigration, Office of Civil Defense, Intelligence
Service of the AFP, Anti-Money Laundering Center, Philippine Center on Transnational Crime, and the PNP
intelligence and investigative elements.
The petitions fail.
Petitioners’ resort to certiorari is improper
Preliminarily, certiorari does not lie against respondents who do not exercise judicial or quasi-judicial
functions. Section 1, Rule 65 of the Rules of Court is clear:
Section 1. Petition for certiorari.—When any tribunal, board or officer exercising judicial or quasi-judicial
functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate
remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty and praying that judgment be rendered annulling or
modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law
and justice may require. (Emphasis and underscoring supplied)
Parenthetically, petitioners do not even allege with any modicum of particularity how respondents acted
without or in excess of their respective jurisdictions, or with grave abuse of discretion amounting to lack
or excess of jurisdiction.
The impropriety of certiorari as a remedy aside, the petitions fail just the same.
In constitutional litigations, the power of judicial review is limited by four exacting requisites, viz: (a)
there must be an actual case or controversy; (b) petitioners must possess locus standi; (c) the question of
constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must be
the lis mota of the case.10
In the present case, the dismal absence of the first two requisites, which are the most essential, renders
the discussion of the last two superfluous.
Petitioners lack locus standi
Locus standi or legal standing requires a personal stake in the outcome of the controversy as to assure
that concrete adverseness which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions.11
Anak Mindanao Party-List Group v. The Executive Secretary12 summarized the rule on locus standi, thus:
Locus standi or legal standing has been defined as a personal and substantial interest in a case such that
the party has sustained or will sustain direct injury as a result of the governmental act that is being
challenged. The gist of the question on standing is whether a party alleges such personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court depends for illumination of difficult constitutional questions.
[A] party who assails the constitutionality of a statute must have a direct and personal interest. It must
show not only that the law or any governmental act is invalid, but also that it sustained or is in immediate
danger of sustaining some direct injury as a result of its enforcement, and not merely that it suffers
thereby in some indefinite way. It must show that it has been or is about to be denied some right or
privilege to which it is lawfully entitled or that it is about to be subjected to some burdens or penalties by
reason of the statute or act complained of.
For a concerned party to be allowed to raise a constitutional question, it must show that (1) it has
personally suffered some actual or threatened injury as a result of the allegedly illegal conduct of the
government, (2) the injury is fairly traceable to the challenged action, and (3) the injury is likely to be
redressed by a favorable action. (emphasis and underscoring supplied.)
Petitioner-organizations assert locus standi on the basis of being suspected "communist fronts" by the
government, especially the military; whereas individual petitioners invariably invoke the "transcendental
importance" doctrine and their status as citizens and taxpayers.
While Chavez v. PCGG13 holds that transcendental public importance dispenses with the requirement that
petitioner has experienced or is in actual danger of suffering direct and personal injury, cases involving
the constitutionality of penal legislation belong to an altogether different genus of constitutional
litigation. Compelling State and societal interests in the proscription of harmful conduct, as will later be
elucidated, necessitate a closer judicial scrutiny of locus standi.
Petitioners have not presented any personal stake in the outcome of the controversy. None of them faces
any charge under RA 9372.
KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR, petitioners in G.R. No. 178890, allege that
they have been subjected to "close security surveillance by state security forces," their members
followed by "suspicious persons" and "vehicles with dark windshields," and their offices monitored by
"men with military build." They likewise claim that they have been branded as "enemies of the [S]tate." 14
Even conceding such gratuitous allegations, the Office of the Solicitor General (OSG) correctly points out
that petitioners have yet to show any connection between the purported "surveillance" and the
implementation of RA 9372.
BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, Anakbayan, PAMALAKAYA, ACT,
Migrante, HEAD and Agham, petitioner-organizations in G.R. No. 178581, would like the Court to take
judicial notice of respondents’ alleged action of tagging them as militant organizations fronting for the
Communist Party of the Philippines (CPP) and its armed wing, the National People’s Army (NPA). The
tagging, according to petitioners, is tantamount to the effects of proscription without following the
procedure under the law.15 The petition of BAYAN-ST, et al. in G.R. No. 179461 pleads the same
allegations.
The Court cannot take judicial notice of the alleged "tagging" of petitioners.
Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be one
of common and general knowledge; (2) it must be well and authoritatively settled and not doubtful or
uncertain; and (3) it must be known to be within the limits of the jurisdiction of the court. The principal
guide in determining what facts may be assumed to be judicially known is that of notoriety. Hence, it can
be said that judicial notice is limited to facts evidenced by public records and facts of general notoriety.
Moreover, a judicially noticed fact must be one not subject to a reasonable dispute in that it is either: (1)
84
generally known within the territorial jurisdiction of the trial court; or (2) capable of accurate and ready
determination by resorting to sources whose accuracy cannot reasonably be questionable.
Things of "common knowledge," of which courts take judicial matters coming to the knowledge of men
generally in the course of the ordinary experiences of life, or they may be matters which are generally
accepted by mankind as true and are capable of ready and unquestioned demonstration. Thus, facts
which are universally known, and which may be found in encyclopedias, dictionaries or other
publications, are judicially noticed, provided, they are of such universal notoriety and so generally
understood that they may be regarded as forming part of the common knowledge of every person. As
the common knowledge of man ranges far and wide, a wide variety of particular facts have been
judicially noticed as being matters of common knowledge. But a court cannot take judicial notice of any
fact which, in part, is dependent on the existence or non-existence of a fact of which the court has no
constructive knowledge.16 (emphasis and underscoring supplied.)
No ground was properly established by petitioners for the taking of judicial notice. Petitioners’
apprehension is insufficient to substantiate their plea. That no specific charge or proscription under RA
9372 has been filed against them, three years after its effectivity, belies any claim of imminence of their
perceived threat emanating from the so-called tagging.
The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No. 178554, who merely harp as well
on their supposed "link" to the CPP and NPA. They fail to particularize how the implementation of specific
provisions of RA 9372 would result in direct injury to their organization and members.
While in our jurisdiction there is still no judicially declared terrorist organization, the United States of
America17 (US) and the European Union18 (EU) have both classified the CPP, NPA and Abu Sayyaf Group as
foreign terrorist organizations. The Court takes note of the joint statement of Executive Secretary
Eduardo Ermita and Justice Secretary Raul Gonzales that the Arroyo Administration would adopt the US
and EU classification of the CPP and NPA as terrorist organizations.19 Such statement notwithstanding,
there is yet to be filed before the courts an application to declare the CPP and NPA organizations as
domestic terrorist or outlawed organizations under RA 9372. Again, RA 9372 has been in effect for three
years now. From July 2007 up to the present, petitioner-organizations have conducted their activities fully
and freely without any threat of, much less an actual, prosecution or proscription under RA 9372.
Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-list Representatives Saturnino
Ocampo, Teodoro Casiño, Rafael Mariano and Luzviminda Ilagan,20 urged the government to resume
peace negotiations with the NDF by removing the impediments thereto, one of which is the adoption of
designation of the CPP and NPA by the US and EU as foreign terrorist organizations. Considering the
policy statement of the Aquino Administration21 of resuming peace talks with the NDF, the government is
not imminently disposed to ask for the judicial proscription of the CPP-NPA consortium and its allied
organizations.
More important, there are other parties not before the Court with direct and specific interests in the
questions being raised.22 Of recent development is the filing of the first case for proscription under
Section 1723 of RA 9372 by the Department of Justice before the Basilan Regional Trial Court against the
Abu Sayyaf Group.24 Petitioner-organizations do not in the least allege any link to the Abu Sayyaf Group.
Some petitioners attempt, in vain though, to show the imminence of a prosecution under RA 9372 by
alluding to past rebellion charges against them.
In Ladlad v. Velasco,25 the Court ordered the dismissal of rebellion charges filed in 2006 against then
Party-List Representatives Crispin Beltran and Rafael Mariano of Anakpawis, Liza Maza of GABRIELA, and
Joel Virador, Teodoro Casiño and Saturnino Ocampo of Bayan Muna. Also named in the dismissed
rebellion charges were petitioners Rey Claro Casambre, Carolina Pagaduan-Araullo, Renato Reyes, Rita
Baua, Emerencia de Jesus and Danilo Ramos; and accused of being front organizations for the Communist
movement were petitioner-organizations KMU, BAYAN, GABRIELA, PAMALAKAYA, KMP, KADAMAY, LFS and
COURAGE.26
The dismissed rebellion charges, however, do not save the day for petitioners. For one, those charges
were filed in 2006, prior to the enactment of RA 9372, and dismissed by this Court. For another, rebellion
is defined and punished under the Revised Penal Code. Prosecution for rebellion is not made more
imminent by the enactment of RA 9372, nor does the enactment thereof make it easier to charge a
person with rebellion, its elements not having been altered.
Conversely, previously filed but dismissed rebellion charges bear no relation to prospective charges under
RA 9372. It cannot be overemphasized that three years after the enactment of RA 9372, none of
petitioners has been charged.
Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus standi on their sworn duty to
uphold the Constitution. The IBP zeroes in on Section 21 of RA 9372 directing it to render assistance to
those arrested or detained under the law.
The mere invocation of the duty to preserve the rule of law does not, however, suffice to clothe the IBP
or any of its members with standing.27 The IBP failed to sufficiently demonstrate how its mandate under
the assailed statute revolts against its constitutional rights and duties. Moreover, both the IBP and CODAL
have not pointed to even a single arrest or detention effected under RA 9372.
Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the subject of "political
surveillance," also lacks locus standi. Prescinding from the veracity, let alone legal basis, of the claim of
"political surveillance," the Court finds that she has not shown even the slightest threat of being charged
under RA 9372. Similarly lacking in locus standi are former Senator Wigberto Tañada and Senator Sergio
Osmeña III, who cite their being respectively a human rights advocate and an oppositor to the passage of
RA 9372. Outside these gratuitous statements, no concrete injury to them has been pinpointed.
Petitioners Southern Hemisphere Engagement Network and Atty. Soliman Santos Jr. in G.R. No. 178552
also conveniently state that the issues they raise are of transcendental importance, "which must be
settled early" and are of "far-reaching implications," without mention of any specific provision of RA 9372
under which they have been charged, or may be charged. Mere invocation of human rights advocacy has
nowhere been held sufficient to clothe litigants with locus standi. Petitioners must show an actual, or
immediate danger of sustaining, direct injury as a result of the law’s enforcement. To rule otherwise
would be to corrupt the settled doctrine of locus standi, as every worthy cause is an interest shared by
the general public.
Neither can locus standi be conferred upon individual petitioners as taxpayers and citizens. A taxpayer
suit is proper only when there is an exercise of the spending or taxing power of Congress, 28 whereas
citizen standing must rest on direct and personal interest in the proceeding.29
RA 9372 is a penal statute and does not even provide for any appropriation from Congress for its
implementation, while none of the individual petitioner-citizens has alleged any direct and personal
interest in the implementation of the law.
It bears to stress that generalized interests, albeit accompanied by the assertion of a public right, do not
establish locus standi. Evidence of a direct and personal interest is key.
Petitioners fail to present an actual case or controversy
By constitutional fiat, judicial power operates only when there is an actual case or controversy.
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government.30 (emphasis and underscoring supplied.)
As early as Angara v. Electoral Commission,31 the Court ruled that the power of judicial review is limited
to actual cases or controversies to be exercised after full opportunity of argument by the parties. Any
attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions
unrelated to actualities.
An actual case or controversy means an existing case or controversy that is appropriate or ripe for
determination, not conjectural or anticipatory, lest the decision of the court would amount to an advisory
opinion.32
Information Technology Foundation of the Philippines v. COMELEC33 cannot be more emphatic:
[C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however
intellectually challenging. The controversy must be justiciable—definite and concrete, touching on the
legal relations of parties having adverse legal interests. In other words, the pleadings must show an active
antagonistic assertion of a legal right, on the one hand, and a denial thereof on the other hand; that is, it
must concern a real and not merely a theoretical question or issue. There ought to be an actual and
substantial controversy admitting of specific relief through a decree conclusive in nature, as distinguished
85
from an opinion advising what the law would be upon a hypothetical state of facts. (Emphasis and
underscoring supplied)
Thus, a petition to declare unconstitutional a law converting the Municipality of Makati into a Highly
Urbanized City was held to be premature as it was tacked on uncertain, contingent events.34 Similarly, a
petition that fails to allege that an application for a license to operate a radio or television station has
been denied or granted by the authorities does not present a justiciable controversy, and merely
wheedles the Court to rule on a hypothetical problem.35
The Court dismissed the petition in Philippine Press Institute v. Commission on Elections36 for failure to
cite any specific affirmative action of the Commission on Elections to implement the assailed resolution.
It refused, in Abbas v. Commission on Elections,37 to rule on the religious freedom claim of the therein
petitioners based merely on a perceived potential conflict between the provisions of the Muslim Code
and those of the national law, there being no actual controversy between real litigants.
The list of cases denying claims resting on purely hypothetical or anticipatory grounds goes on ad
infinitum.
The Court is not unaware that a reasonable certainty of the occurrence of a perceived threat to any
constitutional interest suffices to provide a basis for mounting a constitutional challenge. This, however,
is qualified by the requirement that there must be sufficient facts to enable the Court to intelligently
adjudicate the issues.38
Very recently, the US Supreme Court, in Holder v. Humanitarian Law Project, 39 allowed the pre-
enforcement review of a criminal statute, challenged on vagueness grounds, since plaintiffs faced a
"credible threat of prosecution" and "should not be required to await and undergo a criminal prosecution
as the sole means of seeking relief."40 The plaintiffs therein filed an action before a federal court to assail
the constitutionality of the material support statute, 18 U.S.C. §2339B (a) (1),41 proscribing the provision
of material support to organizations declared by the Secretary of State as foreign terrorist organizations.
They claimed that they intended to provide support for the humanitarian and political activities of two
such organizations.
Prevailing American jurisprudence allows an adjudication on the merits when an anticipatory petition
clearly shows that the challenged prohibition forbids the conduct or activity that a petitioner seeks to do,
as there would then be a justiciable controversy.42
Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that the challenged
provisions of RA 9372 forbid constitutionally protected conduct or activity that they seek to do. No
demonstrable threat has been established, much less a real and existing one.
Petitioners’ obscure allegations of sporadic "surveillance" and supposedly being tagged as "communist
fronts" in no way approximate a credible threat of prosecution. From these allegations, the Court is being
lured to render an advisory opinion, which is not its function.43
Without any justiciable controversy, the petitions have become pleas for declaratory relief, over which
the Court has no original jurisdiction. Then again, declaratory actions characterized by "double
contingency," where both the activity the petitioners intend to undertake and the anticipated reaction to
it of a public official are merely theorized, lie beyond judicial review for lack of ripeness.44
The possibility of abuse in the implementation of RA 9372 does not avail to take the present petitions out
of the realm of the surreal and merely imagined. Such possibility is not peculiar to RA 9372 since the
exercise of any power granted by law may be abused.45 Allegations of abuse must be anchored on real
events before courts may step in to settle actual controversies involving rights which are legally
demandable and enforceable.
A facial invalidation of a statute is allowed only in free speech cases, wherein certain rules of
constitutional litigation are rightly excepted
Petitioners assail for being intrinsically vague and impermissibly broad the definition of the crime of
terrorism46 under RA 9372 in that terms like "widespread and extraordinary fear and panic among the
populace" and "coerce the government to give in to an unlawful demand" are nebulous, leaving law
enforcement agencies with no standard to measure the prohibited acts.
Respondents, through the OSG, counter that the doctrines of void-for-vagueness and overbreadth find no
application in the present case since these doctrines apply only to free speech cases; and that RA 9372
regulates conduct, not speech.
For a jurisprudentially guided understanding of these doctrines, it is imperative to outline the schools of
thought on whether the void-for-vagueness and overbreadth doctrines are equally applicable grounds to
assail a penal statute.
Respondents interpret recent jurisprudence as slanting toward the idea of limiting the application of the
two doctrines to free speech cases. They particularly cite Romualdez v. Hon. Sandiganbayan47 and
Estrada v. Sandiganbayan.48
The Court clarifies.
At issue in Romualdez v. Sandiganbayan was whether the word "intervene" in Section 549 of the Anti-
Graft and Corrupt Practices Act was intrinsically vague and impermissibly broad. The Court stated that
"the overbreadth and the vagueness doctrines have special application only to free-speech cases," and
are "not appropriate for testing the validity of penal statutes."50 It added that, at any rate, the challenged
provision, under which the therein petitioner was charged, is not vague. 51
While in the subsequent case of Romualdez v. Commission on Elections,52 the Court stated that a facial
invalidation of criminal statutes is not appropriate, it nonetheless proceeded to conduct a vagueness
analysis, and concluded that the therein subject election offense53 under the Voter’s Registration Act of
1996, with which the therein petitioners were charged, is couched in precise language.54
The two Romualdez cases rely heavily on the Separate Opinion55 of Justice Vicente V. Mendoza in the
Estrada case, where the Court found the Anti-Plunder Law (Republic Act No. 7080) clear and free from
ambiguity respecting the definition of the crime of plunder.
The position taken by Justice Mendoza in Estrada relates these two doctrines to the concept of a "facial"
invalidation as opposed to an "as-applied" challenge. He basically postulated that allegations that a penal
statute is vague and overbroad do not justify a facial review of its validity. The pertinent portion of the
Concurring Opinion of Justice Mendoza, which was quoted at length in the main Estrada decision, reads:
A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of
possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe
speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a
single prosecution, the transcendent value to all society of constitutionally protected expression is
deemed to justify allowing attacks on overly broad statutes with no requirement that the person making
the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow
specificity." The possible harm to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others may be deterred and perceived
grievances left to fester because of possible inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting
from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be
prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law
cannot take chances as in the area of free speech.
The overbreadth and vagueness doctrines then have special application only to free speech cases. They
are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by Chief
Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited context of the
First Amendment." In Broadrick v. Oklahoma, the Court ruled that "claims of facial overbreadth have
been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words"
and, again, that "overbreadth claims, if entertained at all, have been curtailed when invoked against
ordinary criminal laws that are sought to be applied to protected conduct." For this reason, it has been
held that "a facial challenge to a legislative act is the most difficult challenge to mount successfully, since
the challenger must establish that no set of circumstances exists under which the Act would be valid." As
for the vagueness doctrine, it is said that a litigant may challenge a statute on its face only if it is vague in
all its possible applications. "A plaintiff who engages in some conduct that is clearly proscribed cannot
complain of the vagueness of the law as applied to the conduct of others."
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for
testing "on their faces" statutes in free speech cases or, as they are called in American law, First
Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With
respect to such statute, the established rule is that "one to whom application of a statute is constitutional
will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to
other persons or other situations in which its application might be unconstitutional." As has been pointed
out, "vagueness challenges in the First Amendment context, like overbreadth challenges typically
86
produce facial invalidation, while statutes found vague as a matter of due process typically are invalidated
[only] 'as applied' to a particular defendant." Consequently, there is no basis for petitioner's claim that
this Court review the Anti-Plunder Law on its face and in its entirety.
Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that
they might be applied to parties not before the Court whose activities are constitutionally protected. It
constitutes a departure from the case and controversy requirement of the Constitution and permits
decisions to be made without concrete factual settings and in sterile abstract contexts. But, as the U.S.
Supreme Court pointed out in Younger v. Harris
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these
deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact on the legislative process of the
relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of
detailed statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be decided.
For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong
medicine," to be employed "sparingly and only as a last resort," and is generally disfavored. In
determining the constitutionality of a statute, therefore, its provisions which are alleged to have been
violated in a case must be examined in the light of the conduct with which the defendant is charged.56
(Underscoring supplied.)
The confusion apparently stems from the interlocking relation of the overbreadth and vagueness
doctrines as grounds for a facial or as-applied challenge against a penal statute (under a claim of violation
of due process of law) or a speech regulation (under a claim of abridgement of the freedom of speech
and cognate rights).
To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate on the same plane.
A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of
common intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant
to the Constitution in two respects: (1) it violates due process for failure to accord persons, especially the
parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle.57
The overbreadth doctrine, meanwhile, decrees that a governmental purpose to control or prevent
activities constitutionally subject to state regulations may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms. 58
As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that individuals will
understand what a statute prohibits and will accordingly refrain from that behavior, even though some of
it is protected.59
A "facial" challenge is likewise different from an "as-applied" challenge.
Distinguished from an as-applied challenge which considers only extant facts affecting real litigants, a
facial invalidation is an examination of the entire law, pinpointing its flaws and defects, not only on the
basis of its actual operation to the parties, but also on the assumption or prediction that its very
existence may cause others not before the court to refrain from constitutionally protected speech or
activities.60
Justice Mendoza accurately phrased the subtitle 61 in his concurring opinion that the vagueness and
overbreadth doctrines, as grounds for a facial challenge, are not applicable to penal laws. A litigant
cannot thus successfully mount a facial challenge against a criminal statute on either vagueness or
overbreadth grounds.
The allowance of a facial challenge in free speech cases is justified by the aim to avert the "chilling effect"
on protected speech, the exercise of which should not at all times be abridged. 62 As reflected earlier, this
rationale is inapplicable to plain penal statutes that generally bear an "in terrorem effect" in deterring
socially harmful conduct. In fact, the legislature may even forbid and penalize acts formerly considered
innocent and lawful, so long as it refrains from diminishing or dissuading the exercise of constitutionally
protected rights.63
The Court reiterated that there are "critical limitations by which a criminal statute may be challenged"
and "underscored that an ‘on-its-face’ invalidation of penal statutes x x x may not be allowed."64
[T]he rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other
fundamental rights may be facially challenged. Under no case may ordinary penal statutes be subjected
to a facial challenge. The rationale is obvious. If a facial challenge to a penal statute is permitted, the
prosecution of crimes may be hampered. No prosecution would be possible. A strong criticism against
employing a facial challenge in the case of penal statutes, if the same is allowed, would effectively go
against the grain of the doctrinal requirement of an existing and concrete controversy before judicial
power may be appropriately exercised. A facial challenge against a penal statute is, at best, amorphous
and speculative. It would, essentially, force the court to consider third parties who are not before it. As I
have said in my opposition to the allowance of a facial challenge to attack penal statutes, such a test will
impair the State’s ability to deal with crime. If warranted, there would be nothing that can hinder an
accused from defeating the State’s power to prosecute on a mere showing that, as applied to third
parties, the penal statute is vague or overbroad, notwithstanding that the law is clear as applied to him.65
(Emphasis and underscoring supplied)
It is settled, on the other hand, that the application of the overbreadth doctrine is limited to a facial
kind of challenge and, owing to the given rationale of a facial challenge, applicable only to free speech
cases.
By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in order to
plot areas of protected speech, inevitably almost always under situations not before the court, that are
impermissibly swept by the substantially overbroad regulation. Otherwise stated, a statute cannot be
properly analyzed for being substantially overbroad if the court confines itself only to facts as applied to
the litigants.
The most distinctive feature of the overbreadth technique is that it marks an exception to some of the
usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the
unconstitutional aspects of the law by invalidating its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to raise the rights of third parties and can only assert
their own interests. In overbreadth analysis, those rules give way; challenges are permitted to raise the
rights of third parties; and the court invalidates the entire statute "on its face," not merely "as applied
for" so that the overbroad law becomes unenforceable until a properly authorized court construes it
more narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is the
concern with the "chilling;" deterrent effect of the overbroad statute on third parties not courageous
enough to bring suit. The Court assumes that an overbroad law’s "very existence may cause others not
before the court to refrain from constitutionally protected speech or expression." An overbreadth ruling
is designed to remove that deterrent effect on the speech of those third parties.66 (Emphasis in the
original omitted; underscoring supplied.)
In restricting the overbreadth doctrine to free speech claims, the Court, in at least two cases, 67 observed
that the US Supreme Court has not recognized an overbreadth doctrine outside the limited context of the
First Amendment,68 and that claims of facial overbreadth have been entertained in cases involving
statutes which, by their terms, seek to regulate only spoken words.69 In Virginia v. Hicks,70 it was held that
rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically
addressed to speech or speech-related conduct. Attacks on overly broad statutes are justified by the
"transcendent value to all society of constitutionally protected expression." 71
Since a penal statute may only be assailed for being vague as applied to petitioners, a limited
vagueness analysis of the definition of "terrorism" in RA 9372 is legally impermissible absent an actual or
imminent charge against them
While Estrada did not apply the overbreadth doctrine, it did not preclude the operation of the vagueness
test on the Anti-Plunder Law as applied to the therein petitioner, finding, however, that there was no
basis to review the law "on its face and in its entirety."72 It stressed that "statutes found vague as a
matter of due process typically are invalidated only 'as applied' to a particular defendant."73
American jurisprudence74 instructs that "vagueness challenges that do not involve the First Amendment
must be examined in light of the specific facts of the case at hand and not with regard to the statute's
facial validity."
For more than 125 years, the US Supreme Court has evaluated defendants’ claims that criminal statutes
are unconstitutionally vague, developing a doctrine hailed as "among the most important guarantees of
liberty under law."75
In this jurisdiction, the void-for-vagueness doctrine asserted under the due process clause has been
utilized in examining the constitutionality of criminal statutes. In at least three cases,76 the Court brought
87
the doctrine into play in analyzing an ordinance penalizing the non-payment of municipal tax on WHEREFORE, the petitions are DISMISSED.
fishponds, the crime of illegal recruitment punishable under Article 132(b) of the Labor Code, and the SO ORDERED.
vagrancy provision under Article 202 (2) of the Revised Penal Code. Notably, the petitioners in these
three cases, similar to those in the two Romualdez and Estrada cases, were actually charged with the
therein assailed penal statute, unlike in the present case.
There is no merit in the claim that RA 9372 regulates speech so as to permit a facial analysis of its validity
From the definition of the crime of terrorism in the earlier cited Section 3 of RA 9372, the following
elements may be culled: (1) the offender commits an act punishable under any of the cited provisions of
the Revised Penal Code, or under any of the enumerated special penal laws; (2) the commission of the
predicate crime sows and creates a condition of widespread and extraordinary fear and panic among the
populace; and (3) the offender is actuated by the desire to coerce the government to give in to an
unlawful demand.
In insisting on a facial challenge on the invocation that the law penalizes speech, petitioners contend that
the element of "unlawful demand" in the definition of terrorism77 must necessarily be transmitted
through some form of expression protected by the free speech clause.
The argument does not persuade. What the law seeks to penalize is conduct, not speech.
Before a charge for terrorism may be filed under RA 9372, there must first be a predicate crime actually
committed to trigger the operation of the key qualifying phrases in the other elements of the crime,
including the coercion of the government to accede to an "unlawful demand." Given the presence of the
first element, any attempt at singling out or highlighting the communicative component of the
prohibition cannot recategorize the unprotected conduct into a protected speech.
Petitioners’ notion on the transmission of message is entirely inaccurate, as it unduly focuses on just one
particle of an element of the crime. Almost every commission of a crime entails some mincing of words
on the part of the offender like in declaring to launch overt criminal acts against a victim, in haggling on
the amount of ransom or conditions, or in negotiating a deceitful transaction. An analogy in one U.S.
case78 illustrated that the fact that the prohibition on discrimination in hiring on the basis of race will
require an employer to take down a sign reading "White Applicants Only" hardly means that the law
should be analyzed as one regulating speech rather than conduct.
Utterances not elemental but inevitably incidental to the doing of the criminal conduct alter neither the
intent of the law to punish socially harmful conduct nor the essence of the whole act as conduct and not
speech. This holds true a fortiori in the present case where the expression figures only as an inevitable
incident of making the element of coercion perceptible.
[I]t is true that the agreements and course of conduct here were as in most instances brought about
through speaking or writing. But it has never been deemed an abridgement of freedom of speech or
press to make a course of conduct illegal merely because the conduct was, in part, initiated, evidenced, or
carried out by means of language, either spoken, written, or printed. Such an expansive interpretation of
the constitutional guaranties of speech and press would make it practically impossible ever to enforce
laws against agreements in restraint of trade as well as many other agreements and conspiracies deemed
injurious to society.79 (italics and underscoring supplied)
Certain kinds of speech have been treated as unprotected conduct, because they merely evidence a
prohibited conduct.80 Since speech is not involved here, the Court cannot heed the call for a facial
analysis.1avvphi1
IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis of the therein subject
penal statute as applied to the therein petitioners inasmuch as they were actually charged with the
pertinent crimes challenged on vagueness grounds. The Court in said cases, however, found no basis to
review the assailed penal statute on its face and in its entirety.
In Holder, on the other hand, the US Supreme Court allowed the pre-enforcement review of a criminal
statute, challenged on vagueness grounds, since the therein plaintiffs faced a "credible threat of
prosecution" and "should not be required to await and undergo a criminal prosecution as the sole means
of seeking relief."
As earlier reflected, petitioners have established neither an actual charge nor a credible threat of
prosecution under RA 9372. Even a limited vagueness analysis of the assailed definition of "terrorism" is
thus legally impermissible. The Court reminds litigants that judicial power neither contemplates
speculative counseling on a statute’s future effect on hypothetical scenarios nor allows the courts to be
used as an extension of a failed legislative lobbying in Congress.

88
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-64279 April 30, 1984
ANSELMO L. PESIGAN and MARCELINO L. PESIGAN, petitioners, vs.
JUDGE DOMINGO MEDINA ANGELES, Regional Trial Court, Caloocan City Branch 129, acting for
REGIONAL TRIAL COURT of Camarines Norte, now presided over by JUDGE NICANOR ORIÑO, Daet
Branch 40; DRA. BELLA S. MIRANDA, ARNULFO V. ZENAROSA, ET AL., respondents.
Quiazon, De Guzman Makalintal and Barot for petitioners.
The Solicitor General for respondents.
AQUINO, J.:
At issue in this case is the enforceability, before publication in the Official Gazette of June 14, 1982, of
Presidential Executive Order No. 626-A dated October 25, 1980, providing for the confiscation and
forfeiture by the government of carabaos transported from one province to another.
Anselmo L. Pesigan and Marcelo L. Pesigan, carabao dealers, transported in an Isuzu ten-wheeler truck in
the evening of April 2, 1982 twenty-six carabaos and a calf from Sipocot, Camarines Sur with Padre
Garcia, Batangas, as the destination.
They were provided with (1) a health certificate from the provincial veterinarian of Camarines Sur, issued
under the Revised Administrative Code and Presidential Decree No. 533, the Anti-Cattle Rustling Law of
1974; (2) a permit to transport large cattle issued under the authority of the provincial commander; and
(3) three certificates of inspection, one from the Constabulary command attesting that the carabaos were
not included in the list of lost, stolen and questionable animals; one from the LIvestock inspector, Bureau
of Animal Industry of Libmanan, Camarines Sur and one from the mayor of Sipocot.
In spite of the permit to transport and the said four certificates, the carabaos, while passing at Basud,
Camarines Norte, were confiscated by Lieutenant Arnulfo V. Zenarosa, the town's police station
commander, and by Doctor Bella S. Miranda, provincial veterinarian. The confiscation was basis on the
aforementioned Executive Order No. 626-A which provides "that henceforth, no carabao, regardless of
age, sex, physical condition or purpose and no carabeef shall be transported from one province to
another. The carabaos or carabeef transported in violation of this Executive Order as amended shall be
subject to confiscation and forfeiture by the government to be distributed ... to deserving farmers
through dispersal as the Director of Animal Industry may see fit, in the case of carabaos" (78 OG 3144).
Doctor Miranda distributed the carabaos among twenty-five farmers of Basud, and to a farmer from the
Vinzons municipal nursery (Annex 1).
The Pesigans filed against Zenarosa and Doctor Miranda an action for replevin for the recovery of the
carabaos allegedly valued at P70,000 and damages of P92,000. The replevin order could not be executed
by the sheriff. In his order of April 25, 1983 Judge Domingo Medina Angeles, who heard the case at Daet
and who was later transferred to Caloocan City, dismissed the case for lack of cause of action.
The Pesigans appealed to this Court under Rule 45 of the Rules of Court and section 25 of the Interim
Rules and pursuant to Republic Act No. 5440, a 1968 law which superseded Rule 42 of the Rules of Court.
We hold that the said executive order should not be enforced against the Pesigans on April 2, 1982
because, as already noted, it is a penal regulation published more than two months later in the Official
Gazette dated June 14, 1982. It became effective only fifteen days thereafter as provided in article 2 of
the Civil Code and section 11 of the Revised Administrative Code.
The word "laws" in article 2 (article 1 of the old Civil Code) includes circulars and regulations which
prescribe penalties. Publication is necessary to apprise the public of the contents of the regulations and
make the said penalties binding on the persons affected thereby. (People vs. Que Po Lay, 94 Phil. 640; Lim
Hoa Ting vs. Central Bank of the Phils., 104 Phil. 573; Balbuna vs. Secretary of Education, 110 Phil. 150.)
The Spanish Supreme Court ruled that "bajo la denominacion generica de leyes, se comprenden tambien
los reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordenes dictadas de conformidad con
las mismas por el Gobierno en uso de su potestad (1 Manresa, Codigo Civil, 7th Ed., p. 146.)
Thus, in the Que Po Lay case, a person, convicted by the trial court of having violated Central Bank
Circular No. 20 and sentenced to six months' imprisonment and to pay a fine of P1,000, was acquitted by
this Court because the circular was published in the Official Gazette three months after his conviction. He
was not bound by the circular.
That ruling applies to a violation of Executive Order No. 626-A because its confiscation and forfeiture
provision or sanction makes it a penal statute. Justice and fairness dictate that the public must be
informed of that provision by means of publication in the Gazette before violators of the executive order
can be bound thereby.
The cases of Police Commission vs. Bello, L-29960, January 30, 1971, 37 SCRA 230 and Philippine
Blooming Mills vs. Social Security System, 124 Phil. 499, cited by the respondents, do not involve the
enforcement of any penal regulation.
Commonwealth Act No. 638 requires that all Presidential executive orders having general applicability
should be published in the Official Gazette. It provides that "every order or document which shag
prescribe a penalty shall be deemed to have general applicability and legal effect."
Indeed, the practice has always been to publish executive orders in the Gazette. Section 551 of the
Revised Administrative Code provides that even bureau "regulations and orders shall become effective
only when approved by the Department Head and published in the Official Gazette or otherwise publicly
promulgated". (See Commissioner of Civil Service vs. Cruz, 122 Phil. 1015.)
In the instant case, the livestock inspector and the provincial veterinarian of Camarines Norte and the
head of the Public Affairs Office of the Ministry of Agriculture were unaware of Executive Order No. 626-
A. The Pesigans could not have been expected to be cognizant of such an executive order.
It results that they have a cause of action for the recovery of the carabaos. The summary confiscation was
not in order. The recipients of the carabaos should return them to the Pesigans. However, they cannot
transport the carabaos to Batangas because they are now bound by the said executive order. Neither can
they recover damages. Doctor Miranda and Zenarosa acted in good faith in ordering the forfeiture and
dispersal of the carabaos.
WHEREFORE, the trial court's order of dismissal and the confiscation and dispersal of the carabaos are
reversed and set aside. Respondents Miranda and Zenarosa are ordered to restore the carabaos, with the
requisite documents, to the petitioners, who as owners are entitled to possess the same, with the right
to dispose of them in Basud or Sipocot, Camarines Sur. No costs.
SO ORDERED.1äwphï1.ñët
Makasiar, (Chairman), Concepcion, Jr., Guerrero, and Escolin, JJ., concur.
De Castro, J., took no part.
Separate Opinions
ABAD SANTOS, J., concurring:
The Pesigans are entitled to the return of their carabaos or the value of each carabao which is not
returned for any reason. The Pesigans are also entitled to a reasonable rental for each carabao from the
twenty six farmers who used them. The farmers should not enrich themselves at the expense of the
Pesigans.
Separate Opinions
ABAD SANTOS, J., concurring:
The Pesigans are entitled to the return of their carabaos or the value of each carabao which is not
returned for any reason. The Pesigans are also entitled to a reasonable rental for each carabao from the
twenty six farmers who used them. The farmers should not enrich themselves at the expense of the
Pesigans.
89
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-63915 April 24, 1985
LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR BROTHERHOOD,
INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN VENUS, in
his capacity as Deputy Executive Assistant to the President , MELQUIADES P. DE LA CRUZ, in his capacity
as Director, Malacañang Records Office, and FLORENDO S. PABLO, in his capacity as Director, Bureau of
Printing, respondents.
ESCOLIN, J.:
Invoking the people's right to be informed on matters of public concern, a right recognized in Section 6,
Article IV of the 1973 Philippine Constitution, 1 as well as the principle that laws to be valid and
enforceable must be published in the Official Gazette or otherwise effectively promulgated, petitioners
seek a writ of mandamus to compel respondent public officials to publish, and/or cause the publication
in the Official Gazette of various presidential decrees, letters of instructions, general orders,
proclamations, executive orders, letter of implementation and administrative orders.
Specifically, the publication of the following presidential issuances is sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200, 234, 265, 286, 298, 303,
312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404, 406, 415, 427, 429, 445, 447, 473, 486, 491,
503, 504, 521, 528, 551, 566, 573, 574, 594, 599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836,
923, 935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278, 1279,
1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 1842-1847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153, 155, 161, 173, 180,
187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224, 226-228, 231-239, 241-245, 248, 251,
253-261, 263-269, 271-273, 275-283, 285-289, 291, 293, 297-299, 301-303, 309, 312-315, 325, 327, 343,
346, 349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444- 445, 473, 486, 488, 498,
501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642, 665, 702, 712-713,
726, 837-839, 878-879, 881, 882, 939-940, 964,997,1149-1178,1180-1278.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529, 1532, 1535, 1538,
1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-1609, 1612-1628, 1630-1649, 1694-
1695, 1697-1701, 1705-1723, 1731-1734, 1737-1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787,
1789-1795, 1797, 1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 1835-
1836, 1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870, 1876-1889, 1892,
1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984, 1986-2028, 2030-2044, 2046-2145, 2147-
2161, 2163-2244.
e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507, 509-510, 522, 524-
528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-568, 570, 574, 593, 594, 598-604, 609,
611- 647, 649-677, 679-703, 705-707, 712-786, 788-852, 854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81, 92, 94, 95, 107, 120,
122, 123.
g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.
The respondents, through the Solicitor General, would have this case dismissed outright on the ground
that petitioners have no legal personality or standing to bring the instant petition. The view is submitted
that in the absence of any showing that petitioners are personally and directly affected or prejudiced by
the alleged non-publication of the presidential issuances in question 2 said petitioners are without the
requisite legal personality to institute this mandamus proceeding, they are not being "aggrieved parties"
within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote:
SEC. 3. Petition for Mandamus.—When any tribunal, corporation, board or person unlawfully neglects
the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or
station, or unlawfully excludes another from the use a rd enjoyment of a right or office to which such
other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law,
the person aggrieved thereby may file a verified petition in the proper court alleging the facts with
certainty and praying that judgment be rendered commanding the defendant, immediately or at some
other specified time, to do the act required to be done to Protect the rights of the petitioner, and to pay
the damages sustained by the petitioner by reason of the wrongful acts of the defendant.
Upon the other hand, petitioners maintain that since the subject of the petition concerns a public right
and its object is to compel the performance of a public duty, they need not show any specific interest for
their petition to be given due course.
The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor General,
3 this Court held that while the general rule is that "a writ of mandamus would be granted to a private
individual only in those cases where he has some private or particular interest to be subserved, or some
particular right to be protected, independent of that which he holds with the public at large," and "it is
for the public officers exclusively to apply for the writ when public rights are to be subserved [Mithchell
vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of public right and the object of
the mandamus is to procure the enforcement of a public duty, the people are regarded as the real party
in interest and the relator at whose instigation the proceedings are instituted need not show that he has
any legal or special interest in the result, it being sufficient to show that he is a citizen and as such
interested in the execution of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431].
Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper party
to the mandamus proceedings brought to compel the Governor General to call a special election for the
position of municipal president in the town of Silay, Negros Occidental. Speaking for this Court, Mr.
Justice Grant T. Trent said:
We are therefore of the opinion that the weight of authority supports the proposition that the relator is a
proper party to proceedings of this character when a public right is sought to be enforced. If the general
rule in America were otherwise, we think that it would not be applicable to the case at bar for the reason
'that it is always dangerous to apply a general rule to a particular case without keeping in mind the
reason for the rule, because, if under the particular circumstances the reason for the rule does not exist,
the rule itself is not applicable and reliance upon the rule may well lead to error'
No reason exists in the case at bar for applying the general rule insisted upon by counsel for the
respondent. The circumstances which surround this case are different from those in the United States,
inasmuch as if the relator is not a proper party to these proceedings no other person could be, as we
have seen that it is not the duty of the law officer of the Government to appear and represent the people
in cases of this character.
The reasons given by the Court in recognizing a private citizen's legal personality in the aforementioned
case apply squarely to the present petition. Clearly, the right sought to be enforced by petitioners herein
is a public right recognized by no less than the fundamental law of the land. If petitioners were not
allowed to institute this proceeding, it would indeed be difficult to conceive of any other person to
initiate the same, considering that the Solicitor General, the government officer generally empowered to
represent the people, has entered his appearance for respondents in this case.
Respondents further contend that publication in the Official Gazette is not a sine qua non requirement
for the effectivity of laws where the laws themselves provide for their own effectivity dates. It is thus
submitted that since the presidential issuances in question contain special provisions as to the date they
are to take effect, publication in the Official Gazette is not indispensable for their effectivity. The point
stressed is anchored on Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official
Gazette, unless it is otherwise provided, ...
90
The interpretation given by respondent is in accord with this Court's construction of said article. In a long
line of decisions,4 this Court has ruled that publication in the Official Gazette is necessary in those cases
where the legislation itself does not provide for its effectivity date-for then the date of publication is
material for determining its date of effectivity, which is the fifteenth day following its publication-but not
when the law itself provides for the date when it goes into effect.
Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws with
the fact of publication. Considered in the light of other statutes applicable to the issue at hand, the
conclusion is easily reached that said Article 2 does not preclude the requirement of publication in the
Official Gazette, even if the law itself provides for the date of its effectivity. Thus, Section 1 of
Commonwealth Act 638 provides as follows:
Section 1. There shall be published in the Official Gazette [1] all important legisiative acts and resolutions
of a public nature of the, Congress of the Philippines; [2] all executive and administrative orders and
proclamations, except such as have no general applicability; [3] decisions or abstracts of decisions of the
Supreme Court and the Court of Appeals as may be deemed by said courts of sufficient importance to be
so published; [4] such documents or classes of documents as may be required so to be published by law;
and [5] such documents or classes of documents as the President of the Philippines shall determine from
time to time to have general applicability and legal effect, or which he may authorize so to be published.
The clear object of the above-quoted provision is to give the general public adequate notice of the
various laws which are to regulate their actions and conduct as citizens. Without such notice and
publication, there would be no basis for the application of the maxim "ignorantia legis non excusat." It
would be the height of injustice to punish or otherwise burden a citizen for the transgression of a law of
which he had no notice whatsoever, not even a constructive one.
Perhaps at no time since the establishment of the Philippine Republic has the publication of laws taken so
vital significance that at this time when the people have bestowed upon the President a power
heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass media of the
debates and deliberations in the Batasan Pambansa—and for the diligent ones, ready access to the
legislative records—no such publicity accompanies the law-making process of the President. Thus,
without publication, the people have no means of knowing what presidential decrees have actually been
promulgated, much less a definite way of informing themselves of the specific contents and texts of such
decrees. As the Supreme Court of Spain ruled: "Bajo la denominacion generica de leyes, se comprenden
tambien los reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordines dictadas de
conformidad con las mismas por el Gobierno en uso de su potestad.5
The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the Official
Gazette ... ." The word "shall" used therein imposes upon respondent officials an imperative duty. That
duty must be enforced if the Constitutional right of the people to be informed on matters of public
concern is to be given substance and reality. The law itself makes a list of what should be published in the
Official Gazette. Such listing, to our mind, leaves respondents with no discretion whatsoever as to what
must be included or excluded from such publication.
The publication of all presidential issuances "of a public nature" or "of general applicability" is mandated
by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for their violation or
otherwise impose a burden or. the people, such as tax and revenue measures, fall within this category.
Other presidential issuances which apply only to particular persons or class of persons such as
administrative and executive orders need not be published on the assumption that they have been
circularized to all concerned. 6
It is needless to add that the publication of presidential issuances "of a public nature" or "of general
applicability" is a requirement of due process. It is a rule of law that before a person may be bound by
law, he must first be officially and specifically informed of its contents. As Justice Claudio Teehankee said
in Peralta vs. COMELEC 7:
In a time of proliferating decrees, orders and letters of instructions which all form part of the law of the
land, the requirement of due process and the Rule of Law demand that the Official Gazette as the official
government repository promulgate and publish the texts of all such decrees, orders and instructions so
that the people may know where to obtain their official and specific contents.
The Court therefore declares that presidential issuances of general application, which have not been
published, shall have no force and effect. Some members of the Court, quite apprehensive about the
possible unsettling effect this decision might have on acts done in reliance of the validity of those
presidential decrees which were published only during the pendency of this petition, have put the
question as to whether the Court's declaration of invalidity apply to P.D.s which had been enforced or
implemented prior to their publication. The answer is all too familiar. In similar situations in the past this
Court had taken the pragmatic and realistic course set forth in Chicot County Drainage District vs. Baxter
Bank 8 to wit:
The courts below have proceeded on the theory that the Act of Congress, having been found to be
unconstitutional, was not a law; that it was inoperative, conferring no rights and imposing no duties, and
hence affording no basis for the challenged decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago,
1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad statements as to
the effect of a determination of unconstitutionality must be taken with qualifications. The actual
existence of a statute, prior to such a determination, is an operative fact and may have consequences
which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The
effect of the subsequent ruling as to invalidity may have to be considered in various aspects-with respect
to particular conduct, private and official. Questions of rights claimed to have become vested, of status,
of prior determinations deemed to have finality and acted upon accordingly, of public policy in the light
of the nature both of the statute and of its previous application, demand examination. These questions
are among the most difficult of those which have engaged the attention of courts, state and federal and it
is manifest from numerous decisions that an all-inclusive statement of a principle of absolute retroactive
invalidity cannot be justified.
Consistently with the above principle, this Court in Rutter vs. Esteban 9 sustained the right of a party
under the Moratorium Law, albeit said right had accrued in his favor before said law was declared
unconstitutional by this Court.
Similarly, the implementation/enforcement of presidential decrees prior to their publication in the
Official Gazette is "an operative fact which may have consequences which cannot be justly ignored. The
past cannot always be erased by a new judicial declaration ... that an all-inclusive statement of a principle
of absolute retroactive invalidity cannot be justified."
From the report submitted to the Court by the Clerk of Court, it appears that of the presidential decrees
sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos. 1019 to 1030,
inclusive, 1278, and 1937 to 1939, inclusive, have not been so published. 10 Neither the subject matters
nor the texts of these PDs can be ascertained since no copies thereof are available. But whatever their
subject matter may be, it is undisputed that none of these unpublished PDs has ever been implemented
or enforced by the government. In Pesigan vs. Angeles, 11 the Court, through Justice Ramon Aquino,
ruled that "publication is necessary to apprise the public of the contents of [penal] regulations and make
the said penalties binding on the persons affected thereby. " The cogency of this holding is apparently
recognized by respondent officials considering the manifestation in their comment that "the government,
as a matter of policy, refrains from prosecuting violations of criminal laws until the same shall have been
published in the Official Gazette or in some other publication, even though some criminal laws provide
that they shall take effect immediately.
WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished
presidential issuances which are of general application, and unless so published, they shall have no
binding force and effect.
91
SO ORDERED.
Relova, J., concurs.
Aquino, J., took no part.
Concepcion, Jr., J., is on leave.
Separate Opinions
FERNANDO, C.J., concurring (with qualification):
There is on the whole acceptance on my part of the views expressed in the ably written opinion of Justice
Escolin. I am unable, however, to concur insofar as it would unqualifiedly impose the requirement of
publication in the Official Gazette for unpublished "presidential issuances" to have binding force and
effect.
I shall explain why.
1. It is of course true that without the requisite publication, a due process question would arise if made
to apply adversely to a party who is not even aware of the existence of any legislative or executive act
having the force and effect of law. My point is that such publication required need not be confined to the
Official Gazette. From the pragmatic standpoint, there is an advantage to be gained. It conduces to
certainty. That is too be admitted. It does not follow, however, that failure to do so would in all cases and
under all circumstances result in a statute, presidential decree or any other executive act of the same
category being bereft of any binding force and effect. To so hold would, for me, raise a constitutional
question. Such a pronouncement would lend itself to the interpretation that such a legislative or
presidential act is bereft of the attribute of effectivity unless published in the Official Gazette. There is no
such requirement in the Constitution as Justice Plana so aptly pointed out. It is true that what is decided
now applies only to past "presidential issuances". Nonetheless, this clarification is, to my mind, needed to
avoid any possible misconception as to what is required for any statute or presidential act to be
impressed with binding force or effectivity.
2. It is quite understandable then why I concur in the separate opinion of Justice Plana. Its first paragraph
sets forth what to me is the constitutional doctrine applicable to this case. Thus: "The Philippine
Constitution does not require the publication of laws as a prerequisite for their effectivity, unlike some
Constitutions elsewhere. It may be said though that the guarantee of due process requires notice of laws
to affected Parties before they can be bound thereby; but such notice is not necessarily by publication in
the Official Gazette. The due process clause is not that precise. 1 I am likewise in agreement with its
closing paragraph: "In fine, I concur in the majority decision to the extent that it requires notice before
laws become effective, for no person should be bound by a law without notice. This is elementary
fairness. However, I beg to disagree insofar as it holds that such notice shall be by publication in the
Official Gazette. 2
3. It suffices, as was stated by Judge Learned Hand, that law as the command of the government "must
be ascertainable in some form if it is to be enforced at all. 3 It would indeed be to reduce it to the level of
mere futility, as pointed out by Justice Cardozo, "if it is unknown and unknowable. 4 Publication, to
repeat, is thus essential. What I am not prepared to subscribe to is the doctrine that it must be in the
Official Gazette. To be sure once published therein there is the ascertainable mode of determining the
exact date of its effectivity. Still for me that does not dispose of the question of what is the jural effect of
past presidential decrees or executive acts not so published. For prior thereto, it could be that parties
aware of their existence could have conducted themselves in accordance with their provisions. If no legal
consequences could attach due to lack of publication in the Official Gazette, then serious problems could
arise. Previous transactions based on such "Presidential Issuances" could be open to question. Matters
deemed settled could still be inquired into. I am not prepared to hold that such an effect is contemplated
by our decision. Where such presidential decree or executive act is made the basis of a criminal
prosecution, then, of course, its ex post facto character becomes evident. 5 In civil cases though,
retroactivity as such is not conclusive on the due process aspect. There must still be a showing of
arbitrariness. Moreover, where the challenged presidential decree or executive act was issued under the
police power, the non-impairment clause of the Constitution may not always be successfully invoked.
There must still be that process of balancing to determine whether or not it could in such a case be
tainted by infirmity. 6 In traditional terminology, there could arise then a question of unconstitutional
application. That is as far as it goes.
4. Let me make therefore that my qualified concurrence goes no further than to affirm that publication is
essential to the effectivity of a legislative or executive act of a general application. I am not in agreement
with the view that such publication must be in the Official Gazette. The Civil Code itself in its Article 2
expressly recognizes that the rule as to laws taking effect after fifteen days following the completion of
their publication in the Official Gazette is subject to this exception, "unless it is otherwise provided."
Moreover, the Civil Code is itself only a legislative enactment, Republic Act No. 386. It does not and
cannot have the juridical force of a constitutional command. A later legislative or executive act which has
the force and effect of law can legally provide for a different rule.
5. Nor can I agree with the rather sweeping conclusion in the opinion of Justice Escolin that presidential
decrees and executive acts not thus previously published in the Official Gazette would be devoid of any
legal character. That would be, in my opinion, to go too far. It may be fraught, as earlier noted, with
undesirable consequences. I find myself therefore unable to yield assent to such a pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos, Cuevas, and Alampay concur in this separate
opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.
TEEHANKEE, J., concurring:
I concur with the main opinion of Mr. Justice Escolin and the concurring opinion of Mme. Justice Herrera.
The Rule of Law connotes a body of norms and laws published and ascertainable and of equal application
to all similarly circumstances and not subject to arbitrary change but only under certain set procedures.
The Court has consistently stressed that "it is an elementary rule of fair play and justice that a reasonable
opportunity to be informed must be afforded to the people who are commanded to obey before they can
be punished for its violation,1 citing the settled principle based on due process enunciated in earlier
cases that "before the public is bound by its contents, especially its penal provisions, a law, regulation or
circular must first be published and the people officially and specially informed of said contents and its
penalties.
Without official publication in the Official Gazette as required by Article 2 of the Civil Code and the
Revised Administrative Code, there would be no basis nor justification for the corollary rule of Article 3 of
the Civil Code (based on constructive notice that the provisions of the law are ascertainable from the
public and official repository where they are duly published) that "Ignorance of the law excuses no one
from compliance therewith.
Respondents' contention based on a misreading of Article 2 of the Civil Code that "only laws which are
silent as to their effectivity [date] need be published in the Official Gazette for their effectivity" is
manifestly untenable. The plain text and meaning of the Civil Code is that "laws shall take effect after
fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise
provided, " i.e. a different effectivity date is provided by the law itself. This proviso perforce refers to a
law that has been duly published pursuant to the basic constitutional requirements of due process. The
best example of this is the Civil Code itself: the same Article 2 provides otherwise that it "shall take effect
[only] one year [not 15 days] after such publication. 2 To sustain respondents' misreading that "most laws
or decrees specify the date of their effectivity and for this reason, publication in the Official Gazette is not
necessary for their effectivity 3 would be to nullify and render nugatory the Civil Code's indispensable
and essential requirement of prior publication in the Official Gazette by the simple expedient of providing
for immediate effectivity or an earlier effectivity date in the law itself before the completion of 15 days
following its publication which is the period generally fixed by the Civil Code for its proper dissemination.
MELENCIO-HERRERA, J., concurring:
I agree. There cannot be any question but that even if a decree provides for a date of effectivity, it has to
be published. What I would like to state in connection with that proposition is that when a date of
effectivity is mentioned in the decree but the decree becomes effective only fifteen (15) days after its
publication in the Official Gazette, it will not mean that the decree can have retroactive effect to the date
of effectivity mentioned in the decree itself. There should be no retroactivity if the retroactivity will run
counter to constitutional rights or shall destroy vested rights.
PLANA, J., concurring (with qualification):
The Philippine Constitution does not require the publication of laws as a prerequisite for their effectivity,
unlike some Constitutions elsewhere. * It may be said though that the guarantee of due process requires
notice of laws to affected parties before they can be bound thereby; but such notice is not necessarily by
publication in the Official Gazette. The due process clause is not that precise. Neither is the publication of
92
laws in the Official Gazette required by any statute as a prerequisite for their effectivity, if said laws
already provide for their effectivity date.
Article 2 of the Civil Code provides that "laws shall take effect after fifteen days following the completion
of their publication in the Official Gazette, unless it is otherwise provided " Two things may be said of this
provision: Firstly, it obviously does not apply to a law with a built-in provision as to when it will take
effect. Secondly, it clearly recognizes that each law may provide not only a different period for reckoning
its effectivity date but also a different mode of notice. Thus, a law may prescribe that it shall be published
elsewhere than in the Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support the proposition that for their effectivity,
laws must be published in the Official Gazette. The said law is simply "An Act to Provide for the Uniform
Publication and Distribution of the Official Gazette." Conformably therewith, it authorizes the publication
of the Official Gazette, determines its frequency, provides for its sale and distribution, and defines the
authority of the Director of Printing in relation thereto. It also enumerates what shall be published in the
Official Gazette, among them, "important legislative acts and resolutions of a public nature of the
Congress of the Philippines" and "all executive and administrative orders and proclamations, except such
as have no general applicability." It is noteworthy that not all legislative acts are required to be published
in the Official Gazette but only "important" ones "of a public nature." Moreover, the said law does not
provide that publication in the Official Gazette is essential for the effectivity of laws. This is as it should
be, for all statutes are equal and stand on the same footing. A law, especially an earlier one of general
application such as Commonwealth Act No. 638, cannot nullify or restrict the operation of a subsequent
statute that has a provision of its own as to when and how it will take effect. Only a higher law, which is
the Constitution, can assume that role.
In fine, I concur in the majority decision to the extent that it requires notice before laws become
effective, for no person should be bound by a law without notice. This is elementary fairness. However, I
beg to disagree insofar as it holds that such notice shall be by publication in the Official Gazette.
Cuevas and Alampay, JJ., concur.
GUTIERREZ, Jr., J., concurring:
I concur insofar as publication is necessary but reserve my vote as to the necessity of such publication
being in the Official Gazette.
DE LA FUENTE, J., concurring:
I concur insofar as the opinion declares the unpublished decrees and issuances of a public nature or
general applicability ineffective, until due publication thereof.

93
Republic of the Philippines
SUPREME COURT
Manila
G.R. No. L-63915 December 29, 1986
LORENZO M. TAÑ;ADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR BROTHERHOOD,
INTEGRITY AND NATIONALISM, INC. (MABINI), petitioners, vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON. JOAQUIN VENUS, in
his capacity as Deputy Executive Assistant to the President, MELQUIADES P. DE LA CRUZ, ETC., ET AL.,
respondents.
RESOLUTION
CRUZ, J.:
Due process was invoked by the petitioners in demanding the disclosure of a number of presidential
decrees which they claimed had not been published as required by law. The government argued that
while publication was necessary as a rule, it was not so when it was "otherwise provided," as when the
decrees themselves declared that they were to become effective immediately upon their approval. In the
decision of this case on April 24, 1985, the Court affirmed the necessity for the publication of some of
these decrees, declaring in the dispositive portion as follows:
WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished
presidential issuances which are of general application, and unless so published, they shall have no
binding force and effect.
The petitioners are now before us again, this time to move for reconsideration/clarification of that
decision. 1 Specifically, they ask the following questions:
1. What is meant by "law of public nature" or "general applicability"?
2. Must a distinction be made between laws of general applicability and laws which are not?
3. What is meant by "publication"?
4. Where is the publication to be made?
5. When is the publication to be made?
Resolving their own doubts, the petitioners suggest that there should be no distinction between laws of
general applicability and those which are not; that publication means complete publication; and that the
publication must be made forthwith in the Official Gazette. 2
In the Comment 3 required of the then Solicitor General, he claimed first that the motion was a request
for an advisory opinion and should therefore be dismissed, and, on the merits, that the clause "unless it
is otherwise provided" in Article 2 of the Civil Code meant that the publication required therein was not
always imperative; that publication, when necessary, did not have to be made in the Official Gazette; and
that in any case the subject decision was concurred in only by three justices and consequently not
binding. This elicited a Reply 4 refuting these arguments. Came next the February Revolution and the
Court required the new Solicitor General to file a Rejoinder in view of the supervening events, under Rule
3, Section 18, of the Rules of Court. Responding, he submitted that issuances intended only for the
internal administration of a government agency or for particular persons did not have to be 'Published;
that publication when necessary must be in full and in the Official Gazette; and that, however, the
decision under reconsideration was not binding because it was not supported by eight members of this
Court. 5
The subject of contention is Article 2 of the Civil Code providing as follows:
ART. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official
Gazette, unless it is otherwise provided. This Code shall take effect one year after such publication.
After a careful study of this provision and of the arguments of the parties, both on the original petition
and on the instant motion, we have come to the conclusion and so hold, that the clause "unless it is
otherwise provided" refers to the date of effectivity and not to the requirement of publication itself,
which cannot in any event be omitted. This clause does not mean that the legislature may make the law
effective immediately upon approval, or on any other date, without its previous publication.
Publication is indispensable in every case, but the legislature may in its discretion provide that the usual
fifteen-day period shall be shortened or extended. An example, as pointed out by the present Chief
Justice in his separate concurrence in the original decision, 6 is the Civil Code which did not become
effective after fifteen days from its publication in the Official Gazette but "one year after such
publication." The general rule did not apply because it was "otherwise provided. "
It is not correct to say that under the disputed clause publication may be dispensed with altogether. The
reason. is that such omission would offend due process insofar as it would deny the public knowledge of
the laws that are supposed to govern the legislature could validly provide that a law e effective
immediately upon its approval notwithstanding the lack of publication (or after an unreasonably short
period after publication), it is not unlikely that persons not aware of it would be prejudiced as a result
and they would be so not because of a failure to comply with but simply because they did not know of its
existence, Significantly, this is not true only of penal laws as is commonly supposed. One can think of
many non-penal measures, like a law on prescription, which must also be communicated to the persons
they may affect before they can begin to operate.
We note at this point the conclusive presumption that every person knows the law, which of course
presupposes that the law has been published if the presumption is to have any legal justification at all. It
is no less important to remember that Section 6 of the Bill of Rights recognizes "the right of the people to
information on matters of public concern," and this certainly applies to, among others, and indeed
especially, the legislative enactments of the government.
The term "laws" should refer to all laws and not only to those of general application, for strictly speaking
all laws relate to the people in general albeit there are some that do not apply to them directly. An
example is a law granting citizenship to a particular individual, like a relative of President Marcos who
was decreed instant naturalization. It surely cannot be said that such a law does not affect the public
although it unquestionably does not apply directly to all the people. The subject of such law is a matter of
public interest which any member of the body politic may question in the political forums or, if he is a
proper party, even in the courts of justice. In fact, a law without any bearing on the public would be
invalid as an intrusion of privacy or as class legislation or as an ultra vires act of the legislature. To be
valid, the law must invariably affect the public interest even if it might be directly applicable only to one
individual, or some of the people only, and t to the public as a whole.
We hold therefore that all statutes, including those of local application and private laws, shall be
published as a condition for their effectivity, which shall begin fifteen days after publication unless a
different effectivity date is fixed by the legislature.
Covered by this rule are presidential decrees and executive orders promulgated by the President in the
exercise of legislative powers whenever the same are validly delegated by the legislature or, at present,
directly conferred by the Constitution. administrative rules and regulations must a also be published if
their purpose is to enforce or implement existing law pursuant also to a valid delegation.
Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of
the administrative agency and not the public, need not be published. Neither is publication required of
the so-called letters of instructions issued by administrative superiors concerning the rules or guidelines
to be followed by their subordinates in the performance of their duties.
Accordingly, even the charter of a city must be published notwithstanding that it applies to only a portion
of the national territory and directly affects only the inhabitants of that place. All presidential decrees
must be published, including even, say, those naming a public place after a favored individual or
exempting him from certain prohibitions or requirements. The circulars issued by the Monetary Board
must be published if they are meant not merely to interpret but to "fill in the details" of the Central Bank
Act which that body is supposed to enforce.
However, no publication is required of the instructions issued by, say, the Minister of Social Welfare on
the case studies to be made in petitions for adoption or the rules laid down by the head of a government
agency on the assignments or workload of his personnel or the wearing of office uniforms.
Parenthetically, municipal ordinances are not covered by this rule but by the Local Government Code.
94
We agree that publication must be in full or it is no publication at all since its purpose is to inform the
public of the contents of the laws. As correctly pointed out by the petitioners, the mere mention of the
number of the presidential decree, the title of such decree, its whereabouts (e.g., "with Secretary
Tuvera"), the supposed date of effectivity, and in a mere supplement of the Official Gazette cannot satisfy
the publication requirement. This is not even substantial compliance. This was the manner, incidentally,
in which the General Appropriations Act for FY 1975, a presidential decree undeniably of general
applicability and interest, was "published" by the Marcos administration. 7 The evident purpose was to
withhold rather than disclose information on this vital law.
Coming now to the original decision, it is true that only four justices were categorically for publication in
the Official Gazette 8 and that six others felt that publication could be made elsewhere as long as the
people were sufficiently informed. 9 One reserved his vote 10 and another merely acknowledged the
need for due publication without indicating where it should be made. 11 It is therefore necessary for the
present membership of this Court to arrive at a clear consensus on this matter and to lay down a binding
decision supported by the necessary vote.
There is much to be said of the view that the publication need not be made in the Official Gazette,
considering its erratic releases and limited readership. Undoubtedly, newspapers of general circulation
could better perform the function of communicating, the laws to the people as such periodicals are more
easily available, have a wider readership, and come out regularly. The trouble, though, is that this kind of
publication is not the one required or authorized by existing law. As far as we know, no amendment has
been made of Article 2 of the Civil Code. The Solicitor General has not pointed to such a law, and we have
no information that it exists. If it does, it obviously has not yet been published.
At any rate, this Court is not called upon to rule upon the wisdom of a law or to repeal or modify it if we
find it impractical. That is not our function. That function belongs to the legislature. Our task is merely to
interpret and apply the law as conceived and approved by the political departments of the government in
accordance with the prescribed procedure. Consequently, we have no choice but to pronounce that
under Article 2 of the Civil Code, the publication of laws must be made in the Official Gazett and not
elsewhere, as a requirement for their effectivity after fifteen days from such publication or after a
different period provided by the legislature.
We also hold that the publication must be made forthwith or at least as soon as possible, to give effect to
the law pursuant to the said Article 2. There is that possibility, of course, although not suggested by the
parties that a law could be rendered unenforceable by a mere refusal of the executive, for whatever
reason, to cause its publication as required. This is a matter, however, that we do not need to examine at
this time.
Finally, the claim of the former Solicitor General that the instant motion is a request for an advisory
opinion is untenable, to say the least, and deserves no further comment.
The days of the secret laws and the unpublished decrees are over. This is once again an open society, with
all the acts of the government subject to public scrutiny and available always to public cognizance. This
has to be so if our country is to remain democratic, with sovereignty residing in the people and all
government authority emanating from them.
Although they have delegated the power of legislation, they retain the authority to review the work of
their delegates and to ratify or reject it according to their lights, through their freedom of expression and
their right of suffrage. This they cannot do if the acts of the legislature are concealed.
Laws must come out in the open in the clear light of the sun instead of skulking in the shadows with their
dark, deep secrets. Mysterious pronouncements and rumored rules cannot be recognized as binding
unless their existence and contents are confirmed by a valid publication intended to make full disclosure
and give proper notice to the people. The furtive law is like a scabbarded saber that cannot feint parry or
cut unless the naked blade is drawn.
WHEREFORE, it is hereby declared that all laws as above defined shall immediately upon their approval,
or as soon thereafter as possible, be published in full in the Official Gazette, to become effective only
after fifteen days from their publication, or on another date specified by the legislature, in accordance
with Article 2 of the Civil Code.
SO ORDERED.
Teehankee, C.J., Feria, Yap, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., and Paras, JJ., concur.
Separate Opinions
FERNAN, J., concurring:
While concurring in the Court's opinion penned by my distinguished colleague, Mr. Justice Isagani A. Cruz,
I would like to add a few observations. Even as a Member of the defunct Batasang Pambansa, I took a
strong stand against the insidious manner by which the previous dispensation had promulgated and
made effective thousands of decrees, executive orders, letters of instructions, etc. Never has the law-
making power which traditionally belongs to the legislature been used and abused to satisfy the whims
and caprices of a one-man legislative mill as it happened in the past regime. Thus, in those days, it was
not surprising to witness the sad spectacle of two presidential decrees bearing the same number,
although covering two different subject matters. In point is the case of two presidential decrees bearing
number 1686 issued on March 19, 1980, one granting Philippine citizenship to Michael M. Keon the then
President's nephew and the other imposing a tax on every motor vehicle equipped with airconditioner.
This was further exacerbated by the issuance of PD No. 1686-A also on March 19, 1980 granting
Philippine citizenship to basketball players Jeffrey Moore and Dennis George Still
The categorical statement by this Court on the need for publication before any law may be made
effective seeks prevent abuses on the part of the lawmakers and, at the same time, ensures to the people
their constitutional right to due process and to information on matters of public concern.
FELICIANO, J., concurring:
I agree entirely with the opinion of the court so eloquently written by Mr. Justice Isagani A. Cruz. At the
same time, I wish to add a few statements to reflect my understanding of what the Court is saying.
A statute which by its terms provides for its coming into effect immediately upon approval thereof, is
properly interpreted as coming into effect immediately upon publication thereof in the Official Gazette as
provided in Article 2 of the Civil Code. Such statute, in other words, should not be regarded as purporting
literally to come into effect immediately upon its approval or enactment and without need of publication.
For so to interpret such statute would be to collide with the constitutional obstacle posed by the due
process clause. The enforcement of prescriptions which are both unknown to and unknowable by those
subjected to the statute, has been throughout history a common tool of tyrannical governments. Such
application and enforcement constitutes at bottom a negation of the fundamental principle of legality in
the relations between a government and its people.
At the same time, it is clear that the requirement of publication of a statute in the Official Gazette, as
distinguished from any other medium such as a newspaper of general circulation, is embodied in a
statutory norm and is not a constitutional command. The statutory norm is set out in Article 2 of the Civil
Code and is supported and reinforced by Section 1 of Commonwealth Act No. 638 and Section 35 of the
Revised Administrative Code. A specification of the Official Gazette as the prescribed medium of
publication may therefore be changed. Article 2 of the Civil Code could, without creating a constitutional
problem, be amended by a subsequent statute providing, for instance, for publication either in the
Official Gazette or in a newspaper of general circulation in the country. Until such an amendatory statute
is in fact enacted, Article 2 of the Civil Code must be obeyed and publication effected in the Official
Gazette and not in any other medium.
95
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 187587 June 5, 2013
NAGKAKAISANG MARALITA NG SITIO MASIGASIG, INC., Petitioner, vs.
MILITARY SHRINE SERVICES - PHILIPPINE VETERANS AFFAIRS OFFICE, DEPARTMENT OF NATIONAL
DEFENSE, Respondent.
x-----------------------x
G.R. No. 187654
WESTERN BICUTAN LOT OWNERS ASSOCIATION, INC., represented by its Board of Directors, Petitioner,
vs.
MILITARY SHRINE SERVICES - PHILIPPINE VETERANS AFFAIRS OFFICE, DEPARTMENT OF NATIONAL
DEFENSE, Respondent.
DECISION
SERENO, CJ.:
Before us are consolidated Petitions for Review under Rule 45 of the Rules of Court assailing the
Decision1 promulgated on 29 April 2009 of the Court of Appeals in CA-G.R. SP No. 97925.
THE FACTS
The facts, as culled from the records, are as follows:
On 12 July 1957, by virtue of Proclamation No. 423, President Carlos P. Garcia reserved parcels of land in
the Municipalities of Pasig, Taguig, Parañaque, Province of Rizal and Pasay City for a military reservation.
The military reservation, then known as Fort William McKinley, was later on renamed Fort Andres
Bonifacio (Fort Bonifacio).
On 28 May 1967, President Ferdinand E. Marcos (President Marcos) issued Proclamation No. 208,
amending Proclamation No. 423, which excluded a certain area of Fort Bonifacio and reserved it for a
national shrine. The excluded area is now known as Libingan ng mga Bayani, which is under the
administration of herein respondent Military Shrine Services – Philippine Veterans Affairs Office (MSS-
PVAO).
Again, on 7 January 1986, President Marcos issued Proclamation No. 2476, further amending
Proclamation No. 423, which excluded barangaysLower Bicutan, Upper Bicutan and Signal Village from
the operation of Proclamation No. 423 and declared it open for disposition under the provisions of
Republic Act Nos. (R.A.) 274 and 730.
At the bottom of Proclamation No. 2476, President Marcos made a handwritten addendum, which reads:
"P.S. – This includes Western Bicutan
(SGD.) Ferdinand E. Marcos"2
The crux of the controversy started when Proclamation No. 2476 was published in the Official Gazette3 on
3 February 1986, without the above-quoted addendum.
Years later, on 16 October 1987, President Corazon C. Aquino (President Aquino) issued Proclamation No.
172 which substantially reiterated Proclamation No. 2476, as published, but this time excluded Lots 1 and
2 of Western Bicutan from the operation of Proclamation No. 423 and declared the said lots open for
disposition under the provisions of R.A. 274 and 730.
Memorandum Order No. 119, implementing Proclamation No. 172, was issued on the same day.
Through the years, informal settlers increased and occupied some areas of Fort Bonifacio including
portions of the Libingan ng mga Bayani. Thus, Brigadier General Fredelito Bautista issued General Order
No. 1323 creating Task Force Bantay (TFB), primarily to prevent further unauthorized occupation and to
cause the demolition of illegal structures at Fort Bonifacio.
On 27 August 1999, members of petitioner Nagkakaisang Maralita ng Sitio Masigasig, Inc. (NMSMI) filed a
Petition with the Commission on Settlement of Land Problems (COSLAP), where it was docketed as
COSLAP Case No. 99-434. The Petition prayed for the following: (1) the reclassification of the areas they
occupied, covering Lot 3 of SWO-13-000-298 of Western Bicutan, from public land to alienable and
disposable land pursuant to Proclamation No. 2476; (2) the subdivision of the subject lot by the Director
of Lands; and (3) the Land Management Bureau’s facilitation of the distribution and sale of the subject lot
to its bona fide occupants.4
On 1 September 2000, petitioner Western Bicutan Lot Owners Association, Inc. (WBLOAI) filed a Petition-
in-Intervention substantially praying for the same reliefs as those prayed for by NMSMI with regard to the
area the former then occupied covering Lot 7 of SWO-00-001302 in Western Bicutan. 5
Thus, on 1 September 2006, COSLAP issued a Resolution6 granting the Petition and declaring the portions
of land in question alienable and disposable, with Associate Commissioner Lina Aguilar-General
dissenting.7
The COSLAP ruled that the handwritten addendum of President Marcos was an integral part of
Proclamation No. 2476, and was therefore, controlling. The intention of the President could not be
defeated by the negligence or inadvertence of others. Further, considering that Proclamation
No. 2476 was done while the former President was exercising legislative powers, it could not be
amended, repealed or superseded, by a mere executive enactment. Thus, Proclamation No. 172 could
not have superseded much less displaced Proclamation No. 2476, as the latter was issued on October 16,
1987 when President Aquino’s legislative power had ceased.
In her Dissenting Opinion, Associate Commissioner Lina AguilarGeneral stressed that pursuant to Article 2
of the Civil Code, publication is indispensable in every case. Likewise, she held that when the provision of
the law is clear and unambiguous so that there is no occasion for the court to look into legislative intent,
the law must be taken as it is, devoid of judicial addition or subtraction.8 Finally, she maintained that the
Commission had no authority to supply the addendum originally omitted in the published version of
Proclamation No. 2476, as to do so would be tantamount to encroaching on the field of the legislature.
Herein respondent MSS-PVAO filed a Motion for Reconsideration, 9 which was denied by the COSLAP in a
Resolution dated 24 January 2007.10
MSS-PVAO filed a Petition with the Court of Appeals seeking to reverse the COSLAP Resolutions dated 1
September 2006 and 24 January 2007.
Thus, on 29 April 2009, the then Court of Appeals First Division rendered the assailed Decision granting
MSS-PVAO’s Petition, the dispositive portion of which reads:
IN VIEW OF ALL THE FOREGOING, the instant petition is hereby GRANTED. The Resolutions dated
September 1, 2006 and January 24, 2007 issued by the Commission on the Settlement of Land Problems
in COSLAP Case No. 99-434 are hereby REVERSED and SET ASIDE. In lieu thereof, the petitions of
respondents in COSLAP Case No. 99-434 are DISMISSED, for lack of merit, as discussed herein. Further,
pending urgent motions filed by respondents are likewise
DENIED. SO ORDERED.11 (Emphasis in the original)
Both NMSMI12 and WBLOAI13 appealed the said Decision by filing their respective Petitions for Review
with this Court under Rule 45 of the Rules of Court.
THE ISSUES
Petitioner NMSMI raises the following issues:
I
WHETHER OR NOT THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN RULING THAT
PROCLAMATION NO. 2476 DID NOT INCLUDE ANY PORTION OF WESTERN BICUTAN AS THE
HANDWRITTEN NOTATION BY PRESIDENT MARCOS ON THE SAID PROCLAMATION WAS NOT PUBLISHED
IN THE OFFICIAL GAZETTE.
II
WHETHER OR NOT THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN RULING THAT
PROCLAMATION NO. 172 LIKEWISE EXCLUDED THE PORTION OF LAND OCCUPIED BY MEMBER OF HEREIN
PETITIONER.
III
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN NOT CONSIDERING THAT THE HON.
COSLAP HAS BROAD POWERS TO RECOMMEND TO THE PRESIDENT >INNOVATIVE MEASURES TO RESOLVE
EXPEDITIOUSLY VARIOUS LAND CASES.14
On the other hand, petitioner WBLOAI raises this sole issue:
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE SUBJECT
PROPERTY WAS NOT DECLARED ALIENABLE AND DISPOSABLE BY VIRTUE OF PROCLAMATION NO. 2476
BECAUSE THE HANDWRITTEN ADDENDUM OF PRESIDENT FERDINAND E. MARCOS INCLUDING WESTERN
BICUTAN IN PROCLAMATION NO. 2476 WAS NOT INCLUDED IN THE PUBLICATION. 15
96
Both Petitions boil down to the principal issue of whether the Court of Appeals erred in ruling that the
subject lots were not alienable and disposable by virtue of Proclamation No. 2476 on the ground that the
handwritten addendum of President Marcos was not included in the publication of the said law.
THE COURT’S RULING
We deny the Petitions for lack of merit.
Considering that petitioners were occupying Lots 3 and 7 of Western Bicutan (subject lots), their claims
were anchored on the handwritten addendum of President Marcos to Proclamation No. 2476. They
allege that the former President intended to include all Western Bicutan in the reclassification of portions
of Fort Bonifacio as disposable public land when he made a notation just below the printed version of
Proclamation No. 2476.
However, it is undisputed that the handwritten addendum was not included when Proclamation No. 2476
was published in the Official Gazette.
The resolution of whether the subject lots were declared as reclassified and disposable lies in the
determination of whether the handwritten addendum of President Marcos has the force and effect of
law. In relation thereto, Article 2 of the Civil Code expressly provides:
ART. 2. Laws shall take effect after fifteen days following the completion of their publication in the Official
Gazette, unless it is otherwise provided. This Code shall take effect one year after such publication.
Under the above provision, the requirement of publication is indispensable to give effect to the law,
unless the law itself has otherwise provided. The phrase "unless otherwise provided" refers to a different
effectivity date other than after fifteen days following the completion of the law’s publication in the
Official Gazette, but does not imply that the requirement of publication may be dispensed with. The issue
of the requirement of publication was already settled in the landmark case Tañada v. Hon. Tuvera,16 in
which we had the occasion to rule thus:
Publication is indispensable in every case, but the legislature may in its discretion provide that the usual
fifteen-day period shall be shortened or extended. An example, as pointed out by the present Chief
Justice in his separate concurrence in the original decision, is the Civil Code which did not become
effective after fifteen days from its publication in the Official Gazette but "one year after such
publication." The general rule did not apply because it was "otherwise provided."
It is not correct to say that under the disputed clause publication may be dispensed with altogether. The
reason is that such omission would offend due process insofar as it would deny the public knowledge of
the laws that are supposed to govern it. Surely, if the legislature could validly provide that a law shall
become effective immediately upon its approval notwithstanding the lack of publication (or after an
unreasonably short period after publication), it is not unlikely that persons not aware of it would be
prejudiced as a result; and they would be so not because of a failure to comply with it but simply because
they did not know of its existence. Significantly, this is not true only of penal laws as is commonly
supposed. One can think of many non-penal measures, like a law on prescription, which must also be
communicated to the persons they may affect before they can begin to operate.
xxxx
The term "laws" should refer to all laws and not only to those of general application, for strictly speaking
all laws relate to the people in general albeit there are some that do not apply to them directly. An
example is a law granting citizenship to a particular individual, like a relative of President Marcos who
was decreed instant naturalization. It surely cannot be said that such a law does not affect the public
although it unquestionably does not apply directly to all the people. The subject of such law is a matter of
public interest which any member of the body politic may question in the political forums or, if he is a
proper party, even in the courts of justice. In fact, a law without any bearing on the public would be
invalid as an intrusion of privacy or as class legislation or as an ultra vires act of the legislature. To be
valid, the law must invariably affect the public interest even if it might be directly applicable only to one
individual, or some of the people only, and not to the public as a whole.
We hold therefore that all statutes, including those of local application and private laws, shall be
published as a condition for their effectivity, which shall begin fifteen days after publication unless a
different effectivity date is fixed by the legislature.
Covered by this rule are presidential decrees and executive orders promulgated by the President in the
exercise of legislative powers whenever the same are validly delegated by the legislature or, at present,
directly conferred by the Constitution. Administrative rules and regulations must also be published if
their purpose is to enforce or implement existing law pursuant also to a valid delegation.
xxxx
Accordingly, even the charter of a city must be published notwithstanding that it applies to only a portion
of the national territory and directly affects only the inhabitants of that place. All presidential decrees
must be published, including even, say, those naming a public place after a favored individual or
exempting him from certain prohibitions or requirements. The circulars issued by the Monetary Board
must be published if they are meant not merely to interpret but to "fill in the details" of the Central Bank
Act which that body is supposed to enforce.
xxxx
We agree that the publication must be in full or it is no publication at all since its purpose is to inform the
public of the contents of the laws. As correctly pointed out by the petitioners, the mere mention of the
number of the presidential decree, the title of such decree, its whereabouts (e.g., "with Secretary
Tuvera"), the supposed date of effectivity, and in a mere supplement of the Official Gazette cannot satisfy
the publication requirement.1âwphi1 This is not even substantial compliance. This was the manner,
incidentally, in which the General Appropriations Act for FY 1975, a presidential decree undeniably of
general applicability and interest, was "published" by the Marcos administration. The evident purpose
was to withhold rather than disclose information on this vital law.
xxxx
Laws must come out in the open in the clear light of the sun instead of skulking in the shadows with their
dark, deep secrets. Mysterious pronouncements and rumored rules cannot be recognized as binding
unless their existence and contents are confirmed by a valid publication intended to make full disclosure
and give proper notice to the people. The furtive law is like a scabbarded saber that cannot feint, parry or
cut unless the naked blade is drawn. (Emphases supplied)
Applying the foregoing ruling to the instant case, this Court cannot rely on a handwritten note that was
not part of Proclamation No. 2476 as published. Without publication, the note never had any legal force
and effect.
Furthermore, under Section 24, Chapter 6, Book I of the Administrative Code, "the publication of any law,
resolution or other official documents in the Official Gazette shall be prima facie evidence of its
authority." Thus, whether or not President Marcos intended to include Western Bicutan is not only
irrelevant but speculative. Simply put, the courts may not speculate as to the probable intent of the
legislature apart from the words appearing in the law.17 This Court cannot rule that a word appears in the
law when, evidently, there is none. In Pagpalain Haulers, Inc. v. Hon. Trajano,18 we ruled that "under
Article 8 of the Civil Code, 'judicial decisions applying or interpreting the laws or the Constitution shall
form a part of the legal system of the Philippines.' This does not mean, however, that courts can create
law. The courts exist for interpreting the law, not for enacting it. To allow otherwise would be violative of
the principle of separation of powers, inasmuch as the sole function of our courts is to apply or interpret
the laws, particularly where gaps or lacunae exist or where ambiguities becloud issues, but it will not
arrogate unto itself the task of legislating." The remedy sought in these Petitions is not judicial
interpretation, but another legislation that would amend the law ‘to include petitioners' lots in the
reclassification.
WHEREFORE, in view of the foregoing, the instant petitions are hereby DENIED for lack of merit. The
assailed Decision of the Court of Appeals in CA-G.R. CV No. 97925 dated 29 April 2009 is AFFIRMED in
toto. Accordingly, this Court's status quo order dated 17 June 2009 is hereby LIFTED. Likewise, all pending
motions to cite respondent in contempt is DENIED, having been rendered moot. No costs.
SO ORDERED.
97
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-32485 October 22, 1970
IN THE MATTER OF THE PETITION FOR THE DECLARATION OF THE PETITIONER'S RIGHTS AND DUTIES
UNDER SEC. 8 OF R.A. No. 6132.
KAY VILLEGAS KAMI, INC., petitioner.
MAKASIAR, J.:.
This petition for declaratory relief was filed by Kay Villegas Kami, Inc., claiming to be a duly recognized
and existing non-stock and non-profit corporation created under the laws of the land, and praying for a
determination of the validity of Sec. 8 of R.A. No. 6132 and a declaration of petitioner's rights and duties
thereunder. In paragraph 7 of its petition, petitioner avers that it has printed materials designed to
propagate its ideology and program of government, which materials include Annex B; and that in
paragraph 11 of said petition, petitioner intends to pursue its purposes by supporting delegates to the
Constitutional Convention who will propagate its ideology.
Petitioner, in paragraph 7 of its petition, actually impugns because it quoted, only the first paragraph of
Sec. 8(a) on the ground that it violates the due process clause, right of association, and freedom of
expression and that it is an ex post facto law.
The first three grounds were overruled by this Court when it held that the questioned provision is a valid
limitation on the due process, freedom of expression, freedom of association, freedom of assembly and
equal protection clauses; for the same is designed to prevent the clear and present danger of the twin
substantive evils, namely, the prostitution of electoral process and denial of the equal protection of the
laws. Moreover, under the balancing-of-interests test, the cleansing of the electoral process, the
guarantee of equal change for all candidates, and the independence of the delegates who must be
"beholden to no one but to God, country and conscience," are interests that should be accorded
primacy.1
The petitioner should therefore be accordingly guided by the pronouncements in the cases of Imbong
and Gonzales. 2
The claim of petitioner that the challenged provision constitutes an ex post facto law is likewise
untenable.
An ex post facto law is one which:.
(1) makes criminal an act done before the passage of the law and which was innocent when done, and
punishes such an act;
(2) aggravates a crime, or makes it greater than it was, when committed;
(3) changes the punishment and inflicts a greater punishment than the law annexed to the crime when
committed;
(4) alters the legal rules of evidence, and authorizes conviction upon less or different testimony than the
law required at the time of the commission of the offense;
(5) assuming to regulate civil rights and remedies only, in effect imposes penalty or deprivation of a right
for something which when done was lawful; and
(6) deprives a person accused of a crime of some lawful protection to which he has become entitled,
such as the protection of a former conviction or acquittal, or a proclamation of amnesty.3
From the aforesaid definition as well as classification of ex post facto laws, the constitutional inhibition
refers only to criminal laws which are given retroactive effect.4
While it is true that Sec. 18 penalizes a violation of any provision of R.A. No. 6132 including Sec. 8(a)
thereof, the penalty is imposed only for acts committed after the approval of the law and not those
perpetrated prior thereto. There is nothing in the law that remotely insinuates that Secs. 8(a) and 18, or
any other provision thereof, shall apply to acts carried out prior to its approval. On the contrary, See. 23
directs that the entire law shall be effective upon its approval. It was approved on August 24, 1970.
WHEREFORE, the prayer of the petition is hereby denied and paragraph 1 of Sec. 8(a) of R.A. No. 6132 is
not unconstitutional. Without costs.
Reyes, J.B.L., Actg. C.J., Dizon, Makalintal and Castro, JJ., concur.
Zaldivar, J., reserves his vote.
Concepcion, C.J., is on leave.
Separate Opinions
FERNANDO, J., concurring and dissenting:
Concurs and dissents in accordance with his separate opinion in Imbong v. Comelec, L-32432 and
Gonzales v. Comelec, L-32443.
BARREDO, J., dissenting:
Reiterates his views in Gonzales and Imbong insofar as they are relevant to the issues in this case,
dissents, even as agrees that Republic Act 6132 is not ex post facto.
VILLAMOR, J., concurring:
Concurs in the sense that the law is declared not ex post facto law and dissents as to the rest.
TEEHANKEE, J., dissenting:
The Court's decision reaffirms its split-vote ruling last September 11, 1970 in Imbong vs. Ferrer and
Gonzales vs. Comelec1 upholding the constitutionality of the first paragraph of section 8(a) of Republic
Act 6132. Inasmuch as I was unable to participate in the said cases, 2 I have expressed my contrary view
in my separate dissenting opinion in Badoy, Jr. vs. Ferrer 3 that the challenged provision, together with
the Act's other restrictions and strictures enumerated therein, "oppressively and unreasonably
straitjacket the candidates as well as the electorate and gravely violate the constitutional guaranties of
freedom of expression, freedom of the press and freedom of association, and, deny due process and the
equal protection of the laws."
I therefore dissent from the Court's decision at bar for the same reason and considerations stated in my
separate dissenting opinion in the case of Badoy.
I only wish to add a few words on the statements in the main opinion in Imbong-Gonzales that "(W)hile it
may be true that a party's support of a candidate is not wrong per se, it is equally true that Congress in
the exercise of the broad law-making authority can declare certain acts as mala prohibita when justified
by the exigencies of the times. One such act is the party or organization support prescribed in Sec. 8(a),
which ban is a valid limitation on the freedom of association as well as expression, for the reasons
aforestated. Senator Tolentino emphasized that 'equality of chances may be better attained by banning
all organization support.' "
I trust that said statements were not intended, and should not be construed, as endorsing the contention
of Senator Tolentino, the Act's sponsor, that "(T)he protection of the Constitution cannot be invoked for
the right of association when the purpose is a malum prohibitum because such purpose would be
"contrary to law" " and "(O)nce the ban (on party and organization support) is approved into law, the
freedom of association cannot be invoked against it" since the Constitution decrees only that "(T)he right
to form associations or societies for purposes not contrary to law shall not be abridged."4
Such a concept of malum prohibitum vis-a-vis the Constitutional guarantee of freedom of association
which has its root in the Malolos Constitution would render sterile and meaningless the Constitutional
safeguard, should Congress be conceded, in the exercise of its broad law-making authority, the power to
strike down at any time associations and societies by the simple expedient of declaring their purposes or
certain activities, not wrong per se as "contrary to law" or mala prohibita. I believe that such a concept
begs the question. Obviously, the word "law" in the qualifying clause "for purposes not contrary to law"
does not mean that an enactment of the legislature forecloses the question with finality and sounds the
death-knell. Laws that would regulate the purposes for which associations and societies may be formed
or would declare their purposes mala prohibita must pass the usual constitutional test of reasonableness
and furthermore, must not abridge freedom of speech and press.5
98
Republic of the Philippines
SUPREME COURT The city court has original jurisdiction over the case because the penultimate paragraph or section 87 of
Manila the Judiciary Law, as amended by Republic Acts Nos. 2613 and 3828, provides that "judges of city courts
shall have like jurisdiction as the Court of First Instance to try parties charged with an offense committed
SECOND DIVISION within their respective jurisdictions, in which the penalty provided by law does not exceed prision
correccional or imprisonment for not more than six years or fine not exceeding six thousand pesos or
G.R. No. L-46228 January 17, 1978 both."

THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. ROLANDO R. VILLARAZA (as City Judge of Cagayan de Oro City), and CAESAR PUERTO, respondents.
Francisco P. Rabanes, Edgardo Y. Raagas, Casiano A. Gamotin, Jr., Office of the City Fiscal of Cagayan de
Oro City for petitioner.
Eric Menchavez for respondent Caesar Puerto.
AQUINO, J.:
This case is about the jurisdiction of a city court in estafa cases.
On December 3, 1975 an assistant city fiscal charged Caesar Puerto with estafa in the city court of
Cagayan de Oro City for having issued on October 16, 1974 two bouncing checks for the total sum of P4,
966. 63 (Criminal Case No. 32140).
City Judge Rolando R. Villaraza in his order March 31, 1976 noted that the accused had waived the
second stage of the preliminary investigation. He directed that the case be elevated, for trial, to the court
of First Instance or the Circuit Criminal Court.
As section 87 itself shows, that jurisdiction is concurrent with the court of First Instance which is
empowered to try "all criminal cases in which the penalty provided by law is imprisonment for more than
six months, or a fine of more than two hundred pesos" (Sec. 44[f], Judiciary Law. See People vs.
Nazareno, L-40037, April 30, 1976, 70 SCRA 531).
It was not necessary for the city court to have conducted the preliminary investigation of the case. The
filing of the information by the fiscal presupposes that he had conducted the requisite preliminary
investigation pursuant to Rule 112 of the Rules of Court and Republic Act No. 5180, as amended by
Presidential Decree No. 77.
WHEREFORE, the order of the Court of First Instance, returning the case to the city court, is affirmed and
the two orders of the respondent city judge, elevating the case to the Court of First Instance, are set
aside. The city court is directed to try the case. No costs.
SO ORDERED.
Fernando (Chairman), Barredo, Antonio and Concepcion Jr., JJ., concur.
Santos, J., is on leave.

Upon petition of the prosecution, the Court of first Instance of Misamis Oriental, Cagayan de Oro Branch
VIII, in its order of February 3, 1977 returned the case to the city court because in its opinion the case
falls within the concurrent jurisdiction of the two courts and, the city court, as the first court which took
cognizance of the case, should try it.

Disagreeing with the Court of First Instance, respondent city judge in his order of April 21, 1977 directed
the re-elevation of the case. His view is that the case falls within the exclusive original jurisdiction of the
Court of First Instance because estafa committed by the accused is punishable by prision mayor medium
under Presidential Decree No. 818 which took effect on October 22, 1975 and which amended article 315
of the Revised Penal Code.

That order of respondent judge is assailed in the petition for certiorari filed in this Court on May 27, 1977
by the office of the city fiscal of Cagayan de Oro City.

We hold that the case was properly filed with the city court which has original jurisdiction over it. The
estafa imputed to Caesar Puerto is punishable under article 315 of the Revised Penal Code by arresto
mayor maximum to prision correccional minimum or four months and one day to two years and four
months.

The penalty of prision mayor medium, or eight years and one day to ten years, imposed by Presidential
Decree No. 818, applies only to swindling by means of issuing bouncing checks which was committed or
after October 22, 1975.

That increased penalty does not apply to the estafa committed by Puerto on October 16, 1974. To apply
it to Puerto would make the decree an ex post facto law. Its retroactive application is prohibited by
articles 21 and 22 of the Revised Penal Code and section 12, Article IV of the Constitution.

99
 Republic of the Philippines A law imposing a new penalty, or a new liability or disability, or giving a new right of action, must not be
SUPREME COURT construed as having a retroactive effect. It is an elementary rule of contract that the laws in force at the
Manila time the contract was made must govern its interpretation and application. Laws must be construed
EN BANC prospectively and not retrospectively. If a contract is legal at its inception, it cannot be rendered illegal by
G.R. No. L-18208 February 14, 1922 any subsequent legislation. If that were permitted then the obligations of a contract might be impaired,
THE UNITED STATES, plaintiff-appellee, vs. which is prohibited by the organic law of the Philippine Islands. (U.S. vs. Constantino Tan Quingco Chua,
VICENTE DIAZ CONDE and APOLINARIA R. DE CONDE, defendants-appellants. 39 Phil., 552; Aguilar vs. Rubiato and Gonzales Vila, 40 Phil., 570.)
Araneta & Zaragoza for appellants. Ex post facto laws, unless they are favorable to the defendant, are prohibited in this jurisdiction. Every
Attorney-General Villareal for appellee. law that makes an action, done before the passage of the law, and which was innocent when done,
JOHNSON, J.: criminal, and punishes such action, is an ex post facto law. In the present case Act No. 2655 made an act
It appears from the record that on the 6th day of May, 1921, a complaint was presented in the Court of which had been done before the law was adopted, a criminal act, and to make said Act applicable to the
First Instance of the city of Manila, charging the defendants with a violation of the Usury Law (Act No. act complained of would be to give it an ex post facto operation. The Legislature is prohibited from
2655). Upon said complaint they were each arrested, arraigned, and pleaded not guilty. The cause was adopting a law which will make an act done before its adoption a crime. A law may be given a retroactive
finally brought on for trial on the 1st day of September, 1921. At the close of the trial, and after a effect in civil action, providing it is curative in character, but ex post facto laws are absolutely prohibited
consideration of the evidence adduced, the Honorable M. V. del Rosario, judge, found that the unless its retroactive effect is favorable to the defendant.
defendants were guilty of the crime charged in the complaint and sentenced each of them to pay a fine For the reason, therefore, that the acts complained of in the present case were legal at the time of their
of P120 and, in case of insolvency, to suffer subsidiary imprisonment in accordance with the provisions of occurrence, they cannot be made criminal by any subsequent or ex post facto legislation. What the
the law. From that sentence each of the defendants appealed to this court. courts may say, considering the provisions of article 1255 of the Civil Code, when a civil action is brought
The appellants now contend: (a) That the contract upon which the alleged usurious interest was collected upon said contract, cannot now be determined. A contract may be annulled by the courts when it is
was executed before Act No. 2655 was adopted; (b) that at the time said contract was made (December shown that it is against morals or public order.
30, 1915), there was no usury law in force in the Philippine Islands; (c) that said Act No. 2655 did not For all of the foregoing reasons, we are of the opinion, and so decide, that the acts complained of by the
become effective until the 1st day of May, 1916, or four months and a half after the contract in question defendants did not constitute a crime at the time they were committed, and therefore the sentence of
was executed; (d) that said law could have no retroactive effect or operation, and (e) that said law impairs the lower court should be, and is hereby, revoked; and it is hereby ordered and decreed that the
the obligation of a contract, and that for all of said reasons the judgment imposed by the lower court complaint be dismissed, and that the defendants be discharged from the custody of the law, with costs
should be revoked; that the complaint should be dismissed, and that they should each be discharged de oficio. So ordered.
from the custody of the law.
The essential facts constituting the basis of the criminal action are not in dispute, and may be stated as
follows: (1) That on the 30th day of December, 1915, the alleged offended persons Bartolome Oliveros
and Engracia Lianco executed and delivered to the defendants a contract (Exhibit B) evidencing the fact
that the former had borrowed from the latter the sum of P300, and (2) that, by virtue of the terms of said
contract, the said Bartolome Oliveros and Engracia Lianco obligated themselves to pay to the defendants
interest at the rate of five per cent (5%) per month, payable within the first ten days of each and every
month, the first payment to be made on the 10th day of January, 1916. There were other terms in the
contract which, however, are not important for the decision in the present case.
The lower court, in the course of its opinion, stated that at the time of the execution and delivery of said
contract (Exhibit B), there was no law in force in the Philippine Islands punishing usury; but, inasmuch as
the defendants had collected a usurious rate of interest after the adoption of the Usury Law in the
Philippine Islands (Act No. 2655), they were guilty of a violation of that law and should be punished in
accordance with its provisions.
The law, we think, is well established that when a contract contains an obligation to pay interest upon the
principal, the interest thereby becomes part of the principal and is included within the promise to pay. In
other words, the obligation to pay interest on money due under a contract, be it express or implied, is a
part of the obligation of the contract. Laws adopted after the execution of a contract, changing or altering
the rate of interest, cannot be made to apply to such contract without violating the provisions of the
constitution which prohibit the adoption of a law "impairing the obligation of contract." (8 Cyc., 996; 12
Corpus Juris, 1058-1059.)
The obligation of the contract is the law which binds the parties to perform their agreement if it is not
contrary to the law of the land, morals or public order. That law must govern and control the contract in
every aspect in which it is intended to bear upon it, whether it affect its validity, construction, or
discharge. Any law which enlarges, abridges, or in any manner changes the intention of the parties,
necessarily impairs the contract itself. If a law impairs the obligation of a contract, it is prohibited by the
Jones Law, and is null and void. The laws in force in the Philippine Islands prior to any legislation by the
American sovereignty, prohibited the Legislature from giving to any penal law a retroactive effect unless
such law was favorable to the person accused. (Articles 21 and 22, Penal Code.)

100
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. L-32613-14 December 27, 1972
PEOPLE OF THE PHILIPPINES, petitioner, vs.
HON. SIMEON. FERRER (in his capacity as Judge of the Court of First Instance of Tarlac, Branch I),
FELICIANO CO alias LEONCIO CO alias "Bob," and NILO S. TAYAG alias Romy Reyes alias "Taba,"
respondents.
Solicitor R. Mutuc for respondent Feliciano Co.
Jose W. Diokno for respondent Nilo Tayag.
CASTRO, J.:p
I. Statement of the Case
Posed in issue in these two cases is the constitutionality of the Anti-Subversion
Act,1 which outlaws the Communist Party of the Philippines and other "subversive associations," and
punishes any person who "knowingly, willfully and by overt acts affiliates himself with, becomes or
remains a member" of the Party or of any other similar "subversive" organization.
On March 5, 1970 a criminal complaint for violation of section 4 of the Anti-Subversion Act was filed
against the respondent Feliciano Co in the Court of First Instance of Tarlac. On March 10 Judge Jose C. de
Guzman conducted a preliminary investigation and, finding a prima facie case against Co, directed the
Government prosecutors to file the corresponding information. The twice-amended information,
docketed as Criminal Case No. 27, recites:
That on or about May 1969 to December 5, 1969, in the Municipality of Capas, Province of Tarlac,
Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, feloniously
became an officer and/or ranking leader of the Communist Party of the Philippines, an outlawed and
illegal organization aimed to overthrow the Government of the Philippines by means of force, violence,
deceit, subversion, or any other illegal means for the purpose of establishing in the Philippines a
totalitarian regime and placing the government under the control and domination of an alien power, by
being an instructor in the Mao Tse Tung University, the training school of recruits of the New People's
Army, the military arm of the said Communist Party of the Philippines.
That in the commission of the above offense, the following aggravating circumstances are present, to wit:
(a) That the crime has been committed in contempt of or with insult to public authorities;
(b) That the crime was committed by a band; and afford impunity.
(c) With the aid of armed men or persons who insure or afford impunity.
Co moved to quash on the ground that the Anti-Subversion Act is a bill of attainder.
Meanwhile, on May 25, 1970, another criminal complaint was filed with the same court, sharing the
respondent Nilo Tayag and five others with subversion. After preliminary investigation was had, an
information was filed, which, as amended, reads:
The undersigned provincial Fiscal of Tarlac and State Prosecutors duly designated by the Secretary of
Justice to collaborate with the Provincial Fiscal of Tarlac, pursuant to the Order dated June 5, above
entitled case, hereby accuse Nilo S. Tayag, alias Romy Reyes alias TABA, ARTHUR GARCIA, RENATO (REY)
CASIPE, ABELARDO GARCIA, MANUEL ALAVADO, BENJAMIN BIE alias COMMANDER MELODY and several
JOHN DOES, whose identities are still unknown, for violation of REPUBLIC ACT No. 1700, otherwise
known as the Anti-Subversion Law, committed as follows:
That in or about March 1969 and for sometime prior thereto and thereafter, in the Province of Tarlac,
within the jurisdiction of this Honorable Court, and elsewhere in the Philippines, the above-named
accused knowingly, willfully and by overt acts organized, joined and/or remained as offices and/or
ranking leaders, of the KABATAANG MAKABAYAN, a subversive organization as defined in Republic Act No.
1700; that BENJAMIN BIE and COMMANDER MELODY, in addition thereto, knowingly, willfully and by
over acts joined and/or remained as a member and became an officer and/or ranking leader not only of
the Communist Party of the Philippines but also of the New People's Army, the military arm of the
Communist Party of the Philippines; and that all the above-named accused, as such officers and/or
ranking leaders of the aforestated subversive organizations, conspiring, confederating and mutually
helping one another, did then and there knowingly, willfully and feloniously commit subversive and/or
seditious acts, by inciting, instigating and stirring the people to unite and rise publicly and tumultuously
and take up arms against the government, and/or engage in rebellious conspiracies and riots to
overthrow the government of the Republic of the Philippines by force, violence, deceit, subversion
and/or other illegal means among which are the following:
1. On several occasions within the province of Tarlac, the accused conducted meetings and/or seminars
wherein the said accused delivered speeches instigating and inciting the people to unite, rise in arms and
overthrow the Government of the Republic of the Philippines, by force, violence, deceit, subversion
and/or other illegal means; and toward this end, the said accused organized, among others a chapter of
the KABATAANG MAKABAYAN in barrio Motrico, La Paz, Tarlac for the avowed purpose of undertaking or
promoting an armed revolution, subversive and/or seditious propaganda, conspiracies, and/or riots
and/or other illegal means to discredit and overthrow the Government of the Republic of the Philippines
and to established in the Philippines a Communist regime.
2. The accused NILO TAYAG alias ROMY REYES alias TABA, together with FRANCISCO PORTEM alias KIKO
Gonzales and others, pursued the above subversive and/or seditious activities in San Pablo City by
recruiting members for the New People's Army, and/or by instigating and inciting the people to organize
and unite for the purpose of overthrowing the Government of the Republic of the Philippines through
armed revolution, deceit, subversion and/or other illegal means, and establishing in the Philippines a
Communist Government.
That the following aggravating circumstances attended the commission of the offense: (a) aid of armed
men or persons to insure or afford impunity; and (b) craft, fraud, or disguise was employed.
On July 21, 1970 Tayag moved to quash, impugning the validity of the statute on the grounds that (1) it is
a bill of attainder; (2) it is vague; (3) it embraces more than one subject not expressed in the title thereof;
and (4) it denied him the equal protection of the laws.
Resolving the constitutional issues raised, the trial court, in its resolution of September 15, 1970,
declared the statute void on the grounds that it is a bill of attainder and that it is vague and overboard,
and dismissed the informations against the two accused. The Government appealed. We resolved to
treat its appeal as a special civil action for certiorari.
II. Is the Act a Bill of Attainder?
Article III, section 1 (11) of the Constitution states that "No bill of attainder or ex port facto law shall be
enacted."2 A bill of attainder is a legislative act which inflicts punishment without trial.3 Its essence is the
substitution of a legislative for a judicial determination of guilt.4 The constitutional ban against bills of
attainder serves to implement the principle of separation of powers 5 by confining legislatures to
rule-making 6 and thereby forestalling legislative usurpation of the judicial function.7 History in
perspective, bills of attainder were employed to suppress unpopular causes and political minorities, 8
and it is against this evil that the constitutional prohibition is directed. The singling out of a definite class,
the imposition of a burden on it, and a legislative intent, suffice to stigmatizea statute as a bill of
attainder. 9
101
In the case at bar, the Anti-Subversion Act was condemned by the court a quo as a bill of attainder
because it "tars and feathers" the Communist Party of the Philippines as a "continuing menace to the
freedom and security of the country; its existence, a 'clear, present and grave danger to the security of
the Philippines.'" By means of the Act, the trial court said, Congress usurped "the powers of the judge,"
and assumed "judicial magistracy by pronouncing the guilt of the CCP without any of the forms or
safeguards of judicial trial." Finally, according to the trial court, "if the only issue [to be determined] is
whether or not the accused is a knowing and voluntary member, the law is still a bill of attainder because
it has expressly created a presumption of organizational guilt which the accused can never hope to
overthrow."
1. When the Act is viewed in its actual operation, it will be seen that it does not specify the Communist
Party of the Philippines or the members thereof for the purpose of punishment. What it does is simply to
declare the Party to be an organized conspiracy for the overthrow of the Government for the purposes of
the prohibition, stated in section 4, against membership in the outlawed organization. The term
"Communist Party of the Philippines" issued solely for definitional purposes. In fact the Act applies not
only to the Communist Party of the Philippines but also to "any other organization having the same
purpose and their successors." Its focus is not on individuals but on conduct. 10
This feature of the Act distinguishes it from section 504 of the U.S. Federal Labor-Management Reporting
and Disclosure Act of 1959 11 which, in U.S. vs. Brown, 12 was held to be a bill of attainder and therefore
unconstitutional. Section 504 provided in its pertinent parts as follows:
(a) No person who is or has been a member of the Communist
Party ... shall serve —
(1) as an officer, director, trustee, member of any executive board or similar governing body, business
agent, manager, organizer, or other employee (other than as an employee performing exclusively clerical
or custodial duties) of any labor organization.
during or for five years after the termination of his membership in the Communist Party....
(b) Any person who willfully violates this section shall be fined not more than $10,000 or imprisoned for
not more than one year, or both.
This statute specified the Communist Party, and imposes disability and penalties on its members.
Membership in the Party, without more, ipso facto disqualifies a person from becoming an officer or a
member of the governing body of any labor organization. As the Supreme Court of the United States
pointed out:
Under the line of cases just outlined, sec. 504 of the Labor Management Reporting and Disclosure Act
plainly constitutes a bill of attainder. Congress undoubtedly possesses power under the Commerce Clause
to enact legislation designed to keep from positions affecting interstate commerce persons who may use
of such positions to bring about political strikes. In section 504, however, Congress has exceeded the
authority granted it by the Constitution. The statute does not set forth a generally applicable rule
decreeing that any person who commits certain acts or possesses certain characteristics (acts and
characteristics which, in Congress' view, make them likely to initiate political strikes) shall not hold union
office, and leaves to courts and juries the job of deciding what persons have committed the specified acts
or possessed the specified characteristics. Instead, it designates in no uncertain terms the persons who
possess the feared characteristics and therefore cannot hold union office without incurring criminal
liability — members of the Communist Party.
Communist Party v. Subversive Activities Control Board, 367 US 1, 6 L ed 2d 625, 81 S CT 1357, lend a
support to our conclusion. That case involved an appeal from an order by the Control Board ordering the
Communist Party to register as a "Communist-action organization," under the Subversive Activities
Control Act of 1950, 64 Stat 987, 50 USC sec. 781 et seq. (1958 ed). The definition of "Communist-action
organization" which the Board is to apply is set forth in sec. 3 of the Act:
[A]ny organization in the United States ... which (i)is substantially directed, dominated, or controlled by
the foreign government or foreign organization controlling the world Communist movement referred to
in section 2 of this title, and(ii) operates primarily to advance the objectives of such world Communist
movement... 64 Stat 989, 50 USC sec. 782 (1958 ed.)
A majority of the Court rejected the argument that the Act was a bill of attainder, reasoning that sec. 3
does not specify the persons or groups upon which the deprivations setforth in the Act are to be
imposed, but instead sets forth a general definition. Although the Board has determined in 1953 that the
Communist Party was a "Communist-action organization," the Court found the statutory definition not to
be so narrow as to insure that the Party would always come within it:
In this proceeding the Board had found, and the Court of Appeals has sustained its conclusion, that the
Communist Party, by virtud of the activities in which it now engages, comes within the terms of the Act. If
the Party should at anytime choose to abandon these activities, after it is once registered pursuant to
sec. 7, the Act provides adequate means of relief. (367 US, at 87, 6 L ed 2d at 683)
Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally unnecessary to charge
Communists in court, as the law alone, without more, would suffice to secure their punishment. But the
undeniable fact is that their guilt still has to be judicially established. The Government has yet to prove at
the trial that the accused joined the Party knowingly, willfully and by overt acts, and that they joined the
Party, knowing its subversive character and with specific intent to further its basic objective, i.e., to
overthrow the existing Government by force deceit, and other illegal means and place the country under
the control and domination of a foreign power.
As to the claim that under the statute organizationl guilt is nonetheless imputed despite the requirement
of proof of knowing membership in the Party, suffice it to say that is precisely the nature of conspiracy,
which has been referred to as a "dragneet device" whereby all who participate in the criminal covenant
are liable. The contention would be correct if the statute were construed as punishing mere membership
devoid of any specific intent to further the unlawful goals of the Party. 13 But the statute specifically
required that membership must be knowing or active, with specific intent to further the illegal objectives
of the Party. That is what section 4 means when it requires that membership, to be unlawful, must be
shown to have been acquired "knowingly, willfully and by overt acts." 14 The ingredient of specific intent
to pursue the unlawful goals of the Party must be shown by "overt acts." 15 This constitutes an element
of "membership" distinct from the ingredient of guilty knowledge. The former requires proof of direct
participation in the organization's unlawful activities, while the latter requires proof of mere adherence
to the organization's illegal objectives.
2. Even assuming, however, that the Act specifies individuals and not activities, this feature is not enough
to render it a bill of attainder. A statute prohibiting partners or employees of securities underwriting
firms from serving as officers or employees of national banks on the basis of a legislative finding that the
persons mentioned would be subject to the temptation to commit acts deemed inimical to the national
economy, has been declared not to be a bill of attainder. 16 Similarly, a statute requiring every secret,
oath-bound society having a membership of at least twenty to register, and punishing any person who
becomes a member of such society which fails to register or remains a member thereof, was declared
valid even if in its operation it was shown to apply only to the members of the Ku Klux Klan. 17
In the Philippines the validity of section 23 (b) of the Industrial Peace Act, 18 requiring labor unions to file
with the Department of Labor affidavits of union officers "to the effect that they are not members of the
Communist Party and that they are not members of any organization which teaches the overthrow of the
Government by force or by any illegal or unconstitutional method," was upheld by this Court. 19
102
Indeed, it is only when a statute applies either to named individuals or to easily ascertainable members
of a group in such a way as to inflict punishment on them without a judicial trial does it become a bill of
attainder. 20 It is upon this ground that statutes which disqualified those who had taken part in the
rebellion against the Government of the United States during the Civil War from holding office, 21 or
from exercising their profession, 22 or which prohibited the payment of further compensation to
individuals named in the Act on the basis of a finding that they had engages in subversive activities, 23 or
which made it a crime for a member of the Communist Party to serve as an officer or employee of a labor
union, 24 have been invalidated as bills of attainder.
But when the judgment expressed in legislation is so universally acknowledged to be certain as to be
"judicially noticeable," the legislature may apply its own rules, and judicial hearing is not needed fairly to
make such determination. 25
In New York ex rel. Bryant vs. Zimmerman, 26 the New York legislature passed a law requiring every
secret, oath-bound society with a membership of at least twenty to register, and punishing any person
who joined or remained a member of such a society failing to register. While the statute did not specify
the Ku Klux Klan, in its operation the law applied to the KKK exclusively. In sustaining the statute against
the claim that it discriminated against the Ku Klux Klan while exempting other secret, oath-bound
organizations like masonic societies and the Knights of Columbus, the United States Supreme Court relied
on common knowledge of the nature and activities of the Ku Klux Klan. The Court said:
The courts below recognized the principle shown in the cases just cited and reached the conclusion that
the classification was justified by a difference between the two classes of associations shown by
experience, and that the difference consisted (a) in a manifest tendency on the part of one class to make
the secrecy surrounding its purpose and membership a cloak for acts and conduct inimical to personal
rights and public welfare, and (b) in the absence of such a tendency on the part of the other class. In
pointing out this difference one of the courts said of the Ku Klux Klan, the principal association in the
included class: "It is a matter of common knowledge that this organization functions largely at night, its
members disguised by hoods and gowns and doing things calculated to strike terror into the minds of the
people;" and later said of the other class: "These organizations and their purposes are well known, many
of them having been in existence for many years. Many of them are oath-bound and secret. But we hear
no complaint against them regarding violation of the peace or interfering with the rights of others."
Another of the courts said: "It is a matter of common knowledge that the association or organization of
which the relator is concededly a member exercises activities tending to the prejudice and intimidation of
sundry classes of our citizens. But the legislation is not confined to this society;" and later said of the
other class: "Labor unions have a recognized lawful purpose. The benevolent orders mentioned in the
Benevolent Orders Law have already received legislative scrutiny and have been granted special
privileges so that the legislature may well consider them beneficial rather than harmful agencies." The
third court, after recognizing "the potentialities of evil in secret societies," and observing that "the
danger of certain organizations has been judicially demonstrated," — meaning in that state, — said:
"Benevolent orders, labor unions and college fraternities have existed for many years, and, while not
immune from hostile criticism, have on the whole justified their existence."
We assume that the legislature had before it such information as was readily available including the
published report of a hearing, before a committee of the House of Representatives of the 57th Congress
relating to the formation, purposes and activities of the Klu Klux Klan. If so it was advised — putting aside
controverted evidence — that the order was a revival of the Ku Klux Klan of an earlier time with
additional features borrowed from the Know Nothing and the A. P. A. orders of other periods; that its
memberships was limited to native-born, gentile, protestant whites; that in part of its constitution and
printed creed it proclaimed the widest freedom for all and full adherence to the Constitution of the
United States; in another exacted of its member an oath to shield and preserve "white supremacy;" and
in still another declared any person actively opposing its principles to be "a dangerous ingredient in the
body politic of our country and an enemy to the weal of our national commonwealth;" that it was
conducting a crusade against Catholics, Jews, and Negroes, and stimulating hurtful religious and race
prejudices; that it was striving for political power and assuming a sort of guardianship over the
administration of local, state and national affairs; and that at times it was taking into its own hands the
punishment of what some of its members conceived to be crimes. 27
In the Philippines the character of the Communist Party has been the object of continuing scrutiny by this
Court. In 1932 we found the Communist Party of the Philippines to be an illegal association. 28 In 1969
we again found that the objective of the Party was the "overthrow of the Philippine Government by
armed struggle and to establish in the Philippines a communist form of government similar to that of
Soviet Russia and Red China." 29 More recently, in Lansang vs. Garcia, 30 we noted the growth of the
Communist Party of the Philippines and the organization of Communist fronts among youth organizations
such as the Kabataang Makabayan (KM) and the emergence of the New People's Army. After
meticulously reviewing the evidence, we said: "We entertain, therefore, no doubts about the existence of
a sizeable group of men who have publicly risen in arms to overthrow the government and have thus
been and still are engaged in rebellion against the Government of the Philippines.
3. Nor is it enough that the statute specify persons or groups in order that it may fall within the ambit of
the prohibition against bills of attainder. It is also necessary that it must apply retroactively and reach
past conduct. This requirement follows from the nature of a bill of attainder as a legislative adjudication
of guilt. As Justice Frankfurter observed, "frequently a bill of attainder was ... doubly objectionable
because of its ex post facto features. This is the historic explanation for uniting the two mischiefs in one
clause — 'No Bill of Attainder or ex post facto law shall be passed.' ... Therefore, if [a statute] is a bill of
attainder it is also an ex post facto law. But if it is not an ex post facto law, the reasons that establish that
it is not are persuasive that it cannot be a bill of attainder." 31
Thus in Gardner vs. Board of Public Works, 32 the U.S. Supreme Court upheld the validity of the Charter
of the City of Los Angeles which provided:
... [N]o person shall hold or retain or be eligible for any public office or employment in the service of the
City of Los Angeles, in any office or department thereof, either elective or appointive, who has within five
(5) years prior to the effective date of this section advised, advocated, or taught, or who may, after this
section becomes effective, become a member of or affiliated with any group, society, association,
organization or party which advises, advocates or teaches or has within said period of five (5) years
advised, advocated, or taught the overthrow by force or violence of the Government of the United States
of America or of the State of California.
In upholding the statute, the Court stressed the prospective application of the Act to the petitioner
therein, thus:
... Immaterial here is any opinion we might have as to the charter provision insofar as it purported to
apply restrospectively for a five-year period to its effective date. We assume that under the Federal
Constitution the Charter Amendment is valid to the extent that it bars from the city's public service
persons who, subsequently to its adoption in 1941, advise, advocate, or reach the violent overthrow of
the Government or who are or become affiliated with any group doing so. The provisions operating thus
prospectively were a reasonable regulation to protect the municipal service by establishing an
employment qualification of loyalty to the State and the United States.
... Unlike the provisions of the charter and ordinance under which petitioners were removed, the statute
in the Lovett case did not declare general and prospectively operative standards of qualification and
eligibility for public employment. Rather, by its terms it prohibited any further payment of
compensationto named individuals or employees. Under these circumstances, viewed against the
legislative background, the statutewas held to have imposed penalties without judicial trial.
Indeed, if one objection to the bill of attainder is thatCongress thereby assumed judicial magistracy, them
it mustbe demonstrated that the statute claimed to be a bill of attainderreaches past conduct and that
the penalties it imposesare inescapable. As the U.S. Supreme Court observedwith respect to the U.S.
Federal Subversive Activities ControlAct of 1950:
103
Nor is the statute made an act of "outlawry" or of attainderby the fact that the conduct which it regulates
is describedwith such particularity that, in probability, few organizationswill come within the statutory
terms. Legislatures may act tocurb behaviour which they regard as harmful to the public welfare,whether
that conduct is found to be engaged in by manypersons or by one. So long as the incidence of legislation
issuch that the persons who engage in the regulated conduct, bethey many or few, can escape regulation
merely by altering thecourse of their own present activities, there can be no complaintof an attainder. 33
This statement, mutatis mutandis, may be said of theAnti-Subversion Act. Section 4 thereof expressly
statesthat the prohibition therein applies only to acts committed"After the approval of this Act." Only
those who "knowingly,willfully and by overt acts affiliate themselves with,become or remain members of
the Communist Party of thePhilippines and/or its successors or of any subversive association"after June
20, 1957, are punished. Those whowere members of the Party or of any other subversive associationat
the time of the enactment of the law, weregiven the opportunity of purging themselves of liability
byrenouncing in writing and under oath their membershipin the Party. The law expressly provides that
such renunciationshall operate to exempt such persons from penalliability. 34 The penalties prescribed by
the Act are thereforenot inescapable.
III. The Act and the Requirements of Due Process
1. As already stated, the legislative declaration in section 2 of the Act that the Communist Party of the
Philippinesis an organized conspiracy for the overthrow of theGovernment is inteded not to provide the
basis for a legislativefinding of guilt of the members of the Party butrather to justify the proscription
spelled out in section 4. Freedom of expression and freedom of association are sofundamental that they
are thought by some to occupy a"preferred position" in the hierarchy of constitutional values. 35
Accordingly, any limitation on their exercise mustbe justified by the existence of a substantive evil. This
isthe reason why before enacting the statute in question Congressconducted careful investigations and
then stated itsfindings in the preamble, thus:
... [T]he Communist Party of the Philippines althoughpurportedly a political party, is in fact an organized
conspiracyto overthrow the Government of the Republic of the Philippinesnot only by force and violence
but also by deceit, subversionand other illegal means, for the purpose of establishing in thePhilippines a
totalitarian regime subject to alien dominationand control;
... [T]he continued existence and activities of the CommunistParty of the Philippines constitutes a clear,
present andgrave danger to the security of the Philippines;
... [I]n the face of the organized, systematice and persistentsubversion, national in scope but international
in direction,posed by the Communist Party of the Philippines and its activities,there is urgent need for
special legislation to cope withthis continuing menace to the freedom and security of the country.
In truth, the constitutionality of the Act would be opento question if, instead of making these findings in
enactingthe statute, Congress omitted to do so.
In saying that by means of the Act Congress has assumed judicial magistracy, the trial courd failed to
takeproper account of the distinction between legislative fact and adjudicative fact. Professor Paul
Freund elucidatesthe crucial distinction, thus:
... A law forbidding the sale of beverages containingmore than 3.2 per cent of alcohol would raise a
question of legislativefact, i.e., whether this standard has a reasonable relationto public health, morals,
and the enforcement problem. Alaw forbidding the sale of intoxicating beverages (assuming itis not so
vague as to require supplementation by rule-making)would raise a question of adjudicative fact, i.e.,
whether thisor that beverage is intoxicating within the meaning of the statuteand the limits on
governmental action imposed by the Constitution. Of course what we mean by fact in each case is
itselfan ultimate conclusion founded on underlying facts and oncriteria of judgment for weighing them.
A conventional formulation is that legislative facts — those facts which are relevant to the legislative
judgment — will not be canvassed save to determine whether there is a rationalbasis for believing that
they exist, while adjudicativefacts — those which tie the legislative enactment to the litigant — are to be
demonstrated and found according to the ordinarystandards prevailing for judicial trials. 36
The test formulated in Nebbia vs. new York, 37 andadopted by this Court in Lansang vs. Garcia, 38 is that
'if laws are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary
nor discriminatory, the requirements of due process are satisfied, and judicial determination to that
effect renders a court functus officio." The recital of legislative findings implements this test.
With respect to a similar statement of legislative findingsin the U.S. Federal Subversive Activities Control
Actof 1950 (that "Communist-action organizations" are controlledby the foreign government controlling
the worldCommunist movement and that they operate primarily to"advance the objectives of such world
Communist movement"),the U.S. Supreme Court said:
It is not for the courts to reexamine the validity of theselegislative findings and reject them....They are the
productof extensive investigation by Committes of Congress over morethan a decade and a half. Cf.
Nebbia v. New York, 291 U.S.502, 516, 530. We certainly cannot dismiss them as unfoundedirrational
imaginings. ... And if we accept them, as we mustas a not unentertainable appraisal by Congress of the
threatwhich Communist organizations pose not only to existing governmentin the United States, but to
the United States as asovereign, independent Nation. ...we must recognize that thepower of Congress to
regulate Communist organizations of thisnature is
extensive. 39
This statement, mutatis mutandis, may be said of thelegislative findings articulated in the Anti-Subversion
Act.
That the Government has a right to protect itself againstsubversion is a proposition too plain to require
elaboration.Self-preservation is the "ultimate value" of society. It surpasses and transcendes every other
value, "forif a society cannot protect its very structure from armedinternal attack, ...no subordinate value
can be protected" 40 As Chief Justice Vinson so aptly said in Dennis vs. United States: 41
Whatever theoretical merit there may be to the argumentthat there is a 'right' to rebellion against
dictatorial governmentsis without force where the existing structure of government provides for peaceful
and orderly change. We rejectany principle of governmental helplessness in the face of preparationfor
revolution, which principle, carried to its logical conclusion,must lead to anarchy. No one could conceive
that it isnot within the power of Congress to prohibit acts intended tooverthrow the government by force
and violence.
2. By carefully delimiting the reach of the Act to conduct (as explicitly described in sectin 4 thereof),
Congressreaffirmed its respect for the rule that "even throughthe governmental purpose be legitimate
and substantial,that purpose cannot be pursued by means that broadly stiflefundamental personal
liberties when the end can be more narrowly achieved." 42 The requirement of knowing membership,as
distinguished from nominal membership, hasbeen held as a sufficient basis for penalizing membershipin
a subversive organization. 43 For, as has been stated:
Membership in an organization renders aid and encouragement to the organization; and when
membership is acceptedor retained with knowledge that the organization is engaged inan unlawful
purpose, the one accepting or retaining membershipwith such knowledge makes himself a party to the
unlawfulenterprise in which it is engaged. 44
3. The argument that the Act is unconstitutionallyoverbroad because section 2 merely speaks of
"overthrow"of the Government and overthrow may be achieved by peaceful means, misconceives the
function of the phrase"knowingly, willfully and by overt acts" in section 4. Section 2 is merely a legislative
104
declaration; the definitionsof and the penalties prescribed for the different acts prescribedare stated in
section 4 which requires that membershipin the Communist Party of the Philippines, to be unlawful,
must be acquired "knowingly, willfully and by overt acts." Indeed, the first "whereas" clause makes clear
thatthe overthrow contemplated is "overthrow not only by forceand violence but also be deceit,
subversion and other illegalmeans." The absence of this qualificatio in section 2 appearsto be due more
to an oversight rather than to deliberateomission.
Moreover, the word "overthrow' sufficiently connotesthe use of violent and other illegal means. Only in a
metaphoricalsense may one speak of peaceful overthrow ofgovernments, and certainly the law does not
speak in metaphors.In the case of the Anti-Subversion Act, the use ofthe word "overthrow" in a
metaphorical sense is hardlyconsistent with the clearly delineated objective of the "overthrow,"namely,
"establishing in the Philippines a totalitarianregime and place [sic] the Government under thecontrol and
domination of an alien power." What thisCourt once said in a prosecution for sedition is appropos: "The
language used by the appellant clearly imported anoverthrow of the Government by violence, and it
should beinterpreted in the plain and obvious sense in which it wasevidently intended to be understood.
The word 'overthrow'could not have been intended as referring to an ordinarychange by the exercise of
the elective franchise. The useof the whip [which the accused exhorted his audience to useagainst the
Constabulary], an instrument designed toleave marks on the sides of adversaries, is inconsistentwith the
mild interpretation which the appellant wouldhave us impute to the language." 45
IV. The Act and the Guaranty of Free Expression
As already pointed out, the Act is aimed against conspiracies to overthrow the Government by force,
violence orother illegal means. Whatever interest in freedom of speechand freedom of association is
infringed by the prohibitionagainst knowing membership in the Communist Party ofthe Philippines, is so
indirect and so insubstantial as to beclearly and heavily outweighed by the overriding considerationsof
national security and the preservartion of democraticinstitutions in his country.
The membership clause of the U.S. Federal Smith Actis similar in many respects to the membership
provision ofthe Anti-Subversion Act. The former provides:
Whoever organizes or helps or attempts to organize anysociety, group, or assembly of persons who
teach, advocate, orencourage the overthrow or destruction of any such governmentby force or violence;
or becomes or is a member of, or affiliatedwith, any such society, group or assembly of persons,
knowingthe purpose thereof —
Shall be fined not more than $20,000 or imprisoned notmore than twenty years, or both, and shall be
ineligible for emplymentby the United States or any department or agencythereof, for the five years next
following his conviction.... 46
In sustaining the validity of this provision, the "Court said in Scales vs. United States: 47
It was settled in Dennis that advocacy with which we arehere concerned is not constitutionally protected
speech, and itwas further established that a combination to promote suchadvocacy, albeit under the
aegis of what purports to be a politicalparty, is not such association as is protected by the
firstAmendment. We can discern no reason why membership, whenit constitutes a purposeful form of
complicity in a group engagingin this same forbidden advocacy, should receive anygreater degree of
protection from the guarantees of that Amendment.
Moreover, as was held in another case, where the problemsof accommodating the exigencies of self-
preservationand the values of liberty are as complex and intricate as inthe situation described in the
legislative findings stated inthe U.S. Federal Subversive Activities Control Act of 1950,the legislative
judgment as to how that threat may best bemet consistently with the safeguards of personal freedomsis
not to be set aside merely because the judgment of judgeswould, in the first instance, have chosen other
methods. 48 For in truth, legislation, "whether it restrains freedom tohire or freedom to speak, is itself an
effort at compromisebetween the claims of the social order and individual freedom,and when the
legislative compromise in either case isbrought to the judicial test the court stands one step
removedfrom the conflict and its resolution through law." 49
V. The Act and its Title
The respondent Tayag invokes the constitutional commandthat "no bill which may be enacted into law
shall embrace more than one subject which shall be expressed in the title of the bill." 50
What is assailed as not germane to or embraced in thetitle of the Act is the last proviso of section 4
which reads:
And provided, finally, That one who conspires with anyother person to overthrow the Government of the
Republic ofthe Philippines, or the government of any of its political subdivisionsby force, violence, deceit,
subversion or illegal means,for the purpose of placing such Government or political subdivisionunder the
control and domination of any lien power, shallbe punished by prision correccional to prision mayor with
allthe accessory penalties provided therefor in the same code.
It is argued that the said proviso, in reality, punishes notonly membership in the Communist Party of the
Philippinesor similar associations, but as well "any conspiracyby two persons to overthrow the national or
any local governmentby illegal means, even if their intent is not to establisha totalitarian regime, burt a
democratic regime, evenif their purpose is not to place the nation under an aliencommunist power, but
under an alien democratic power likethe United States or England or Malaysia or even an anti-
communistpower like Spain, Japan, Thailand or Taiwanor Indonesia."
The Act, in addition to its main title ("An Act to Outlawthe Communist Party of the Philippines and
SimilarAssociations, Penalizing Membership Therein, and forOther Purposes"), has a short title. Section 1
providesthat "This Act shall be known as the
Anti-Subversion Act."Together with the main title, the short title of the statuteunequivocally indicates
that the subject matter is subversionin general which has for its fundamental purpose the substitutionof
a foreign totalitarian regime in place of theexisting Government and not merely subversion by
Communistconspiracies..
The title of a bill need not be a catalogue or an indexof its contents, and need not recite the details of the
Act. 51 It is a valid title if it indicates in broad but clear termsthe nature, scope, and consequences of the
proposed lawand its operation. 52 A narrow or technical construction isto be avoided, and the statute
will be read fairly and reasonablyin order not to thwart the legislative intent. We holdthat the Anti-
Subversion Act fully satisfies these requirements.
VI. Conclusion and Guidelines
In conclusion, even as we uphold the validity of theAnti-Subversion Act, we cannot overemphasize the
needfor prudence and circumspection in its enforcement, operatingas it does in the sensitive area of
freedom of expressionand belief. Accordingly, we set the following basic guidelines to be observed in any
prosecution under the Act.The Government, in addition to proving such circumstancesas may affect
liability, must establish the following elementsof the crime of joining the Communist Party of the
Philippinesor any other subversive association:
(1) In the case of subversive organizations other thanthe Communist Party of the Philippines, (a) that
thepurpose of the organization is to overthrow the presentGovernment of the Philippines and to
establish in thiscountry a totalitarian regime under the domination of aforeign power; (b) that the
accused joined such organization;and (c) that he did so knowingly, willfully and byovert acts; and
(2) In the case of the Communist Party of the Philippines,(a) that the CPP continues to pursue the
objectiveswhich led Congress in 1957 to declare it to be an organizedconspiracy for the overthrow of the
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Government by illegalmeans for the purpose of placing the country under thecontrol of a foreign power;
(b) that the accused joined theCPP; and (c) that he did so willfully, knowingly and byovert acts.
We refrain from making any pronouncement as to thecrime or remaining a member of the Communist
Party ofthe Philippines or of any other subversive association: weleave this matter to future
determination.
ACCORDINGLY, the questioned resolution of September15, 1970 is set aside, and these two cases are
herebyremanded to the court a quo for trial on the merits. Costs de oficio.
Makalintal, Zaldivar, Teehankee, Barredo and Esguerra, JJ., concur.
Concepcion, C.J., concurs in the result.
Makasiar and Antonio, JJ., took no part.
Separate Opinions
FERNANDO, J., dissenting:
It is with regard that I find myself unable to join therest of my brethren in the decision reached upholding
thevalidity of the Anti-Subversion Act.1 It is to be admittedthat the learned and scholarly opinbion of
Justice Castro hasthe impress of conscientious and painstaking scrutiny ofthe constitutional issues raised.
What is more, the stressin the concluding portion thereof on basic guidelines thatwill assure in the trial
of those prosecuted under suchAct respect for their constitutional rights is to be
commended.Nonetheless, my own reading of the decisionscited, interpreting the bill of attainder clause2
coupled withthe fears, perhaps induced by a too-latitudinarian constructionof the guarantees of freedom
of belief and expression3 as well as freedom of association 4 as to impermissible inroadsto which they
may be exposed, compels a differentconclusion. Hence this dissent.
1. There is to be sure no thought on my part that theequally pressing concern of state safety and security
shouldbe ignored. The political branches of the governmentwould lay themselves oepn to a justifiable
indictment fornegligence had they been remiss in their obligation tosafeguard the nation against its
sworn enemies. In a simplerera, where the overthrow of the government wasusually through the rising
up in arms, with weapons farless sophisticated than those now in existence, there wasno constitutional
issue of the magnitude that now confrontsus. Force has to be met with force. It was as clearcutas that.
Advances in science as well as more subtlemethods of inducing disloyalty and weakening the senseof
allegiance have introduced complexities in coping withsuch problems. There must be then, and I am the
firstto recognize it, a greater understanding for the governmentalresponde to situations of that character.
It is inthat light that the validity of the Anti-Subversion Act isto be appraised. From ny standpoint, and I
am not presumptuousenough to claim that it is the only perspectiveor that is the most realistic, I feel that
there was an insufficientappreciation of the compulsion of the constitutionalcommands against bills of
attainder and abridgmentof free speech. I am comforted by the thought that evenhad my view prevailed,
all that it would mean is that anew legislation, more in comformity to my way of thinkingto what is
ordained by the fundamental law, wouldhave to be enacted. No valid fear need be entertained thenthat a
setback would be occasioned to legitilate state effortsto stem the tide of subversive activities, in
whateverform manifested.
2. The starting point in any inquiry as to the significanceof the bill of attainder clause is the meaning
attachedto it by the Constitutional Convention of 1934 and by the people who adopted it. As was
explained by the then Delegate, later Justice, Jose P. Laurel in his address on November19, 1934 as
Chairman of the Committee on the Bill of Rights quoted in the opinion of the Court: "A billof attainder is
a legislative act which inflicts punishment without judicial trial. (Cummings v. United States, 4Wall. 277,
18 L ed 356). In England, the Bill of Attainder was an act of Parliament by which a man was tried,
convictedand sentenced to death without a jury, without ahearing in court, without hearing the
witnesses againsthim and without regard to the rules of evidence. His bloodwas attainted or corrupted,
rendering him devoid of allheritable quality — of acquiring and disposing property bydescent. (Ex parte
Garland, 4 Wall. 333, 18 L ed. 366) If the penalty imposed was less than death, the act wasknown as a
'bill of pains and penalties.' Bills of attainder, like ex post facto laws, were favorite methods of
Stuartoppression. Once, the name of Thomas Jefferson was includedin a bill of attainder presented to
Parliament becauseof his reform activities."5 Two American SupremeCourt decision were thus in the
minds of the framers.They are Cummings v. Missouri 6 and Ex parte Garland. 7 They speak unequivocally.
Legislative acts, no matter whattheir form, that apply either to named individuals or easilyascertainable
members of a group in such a way as to inflicton them punishment amounting to a deprivation ofany
right, civil or political, without judicial trial are billsof attainder prohibited by the Constitution. 8
Cummings v. Missouri 9 was a criminal prosecution ofa Catholic priest for refusing to take the loyalty oath
requiredby the state Constitution of Missouri of 1865. Undersuch a provision, lawyers, doctors, ministers,
and otherprofessionals must disavow that they had ever, "by act orword," manifested a "desire" for the
success of the nation'senemies or a sympathy" with the rebels of the AmericanCivil War. If they swore
falsely, they were guilty of perjury.If they engaged in their professions without theoath, they were
criminally liable. The United States Supreme Court condemned the provision as a bill of
attainder,identified as any legislative act inflicting punishment withoutjudicial trial. The deprivation of any
right, civil orpolitical, previously enjoyed, amounted to a punishment.Why such a conclusion was
unavoidable was explained inthe opinion of Justice Field thus: "A bill of attainder isa legislative act, which
inflicts punishment without a judicialtrial. If the punishment be less than death, the actis termed a bill of
pains and penalties. Within the meaningof the Constitution, bills of attainder include bills ofpains and
penalties. In these cases the legislative body, inaddition to its legitimate functions, exercises the
powersand office of judge; it assumes, in the language of thetextbooks, judicial magistracy; it pronounces
upon theguilt of the party, without any of the forms or safeguardsof trial; it determines the sufficiency of
the proofs produced,whether conformable to the rules of evidence orotherwise; and it fixes the degree
of punishment in accordancewith its own notions of the enormity of the offense. ... If the clauses of the
2d article of the Constitutionof Missouri, to which we have referred, had in termsdeclared that Mr.
Cummings was guilty, or should be heldguilty, of having been in armed hostility to the UnitedStates, or of
having entered that state to avoid beingenrolled or drafted into the military service of the UnitedStates,
and, therefore, should be deprived of the right topreach as a priest of the Catholic church, or to teach
inany institution of learning, there could be no question thatthe clauses would constitute a bill of
attainder within themeaning of the Federal Constitution. If these clauses, insteadof mentioning his name,
had declared that all priestsand clergymen within the state of Missouri were guiltyof these acts, or
should be held guilty of them, and hencebe subjected to the like deprivation, the clause would beequally
open to objection. And further, it these clauseshad declared that all such priests and clergymen shouldbe
so held guilty, and be thus deprived, provided they didnot, by a day designated, do certain specified acts,
theywould be no less within the inhibition of the Federal Constitution.In all these cases there would be
the legislativeenactment creating the deprivation, without any of theordinary forms and guards provided
for the security ofthe citizen in the administration of justice by the establishedtribunales." 10
On the very same day that the ruling in Cummings washanded down, Ex parte Garland 11 was also
decided. Thatwas a motion for leave to practrice as an attorney beforethe American Supreme Court.
Petitioner Garland wasadmitted to such bar at the December term of 1860. Underthe previous rules of
such Court, all that was necessarywas that the applicant have three years practice in the statecourts to
which he belonged. In March 1865, the rule waschanged by the addition of a clause requiring that an
oathbe taken under the Congressional acts of 1862 and 1865to the effect that such candidate for
admission to the barhad never voluntarily borne arms against the UnitedStates. Petitioner Garland could
not in conscience subscribeto such an oath, but he was able to show a presidentialpardon extended on
July 15, 1865. With such actof clemency, he moved that he be allowed to continue inpractice contending
that the test oath requirement wasunconstitutional as a bill of attainder and that at any rate,he was
pardoned. The same ruling was announced by theCourt again through Justice Field. Thus: "In the
exclusionwhich the statute adjudges, it imposes a punishmentfor some of the acts specified which were
not punishableat the time they were committedl; and for other of the actsit adds a new punishment to
that before prescribed, andit is thus brought within the further inhibition of the Consitutionagainst the
passage of an ex post facto law. Inthe case of Cummings v. Missouri, just decided, ... wehave had occasion
to consider at length the meaning of abill of attainder and of an ex post facto law in the clauseof the
Constitution forbidding their passage by the states,and it is unnecessary to repeat here what we there
said.A like prohibition is contained in the Constitution againstenactments of this kind by Congress; and
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the argumentpresented in that case against certain clauses of the Constitutionof Missouri is equally
applicable to the act ofCongress under consideration in this case." 12
There was a reiteration of the Cummings and Garlanddoctrine in United States v. Lovett, 13 decided in
1946.There it was shown that in 1943 the respondents, Lovett,Watson, and Dodd, were and had been for
several yearsworking for the government. The government agencies,which had lawfully employed them,
were fully satisfiedwith the quality of their work and wished to keep thememployed on their jobs. Over
their protest, Congress providedin Section 304 of the Urgent Deficiency AppropriationAct of 1943, by way
of an amendment attached to theHouse Bill, that after November 15, 1943, no salary orcompensation
should be paid respondent out of any moneythen or thereafter appropriated except for services as
jurorsor members of the armed forces, unless they wereprior to November 15, 1943, again appointed to
jobs bythe President with the advide and consent of the Senate.Notwithstanding such Congressional
enactment, and thefailure of the President to reappoint the respondents, theagencies, kept all the
respondents at work on their jobs forvarying periods after November 15, 1943, but their
compensationwas discontinued after that date. Respondentsbrought this action in the Court of Claims for
the salariesto which they felt entitled. The Ameican Supreme Courtstated that its inquiry was thus
confined to whether theaction in the light of proper construction of the Act presenteda justificiable
controversy, and, if so, whether Section304 is a bill of attainder insofar as the respondents
wereconcerned.
After holding that there was a juditiciable, view theAmerican Supreme Court in an opinion by Justice
Blackcategorically affirmed: "We hold that Section 304 fallsprecisely within the category of Congressional
actionswhich the Constitution barred by providing that 'No Billof Attainder or ex post Law shall be
passed.' InCummings v. State of Missouri, ... this Court said, 'Abill of attainder is a legislative act which
inflicts punishmentwithout a judicial trial. If the punishment be lessthan death, the act is termed a bill of
pains and penalties.Within the meaning of the Constitution, bills of attainderinclude bills of pains and
penalties.' ... On the sameday the Cummings case was decided, the Court, in Exparte Garland, also held
invalid on the same grounds anAct of Congress which required attorneys practicing beforethis Court to
take a similar oath. Neither of thesecases has ever been overruled. They stand for the propositionthat
legislative acts, no matter what their form,that apply either to named individuals or to easily
ascertainablemembers of a group in such a way as to inflictpunishment on them without a judicial trial
are billsof attainder prohibited by the Constitution. Adherenceto this principle requires invalidation of
Section 304. Wedo adhere to it." 14
United States v. Brown 15 a 1965 decision was the firstcase to review a conviction under the Labor-
ManagementReporting and Disclosure Act of 1959, making it a crimefor a member of the Communist
Party to serve as anofficer ir, except in clerical or custodial positions, anemployee of a labor union.
Respondent Brown, a longshoremanon the San Francisco docks, and an open andavowed Communist, for
more than a quarter of a centurywas elected to the Executive Board of Local 10 of theInternational
Longshoremen's and Warehousemen's Unionfor consecutive one-year terms in 1959, 1960, and 1961.On
May 24, 1961, respondent was charged in a one-countindictment returned in a district court of California
withservicing as a member of an executive board of a labororganization while a member of the
Communist Party, inwillful violation of the above provision. The question ofits validity under the bill of
attainder clause was thusproperly raised for adjudication. While convicted in thelower court, the Court of
Appeals for the Ninth Circuitreversed. It was sustained by the American SupremeCourt. As noted in the
opinion by Chief Justice Warren,"the wide variation in form, purpose and effect of ante-Constitutionbills
of attainder indicates that the properscope of the Bill of Attainder Clause, and its relevance
tocontemporary problems, must ultimately be sought by attemptingto discern the reasons for its
inclusion in theConstitution, and the evils it was desinged to eliminate.The best available evidence, the
writings of the architectsof our constitutional system, indicates that the Bill ofAttainder Clause was
inteded not as a narrow, technical(and therefore soon to be outmoded) prohibition, but ratheras an
implementation of the separation of powers, ageneral safeguard against legislative exercise of the
judicialfunction, or more simply — trial by legislature." 16 Then after referring to Cummings, Garland,
and Lovett,Chief Justice Warren continued: "Under the line of casesjust outlined, Sec. 504 of the Labor
Management Reportingand Disclosure Act plainly constitutes a bill of attainder. Congress undoubtedly
possesses power under theCommerce Clause to enact legislation designed to keepfrom positions
affecting interstate commerce persons whomay use such positions to bring about political strikes. In Sec.
504, however, Congress has exceeded the authoritygranted it by the Constitution. The statute does not
setforth a generally applicable rule decreeing that any personwho commits certain acts or possesses
certain characteristics (acts and characteristics whhich, in Congress'view, make them likely to initiate
political strikes) shallnot hold union office, and leave to courts and juries thejob of deciding what persons
have committed the specifiedacts or possessed the specified characteristics. Instead,it designates in no
uncertain terms the personswho possess the fearec characteristics and therefore cannothold union office
without incurring criminal liability — members of the Communist Party." 17
Even Communist Party v. Subversive Activities ControlBoard, 18 where the provision of the Subversive
ActivitiesControl Act of 1950 requiring the Communist Party ofthe United States to register was
sustained, the opinionof Justice Frankfurter for the Court, speaking for a five-manmajority, did indicate
adherence to the Cummingsprinciple. Had the American Communist Party been outlawed,the outcome
certainly would have been different.Thus: "The Act is not a bill of attainder. It attaches notto specified
organizations but to described activities inwhich an organization may or may not engage. The singlingout
of an individual for legislatively prescribed punishmentconstitutes an attainder whether the individualis
called by name or described in terms of conduct which,because it is past conduct, operates only as a
designationof particular persons. ... The Subversive Activities ControlAct is not of that king. It requires the
registrationonly of organizations which, after the date of the Act,are found to be under the direction,
domination, or controlof certain foreign powers and to operate primarily toadvance certain objectives.
This finding must be madeafter full administrative hearing, subject to judicial reviewwhich opens the
record for the reviewing court'sdetermination whether the administrative findings as tofact are
supported by the preponderance of the evidence.Present activity constitutes an operative element to
whichthe statute attaches legal consequences, not merely a pointof reference for the ascertainment of
particularly personsineluctably designated by the legislature." 19
The teaching of the above cases, which I find highlypersuasive considering what appeared to be in the
mindsof the framers of the 1934 Constitutional Conventionyields for me the conclusion that the Anti-
SubversionAct falls within the ban of the bill of attainder clause. Itshould be noted that three subsequent
cases upholding theCummings and Garland doctrine were likewise cited in theopinion of the Court. The
interpretation accorded to themby my brethren is, of course, different but I am unable togo along with
them especially in the light of the categoricallanguage appearing in Lovett. This is not to lose sightof the
qualification that for them could deprive such aholding of its explicit character as shown by this
excerptfrom the opinion of the Court: "Indeed, were the Anti-SubversionAct a bill of attainder it would be
totally unnecessaryto charge communists in court, as the law alone,without more, would suffice to
secure their conviction andpunishment. But the fact is that their guilt still has to bejudicially estblished.
The Government has yet to proveat the trial that the accused joined the Party knowingly,willfully and by
overt acts, and that they joined the Partyknowing its subversive character and with specific intentto
further its objective, i.e., to overthrow the existing Governmentby force, deceit, and other illegal means
and placeit under the control and domination of a foreign power. 20While not implausible, I find difficulty
in yielding acceptance.In Cummings, there was a criminal prosecution ofthe Catholic priest who refused
to take the loyalty oath.Again in Brown, there was an indictment of the laborleader who, judging by his
membership in the CommunistParty, did transgress the statutory provision subsequentlyfound offensive
to the bill attainder clause. If the constructionI would place on theoff-repeated pronouncementof the
American Supreme Court is correct, then the merefact that a criminal case would have to be instituted
wouldnot save the statute. It does seem clear to me that fromthe very title of the Anti-Subversion Act,
"to outlaw the Communist Party of the Philippines and similar associations,"not to mention other specific
provisions, the taintof invalidity is quite marked. Hence, my inability to concurin the judgment reached as
the statute not suffering fromany fatal infirmity in view of the Constitutional prohibitionagainst bills of
attainder.
3. This brings me to the question of the alleged repugnancyof the Anti-Subversion Act to the intellectual
libertysafeguarded by the Constitution in terms of the free speechand free assocition guarantees. 21 It is
to be admitted thatat the time of the enactment of Republic Act No. 1700,the threat that Communism,
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the Russian brand then, didpose was a painful reality for Congressional leaders andthe then President. Its
shadow fell squarely across thelives of all. Subversion then could neither be denied notdisparaged. There
was, in the expert opinion of those conversantwith such mattes, a danger to out national existenceof no
mean character. Nonetheless, the remedies toward off such menace must not be repugnant to our
Constitution.We are legally precluded from acting in anyother way. The apprehension justly felt is no
warrant forthrowing to the discard fundamental guarantees. Vigilantwe had to be, but not at the expense
of constitutional ideals.
One of them, certainly highly-prized of the utmost significance,is the right to dissent. One can differ,
evenobject; one can express dissatisfaction with things as theyare. There are timew when one not only
can but must.Such dissent can take the form of the most critical andthe most disparaging remarks. They
may give offense tothose in authority, to those who wield powe and influence.Nevertheless, they are
entitled to constitutional protection.Insofar as the content of such dissent is concerned, thelimits are
hardly discernible. It cannot be confined totrivial matters or to such as are devoid of too much
significance.It can reach the heart of things. Such dissentmay, for those not so adventurous in the realm
of ideas,possess a subversive tinge. Even those who oppose a democraticform of government cannot be
silenced. This is trueespecially in centers of learning where scholars competentin their line may, as a
result of their studies, assert thata future is bleak for the system of government now favoredby Western
democracies. There may be doubts entertainedby some as to the lawfulness of their exercisingthis right
to dissent to the point of advocary of such adrastic change. Any citizen may do so without fear
thatthereby he incurs the risk of a penal sanction. That ismerely to affirm the truth of this ringing
declaration fromJefferson: "If there be any among us who would wish todissolve this union or to change
its republican form, letthem stand undisturbed as monuments of the safety withwhich error of opinion
may be tolerated where reason isleft free to combat it." 22 As was so well put by the philosopher,Sidney
Hook: "Without holding the right to theexpression of heresy at any time and place to be absolute — for
even the right to non-heretical speech cannot beabsolute — it still seems wise to tolerate the expression
evenof Communist, fascist and other heresies, lest in outlawingthem we include other kings of heresies,
and deprive ourselvesof the opportunity to acquite possibly sounder ideasthan our own." 23
The line is to be drawn, however, where the wordsamount to an incitement to commit the crime of
seditionor rebellion. The state has been reached, to follow theformulation of Cardozo, where thought
merges into action.Thus is loyalty shown to the freedom of speech or pressordained by the Constitution.
It does not bar the expressionof views affecting the very life of the state, even ifopposed to its
fundamental presuppositions. It allows, ifit does not require as a matter of fact, that unorthodoxideas be
freely ventilated and fully heard. Dissent is notdisloyalty.
Such an approach is reinforced by the well-settled constitutionalprinciple "that even though the
governmental purposesbe legitimate and substantial, they cannot be pursuedby means that broadly stifle
fundamental personalliberties when the end can be more narrowly achieved.For precision of regulation
is the touchstone in an areaso closely related to our most precious freedoms." 24 This is so for "a
governmental purpose to control or prevent activities constitutionally subject to state regulation may
notbe achieved by means which sweep unnecessarily broadlyand thereby invade the area of protected
freedoms." 25 It isindispensable then that "an over breadth" in the applicabilityof the statute be avoided.
If such be the case, then theline dividing the valid from the constitutionally infirm hasbeen crossed. That
for me is the conclusion to be drawnfrom the wording of the Anti-Subversion Act.
There is to my mind support for the stand I take inthe dissent of Justice Black in the Communist Party
casediscussed above. What is to be kept in view is that a legislativemeasure certainly less drastic in its
treatment ofthe admittedly serious Communist problem was found inthe opinion of this noted jurist
offensive to the FirstAmendment of the American Constitution safeguardingfree speech. Thus: "If there is
one thing certain aboutthe First Amendment it is that this Amendment was designedto guarantee the
freest interchange of ideas aboutall public matters and that, of course, means the interchangeof all ideas,
however such ideas may be viewed inother countries and whatever change in the existing structureof
government it may be hoped that these ideas willbring about. Now, when this country is trying to
spreadthe high ideals of democracy all over the world — ideals that are revolutionary in many countries
— seems to be aparticularly inappropriate time to stifle First Amendmentfreedoms in this country. The
same arguments that areused to justify the outlawry of Communist ideas here couldbe used to justify an
outlawry of the ideas of democracyin other countries." 26 Further he stated: "I believe with theFramers
of the First Amendment that the internal securityof a nation like ours does not and cannot be made
todepend upon the use of force by Government to make allthe beliefs and opinions of the people fit into
a commonmold on any single subject. Such enforced conformity ofthought would tend only to deprive
our people of the boldspirit of adventure and progress which has brought thisNation to its present
greatness. The creation of publicopinion by groups, organizations, societies, clubs, and partieshas been
and is a necessary part of our democraticsociety. Such groups, like the Sons of Liberty and theAmerican
Corresponding Societies, played a large part increating sentiment in this country that led the people
ofthe Colonies to want a nation of their own. The Father ofthe Constitution — James Madison — said, in
speakingof the Sedition Act aimed at crushing the Jefferson Party,that had that law been in effect during
the period beforethe Revolution, the United States might well have continuedto be 'miserable colonies,
groaning under a foreign yoke.'In my judgment, this country's internal security can betterbe served by
depending upon the affection of the peoplethan by attempting to instill them with fear and dreadof the
power of Government. The Communist Party hasnever been more than a small group in this country.
Andits numbers had been dwindling even before the Governmentbegan its campaign to destroy the Party
by force oflaw. This was because a vast majority of the Americanpeople were against the Party's policies
and overwhelminglyrejected its candidates year after year. That is the trueAmerican way of securing this
Nation against dangerousideas. Of course that is not the way to protect the Nationagainst actions of
violence and treason. The Foundersdrew a distinction in our Constitution which we would bewise to
follow. They gave the Government the fullest powerto prosecute overt actions in violation of valid
lawsbut withheld any power to punish people for nothing morethan advocacy of their views." 27
With the sentiments thus expressed uppermost in mymind and congenial to my way of thinking, I cannot
sharethe conclusion reached by my breathren as to the Anti-Subversion Act successfully meeting the test
of validity onfree speech and freedom of association grounds.
4. It could be that this approach to the constitutionalquestions involved arises from an appraisal of the
challengedstatute which for me is susceptible of an interpretationthat it does represent a defeatist
attitude on thepart of those of us, who are devotees at the shrine of aliberal-democratic state. That
certainly could not havebeen the thought of its framers; nonetheless, such an assumptionis not devoid of
plausibility for why resort tothis extreme measure susceptible as it is to what apparentlyare not
unfounded attacks on constitutional grounds?Is this not to ignore what previously was accepted as
anobvious truth, namely that the light of liberalism sendsits shafts in many directions? It can illuminate,
and itcan win the hearts and minds of men. It if difficult forme to accept the view then that a resort to
outlawry isindispensable, that suppression is the only answer to whatis an admitted evil. There could
have been a greater exposureof the undesirability of the communist creed, itscontradictions and
arbitrarines, its lack of fealty to reason,its inculcation of disloyalty, and its subservience tocentralized
dictation that brooks no opposition. It is thus,in a realistic sense, a manifestation of the fear of
freethought and the will to suppress it. For better, of course,is the propaganda of the deed. What the
communists promise,this government can fulfill. It is up to it then to takeremedial measures to alleviate
the condition of our countrymenwhose lives are in a condition of destitution andmisery. It may not be
able to change matters radically.At least, it should take earnest steps in that direction.What is important
for those at the bottom of the economicpyramid is that they are not denied the opportunity for abetter
life. If they, or at least their children, cannot evenlook forward to that, then a constitutional regime is
nothingbut a mockery and a tragic illusion. Such a response,I am optimistic enough to believe, has the
merit of thinning,if not completely eliminating, the embattled ranksand outposts of ignorance, fanaticism
and error. That forme would be more in accordance with the basic propositionof our polity. This is not
therefore to preach a doctrine of object surrender to the forces apparently bent on the adoption of a way
of life so totally opposed to the deeply felt traditions of our people. This is, for me at least, an affirmation
of the vitality of the democratic creed, with an expression of regret that it could not have been more
impressively set forth in language worthy of the subject.
108
It is in the light of the views above expressed that I find myself unable to yield concurrence to the ably-
written opinion of Justice Castro for the Court sustaining the validity of the Anti-Subversion Act.

109
 Republic of the Philippines of the orders of his military superiors may, if true, be available by way of defense upon the merits in the
SUPREME COURT trial in the court below, but can not under this principle affect the right of that court to take jurisdiction
Manila of the case.
EN BANC Whether under a similar state of facts to that which appears in this case a court of one of the United
G.R. No. 448 September 20, 1901 States would have jurisdiction to try the offender against the State laws (see In re Fair, 100 Fed. Rep.,
THE UNITED STATES, complainant-appellee, vs. 149), it is not necessary to consider. The present is not a case where the courts of one government are
PHILIP K. SWEET, defendant-appellant. attempting to exercise jurisdiction over the military agents or employees of another and distinct
Theofilus B. Steele, for appellant. government, because the court asserting jurisdiction here derives its existence and powers from the
Office of the Solicitor-General Araneta, for appellee. same Government under the authority of which the acts alleged to constitute the offense are claimed to
LADD, J.: have been performed.
The offense charged in the complaint is punishable under the Penal Code now in force by arresto mayor It may be proper to add that there is no actual conflict between the two jurisdictions in the present case
and a fine of from 325 to 3,250 pesetas. (Art. 418.) By Act No. 136 of the United States Philippine nor any claim of jurisdiction on the part of the military tribunals. On the contrary it appears from the
Commission, section 56 (6), Courts of First Instance are given original jurisdiction "in all criminal cases in findings of the court below that the complaint was entered by order of the commanding general of the
which a penalty of more than six months' imprisonment or a fine exceeding one hundred dollars may be Division of the Philippines, a fact not important, perhaps, as regards the technical question of jurisdiction,
imposed." The offense was therefore cognizable by the court below unless the fact that the appellant but which relieves the case from any practical embarrassment which might result from a claim on the
was at the time of its alleged commission an employee of the United States military authorities in the part of the military tribunals to exclusive cognizance of the offense.
Philippine Islands, and the further fact that the person upon whom it is alleged to have been committed The order of the court below is affirmed with costs to the appellant.
was a prisoner of war in the custody of such authorities, are sufficient to deprive it of jurisdiction. We Arellano, C.J., Torres, Willard, and Mapa, JJ., concur.
must assume that both these facts are true, as found, either upon sufficient evidence or upon the
admissions of the prosecuting attorney, by the court below. Separate Opinions
Setting aside the claim that the appellant was "acting in the line of duty" at the time the alleged offense COOPER, J., concurring:
was committed, which is not supported by the findings or by any evidence which appears in the record, I concur in the result of the decision of the court, but am not prepared to assent to all that is said in the
the contention that the court was without jurisdiction, as we understand it, is reducible to two opinion. An offense charged against a military officer, acting under the order of his superior, unless the
propositions: First, that an assault committed by a soldier or military employee upon a prisoner of war is illegality of the order is so clearly shown on its face that a man of ordinary sense and understanding
not an offense under the Penal Code; and second, that if it is an offense under the Code, nevertheless the would know when he heard it read or given that the order was illegal, and when the alleged criminal act
military character sustained by the person charged with the offense at the time of its commission was done within the scope of his authority as such officer, in good faith and without malice, and where
exempts him from the ordinary jurisdiction of the civil tribunals. the offense is against the military law — that is, such law as relates to the discipline and efficiency of the
As to the first proposition, it is true, as pointed out by counsel, that an assault of the character charged in Army, or rules and orders promulgated by the Secretary of War to aid military officers in the proper
the complaint committed in time of war by a military person upon a prisoner of war is punishable as an enforcement of the custody of prisoners — is not within the jurisdiction of the courts of the Civil
offense under the Spanish Code of Military Justice (art. 232), and it is also true that under the provisions Government. (In re Fair, 100 Fed. Rep., 149.) The civil courts, however, may examine the evidence for the
of the same Code (arts. 4, 5) the military tribunals have, with certain exceptions which it is not material purpose of determining whether the act alleged to be criminal was done in the performance of duty
to state, exclusive cognizance of all offenses, whether of a purely military nature or otherwise, committed under the circumstances above indicated, but should cease to exercise jurisdiction upon such facts
by military persons. But the fact that the acts charged in the complaint would be punishable as an appearing.
offense under the Spanish military legislation does not render them any less an offense under the article
of the Penal Code above cited. There is nothing in the language of that article to indicate that it does not
apply to all persons within the territorial jurisdiction of the law. Under articles 4 and 5 of the Code of
Military Justice above cited a military person could not be brought to trial before a civil tribunal for an
assault upon a prisoner of war, but by the commission of that offense he incurred a criminal
responsibility for which he was amenable only to the military jurisdiction. That criminal responsibility,
however, arose from an infraction of the general penal laws, although the same acts, viewed in another
aspect, might also, if committed in time of war, constitute an infraction of the military code. We are
unable to see how these provisions of the Spanish Military Code, no longer in force here and which
indeed never had any application to the Army of the United States, can in any possible view have the
effect claimed for them by counsel for the appellant.
The second question is, Does the fact that the alleged offense was committed by an employee of the
United States military authorities deprive the court of jurisdiction? We have been cited to no provision in
the legislation of Congress, and to none in the local legislation, which has the effect of limiting, as
respects employees of the United States military establishment, the general jurisdiction conferred upon
the Courts of First Instance by Act No. 136 of the United States Philippine Commission above cited, and
we are not aware of the existence of any such provision. The case is therefore open to the application of
the general principle that the jurisdiction of the civil tribunals is unaffected by the military or other
special character of the person brought before them for trial, a principle firmly established in the law of
England and America and which must, we think, prevail under any system of jurisprudence unless
controlled by express legislation to the contrary. (United States vs. Clark, 31 Fed. Rep., 710.) The
appellant's claim that the acts alleged to constitute the offense were performed by him in the execution

110
 FIRST DIVISION Finally, on the contention that there was no preliminary investigation conducted, suffice it to say that
G.R. No. 125865 January 28, 2000 preliminary investigation is not a matter of right in cases cognizable by the MeTC such as the one at bar.6
JEFFREY LIANG (HUEFENG), petitioner, Being purely a statutory right, preliminary investigation may be invoked only when specifically granted by
vs. law.7 The rule on the criminal procedure is clear that no preliminary investigation is required in cases
PEOPLE OF THE PHILIPPINES, respondent. falling within the jurisdiction of the MeTC.8 Besides the absence of preliminary investigation does not
YNARES-SANTIAGO, J.: affect the court's jurisdiction nor does it impair the validity of the information or otherwise render it
Petitioner is an economist working with the Asian Development Bank (ADB). Sometime in 1994, for defective.9
allegedly uttering defamatory words against fellow ADB worker Joyce Cabal, he was charged before the WHEREFORE, the petition is DENIED.
Metropolitan Trial Court (MeTC) of Mandaluyong City with two counts of grave oral defamation docketed SO ORDERED.1âwphi1.nêt
as Criminal Cases Nos. 53170 and 53171. Petitioner was arrested by virtue of a warrant issued by the
MeTC. After fixing petitioner's bail at P2,400.00 per criminal charge, the MeTC released him to the
custody of the Security Officer of ADB. The next day, the MeTC judge received an "office of protocol"
from the Department of Foreign Affairs (DFA) stating that petitioner is covered by immunity from legal
process under Section 45 of the Agreement between the ADB and the Philippine Government regarding
the Headquarters of the ADB (hereinafter Agreement) in the country. Based on the said protocol
communication that petitioner is immune from suit, the MeTC judge without notice to the prosecution
dismissed the two criminal cases. The latter filed a motion for reconsideration which was opposed by the
DFA. When its motion was denied, the prosecution filed a petition for certiorari and mandamus with the
Regional Trial Court (RTC) of Pasig City which set aside the MeTC rulings and ordered the latter court to
enforce the warrant of arrest it earlier issued. After the motion for reconsideration was denied, petitioner
elevated the case to this Court via a petition for review arguing that he is covered by immunity under the
Agreement and that no preliminary investigation was held before the criminal cases were filed in
court.1âwphi1.nêt
The petition is not impressed with merit.
First, courts cannot blindly adhere and take on its face the communication from the DFA that petitioner is
covered by any immunity. The DFA's determination that a certain person is covered by immunity is only
preliminary which has no binding effect in courts. In receiving ex-parte the DFA's advice and in motu
propio dismissing the two criminal cases without notice to the prosecution, the latter's right to due
process was violated. It should be noted that due process is a right of the accused as much as it is of the
prosecution. The needed inquiry in what capacity petitioner was acting at the time of the alleged
utterances requires for its resolution evidentiary basis that has yet to be presented at the proper time.1
At any rate, it has been ruled that the mere invocation of the immunity clause does not ipso facto result
in the dropping of the charges.2
Second, under Section 45 of the Agreement which provides:
Officers and staff of the Bank including for the purpose of this Article experts and consultants
performing missions for the Bank shall enjoy the following privileges and immunities:
a.) immunity from legal process with respect to acts performed by them in their
official capacity except when the Bank waives the immunity.
the immunity mentioned therein is not absolute, but subject to the exception that the acts was done in
"official capacity." It is therefore necessary to determine if petitioner's case falls within the ambit of
Section 45(a). Thus, the prosecution should have been given the chance to rebut the DFA protocol and it
must be accorded the opportunity to present its controverting evidence, should it so desire.
Third, slandering a person could not possibly be covered by the immunity agreement because our laws
do not allow the commission of a crime, such as defamation, in the name of official duty.3 The
imputation of theft is ultra vires and cannot be part of official functions. It is well-settled principle of law
that a public official may be liable in his personal private capacity for whatever damage he may have
caused by his act done with malice or in bad faith or beyond the scope of his authority or jurisdiction.4 It
appears that even the government's chief legal counsel, the Solicitor General, does not support the stand
taken by petitioner and that of the DFA.
Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic agent, assuming petitioner is
such, enjoys immunity from criminal jurisdiction of the receiving state except in the case of an action
relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state
outside his official functions.5 As already mentioned above, the commission of a crime is not part of
official duty.

111
 FIRST DIVISION
G.R. No. 125865 March 26, 2001
JEFFREY LIANG (HUEFENG), petitioner, vs.
PEOPLE OF THE PHILIPPINES, respondent.
RESOLUTION
YNARES-SANTIAGO, J.:
This resolves petitioner's Motion for Reconsideration of our Decision dated January 28, 2000, denying the
petition for review.
The Motion is anchored on the following arguments:
1) THE DFA'S DETERMINATION OF IMMUNITY IS A POLITICAL QUESTION TO BE MADE BY THE EXECUTIVE
BRANCH OF THE GOVERNMENT AND IS CONCLUSIVE UPON THE COURTS.
2) THE IMMUNITY OF INTERNATIONAL ORGANIZATIONS IS ABSOLUTE.
3) THE IMMUNITY EXTENDS TO ALL STAFF OF THE ASIAN DEVELOPMENT BANK (ADB).
4) DUE PROCESS WAS FULLY AFFORDED THE COMPLAINANT TO REBUT THE DFA PROTOCOL.
5) THE DECISION OF JANUARY 28, 2000 ERRONEOUSLY MADE A FINDING OF FACT ON THE MERITS,
NAMELY, THE SLANDERING OF A PERSON WHICH PREJUDGED PETITIONER'S CASE BEFORE THE
METROPOLITAN TRIAL COURT (MTC)-MANDALUYONG.
6) THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS IS NOT APPLICABLE TO THIS CASE.
This case has its origin in two criminal Informations1 for grave oral defamation filed against petitioner, a
Chinese national who was employed as an Economist by the Asian Development Bank (ADB), alleging
that on separate occasions on January 28 and January 31, 1994, petitioner allegedly uttered defamatory
words to Joyce V. Cabal, a member of the clerical staff of ADB. On April 13, 1994, the Metropolitan Trial
Court of Mandaluyong City, acting pursuant to an advice from the Department of Foreign Affairs that
petitioner enjoyed immunity from legal processes, dismissed the criminal Informations against him. On a
petition for certiorari and mandamus filed by the People, the Regional Trial Court of Pasig City, Branch
160, annulled and set aside the order of the Metropolitan Trial Court dismissing the criminal cases.2
Petitioner, thus, brought a petition for review with this Court. On January 28, 2000, we rendered the
assailed Decision denying the petition for review. We ruled, in essence, that the immunity granted to
officers and staff of the ADB is not absolute; it is limited to acts performed in an official capacity.
Furthermore, we held that the immunity cannot cover the commission of a crime such as slander or oral
defamation in the name of official duty.
On October 18, 2000, the oral arguments of the parties were heard. This Court also granted the Motion
for Intervention of the Department of Foreign Affairs. Thereafter, the parties were directed to submit
their respective memorandum.
For the most part, petitioner's Motion for Reconsideration deals with the diplomatic immunity of the
ADB, its officials and staff, from legal and judicial processes in the Philippines, as well as the constitutional
and political bases thereof. It should be made clear that nowhere in the assailed Decision is diplomatic
immunity denied, even remotely. The issue in this case, rather, boils down to whether or not the
statements allegedly made by petitioner were uttered while in the performance of his official functions,
in order for this case to fall squarely under the provisions of Section 45 (a) of the "Agreement Between
the Asian Development Bank and the Government of the Republic of the Philippines Regarding the
Headquarters of the Asian Development Bank," to wit:
Officers and staff of the Bank, including for the purpose of this Article experts and consultants performing
missions for the Bank, shall enjoy the following privileges and immunities:
(a) Immunity from legal process with respect to acts performed by them in their official capacity except
when the Bank waives the immunity.
After a careful deliberation of the arguments raised in petitioner's and intervenor's Motions for
Reconsideration, we find no cogent reason to disturb our Decision of January 28, 2000. As we have stated
therein, the slander of a person, by any stretch, cannot be considered as falling within the purview of the
immunity granted to ADB officers and personnel. Petitioner argues that the Decision had the effect of
prejudging the criminal case for oral defamation against him. We wish to stress that it did not. What we
merely stated therein is that slander, in general, cannot be considered as an act performed in an official
capacity. The issue of whether or not petitioner's utterances constituted oral defamation is still for the
trial court to determine.
WHEREFORE, in view of the foregoing, the Motions for Reconsideration filed by petitioner and intervenor
Department of Foreign Affairs are DENIED with FINALITY. SO ORDERED.
Kapunan and Pardo, JJ ., concur.
Davide, Jr., C.J., I also join concurring opinion of Mr. Justice Puno.
Puno, J., Please see concurring opinion.
Concurring Opinions
PUNO, J., concurring:
For resolution is the Motion for Reconsideration filed by petitioner Jeffrey Liang of this Court's decision
dated January 28, 2000 which denied the petition for review. We there held that: the protocol
communication of the Department of Foreign Affairs to the effect that petitioner Liang is covered by
immunity is only preliminary and has no binding effect in courts; the immunity provided for under
Section 45(a) of the Headquarters Agreement is subject to the condition that the act be done in an
"official capacity"; that slandering a person cannot be said to have been done in an "official capacity"
and, hence, it is not covered by the immunity agreement; under the Vienna Convention on Diplomatic
Relations, a diplomatic agent, assuming petitioner is such, enjoys immunity from criminal jurisdiction of
the receiving state except in the case of an action relating to any professional or commercial activity
exercised by the diplomatic agent in the receiving state outside his official functions; the commission of a
crime is not part of official duty; and that a preliminary investigation is not a matter of right in cases
cognizable by the Metropolitan Trial Court.
Petitioner's motion for reconsideration is anchored on the following arguments:
1. The DFA's determination of immunity is a political question to be made by the executive branch of the
government and is conclusive upon the courts;
2. The immunity of international organizations is absolute;
3. The immunity extends to all staff of the Asian Development Bank (ADB);
4. Due process was fully accorded the complainant to rebut the DFA protocol;
5. The decision of January 28, 2000 erroneously made a finding of fact on the merits, namely, the
slandering of a person which prejudged petitioner's case before the Metropolitan Trial Court (MTC)
Mandaluyong; and
6. The Vienna Convention on diplomatic relations is not applicable to this case.
Petitioner contends that a determination of a person's diplomatic immunity by the Department of
Foreign Affairs is a political question. It is solely within the prerogative of the executive department and is
conclusive upon the courts. In support of his submission, petitioner cites the following cases: WHO vs.
Aquino;1 International Catholic Migration Commission vs. Calleja;2 The Holy See vs. Rosario, Jr.;3 Lasco vs.
United Nations;4 and DFA vs. NLRC.5
It is further contended that the immunity conferred under the ADB Charter and the Headquarters
Agreement is absolute. It is designed to safeguard the autonomy and independence of international
organizations against interference from any authority external to the organizations. It is necessary to
allow such organizations to discharge their entrusted functions effectively. The only exception to this
immunity is when there is an implied or express waiver or when the immunity is expressly limited by
statute. The exception allegedly has no application to the case at bar.
Petitioner likewise urges that the international organization's immunity from local jurisdiction empowers
the ADB alone to determine what constitutes "official acts" and the same cannot be subject to different
interpretations by the member states. It asserts that the Headquarters Agreement provides for remedies
to check abuses against the exercise of the immunity. Thus, Section 49 states that the "Bank shall waive
the immunity accorded to any person if, in its opinion, such immunity would impede the course of justice
and the waiver would not prejudice the purposes for which the immunities are accorded." Section 51
allows for consultation between the government and the Bank should the government consider that an
abuse has occurred. The same section provides the mechanism for a dispute settlement regarding,
among others, issues of interpretation or application of the agreement.
Petitioner's argument that a determination by the Department of Foreign Affairs that he is entitled to
diplomatic immunity is a political question binding on the courts, is anchored on the ruling enunciated in
the case of WHO, et al. vs. Aquino, et al.,6 viz:
"It is a recognized principle of international law and under our system of separation of powers that
diplomatic immunity is essentially a political question and courts should refuse to look beyond a
determination by the executive branch of the government, and where the plea of diplomatic immunity is
112
recognized and affirmed by the executive branch of the government as in the case at bar, it is then the
duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal law
officer of the government, the Solicitor General in this case, or other officer acting under his direction.
Hence, in adherence to the settled principle that courts may not so exercise their jurisdiction by seizure
and detention of property, as to embarrass the executive arm of the government in conducting foreign
relations, it is accepted doctrine that in such cases the judicial department of the government follows the
action of the political branch and will not embarrass the latter by assuming an antagonistic jurisdiction."
This ruling was reiterated in the subsequent cases of International Catholic Migration Commission vs.
Calleja;7 The Holy See vs. Rosario, Jr.;8 Lasco vs. UN;9 and DFA vs. NLRC.10
The case of WHO vs. Aquino involved the search and seizure of personal effects of petitioner Leonce
Verstuyft, an official of the WHO. Verstuyft was certified to be entitled to diplomatic immunity pursuant
to the Host Agreement executed between the Philippines and the WHO.
ICMC vs. Calleja concerned a petition for certification election filed against ICMC and IRRI. As
international organizations, ICMC and IRRI were declared to possess diplomatic immunity. It was held
that they are not subject to local jurisdictions. It was ruled that the exercise of jurisdiction by the
Department of Labor over the case would defeat the very purpose of immunity, which is to shield the
affairs of international organizations from political pressure or control by the host country and to ensure
the unhampered performance of their functions.
Holy See v. Rosario, Jr. involved an action for annulment of sale of land against the Holy See, as
represented by the Papal Nuncio. The Court upheld the petitioner's defense of sovereign immunity. It
ruled that where a diplomatic envoy is granted immunity from the civil and administrative jurisdiction of
the receiving state over any real action relating to private immovable property situated in the territory of
the receiving state, which the envoy holds on behalf of the sending state for the purposes of the mission,
with all the more reason should immunity be recognized as regards the sovereign itself, which in that
case is the Holy See.
In Lasco vs. United Nations, the United Nations Revolving Fund for Natural Resources Exploration was
sued before the NLRC for illegal dismissal. The Court again upheld the doctrine of diplomatic immunity
invoked by the Fund.
Finally, DFA v. NLRC involved an illegal dismissal case filed against the Asian Development Bank. Pursuant
to its Charter and the Headquarters Agreement, the diplomatic immunity of the Asian Development Bank
was recognized by the Court.
It bears to stress that all of these cases pertain to the diplomatic immunity enjoyed by international
organizations. Petitioner asserts that he is entitled to the same diplomatic immunity and he cannot be
prosecuted for acts allegedly done in the exercise of his official functions.
The term "international organizations" —
"is generally used to describe an organization set up by agreement between two or more states. Under
contemporary international law, such organizations are endowed with some degree of international legal
personality such that they are capable of exercising specific rights, duties and powers. They are organized
mainly as a means for conducting general international business in which the member states have an
interest."11
International public officials have been defined as:
". . . persons who, on the basis of an international treaty constituting a particular international
community, are appointed by this international community, or by an organ of it, and are under its control
to exercise, in a continuous way, functions in the interest of this particular international community, and
who are subject to a particular personal status."12
"Specialized agencies" are international organizations having functions in particular fields, such as
posts, telecommunications, railways, canals, rivers, sea transport, civil aviation, meteorology, atomic
energy, finance, trade, education and culture, health and refugees. 13
Issues
1. Whether petitioner Liang, as an official of an international organization, is entitled to diplomatic
immunity;
2. Whether an international official is immune from criminal jurisdiction for all acts, whether private or
official;
3. Whether the authority to determine if an act is official or private is lodged in the courts;
4. Whether the certification by the Department of Foreign Affairs that petitioner is covered by immunity
is a political question that is binding and conclusive on the courts.
Discussion
I
A perusal of the immunities provisions in various international conventions and agreements will show
that the nature and degree of immunities vary depending on who the recipient is. Thus:
1. Charter of the United Nations
"Article 105 (1): The Organization shall enjoy in the territory of each of its Members such privileges and
immunities as are necessary for the fulfillment of its purposes.
Article 105 (2): Representatives of the Members of the United Nations and officials of the Organization
shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their
functions in connection with the Organization."
2. Convention on the Privileges and Immunities of the United Nations
"Section 2: The United Nations, its property and assets wherever located and by whomsoever held, shall
enjoy immunity from every form of legal process except insofar as in any particular case it has expressly
waived its immunity. It is, however, understood that no waiver of immunity shall extend to any measure
of execution.
xxx xxx xxx
Section 11 (a): Representatives of Members to the principal and subsidiary organs of the United Nations .
. shall . . . enjoy . . . immunity from personal arrest or detention and from seizure of their personal
baggage, and, in respect of words spoken or written and all acts done by them in their capacity as
representatives, immunity from legal process of every kind.
xxx xxx xxx
Section 14: Privileges and immunities are accorded to the representatives of Members not for the
personal benefit of the individuals themselves, but in order to safeguard the independent exercise of
their functions in connection with the United Nations. Consequently, a Member not only has the right
but is under a duty to waive the immunity of its representative in any case where in the opinion of the
Member the immunity would impede the course of justice, and it can be waived without prejudice to the
purpose for which the immunity is accorded.
xxx xxx xxx
Section 18 (a): Officials of the United Nations shall be immune from legal process in respect of words
spoken or written and all acts performed by them in their official capacity.
xxx xxx xxx
Section 19: In addition to the immunities and privileges specified in Section 18, the Secretary-General
and all Assistant Secretaries-General shall be accorded in respect of themselves, their spouses and minor
children, the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in
accordance with international law.
Section 20: Privileges and immunities are granted to officials in the interest of the United Nations and not
for the personal benefit of the individuals themselves. The Secretary-General shall have the right and the
duty to waive the immunity of any official in any case where, in his opinion, the immunity would impede
the course of justice and can be waived without prejudice to the interests of the United Nations.
xxx xxx xxx
Section 22: Experts . . . performing missions for the United Nations . . . shall be accorded: (a) immunity
from personal arrest or detention and from seizure of their personal baggage; (b) in respect of words
spoken or written and acts done by them in the course of the performance of their mission, immunity
from legal process of every kind."
3. Vienna Convention on Diplomatic Relations
"Article 29: The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of
arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate
steps to prevent any attack on his person, freedom, or dignity.
xxx xxx xxx
Article 31 (1): A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving
State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in certain cases.
xxx xxx xxx
113
Article 38 (1): Except in so far as additional privileges and immunities may be granted by the receiving
State, a diplomatic agent who is a national of or permanently a resident in that State shall enjoy only
immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his
functions."
4. Vienna Convention on Consular Relations
"Article 41 (1): Consular officials shall not be liable to arrest or detention pending trial, except in the case
of a grave crime and pursuant to a decision by the competent judicial authority.
xxx xxx xxx
Article 43 (1): Consular officers and consular employees shall not be amenable to the jurisdiction of the
judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of
consular functions.
Article 43 (2): The provisions of paragraph 1 of this Article shall not, however, apply in respect of a civil
action either: (a) arising out of a contract concluded by a consular officer or a consular employee in
which he did not contract expressly or impliedly as an agent of the sending State; or (b) by a third party
for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft."
5. Convention on the Privileges and Immunities of the Specialized Agencies
"Section 4: The specialized agencies, their property and assets, wherever located and by whomsoever
held, shall enjoy immunity from every form of legal process except in so far as in any particular case they
have expressly waived their immunity. It is, however, understood that no waiver of immunity shall extend
to any measure of execution.
Section 13 (a): Representatives of members at meetings convened by a specialized agency shall, while
exercising their functions and during their journeys to and from the place of meeting, enjoy immunity
from personal arrest or detention and from seizure of their personal baggage, and in respect of words
spoken or written and all acts done by them in their official capacity, immunity from legal process of
every kind.
xxx xxx xxx
Section 19 (a): Officials of the specialized agencies shall be immune from legal process in respect of
words spoken or written and all acts performed by them in their official capacity.
xxx xxx xxx
Section 21: In addition to the immunities and privileges specified in sections 19 and 20, the executive
head of each specialized agency, including a any official acting on his behalf during his absence from duty,
shall be accorded in respect of himself, his spouse and minor children, the privileges and immunities,
exemptions and facilities accorded to diplomatic envoys, in accordance with international law."
6. Charter of the ADB
"Article 50 (1): The Bank shall enjoy immunity from every form of legal process, except in cases arising
out of or in connection with the exercise of its powers to borrow money, to guarantee obligations, or to
buy and sell or underwrite the sale of securities, in which cases actions may be brought against the Bank
in a court of competent jurisdiction in the territory of a country in which the Bank has its principal or a
branch office, or has appointed an agent for the purpose of accepting service or notice of process, or has
issued or guaranteed securities.
xxx xxx xxx
Article 55 (i): All Governors, Directors, alternates, officers and employees of the Bank, including experts
performing missions for the Bank shall be immune from legal process with respect to acts performed by
them in their official capacity, except when the Bank waives the immunity."
7. ADB Headquarters Agreement
"Section 5: The Bank shall enjoy immunity from every form of legal process, except in cases arising out of
or in connection with the exercise of its powers to borrow money, to guarantee obligations, or to buy and
sell or underwrite the sale of securities, in which cases actions may be brought against the Bank in a
court of competent jurisdiction in the Republic of the Philippines.
xxx xxx xxx
Section 44: Governors, other representatives of Members, Directors, the President, Vice-President and
executive officers as may be agreed upon between the Government and the Bank shall enjoy, during their
stay in the Republic of the Philippines in connection with their official duties with the Bank: (a) immunity
from personal arrest or detention and from seizure of their personal baggage; (b) immunity from legal
process of every kind in respect of words spoken or written and all acts done by them in their official
capacity; and (c) in respect of other matters not covered in (a) and (b) above, such other immunities,
exemptions, privileges and facilities as are enjoyed by members of diplomatic missions of comparable
rank, subject to corresponding conditions and obligations.
Section 45 (a): Officers and staff of the Bank, including for the purposes of this Article experts and
consultants performing missions for the Bank, shall enjoy . . . immunity from legal process with respect to
acts performed by them in their official capacity, except when the Bank waives the immunity."
II
There are three major differences between diplomatic and international immunities. Firstly, one of the
recognized limitations of diplomatic immunity is that members of the diplomatic staff of a mission may
be appointed from among the nationals of the receiving State only with the express consent of that
State; apart from inviolability and immunity from jurisdiction in respect of official acts performed in the
exercise of their functions, nationals enjoy only such privileges and immunities as may be granted by the
receiving State. International immunities may be specially important in relation to the State of which the
official is a national. Secondly, the immunity of a diplomatic agent from the jurisdiction of the receiving
State does not exempt him from the jurisdiction of the sending State; in the case of international
immunities there is no sending State and an equivalent for the jurisdiction of the Sending State therefore
has to be found either in waiver of immunity or in some international disciplinary or judicial procedure.
Thirdly, the effective sanctions which secure respect for diplomatic immunity are the principle of
reciprocity and the danger of retaliation by the aggrieved State; international immunities enjoy no similar
protection.14
The generally accepted principles which are now regarded as the foundation of international immunities
are contained in the ILO Memorandum, which reduced them in three basic propositions, namely: (1) that
international institutions should have a status which protects them against control or interference by any
one government in the performance of functions for the effective discharge of which they are
responsible to democratically constituted international bodies in which all the nations concerned are
represented; (2) that no country should derive any financial advantage by levying fiscal charges on
common international funds; and (3) that the international organization should, as a collectivity of States
Members, be accorded the facilities for the conduct of its official business customarily extended to each
other by its individual member States. The thinking underlying these propositions is essentially
institutional in character. It is not concerned with the status, dignity or privileges of individuals, but with
the elements of functional independence necessary to free international institutions from national control
and to enable them to discharge their responsibilities impartially on behalf of all their members.15
III
Positive international law has devised three methods of granting privileges and immunities to the
personnel of international organizations. The first is by simple conventional stipulation, as was the case in
the Hague Conventions of 1899 and 1907. The second is by internal legislation whereby the government
of a state, upon whose territory the international organization is to carry out its functions, recognizes the
international character of the organization and grants, by unilateral measures, certain privileges and
immunities to better assure the successful functioning of the organization and its personnel. In this
situation, treaty obligation for the state in question to grant concessions is lacking. Such was the case
with the Central Commission of the Rhine at Strasbourg and the International Institute of Agriculture at
Rome. The third is a combination of the first two. In this third method, one finds a conventional
obligation to recognize a certain status of an international organization and its personnel, but the status is
described in broad and general terms. The specific definition and application of those general terms are
determined by an accord between the organization itself and the state wherein it is located. This is the
case with the League of Nations, the Permanent Court of Justice, and the United Nations. 16
The Asian Development Bank and its Personnel fall under this third category.
There is a connection between diplomatic privileges and immunities and those extended to international
officials. The connection consists in the granting, by contractual provisions, of the relatively well-
established body of diplomatic privileges and immunities to international functionaries. This connection
is purely historical. Both types of officials find the basis of their special status in the necessity of retaining
functional independence and freedom from interference by the state of residence. However, the legal
relationship between an ambassador and the state to which he is accredited is entirely different from the
relationship between the international official and those states upon whose territory he might carry out
his functions.17
114
The privileges and immunities of diplomats and those of international officials rest upon different legal
foundations. Whereas those immunities awarded to diplomatic agents are a right of the sending state
based on customary international law, those granted to international officials are based on treaty or
conventional law. Customary international law places no obligation on a state to recognize a special
status of an international official or to grant him jurisdictional immunities. Such an obligation can only
result from specific treaty provisions.18
The special status of the diplomatic envoy is regulated by the principle of reciprocity by which a state is
free to treat the envoy of another state as its envoys are treated by that state. The juridical basis of the
diplomat's position is firmly established in customary international law. The diplomatic envoy is
appointed by the sending State but it has to make certain that the agreement of the receiving State has
been given for the person it proposes to accredit as head of the mission to that State. 19
The staff personnel of an international organization — the international officials — assume a different
position as regards their special status. They are appointed or elected to their position by the
organization itself, or by a competent organ of it; they are responsible to the organization and their
official acts are imputed to it. The juridical basis of their special position is found in conventional law,20
since there is no established basis of usage or custom in the case of the international official. Moreover,
the relationship between an international organization and a member-state does not admit of the
principle of reciprocity,21 for it is contradictory to the basic principle of equality of states. An international
organization carries out functions in the interest of every member state equally. The international official
does not carry out his functions in the interest of any state, but in serving the organization he serves,
indirectly, each state equally. He cannot be, legally, the object of the operation of the principle of
reciprocity between states under such circumstances. It is contrary to the principle of equality of states
for one state member of an international organization to assert a capacity to extract special privileges for
its nationals from other member states on the basis of a status awarded by it to an international
organization. It is upon this principle of sovereign equality that international organizations are built.
It follows from this same legal circumstance that a state called upon to admit an official of an
international organization does not have a capacity to declare him persona non grata.
The functions of the diplomat and those of the international official are quite different. Those of the
diplomat are functions in the national interest. The task of the ambassador is to represent his state, and
its specific interest, at the capital of another state. The functions of the international official are carried
out in the international interest. He does not represent a state or the interest of any specific state. He
does not usually "represent" the organization in the true sense of that term. His functions normally are
administrative, although they may be judicial or executive, but they are rarely political or functions of
representation, such as those of the diplomat.
There is a difference of degree as well as of kind. The interruption of the activities of a diplomatic agent is
likely to produce serious harm to the purposes for which his immunities were granted. But the
interruption of the activities of the international official does not, usually, cause serious dislocation of the
functions of an international secretariat.22
On the other hand, they are similar in the sense that acts performed in an official capacity by either a
diplomatic envoy or an international official are not attributable to him as an individual but are imputed
to the entity he represents, the state in the case of the diplomat, and the organization in the case of the
international official.23
IV
Looking back over 150 years of privileges and immunities granted to the personnel of international
organizations, it is clear that they were accorded a wide scope of protection in the exercise of their
functions — The Rhine Treaty of 1804 between the German Empire and France which provided "all the
rights of neutrality" to persons employed in regulating navigation in the international interest; The Treaty
of Berlin of 1878 which granted the European Commission of the Danube "complete independence of
territorial authorities" in the exercise of its functions; The Covenant of the League which granted
"diplomatic immunities and privileges." Today, the age of the United Nations finds the scope of
protection narrowed. The current tendency is to reduce privileges and immunities of personnel of
international organizations to a minimum. The tendency cannot be considered as a lowering of the
standard but rather as a recognition that the problem on the privileges and immunities of international
officials is new. The solution to the problem presented by the extension of diplomatic prerogatives to
international functionaries lies in the general reduction of the special position of both types of agents in
that the special status of each agent is granted in the interest of function. The wide grant of diplomatic
prerogatives was curtailed because of practical necessity and because the proper functioning of the
organization did not require such extensive immunity for its officials. While the current direction of the
law seems to be to narrow the prerogatives of the personnel of international organizations, the reverse is
true with respect to the prerogatives of the organizations themselves, considered as legal entities.
Historically, states have been more generous in granting privileges and immunities to organizations than
they have to the personnel of these organizations.24
Thus, Section 2 of the General Convention on the Privileges and Immunities of the United Nations states
that the UN shall enjoy immunity from every form of legal process except insofar as in any particular case
it has expressly waived its immunity. Section 4 of the Convention on the Privileges and Immunities of the
Specialized Agencies likewise provides that the specialized agencies shall enjoy immunity from every
form of legal process subject to the same exception. Finally, Article 50(1) of the ADB Charter and Section
5 of the Headquarters Agreement similarly provide that the bank shall enjoy immunity from every form
of legal process, except in cases arising out of or in connection with the exercise of its powers to borrow
money, to guarantee obligations, or to buy and sell or underwrite the sale of securities.
The phrase "immunity from every form of legal process" as used in the UN General Convention has been
interpreted to mean absolute immunity from a state's jurisdiction to adjudicate or enforce its law by legal
process, and it is said that states have not sought to restrict that immunity of the United Nations by
interpretation or amendment. Similar provisions are contained in the Special Agencies Convention as well
as in the ADB Charter and Headquarters Agreement. These organizations were accorded privileges and
immunities in their charters by language similar to that applicable to the United Nations. It is clear
therefore that these organizations were intended to have similar privileges and immunities.25 From this, it
can be easily deduced that international organizations enjoy absolute immunity similar to the diplomatic
prerogatives granted to diplomatic envoys.
Even in the United States this theory seems to be the prevailing rule. The Foreign Sovereign Immunities
Act was passed adopting the "restrictive theory" limiting the immunity of states under international law
essentially to activities of a kind not carried on by private persons. Then the International Organizations
Immunities Act came into effect which gives to designated international organizations the same immunity
from suit and every form of judicial process as is enjoyed by foreign governments. This gives the
impression that the Foreign Sovereign Immunities Act has the effect of applying the restrictive theory
also to international organizations generally. However, aside from the fact that there was no indication in
its legislative history that Congress contemplated that result, and considering that the Convention on
Privileges and Immunities of the United Nations exempts the United Nations "from every form of legal
process," conflict with the United States obligations under the Convention was sought to be avoided by
interpreting the Foreign Sovereign Immunities Act, and the restrictive theory, as not applying to suits
against the United Nations.26
On the other hand, international officials are governed by a different rule. Section 18(a) of the General
Convention on Privileges and Immunities of the United Nations states that officials of the United Nations
shall be immune from legal process in respect of words spoken or written and all acts performed by them
in their official capacity. The Convention on Specialized Agencies carries exactly the same provision. The
Charter of the ADB provides under Article 55(i) that officers and employees of the bank shall be immune
from legal process with respect to acts performed by them in their official capacity except when the Bank
waives immunity. Section 45 (a) of the ADB Headquarters Agreement accords the same immunity to the
officers and staff of the bank. There can be no dispute that international officials are entitled to immunity
only with respect to acts performed in their official capacity, unlike international organizations which
enjoy absolute immunity.
Clearly, the most important immunity to an international official, in the discharge of his international
functions, is immunity from local jurisdiction. There is no argument in doctrine or practice with the
principle that an international official is independent of the jurisdiction of the local authorities for his
official acts. Those acts are not his, but are imputed to the organization, and without waiver the local
courts cannot hold him liable for them. In strict law, it would seem that even the organization itself could
have no right to waive an official's immunity for his official acts. This permits local authorities to assume
jurisdiction over an individual for an act which is not, in the wider sense of the term, his act at all. It is the
organization itself, as a juristic person, which should waive its own immunity and appear in court, not the
individual, except insofar as he appears in the name of the organization. Provisions for immunity from
115
jurisdiction for official acts appear, aside from the aforementioned treatises, in the constitution of most
modern international organizations. The acceptance of the principle is sufficiently widespread to be
regarded as declaratory of international law.27
V of the municipal court. The second would be for a court to accept as conclusive in the matter a statement
What then is the status of the international official with respect to his private acts?
Section 18 (a) of the General Convention has been interpreted to mean that officials of the specified
categories are denied immunity from local jurisdiction for acts of their private life and empowers local
courts to assume jurisdiction in such cases without the necessity of waiver.28 It has earlier been
mentioned that historically, international officials were granted diplomatic privileges and immunities and
were thus considered immune for both private and official acts. In practice, this wide grant of diplomatic
prerogatives was curtailed because of practical necessity and because the proper functioning of the
organization did not require such extensive immunity for its officials. Thus, the current status of the law
does not maintain that states grant jurisdictional immunity to international officials for acts of their
private lives.29 This much is explicit from the Charter and Headquarters Agreement of the ADB which
contain substantially similar provisions to that of the General Convention.
VI
Who is competent to determine whether a given act is private or official?
This is an entirely different question. In connection with this question, the current tendency to narrow
the scope of privileges and immunities of international officials and representatives is most apparent.
Prior to the regime of the United Nations, the determination of this question rested with the organization
and its decision was final. By the new formula, the state itself tends to assume this competence. If the
organization is dissatisfied with the decision, under the provisions of the General Convention of the
United States, or the Special Convention for Specialized Agencies, the Swiss Arrangement, and other
current dominant instruments, it may appeal to an international tribunal by procedures outlined in those
instruments. Thus, the state assumes this competence in the first instance. It means that, if a local court
assumes jurisdiction over an act without the necessity of waiver from the organization, the
determination of the nature of the act is made at the national level. 30
It appears that the inclination is to place the competence to determine the nature of an act as private or
official in the courts of the state concerned. That the prevalent notion seems to be to leave to the local
courts determination of whether or not a given act is official or private does not necessarily mean that
such determination is final. If the United Nations questions the decision of the Court, it may invoke
proceedings for settlement of disputes between the organization and the member states as provided in
Section 30 of the General Convention. Thus, the decision as to whether a given act is official or private is
made by the national courts in the first instance, but it may be subjected to review in the international
level if questioned by the United Nations.31
A similar view is taken by Kunz, who writes that the "jurisdiction of local courts without waiver for acts of
private life empowers the local courts to determine whether a certain act is an official act or an act of
private life," on the rationale that since the determination of such question, if left in the hands of the
organization, would consist in the execution, or non-execution, of waiver, and since waiver is not
mentioned in connection with the provision granting immunities to international officials, then the
decision must rest with local courts.32
Under the Third Restatement of the Law, it is suggested that since an international official does not enjoy
personal inviolability from arrest or detention and has immunity only with respect to official acts, he is
subject to judicial or administrative process and must claim his immunity in the proceedings by showing
that the act in question was an official act. Whether an act was performed in the individual's official
capacity is a question for the court in which a proceeding is brought, but if the international organization
disputes the court's finding, the dispute between the organization and the state of the forum is to be
resolved by negotiation, by an agreed mode of settlement or by advisory opinion of the International
Court of Justice.33
Recognizing the difficulty that by reason of the right of a national court to assume jurisdiction over
private acts without a waiver of immunity, the determination of the official or private character of a
particular act may pass from international to national control, Jenks proposes three ways of avoiding
difficulty in the matter. The first would be for a municipal court before which a question of the official or
private character of a particular act arose to accept as conclusive in the matter any claim by the
international organization that the act was official in character, such a claim being regarded as equivalent
to a governmental claim that a particular act is an act of State. Such a claim would be in effect a claim by
the organization that the proceedings against the official were a violation of the jurisdictional immunity
of the organization itself which is unqualified and therefore not subject to delimitation in the discretion
by the executive government of the country where the matter arises certifying the official character of
the act. The third would be to have recourse to the procedure of international arbitration. Jenks opines
that it is possible that none of these three solutions would be applicable in all cases; the first might be
readily acceptable only in the clearest cases and the second is available only if the executive government
of the country where the matter arises concurs in the view of the international organization concerning
the official character of the act. However, he surmises that taken in combination, these various
possibilities may afford the elements of a solution to the problem.34
One final point. The international official's immunity for official acts may be likened to a consular official's
immunity from arrest, detention, and criminal or civil process which is not absolute but applies only to
acts or omissions in the performance of his official functions, in the absence of special agreement. Since
a consular officer is not immune from all legal process, he must respond to any process and plead and
prove immunity on the ground that the act or omission underlying the process was in the performance of
his official functions. The issue has not been authoritatively determined, but apparently the burden is on
the consular officer to prove his status as well as his exemption in the circumstances. In the United
States, the US Department of State generally has left it to the courts to determine whether a particular
act was within a consular officer's official duties.35
Submissions
On the bases of the foregoing disquisitions, I submit the following conclusions:
First, petitioner Liang, a bank official of ADB, is not entitled to diplomatic immunity and hence his
immunity is not absolute.
Under the Vienna Convention on Diplomatic Relations, a diplomatic envoy is immune from criminal
jurisdiction of the receiving State for all acts, whether private or official, and hence he cannot be
arrested, prosecuted and punished for any offense he may commit, unless his diplomatic immunity is
waived.36 On the other hand, officials of international organizations enjoy "functional" immunities, that
is, only those necessary for the exercise of the functions of the organization and the fulfillment of its
purposes.37 This is the reason why the ADB Charter and Headquarters Agreement explicitly grant
immunity from legal process to bank officers and employees only with respect to acts performed by them
in their official capacity, except when the Bank waives immunity. In other words, officials and employees
of the ADB are subject to the jurisdiction of the local courts for their private acts, notwithstanding the
absence of a waiver of immunity.
Petitioner cannot also seek relief under the mantle of "immunity from every form of legal process"
accorded to ADB as an international organization. The immunity of ADB is absolute whereas the
immunity of its officials and employees is restricted only to official acts. This is in consonance with the
current trend in international law which seeks to narrow the scope of protection and reduce the
privileges and immunities granted to personnel of international organizations, while at the same time
aims to increase the prerogatives of international organizations.
Second, considering that bank officials and employees are covered by immunity only for their official acts,
the necessary inference is that the authority of the Department of Affairs, or even of the ADB for that
matter, to certify that they are entitled to immunity is limited only to acts done in their official capacity.
Stated otherwise, it is not within the power of the DFA, as the agency in charge of the executive
department's foreign relations, nor the ADB, as the international organization vested with the right to
waive immunity, to invoke immunity for private acts of bank officials and employees, since no such
prerogative exists in the first place. If the immunity does not exist, there is nothing to certify.
As an aside, ADB cannot even claim to have the right to waive immunity for private acts of its officials and
employees. The Charter and the Headquarters Agreement are clear that the immunity can be waived
only with respect to official acts because this is only the extent to which the privilege has been granted.
One cannot waive the right to a privilege which has never been granted or acquired.
Third, I choose to adopt the view that it is the local courts which have jurisdiction to determine whether
or not a given act is official or private. While there is a dearth of cases on the matter under Philippine
jurisprudence, the issue is not entirely novel.
116
The case of M.H. Wylie, et al. vs. Rarang, et al.38 concerns the extent of immunity from suit of the officials
of a United States Naval Base inside the Philippine territory. Although a motion to dismiss was filed by
the defendants therein invoking their immunity from suit pursuant to the RP-US Military Bases
Agreement, the trial court denied the same and, after trial, rendered a decision declaring that the
defendants are not entitled to immunity because the latter acted beyond the scope of their official
duties. The Court likewise applied the ruling enunciated in the case of Chavez vs. Sandiganbayan39 to the
effect that a mere invocation of the immunity clause does not ipso facto result in the charges being
automatically dropped. While it is true that the Chavez case involved a public official, the Court did not
find any substantial reason why the same rule cannot be made to apply to a US official assigned at the US
Naval Station located in the Philippines. In this case, it was the local courts which ascertained whether
the acts complained of were done in an official or personal capacity.
In the case of The Holy See vs. Rosario, Jr.,40 a complaint for annulment of contract of sale, reconveyance,
specific performance and damages was filed against petitioner. Petitioner moved to dismiss on the
ground of, among others, lack of jurisdiction based on sovereign immunity from suit, which was denied
by the trial court. A motion for reconsideration, and subsequently, a "Motion for a Hearing for the Sole
Purpose of Establishing Factual Allegation for Claim of Immunity as a Jurisdictional Defense" were filed by
petitioner. The trial court deferred resolution of said motions until after trial on the merits. On certiorari,
the Court there ruled on the issue of petitioner's non-suability on the basis of the allegations made in the
pleadings filed by the parties. This is an implicit recognition of the court's jurisdiction to ascertain the
suability or non-suability of the sovereign by assessing the facts of the case. The Court hastened to add
that when a state or international agency wishes to plead sovereign or diplomatic immunity in a foreign
court, in some cases, the defense of sovereign immunity was submitted directly to the local courts by the
respondents through their private counsels, or where the foreign states bypass the Foreign Office, the
courts can inquire into the facts and make their own determination as to the nature of the acts and
transactions involved.
Finally, it appears from the records of this case that petitioner is a senior economist at ADB and as such
he makes country project profiles which will help the bank in deciding whether to lend money or support
a particular project to a particular country.41 Petitioner stands charged of grave slander for allegedly
uttering defamatory remarks against his secretary, the private complainant herein. Considering that the
immunity accorded to petitioner is limited only to acts performed in his official capacity, it becomes
necessary to make a factual determination of whether or not the defamatory utterances were made
pursuant and in relation to his official functions as a senior economist.
I vote to deny the motion for reconsideration.
Davide, Jr., C.J., concurs.

117
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-44896 July 31, 1936
RODOLFO A. SCHNECKENBURGER, petitioner, vs.
MANUEL V. MORAN, Judge of First Instance of Manila, respondent.
Cardenas and Casal for petitioner.
Office of the Solicitor-General Hilado for respondent.
ABAD SANTOS, J.:
The petitioner was duly accredited honorary consul of Uruguay at Manila, Philippine Islands on June 11,
1934. He was subsequently charged in the Court of First Instance of Manila with the crime of falsification
of a private document. He objected to the jurisdiction of the court on the ground that both under the
Constitution of the United States and the Constitution of the Philippines the court below had no
jurisdiction to try him. His objection having been overruled, he filed this petition for a writ of prohibition
with a view to preventing the Court of First Instance of Manila from taking cognizance of the criminal
action filed against him.
In support of this petition counsel for the petitioner contend (1) That the Court of First Instance of Manila
is without jurisdiction to try the case filed against the petitioner for the reason that under Article III,
section 2, of the Constitution of the United States, the Supreme Court of the United States has original
jurisdiction in all cases affecting ambassadors, other public ministers, and consuls, and such jurisdiction
excludes the courts of the Philippines; and (2) that even under the Constitution of the Philippines original
jurisdiction over cases affecting ambassadors, other public ministers, and consuls, is conferred exclusively
upon the Supreme Court of the Philippines.
This case involves no question of diplomatic immunity. It is well settled that a consul is not entitled to the
privileges and immunities of an ambassador or minister, but is subject to the laws and regulations of the
country to which he is accredited. (Ex parte Baiz, 135 U. S., 403; 34 Law. ed., 222.) A consul is not exempt
from criminal prosecution for violations of the laws of the country where he resides. (U. S. vs. Ravara, 2
Dall., 297; 1 Law. ed., 388; Wheaton's International Law [2d ed.], 423.) The substantial question raised in
this case is one of jurisdiction.
1. We find no merit in the contention that Article III, section 2, of the Constitution of the United States
governs this case. We do not deem it necessary to discuss the question whether the constitutional
provision relied upon by the petitioner extended ex propio vigore over the Philippines. Suffice it to say
that the inauguration of the Philippine Commonwealth on November 15, 1935, has brought about a
fundamental change in the political and legal status of the Philippines. On the date mentioned the
Constitution of the Philippines went into full force and effect. This Constitution is the supreme law of the
land. Not only the members of this court but all other officers, legislative, executive and judicial, of the
Government of the Commonwealth, are bound by oath to support the Constitution. (Article XIII, section
2.) This court owes its own existence to the great instrument, and derives all its powers therefrom. In the
exercise of its powers and jurisdiction, this court is bound by the provisions of the Constitution. The
Constitution provides that the original jurisdiction of this court "shall include all cases affecting
ambassadors, other public ministers, and consuls." In deciding the instant case this court cannot go
beyond this constitutional provision.
2. It remains to consider whether the original jurisdiction thus conferred upon this court by the
Constitution over cases affecting ambassadors, other public ministers, and consuls, is exclusive. The
Constitution does not define the jurisdiction of this court in specific terms, but merely provides that "the
Supreme Court shall have such original and appellate jurisdiction as may be possessed and exercised by
the Supreme Court of the Philippine Islands at the time of the adoption of this Constitution." It then goes
on to provide that the original jurisdiction of this court "shall include all cases affecting ambassadors,
other public ministers, and consuls."
In the light of the constitutional provisions above adverted to, the question arises whether the original
jurisdiction possessed and exercised by the Supreme Court of the Philippine Islands at the time of the
adoption of the Constitution was exclusive.
The original jurisdiction possessed and exercised by the Supreme Court of the Philippine Islands at the
time of the adoption of the Constitution was derived from section 17 of Act No. 136, which reads as
follows: The Supreme Court shall have original jurisdiction to issue writs of mandamus, certiorari,
prohibition, habeas corpus, and quo warranto in the cases and in the manner prescribed in the Code of
Civil Procedure, and to hear and determine the controversies thus brought before it, and in other cases
provided by law." Jurisdiction to issue writs of quo warranto, certiorari, mandamus, prohibition, and
habeas corpus was also conferred on the Courts of First Instance by the Code of Civil Procedure. (Act No.
190, secs. 197, 217, 222, 226, and 525.) It results that the original jurisdiction possessed and exercised by
the Supreme Court of the Philippine Islands at the time of the adoption of the Constitution was not
exclusive of, but concurrent with, that of the Courts of First Instance. Inasmuch as this is the same
original jurisdiction vested in this court by the Constitution and made to include all cases affecting
ambassadors, other public ministers, and consuls, it follows that the jurisdiction of this court over such
cases is not exclusive.
The conclusion we have reached upon this branch of the case finds support in the pertinent decisions of
the Supreme Court of the United States. The Constitution of the United States provides that the Supreme
Court shall have "original jurisdiction" in all cases affecting ambassadors, other public ministers, and
consuls. In construing this constitutional provision, the Supreme Court of the United States held that the
"original jurisdiction thus conferred upon the Supreme Court by the Constitution was not exclusive
jurisdiction, and that such grant of original jurisdiction did not prevent Congress from conferring original
jurisdiction in cases affecting consuls on the subordinate courts of the Union. (U. S. vs. Ravara, supra;
Bors vs. Preston, 111 U. S., 252; 28 Law. ed., 419.)
3. The laws in force in the Philippines prior to the inauguration of the Commonwealth conferred upon the
Courts of the First Instance original jurisdiction in all criminal cases to which a penalty of more than six
months' imprisonment or a fine exceeding one hundred dollars might be imposed. (Act No. 136, sec. 56.)
Such jurisdiction included the trial of criminal actions brought against consuls for, as we have already
indicated, consuls, not being entitled to the privileges and immunities of ambassadors or ministers, are
subject to the laws and regulations of the country where they reside. By Article XV, section 2, of the
Constitution, all laws of the Philippine Islands in force at the time of the adoption of the Constitution
were to continue in force until the inauguration of the Commonwealth; thereafter, they were to remain
operative, unless inconsistent with the Constitution until amended, altered, modified, or repealed by the
National Assembly. The original jurisdiction granted to the Courts of First Instance to try criminal cases
was not made exclusively by any, law in force prior to the inauguration of the Commonwealth, and having
reached the conclusion that the jurisdiction conferred upon this court by the Constitution over cases
affecting ambassadors, other public ministers, and consuls, is not an exclusive jurisdiction, the laws in
force at the time of the adoption of the Constitution, granting the Courts of First Instance jurisdiction in
such cases, are not inconsistent with the Constitution, and must be deemed to remain operative and in
force, subject to the power of the National Assembly to amend alter, modify, or repeal the same. (Asiatic
P. Co. vs. Insular Collector of Customs, U. S. Supreme Court [Law. ed.], Adv. Ops., vol. 80, No. 12, pp. 620,
623.)
We conclude, therefore, that the Court of First Instance of Manila has jurisdiction to try the petitioner, an
that the petition for a writ of prohibition must be denied. So ordered.
Avanceña, C. J., Villa-Real, Imperial, Diaz, and Recto, JJ., concur.
Separate Opinions
LAUREL, J., concurring:
In my humble opinion, there are three reasons why the jurisdiction of this court over the petitioner in the
instant case is concurrent and not exclusive. The strictly legal reason is set forth in the preceding
illuminating opinion. The other reasons are (a) historical and based on what I consider is the (b) theory
upon which the grant of legislative authority under our Constitution is predicated.
(a) As the provision in our Constitution regarding jurisdiction in cases affecting ambassadors, other public
ministers, and consuls, has been taken from the Constitution of the United States, considerable light
would be gained by an examination of the history and interpretation thereof in the United States.
The fifth resolution of the New Jersey plan (Paterson resolutions of June 15, 1787) gave the Supreme
Court of the United States, the only national court under the plan, authority to hear and determine "by
way of appeal, in the dernier resort . . . all cases touching the rights of ambassadors . . . ." This clause,
however, was not approved. On July 18, the Convention of 1787 voted an extraordinarily broad
jurisdiction to the Supreme Court extending "to cases arising under laws passed by the general
legislature, and to such other questions as involve the national peace and harmony." This general
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proposition was considerably narrowed by Randolph in his draft of May 29 which, however, did not
mention anything about ambassadors, other public ministers and consuls. But the Committee of Detail,
through Rutledge, reported on August 6 as follows: "Article XI, Section 3. The jurisdiction of the Supreme
Court shall extend . . . to all cases affecting ambassadors, other public ministers and consuls; . . . In . . .
cases affecting ambassadors, other public ministers and consuls, . . . this jurisdiction shall be
original . . . ."On September 12, the Committee on Style reported the provision as follows: "Article III,
Section 2. The judicial power shall extend . . . to all cases affecting ambassadors, other public ministers
and consuls . . . In (all) cases affecting ambassadors, other public ministers and consuls . . . the Supreme
Court shall have original jurisdiction." This provision was approved in the convention with hardly any
amendment or debate and is now found in clause 2, section 2 of Article III of the Constitution of the
United States. (The Constitution and the Courts, Article on "Growth of the Constitution", by William M.
Meigs, New York, 1924, vol. 1, pp. 228, 229. See also Farrand, Records of the Federal Convention of 1787,
Yale University Press, 1934, 3 vols.; Warren, The Making of the Constitution, Boston, 1928, pp. 534-537.)
The word "original", however, was early interpreted as not exclusive. Two years after the adoption of the
Federal Constitution, or in 1789, the First Judiciary Act (Act of September 24, 1789, 1 Stat., c. 20, 687)
was approved by the first Congress creating the United States District and Circuit Courts which were nisi
prius courts, or courts of first instance which dealt with different items of litigation. The district courts are
now the only federal courts of first instance, the circuit courts having been abolished by the Act of March
3, 1911, otherwise known as the Judicial Code. The Judiciary Act of 1787 invested the district courts with
jurisdiction, exclusively of the courts of the several states, of all suits against consuls or vice-consuls and
the Supreme Court of the United States with original but not exclusive jurisdiction of all suits in which a
consul or vice-consul shall be a party. By the passage of the Act of February 18, 1875 (18 Stat., 470, c.
137), the clause giving the federal courts exclusive jurisdiction was repealed and, since then state courts
have had concurrent jurisdiction with the federal courts over civil or criminal proceedings against a
consul or vice-consul. At the present time, the federal courts exercise exclusive jurisdiction "of suits or
proceedings against ambassadors or other or other public ministers, or their domestics or domestic
servants, as a court of law can have consistently with the law of nations; and original, but not exclusive,
jurisdiction, of all suits brought by ambassadors or other public ministers, or in which a consul or vice-
consul is a party." (Act of March 8, 1911, 36 Stat., 1156, reenacting sec. 687 of the Act of September 24,
1789; 28 U. S. C. A., sec. 341; Hopkins' Federal Judicial Code, 4th ed., by Babbit, 1934, sec. 233.) The
district courts now have original jurisdiction of all suits against consuls and vice-consuls." (Act of March 3,
1911, 36 Stat., 1093; 28 U. S. C. A., sec. 41, subsec. 18; Hopkins' Federal Judicial Code, 4th ed., by Babbit,
1934, sec. 24, par. 18.)
The Judiciary Act of 1789 was one of the early and most satisfactory acts passed by the Congress of the
United States. It has remained essentially unchanged for more than 145 years. It was prepared chiefly by
Oliver Ellsworth of Connecticut (1 Ann. Cong., 18, April 7, 1789) one of the ablest jurists in the
Constitutional Convention, who was later Chief Justice of the Supreme Court of the United States (1796-
1800). It is interesting to note that 10 of the 18 senators and 8 of the members of the House of the first
Congress had been among the 55 delegates who actually attended the Convention that adopted the
federal Constitution (Warren, Congress, the Constitution and the Supreme Court [Boston, 1935], p. 99).
When, therefore, the first Congress approved the Judiciary Act of 1789 vesting in the Supreme Court
original but not exclusive jurisdiction of all suits in which a consul or a vice-consul shall be a party,
express legislative interpretation as to the meaning of the word "original" as not being exclusive was
definitely made and this interpretation has never been repudiated. As stated by the Supreme Court of
the United States in Ames vs. Kansas ([1884], 111 U. S., 449; 4 S. Ct., 437; 28 Law. ed., 482):
In view of the practical construction put on this provision of the Constitution by Congress, at the very
moment of the organization of the government, and of the significant fact that, from 1789 until now, no
court of the United States has ever in its actual adjudications determined to the contrary, we are unable
to say that it is not within the power of Congress to grant to the inferior courts of the United States
jurisdiction in cases where the Supreme Court has been vested by the Constitution with original
jurisdiction. It rests with the legislative department of the government to say to what extent such grants
shall be made, and it may safely be assumed that nothing will ever be done to encroach upon the high
privileges of those for whose protection the constitutional provision was intended. At any rate, we are
unwilling to say that the power to make the grant does not exist.
Dicta in some earlier cases seem to hold that the word "original" means "exclusive" and as observed by
Justice Field in United States vs. Louisiana ([1887], 123 U. S., 36; 8 S. Ct., 17; 31 Law. ed., 69), the question
has given rise to some differences of opinion among the earlier members of the Supreme Court of the
United States. (See, for instance, dissenting opinion of Iredell, J., in U. S. vs. Ravara [1793], 2 Dall., 297; 1
Law. ed., 388.) Reliance was had on more or less general expressions made by Chief Justice Marshall in
the case of Marbury vs. Madison ([1803], 1 Cranch, 137; 2 Law. ed., 60), where it was said:
"If congress remains at liberty to give this court appellate jurisdiction, where the constitution has
declared their jurisdiction shall be original; and original jurisdiction where the constitution has declared it
shall be appellate; the distribution of jurisdiction, made in the constitution, is form without substance."
But Chief Justice Marshall who penned the decision in this case in 1803 had occasion later, in 1821, to
explain the meaning and extent of the pronouncements made in the Marbury case. He said:
In the case of Marbury vs. Madison ([1803], 1 Cranch [U. S.], 137, 172; 2 Law. ed., 60), the single question
before the court, so far as that case can be applied to this, was, whether the legislature could give this
court original jurisdiction in a case in which the Constitution had clearly not given it, and in which no
doubt respecting the construction of the article could possibly be raised. The court decided, and we think
very properly, that the legislature could not give original jurisdiction in such a case. But, in the reasoning
of the court in support of this decision, some expressions are used which go far beyond it. The counsel
for Marbury had insisted on the unlimited discretion of the legislature in the apportionment of the
judicial power; and it is against this argument that the reasoning of the court is directed. They say that, if
such had been the intention of the article, "it would certainly have been useless to proceed farther than
to define the judicial power, and the tribunals in which it should be vested." The court says, that such a
construction would render the clause, dividing the jurisdiction of the court into original and appellate,
totally useless; that "affirmative words are often, in their operation, negative of other objects than those
which are affirmed; and, in this case (in the case of Marbury vs. Madison), a negative or exclusive sense
must be given to them, or they have no operation at all." "It cannot be presumed," adds the court, "that
any clause in the Constitution is intended to be without effect; and, therefore, such a construction is
inadmissible, unless the words require it." The whole reasoning of the court proceeds upon the idea that
the affirmative words of the clause giving one sort of jurisdiction, must imply a negative of any other sort
of jurisdiction, because otherwise the words would be totally inoperative, and this reasoning is advanced
in a case to which it was strictly applicable. If in that case original jurisdiction could have been exercised,
the clause under consideration would have been entirely useless. Having such cases only in its view, the
court lays down a principle which is generally correct, in terms much broader than the decision, and not
only much broader than the reasoning with which that decision is supported, but in some instances
contradictory to its principle. The reasoning sustains the negative operation of the words in that case,
because otherwise the clause would have no meaning whatever, and because such operation was
necessary to give effect to the intention of the article. The effort now made is, to apply the conclusion to
which the court was conducted by that reasoning in the particular case, to one in which the words have
their full operation when understood affirmatively, and in which the negative, or exclusive sense, is to be
so used as to defeat some of the great objects of the article. To this construction the court cannot give its
assent. The general expressions in the case of Marbury vs. Madison must be understood with the
limitations which are given to them in this opinion; limitations which in no degree affect the decision in
that case, or the tenor of its reasoning. (Cohens vs. Virginia [1821], 6 Wheat., 264, 400; 5 Law. ed., 257.)
What the Supreme Court in the case of Marbury vs. Madison held then was that Congress could not
extend its original jurisdiction beyond the cases expressly mentioned in the Constitution, the rule of
construction being that affirmative words of the Constitution declaring in what cases the Supreme Court
shall have original jurisdiction must be construed negatively as to all other cases. (See Ex parte
Vallandigham [1864], 1 Wall., 243, 252; 17 Law. ed., 589; Martin vs. Hunter's Lessee [1816], 1 Wheat.,
305, 330; 4 Law. ed., 97; U. S. vs. Haynes [D. C. Mass., 1887], 29 Fed., 691, 696.) That was all.
It should be observed that Chief Justice Marshall concurred in the opinion in the case of Davis vs. Packard
(11833], 7 Pet., 276; 8 Law. ed., 684). In this case the jurisdiction of the state court of New York over a
civil suit against a foreign consul was denied solely on the ground that jurisdiction had been conferred in
such a case upon the district courts of the United States exclusively of the state courts. Such a ground,
says Justice Harlan in Bors vs. Preston ([1884], 111 U. S., 252; 4 S. Ct., 407; 28 Law. ed., 419), would
probably not have been given had it been believed that the grant of original jurisdiction to the Supreme
Court deprived Congress of the power to confer concurrent original jurisdiction in such cases upon
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subordinate courts of the Union, concluding that the decision in the case "may be regarded, as an
affirmance of the constitutionality of the Act of 1789, giving original jurisdiction in such cases, also, to
District Courts of the United States." Of the seven justices who concurred in the judgment in the case of
Davis, five participated in the decision of Osborn vs. Bank of the United States ([1824], 9 Wheat., 738; 6
Law. ed., 204), also penned by Chief Justice Marshall and relied upon as authority together with Marbury
vs. Madison, supra.
The rule enunciated in Bors vs. Preston, supra, is the one followed in the United States. The question
involved in that case was whether the Circuit Court then existing had jurisdiction under the Constitution
and laws of the United States to hear and determine any suit whatever against the consul of a foreign
government. Justice Harlan said:
The Constitution declares that "The judicial power of the United States shall extend . . . to all cases
affecting ambassadors or other public ministers and consuls;" to controversies between citizens of a state
and foreign citizens or subjects; that "In all cases affecting ambassadors, other public ministers and
consuls, . . . the Supreme Court shall have original jurisdiction;" and that in all other cases previously
mentioned in the same clause "The Supreme Court shall have appellate jurisdiction, both as to law and
fact, with such exceptions and under such regulations as the Congress shall make." The Judiciary Act of
1789 invested the District Courts of the United States with jurisdiction, exclusively of the courts of the
several States, of all suits against consuls or vice-consuls, except for offenses of a certain character; this
court, with "Original, but not exclusive, jurisdiction of all suits . . . in which a consul or vice-consul shall be
a party;" and the circuit courts with jurisdiction of civil suits in which an alien is a party. (l Stat. at L., 76-
80.) In this act we have an affirmance, by the first Congress — many of whose members participated in
the Convention which adopted the Constitution and were, therefore, conversant with the purposes of its
framers — of the principle that the original jurisdiction of this court of cases in which a consul or vice-
consul is a party, is not necessarily exclusive, and that the subordinate courts of the Union may be
invested with jurisdiction of cases affecting such representatives of foreign governments. On a question
of constitutional construction, this fact is entitled to great weight.
In this case of Bors, Justice Harlan adopted the view entertained by Chief Justice Taney in the earlier case
of Gittings vs. Crawford (C. C. Md., 1838; Taney's Dec., 1, 10). In that case of Gittings, it was held that
neither public policy nor convenience would justify the Supreme Court in implying that Congress is
prohibited from giving original jurisdiction in cases affecting consuls to the inferior judicial tribunals of
the United States. Chief Justice Taney said:
If the arrangement and classification of the subjects of jurisdiction into appellate and original, as respects
the Supreme Court, do not exclude that tribunal from appellate power in the cases where original
jurisdiction is granted, can it be right, from the same clause, to imply words of exclusion as respects other
courts whose jurisdiction is not there limited or prescribed, but left for the future regulation of Congress?
The true rule in this case is, I think, the rule which is constantly applied to ordinary acts of legislation, in
which the grant of jurisdiction over a certain subject-matter to one court, does not, of itself, imply that
that jurisdiction is to be exclusive. In the clause in question, there is nothing but mere affirmative words
of grant, and none that import a design to exclude the subordinate jurisdiction of other courts of the
United States on the same subject-matter. (See also U.S. vs. Ravara [1793], 2 Dall., 297; 1 Law. ed., 388;
United States vs. Louisiana [1887], 123 U. S., 36; 8 S. Ct., 17; 31 Law. ed., 69; Ex parte Baiz [1890],135 U.
S., 403; 10 S. Ct., 854; 34 Law. ed., 222, denying writ of prohibition Hollander vs. Baiz [D. C. N. Y., 1890];
41 Fed., 732; Iasigi vs. Van de Carr [1897], 166 U.S., 391; 17 S. Ct., 595; 41 Law. ed., 1045; Graham vs.
Strucken [C. C. N. Y., 1857]; 4 Blatchf., 58; Lorway vs. Lousada [D. C. Mass., 1866]; Fed. Cas., No. 8517; St.
Luke's Hospital vs. Barclay [C. C. N. Y., 1855]; 3 Blatchf., 259; State of Texas vs. Lewis [C. C. Tex., 1882], 14
Fed., 65; State of Alabama vs. Wolffe (C. C. Ala., 1883], 18 Fed., 836, 837; Pooley vs. Luco [D. C. Cal.,
1896], 76 Fed., 146.)
It is interesting to note that in the case of St. Luke's Hospital vs. Barclay, supra, the jurisdiction of circuit
courts exclusive of state courts over aliens, no exception being made as to those who were consuls, was
maintained. (See 1 U. S. Stat. at L., c. 20, sec. 11, pp. 78, 79.)
From the history of, and the judicial interpretation placed on, clause 2, section 2 of Article III of the
Constitution of the United States it seems clear that the word "original" in reference to the jurisdiction of
Supreme Court of the United States over cases affecting ambassadors, other public ministers and consuls,
was never intended to be exclusive as to prevent the Congress from vesting concurrent jurisdiction over
cases affecting consuls and vice-consuls in other federal courts.
It should be observed that the Philadelphia Convention of 1787 placed cases affecting the official
representatives of foreign powers under the jurisdiction of Federal Supreme Court to prevent the public
peace from being jeopardized. Since improper treatment of foreign ambassadors, other public ministers
and consuls may be a casus belli, it was thought that the federal government, which is responsible for
their treatment under international law, should itself be provided with the means to meet the demands
imposed by international duty. (Tucker, The Constitution of the United States [1899], vol. II, 760, 772;
vide, The Federalist, No. LXXXI, Ashley's Reprint [1917], 415.) Bearing in mind in the distinction which
international law establishes between ambassadors and other public ministers, on the one hand, and
consuls and other commercial representatives, on the other, Congress saw it fit to provide in one case a
rule different from the other, although as far as consuls and vice-consuls are concerned, the jurisdiction
of the Federal Supreme Court, as already observed, though original is not exclusive. But in the United
States, there are two judicial systems, independent one from the other, while in the Philippines there is
but one judicial system. So that the reason in the United States for excluding certain courts — the state
courts — from taking cognizance of cases against foreign representatives stationed in the United States
does not obtain in the Philippines where the court of the lowest grade is as much a part of an integrated
system as the highest court.
Let us now turn our own laws as they affect the case of the petitioner. Undoubtedly Philippine courts are
not federal courts and they are not governed by the Judiciary Acts of the United States. We have a
judicial system of our own, standing outside the sphere of the American federal system and possessing
powers and exercising jurisdiction pursuant to the provisions of our own Constitution and laws.
The jurisdiction of our courts over consuls is defined and determined by our Constitution and laws which
include applicable treaties and accepted rules of the laws of nations. There are no treaties between the
United States and Uruguay exempting consuls of either country from the operation of local criminal laws.
Under the generally accepted principles of international law, declared by our Constitution as part of the
law of the nation (Art. II sec. 3, cl. 2), consuls and vice-consuls and other commercial representatives of
foreign nations do not possess the status and can not claim the privilege and immunities accorded to
ambassadors and ministers. (Wheaton, International Law, sec. 249; Kent, Commentaries, 44; Story on the
Constitution, sec. 1660; Mathews, The American Constitutional System [1932], 204, 205; Gittings vs.
Crawford, C. C. Md., 1838; Taney's Dec., 1; Wilcox vs. Luco, 118 Cal., 639; 45 Pac., 676; 2 C. J., 9 R. C. L.,
161.) The only provisions touching the subject to which we may refer are those found in the Constitution
of the Philippines. Let us trace the history of these provisions.
The report of the committee on the Judicial Power, submitted on September 29, 1934, did not contain
any provisions regarding cases affecting ambassadors, other public ministers and consuls. The draft of the
sub-committee of seven of the Sponsorship Committee, submitted on October 20, 1934, however,
contains the following provision:
Article X, Section 2. The Supreme Court shall have such original jurisdiction as may be possessed and
exercised by the present Supreme Court of the Philippine Islands at the time of the adoption of this
Constitution, which jurisdiction shall include all cases affecting ambassadors, other foreign ministers and
consuls . . . ." The Special Committee on the Judiciary, composed principally of Delegates Vicente J.
Francisco and Norberto Romualdez, included in its report the provisions which now appear in sections 2
and 3 of Article VIII of the Constitution. Section 2 provides:
The National Assembly shall have the power to define, prescribed, and apportion the jurisdiction of the
various courts, but may not deprive the Supreme Court of its original jurisdiction over cases affecting
ambassadors, other ministers and consuls . . . . And the second sentence of section 3 provides:
The original jurisdiction of the Supreme Court shall include all cases affecting ambassadors, other public
ministers and consuls.
The provision in our Constitution in so far as it confers upon our Supreme Court "original jurisdiction over
cases affecting ambassadors, other public ministers and consuls" is literally the same as that contained in
clause 2, section 2 of Article III of the United States Constitution.
In the course of the deliberation of the Constitutional Convention, some doubt was expressed regarding
the character of the grant of "original jurisdiction" to our Supreme Court. An examination of the records
of the proceedings of the Constitutional convention show that the framers of our Constitution were
familiar with the history of, and the judicial construction placed on, the same provision of the United
States Constitution. In order to end what would have been a protracted discussion on the subject, a
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member of the Special Committee on the Judiciary gave the following information to the members of the intended, that the time of that court, with all its high duties to perform, should be taken up with the trial
Convention: of every petty offense that might be committed by a consul by any part of the United States; that consul,
. . . Sr. Presidente, a fin de poder terminar con el Articulo 2, el Comite esta dispuesto a hacer constar que too, being often one of our own citizens.
la interpretacion que debe dard a la ultima parte de dicho articulo es la misma interpretacion que Probably, the most serious objection to the interpretation herein advocated is, that considering the
siempre se ha dado a semejante disposicion en la Constitucion de los Estados Unidos. (January 16,1935.) actual distribution of jurisdiction between the different courts in our jurisdiction, there may be cases
Without further discussion, the provision was then and there approved. where the Supreme Court may not actually exercise either original — whether exclusive or concurrent —
It thus appears that the provision in question has been given a well-settled meaning in the United States or appellate jurisdiction, notwithstanding the grant of original jurisdiction in this class of cases to the
— the country of its origin. It has there received definite and hitherto unaltered legislative and judicial Supreme Court. If, for instance, a criminal case is brought either in a justice of the peace court or in a
interpretation. And the same meaning was ascribed to it when incorporated in our own Constitution. To Court of First Instance against a foreign consul and no question of law is involved, it is evident that in case
paraphrase Justice Gray of the Supreme Court of the United States, we are justified in interpreting the of conviction, the proceedings will terminate in the Court Appeals and will not reach the Supreme Court.
provision of the Constitution in the light of the principles and history with which its framers were familiar. In this case, the Supreme Court will be deprived of all jurisdiction in a case affecting a consul
(United States vs. Wong Kin Ark [1897], 169 U. S., 649; 18 S. Ct., 456; 42 Law. ed., 890, cited with approval notwithstanding the grant thereto in the Constitution of original jurisdiction in all cases affecting consuls.
in Kepner vs. United States, a case of Philippine origin [1904]; 195 U. S., 100; 49 Law. ed., 114.) This is a situation, however, created not by the Constitution but by existing legislation, and the remedy is
(b) What has been said hereinabove is not unnecessary attachment to history or idolatrous adherence to in the hands of the National Assembly. The Constitution cannot deal with every casus omissus, and in the
precedents. In referring to the history of this provision of our Constitution it is realized that historical nature of things, must only deal with fundamental principles, leaving the detail of administration and
discussion while valuable is not necessarily decisive. Rationally, however, the philosophical reason for the execution to the other branches of the government. It rests with the National Assembly to determine the
conclusion announced is not far to seek if certain principles of constitutional government are borne in inferior courts which shall exercise concurrent original jurisdiction with the Supreme Court in cases
mind. The constitution is both a grant of, and a limitation upon, governmental powers. In the absence of affecting ambassadors, other public ministers and consuls, considering the nature of the offense and
clear and unequivocal restraint of legislative authority, the power is retained by the people and is irrespective of the amount of controversy. The National Assembly may as in the United States (Cooley,
exercisable by their representatives in their legislature. The rule is that the legislature possess plenary Constitutional Law, 4th ed. [1931], sec. 4, p. 156), provide for appeal to the Supreme Court in all cases
power for all purposes of civil government. A prohibition to exercise legislative power is the exception. affecting foreign diplomatic and consular representatives.
(Denio, C. J., in People vs. Draper, 15 N.Y., 532, 543.) These prohibitions or restrictions are found either in Before the approval of the Constitution, jurisdiction over consuls was exercisable by our courts. This is
the language used, or in the purpose held in view as well as the circumstances which led to the adoption more so now that the Independence Law and Constitution framed and adopted pursuant thereto are in
of the particular provision as part of the fundamental law. (Ex parte Lewis, 45 Tex. Crim. Rep., 1; 73 S. W., force. The fact that the National Assembly has not enacted any law determining what courts of the of the
811; 108 Am. St. Rep., 929.) Philippines shall exercise concurrent jurisdiction with the Supreme Court is of no moment. This can not
Subject to certain limitations, the Filipino people, through their delegates, have committed legislative mean and should not be interpreted to mean that the original jurisdiction vested in the Supreme Court
power in a most general way to the National Assembly has plenary legislative power in all matters of by the Constitution is not concurrent with other national courts of inferior category.
legislation except as limited by the constitution. When, therefore, the constitution vests in the Supreme The respondent judge of the Court of First Instance of the City of Manila having jurisdiction to take
Court original jurisdiction in cases affecting ambassadors, other public ministers and consuls, without cognizance of the criminal case brought against the petitioner, the writ of prohibition should be denied.
specifying the exclusive character of the grant, the National Assembly is not deprived of its authority to
make that jurisdiction concurrent. It has been said that popular government lives because of the
inexhaustible reservoir of power behind. It is unquestionable that the mass of powers of government is
vested in the representatives of the people, and that these representatives are no further restrained
under our system than by the express language of the instrument imposing the restraint, or by particular
provisions which, by clear intendment, have that effect. (Angara vs. Electoral Commission, p.139, ante.)
What the Constitution prohibits is merely the deprivation of the Supreme Court of its original jurisdiction
over cases affecting ambassadors, other public ministers and consuls and while it must be admitted that
original jurisdiction if made concurrent no longer remains exclusive, it is also true that jurisdiction does
not cease to be original merely because it is concurrent.
It is also quite true that concurrent original jurisdiction in this class of cases would mean the sharing of
the Supreme Court with the most inferior courts of cases affecting ambassadors, other public ministers
and consuls such that the Supreme Court would have concurrent jurisdiction with the lowest courts in
our judicial hierarchy, the justice of the peace of the courts, in a petty case for the instance, the violation
of a municipal ordinance affecting the parties just mentioned. However, no serious objection to these
result can be seen other that the misinterpreted unwillingness to share this jurisdiction with a court
pertaining to the lowest category in our judicial organization. Upon the other hand, the fundamental
reasoning would apply with equal force if the highest court of the land is made to take recognizance
exclusively of a case involving the violation of the municipal ordinance simply because of the character of
the parties affected. After alluding to the fact that the position of consul of a foreign government is
sometimes filled by a citizen of the United States (and this also true in the Philippines) Chief Justice
Taney, in Gittings vs. Crawford, supra, observed:
It could hardly have been the intention of the statesmen who framed our constitution to require that one
of our citizens who had a petty claim of even less than five dollars against another citizen, who had been
clothed by some foreign government with the consular office, should be compelled to go into the
Supreme Court to have a jury summoned in order to enable him to recover it; nor could it have been

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 FIRST DIVISION
G.R. No. 142396 February 11, 2003
KHOSROW MINUCHER, petitioner, vs.
HON. COURT OF APPEALS and ARTHUR SCALZO, respondents.
DECISION
VITUG, J.:
Sometime in May 1986, an Information for violation of Section 4 of Republic Act No. 6425, otherwise also
known as the "Dangerous Drugs Act of 1972," was filed against petitioner Khosrow Minucher and one
Abbas Torabian with the Regional Trial Court, Branch 151, of Pasig City. The criminal charge followed a
"buy-bust operation" conducted by the Philippine police narcotic agents in the house of Minucher, an
Iranian national, where a quantity of heroin, a prohibited drug, was said to have been seized. The
narcotic agents were accompanied by private respondent Arthur Scalzo who would, in due time, become
one of the principal witnesses for the prosecution. On 08 January 1988, Presiding Judge Eutropio Migrino
rendered a decision acquitting the two accused.
On 03 August 1988, Minucher filed Civil Case No. 88-45691 before the Regional Trial Court (RTC), Branch
19, of Manila for damages on account of what he claimed to have been trumped-up charges of drug
trafficking made by Arthur Scalzo. The Manila RTC detailed what it had found to be the facts and
circumstances surrounding the case.
"The testimony of the plaintiff disclosed that he is an Iranian national. He came to the Philippines to
study in the University of the Philippines in 1974. In 1976, under the regime of the Shah of Iran, he was
appointed Labor Attaché for the Iranian Embassies in Tokyo, Japan and Manila, Philippines. When the
Shah of Iran was deposed by Ayatollah Khomeini, plaintiff became a refugee of the United Nations and
continued to stay in the Philippines. He headed the Iranian National Resistance Movement in the
Philippines.
"He came to know the defendant on May 13, 1986, when the latter was brought to his house and
introduced to him by a certain Jose Iñigo, an informer of the Intelligence Unit of the military. Jose Iñigo,
on the other hand, was met by plaintiff at the office of Atty. Crisanto Saruca, a lawyer for several Iranians
whom plaintiff assisted as head of the anti-Khomeini movement in the Philippines.
"During his first meeting with the defendant on May 13, 1986, upon the introduction of Jose Iñigo, the
defendant expressed his interest in buying caviar. As a matter of fact, he bought two kilos of caviar from
plaintiff and paid P10,000.00 for it. Selling caviar, aside from that of Persian carpets, pistachio nuts and
other Iranian products was his business after the Khomeini government cut his pension of over $3,000.00
per month. During their introduction in that meeting, the defendant gave the plaintiff his calling card,
which showed that he is working at the US Embassy in the Philippines, as a special agent of the Drug
Enforcement Administration, Department of Justice, of the United States, and gave his address as US
Embassy, Manila. At the back of the card appears a telephone number in defendant’s own handwriting,
the number of which he can also be contacted.
"It was also during this first meeting that plaintiff expressed his desire to obtain a US Visa for his wife and
the wife of a countryman named Abbas Torabian. The defendant told him that he [could] help plaintiff for
a fee of $2,000.00 per visa. Their conversation, however, was more concentrated on politics, carpets and
caviar. Thereafter, the defendant promised to see plaintiff again.
"On May 19, 1986, the defendant called the plaintiff and invited the latter for dinner at Mario's
Restaurant at Makati. He wanted to buy 200 grams of caviar. Plaintiff brought the merchandize but for
the reason that the defendant was not yet there, he requested the restaurant people to x x x place the
same in the refrigerator. Defendant, however, came and plaintiff gave him the caviar for which he was
paid. Then their conversation was again focused on politics and business.
"On May 26, 1986, defendant visited plaintiff again at the latter's residence for 18 years at Kapitolyo,
Pasig. The defendant wanted to buy a pair of carpets which plaintiff valued at $27,900.00. After some
haggling, they agreed at $24,000.00. For the reason that defendant did not yet have the money, they
agreed that defendant would come back the next day. The following day, at 1:00 p.m., he came back with
his $24,000.00, which he gave to the plaintiff, and the latter, in turn, gave him the pair of
carpets.1awphi1.nét
"At about 3:00 in the afternoon of May 27, 1986, the defendant came back again to plaintiff's house and
directly proceeded to the latter's bedroom, where the latter and his countryman, Abbas Torabian, were
playing chess. Plaintiff opened his safe in the bedroom and obtained $2,000.00 from it, gave it to the
defendant for the latter's fee in obtaining a visa for plaintiff's wife. The defendant told him that he would
be leaving the Philippines very soon and requested him to come out of the house for a while so that he
can introduce him to his cousin waiting in a cab. Without much ado, and without putting on his shirt as
he was only in his pajama pants, he followed the defendant where he saw a parked cab opposite the
street. To his complete surprise, an American jumped out of the cab with a drawn high-powered gun. He
was in the company of about 30 to 40 Filipino soldiers with 6 Americans, all armed. He was handcuffed
and after about 20 minutes in the street, he was brought inside the house by the defendant. He was
made to sit down while in handcuffs while the defendant was inside his bedroom. The defendant came
out of the bedroom and out from defendant's attaché case, he took something and placed it on the table
in front of the plaintiff. They also took plaintiff's wife who was at that time at the boutique near his house
and likewise arrested Torabian, who was playing chess with him in the bedroom and both were
handcuffed together. Plaintiff was not told why he was being handcuffed and why the privacy of his
house, especially his bedroom was invaded by defendant. He was not allowed to use the telephone. In
fact, his telephone was unplugged. He asked for any warrant, but the defendant told him to `shut up.’ He
was nevertheless told that he would be able to call for his lawyer who can defend him.
"The plaintiff took note of the fact that when the defendant invited him to come out to meet his cousin,
his safe was opened where he kept the $24,000.00 the defendant paid for the carpets and another
$8,000.00 which he also placed in the safe together with a bracelet worth $15,000.00 and a pair of
earrings worth $10,000.00. He also discovered missing upon his release his 8 pieces hand-made Persian
carpets, valued at $65,000.00, a painting he bought for P30,000.00 together with his TV and betamax
sets. He claimed that when he was handcuffed, the defendant took his keys from his wallet. There was,
therefore, nothing left in his house.
"That his arrest as a heroin trafficker x x x had been well publicized throughout the world, in various
newspapers, particularly in Australia, America, Central Asia and in the Philippines. He was identified in
the papers as an international drug trafficker. x x x
In fact, the arrest of defendant and Torabian was likewise on television, not only in the Philippines, but
also in America and in Germany. His friends in said places informed him that they saw him on TV with
said news.
"After the arrest made on plaintiff and Torabian, they were brought to Camp Crame handcuffed together,
where they were detained for three days without food and water."1
During the trial, the law firm of Luna, Sison and Manas, filed a special appearance for Scalzo and moved
for extension of time to file an answer pending a supposed advice from the United States Department of
State and Department of Justice on the defenses to be raised. The trial court granted the motion. On 27
October 1988, Scalzo filed another special appearance to quash the summons on the ground that he, not
being a resident of the Philippines and the action being one in personam, was beyond the processes of
the court. The motion was denied by the court, in its order of 13 December 1988, holding that the filing
by Scalzo of a motion for extension of time to file an answer to the complaint was a voluntary
appearance equivalent to service of summons which could likewise be construed a waiver of the
requirement of formal notice. Scalzo filed a motion for reconsideration of the court order, contending
that a motion for an extension of time to file an answer was not a voluntary appearance equivalent to
service of summons since it did not seek an affirmative relief. Scalzo argued that in cases involving the
United States government, as well as its agencies and officials, a motion for extension was peculiarly
unavoidable due to the need (1) for both the Department of State and the Department of Justice to agree
on the defenses to be raised and (2) to refer the case to a Philippine lawyer who would be expected to
first review the case. The court a quo denied the motion for reconsideration in its order of 15 October
1989.
Scalzo filed a petition for review with the Court of Appeals, there docketed CA-G.R. No. 17023, assailing
the denial. In a decision, dated 06 October 1989, the appellate court denied the petition and affirmed the
ruling of the trial court. Scalzo then elevated the incident in a petition for review on certiorari, docketed
G.R. No. 91173, to this Court. The petition, however, was denied for its failure to comply with SC Circular
No. 1-88; in any event, the Court added, Scalzo had failed to show that the appellate court was in error in
its questioned judgment.
Meanwhile, at the court a quo, an order, dated 09 February 1990, was issued (a) declaring Scalzo in
default for his failure to file a responsive pleading (answer) and (b) setting the case for the reception of
evidence. On 12 March 1990, Scalzo filed a motion to set aside the order of default and to admit his
122
answer to the complaint. Granting the motion, the trial court set the case for pre-trial. In his answer,
Scalzo denied the material allegations of the complaint and raised the affirmative defenses (a) of
Minucher’s failure to state a cause of action in his complaint and (b) that Scalzo had acted in the
discharge of his official duties as being merely an agent of the Drug Enforcement Administration of the
United States Department of Justice. Scalzo interposed a counterclaim of P100,000.00 to answer for
attorneys' fees and expenses of litigation.
Then, on 14 June 1990, after almost two years since the institution of the civil case, Scalzo filed a motion
to dismiss the complaint on the ground that, being a special agent of the United States Drug Enforcement
Administration, he was entitled to diplomatic immunity. He attached to his motion Diplomatic Note No.
414 of the United States Embassy, dated 29 May 1990, addressed to the Department of Foreign Affairs of
the Philippines and a Certification, dated 11 June 1990, of Vice Consul Donna Woodward, certifying that
the note is a true and faithful copy of its original. In an order of 25 June 1990, the trial court denied the
motion to dismiss.
On 27 July 1990, Scalzo filed a petition for certiorari with injunction with this Court, docketed G.R. No.
94257 and entitled "Arthur W. Scalzo, Jr., vs. Hon. Wenceslao Polo, et al.," asking that the complaint in
Civil Case No. 88-45691 be ordered dismissed. The case was referred to the Court of Appeals, there
docketed CA-G.R. SP No. 22505, per this Court’s resolution of 07 August 1990. On 31 October 1990, the
Court of Appeals promulgated its decision sustaining the diplomatic immunity of Scalzo and ordering the
dismissal of the complaint against him. Minucher filed a petition for review with this Court, docketed G.R.
No. 97765 and entitled "Khosrow Minucher vs. the Honorable Court of Appeals, et. al." (cited in 214
SCRA 242), appealing the judgment of the Court of Appeals. In a decision, dated 24 September 1992,
penned by Justice (now Chief Justice) Hilario Davide, Jr., this Court reversed the decision of the appellate
court and remanded the case to the lower court for trial. The remand was ordered on the theses (a) that
the Court of Appeals erred in granting the motion to dismiss of Scalzo for lack of jurisdiction over his
person without even considering the issue of the authenticity of Diplomatic Note No. 414 and (b) that
the complaint contained sufficient allegations to the effect that Scalzo committed the imputed acts in his
personal capacity and outside the scope of his official duties and, absent any evidence to the contrary,
the issue on Scalzo’s diplomatic immunity could not be taken up.
The Manila RTC thus continued with its hearings on the case. On 17 November 1995, the trial court
reached a decision; it adjudged:
"WHEREFORE, and in view of all the foregoing considerations, judgment is hereby rendered for the
plaintiff, who successfully established his claim by sufficient evidence, against the defendant in the
manner following:
"`Adjudging defendant liable to plaintiff in actual and compensatory damages of P520,000.00; moral
damages in the sum of P10 million; exemplary damages in the sum of P100,000.00; attorney's fees in the
sum of P200,000.00 plus costs.
`The Clerk of the Regional Trial Court, Manila, is ordered to take note of the lien of the Court on this
judgment to answer for the unpaid docket fees considering that the plaintiff in this case instituted this
action as a pauper litigant.’"2
While the trial court gave credence to the claim of Scalzo and the evidence presented by him that he was
a diplomatic agent entitled to immunity as such, it ruled that he, nevertheless, should be held
accountable for the acts complained of committed outside his official duties. On appeal, the Court of
Appeals reversed the decision of the trial court and sustained the defense of Scalzo that he was
sufficiently clothed with diplomatic immunity during his term of duty and thereby immune from the
criminal and civil jurisdiction of the "Receiving State" pursuant to the terms of the Vienna Convention.
Hence, this recourse by Minucher. The instant petition for review raises a two-fold issue: (1) whether or
not the doctrine of conclusiveness of judgment, following the decision rendered by this Court in G.R. No.
97765, should have precluded the Court of Appeals from resolving the appeal to it in an entirely different
manner, and (2) whether or not Arthur Scalzo is indeed entitled to diplomatic immunity.
The doctrine of conclusiveness of judgment, or its kindred rule of res judicata, would require 1) the
finality of the prior judgment, 2) a valid jurisdiction over the subject matter and the parties on the part of
the court that renders it, 3) a judgment on the merits, and 4) an identity of the parties, subject matter
and causes of action.3 Even while one of the issues submitted in G.R. No. 97765 - "whether or not public
respondent Court of Appeals erred in ruling that private respondent Scalzo is a diplomat immune from
civil suit conformably with the Vienna Convention on Diplomatic Relations" - is also a pivotal question
raised in the instant petition, the ruling in G.R. No. 97765, however, has not resolved that point with
finality. Indeed, the Court there has made this observation -
"It may be mentioned in this regard that private respondent himself, in his Pre-trial Brief filed on 13 June
1990, unequivocally states that he would present documentary evidence consisting of DEA records on his
investigation and surveillance of plaintiff and on his position and duties as DEA special agent in Manila.
Having thus reserved his right to present evidence in support of his position, which is the basis for the
alleged diplomatic immunity, the barren self-serving claim in the belated motion to dismiss cannot be
relied upon for a reasonable, intelligent and fair resolution of the issue of diplomatic immunity."4
Scalzo contends that the Vienna Convention on Diplomatic Relations, to which the Philippines is a
signatory, grants him absolute immunity from suit, describing his functions as an agent of the United
States Drugs Enforcement Agency as "conducting surveillance operations on suspected drug dealers in
the Philippines believed to be the source of prohibited drugs being shipped to the U.S., (and) having
ascertained the target, (he then) would inform the Philippine narcotic agents (to) make the actual arrest."
Scalzo has submitted to the trial court a number of documents -
1. Exh. '2' - Diplomatic Note No. 414 dated 29 May 1990;
2. Exh. '1' - Certification of Vice Consul Donna K. Woodward dated 11 June 1990;
3. Exh. '5' - Diplomatic Note No. 757 dated 25 October 1991;
4. Exh. '6' - Diplomatic Note No. 791 dated 17 November 1992; and
5. Exh. '7' - Diplomatic Note No. 833 dated 21 October 1988.
6. Exh. '3' - 1st Indorsement of the Hon. Jorge R. Coquia, Legal Adviser, Department of Foreign Affairs,
dated 27 June 1990 forwarding Embassy Note No. 414 to the Clerk of Court of RTC Manila, Branch 19 (the
trial court);
7. Exh. '4' - Diplomatic Note No. 414, appended to the 1st Indorsement (Exh. '3'); and
8. Exh. '8' - Letter dated 18 November 1992 from the Office of the Protocol, Department of Foreign
Affairs, through Asst. Sec. Emmanuel Fernandez, addressed to the Chief Justice of this Court.5
The documents, according to Scalzo, would show that: (1) the United States Embassy accordingly advised
the Executive Department of the Philippine Government that Scalzo was a member of the diplomatic
staff of the United States diplomatic mission from his arrival in the Philippines on 14 October 1985 until
his departure on 10 August 1988; (2) that the United States Government was firm from the very
beginning in asserting the diplomatic immunity of Scalzo with respect to the case pursuant to the
provisions of the Vienna Convention on Diplomatic Relations; and (3) that the United States Embassy
repeatedly urged the Department of Foreign Affairs to take appropriate action to inform the trial court of
Scalzo’s diplomatic immunity. The other documentary exhibits were presented to indicate that: (1) the
Philippine government itself, through its Executive Department, recognizing and respecting the
diplomatic status of Scalzo, formally advised the "Judicial Department" of his diplomatic status and his
entitlement to all diplomatic privileges and immunities under the Vienna Convention; and (2) the
Department of Foreign Affairs itself authenticated Diplomatic Note No. 414. Scalzo additionally presented
Exhibits "9" to "13" consisting of his reports of investigation on the surveillance and subsequent arrest of
Minucher, the certification of the Drug Enforcement Administration of the United States Department of
Justice that Scalzo was a special agent assigned to the Philippines at all times relevant to the complaint,
and the special power of attorney executed by him in favor of his previous counsel6 to show (a) that the
United States Embassy, affirmed by its Vice Consul, acknowledged Scalzo to be a member of the
diplomatic staff of the United States diplomatic mission from his arrival in the Philippines on 14 October
1985 until his departure on 10 August 1988, (b) that, on May 1986, with the cooperation of the Philippine
law enforcement officials and in the exercise of his functions as member of the mission, he investigated
Minucher for alleged trafficking in a prohibited drug, and (c) that the Philippine Department of Foreign
Affairs itself recognized that Scalzo during his tour of duty in the Philippines (14 October 1985 up to 10
August 1988) was listed as being an Assistant Attaché of the United States diplomatic mission and
accredited with diplomatic status by the Government of the Philippines. In his Exhibit 12, Scalzo
described the functions of the overseas office of the United States Drugs Enforcement Agency, i.e., (1) to
provide criminal investigative expertise and assistance to foreign law enforcement agencies on narcotic
and drug control programs upon the request of the host country, 2) to establish and maintain liaison with
the host country and counterpart foreign law enforcement officials, and 3) to conduct complex criminal
investigations involving international criminal conspiracies which affect the interests of the United States.
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The Vienna Convention on Diplomatic Relations was a codification of centuries-old customary law and, by
the time of its ratification on 18 April 1961, its rules of law had long become stable. Among the city states
of ancient Greece, among the peoples of the Mediterranean before the establishment of the Roman
Empire, and among the states of India, the person of the herald in time of war and the person of the
diplomatic envoy in time of peace were universally held sacrosanct.7 By the end of the 16th century,
when the earliest treatises on diplomatic law were published, the inviolability of ambassadors was firmly
established as a rule of customary international law.8 Traditionally, the exercise of diplomatic intercourse
among states was undertaken by the head of state himself, as being the preeminent embodiment of the
state he represented, and the foreign secretary, the official usually entrusted with the external affairs of
the state. Where a state would wish to have a more prominent diplomatic presence in the receiving state,
it would then send to the latter a diplomatic mission. Conformably with the Vienna Convention, the
functions of the diplomatic mission involve, by and large, the representation of the interests of the
sending state and promoting friendly relations with the receiving state.9
The Convention lists the classes of heads of diplomatic missions to include (a) ambassadors or nuncios
accredited to the heads of state,10 (b) envoys,11 ministers or internuncios accredited to the heads of
states; and (c) charges d' affairs12 accredited to the ministers of foreign affairs.13 Comprising the "staff of
the (diplomatic) mission" are the diplomatic staff, the administrative staff and the technical and service
staff. Only the heads of missions, as well as members of the diplomatic staff, excluding the members of
the administrative, technical and service staff of the mission, are accorded diplomatic rank. Even while
the Vienna Convention on Diplomatic Relations provides for immunity to the members of diplomatic
missions, it does so, nevertheless, with an understanding that the same be restrictively applied. Only
"diplomatic agents," under the terms of the Convention, are vested with blanket diplomatic immunity
from civil and criminal suits. The Convention defines "diplomatic agents" as the heads of missions or
members of the diplomatic staff, thus impliedly withholding the same privileges from all others. It might
bear stressing that even consuls, who represent their respective states in concerns of commerce and
navigation and perform certain administrative and notarial duties, such as the issuance of passports and
visas, authentication of documents, and administration of oaths, do not ordinarily enjoy the traditional
diplomatic immunities and privileges accorded diplomats, mainly for the reason that they are not
charged with the duty of representing their states in political matters. Indeed, the main yardstick in
ascertaining whether a person is a diplomat entitled to immunity is the determination of whether or not
he performs duties of diplomatic nature.
Scalzo asserted, particularly in his Exhibits "9" to "13," that he was an Assistant Attaché of the United
States diplomatic mission and was accredited as such by the Philippine Government. An attaché belongs
to a category of officers in the diplomatic establishment who may be in charge of its cultural, press,
administrative or financial affairs. There could also be a class of attaches belonging to certain ministries
or departments of the government, other than the foreign ministry or department, who are detailed by
their respective ministries or departments with the embassies such as the military, naval, air, commercial,
agricultural, labor, science, and customs attaches, or the like. Attaches assist a chief of mission in his
duties and are administratively under him, but their main function is to observe, analyze and interpret
trends and developments in their respective fields in the host country and submit reports to their own
ministries or departments in the home government.14 These officials are not generally regarded as
members of the diplomatic mission, nor are they normally designated as having diplomatic rank.
In an attempt to prove his diplomatic status, Scalzo presented Diplomatic Notes Nos. 414, 757 and 791,
all issued post litem motam, respectively, on 29 May 1990, 25 October 1991 and 17 November 1992. The
presentation did nothing much to alleviate the Court's initial reservations in G.R. No. 97765, viz:
"While the trial court denied the motion to dismiss, the public respondent gravely abused its discretion in
dismissing Civil Case No. 88-45691 on the basis of an erroneous assumption that simply because of the
diplomatic note, the private respondent is clothed with diplomatic immunity, thereby divesting the trial
court of jurisdiction over his person.
"x x x x x x x x x
"And now, to the core issue - the alleged diplomatic immunity of the private respondent. Setting aside for
the moment the issue of authenticity raised by the petitioner and the doubts that surround such claim, in
view of the fact that it took private respondent one (1) year, eight (8) months and seventeen (17) days
from the time his counsel filed on 12 September 1988 a Special Appearance and Motion asking for a first
extension of time to file the Answer because the Departments of State and Justice of the United States of
America were studying the case for the purpose of determining his defenses, before he could secure the
Diplomatic Note from the US Embassy in Manila, and even granting for the sake of argument that such
note is authentic, the complaint for damages filed by petitioner cannot be peremptorily dismissed.
"x x x x x x x x x
"There is of course the claim of private respondent that the acts imputed to him were done in his official
capacity. Nothing supports this self-serving claim other than the so-called Diplomatic Note. x x x. The
public respondent then should have sustained the trial court's denial of the motion to dismiss. Verily, it
should have been the most proper and appropriate recourse. It should not have been overwhelmed by
the self-serving Diplomatic Note whose belated issuance is even suspect and whose authenticity has not
yet been proved. The undue haste with which respondent Court yielded to the private respondent's claim
is arbitrary."
A significant document would appear to be Exhibit No. 08, dated 08 November 1992, issued by the Office
of Protocol of the Department of Foreign Affairs and signed by Emmanuel C. Fernandez, Assistant
Secretary, certifying that "the records of the Department (would) show that Mr. Arthur W. Scalzo, Jr.,
during his term of office in the Philippines (from 14 October 1985 up to 10 August 1988) was listed as an
Assistant Attaché of the United States diplomatic mission and was, therefore, accredited diplomatic
status by the Government of the Philippines." No certified true copy of such "records," the supposed
bases for the belated issuance, was presented in evidence.
Concededly, vesting a person with diplomatic immunity is a prerogative of the executive branch of the
government. In World Health Organization vs. Aquino,15 the Court has recognized that, in such matters,
the hands of the courts are virtually tied. Amidst apprehensions of indiscriminate and incautious grant of
immunity, designed to gain exemption from the jurisdiction of courts, it should behoove the Philippine
government, specifically its Department of Foreign Affairs, to be most circumspect, that should
particularly be no less than compelling, in its post litem motam issuances. It might be recalled that the
privilege is not an immunity from the observance of the law of the territorial sovereign or from ensuing
legal liability; it is, rather, an immunity from the exercise of territorial jurisdiction.16 The government of
the United States itself, which Scalzo claims to be acting for, has formulated its standards for recognition
of a diplomatic agent. The State Department policy is to only concede diplomatic status to a person who
possesses an acknowledged diplomatic title and "performs duties of diplomatic nature."17
Supplementary criteria for accreditation are the possession of a valid diplomatic passport or, from States
which do not issue such passports, a diplomatic note formally representing the intention to assign the
person to diplomatic duties, the holding of a non-immigrant visa, being over twenty-one years of age,
and performing diplomatic functions on an essentially full-time basis.18 Diplomatic missions are
requested to provide the most accurate and descriptive job title to that which currently applies to the
duties performed. The Office of the Protocol would then assign each individual to the appropriate
functional category.19
But while the diplomatic immunity of Scalzo might thus remain contentious, it was sufficiently
established that, indeed, he worked for the United States Drug Enforcement Agency and was tasked to
conduct surveillance of suspected drug activities within the country on the dates pertinent to this case. If
it should be ascertained that Arthur Scalzo was acting well within his assigned functions when he
committed the acts alleged in the complaint, the present controversy could then be resolved under the
related doctrine of State Immunity from Suit.
The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of
customary international law then closely identified with the personal immunity of a foreign sovereign
from suit20 and, with the emergence of democratic states, made to attach not just to the person of the
head of state, or his representative, but also distinctly to the state itself in its sovereign capacity.21 If the
acts giving rise to a suit are those of a foreign government done by its foreign agent, although not
necessarily a diplomatic personage, but acting in his official capacity, the complaint could be barred by
the immunity of the foreign sovereign from suit without its consent. Suing a representative of a state is
believed to be, in effect, suing the state itself. The proscription is not accorded for the benefit of an
individual but for the State, in whose service he is, under the maxim - par in parem, non habet imperium
- that all states are sovereign equals and cannot assert jurisdiction over one another.22 The implication,
in broad terms, is that if the judgment against an official would require the state itself to perform an
affirmative act to satisfy the award, such as the appropriation of the amount needed to pay the damages
124
decreed against him, the suit must be regarded as being against the state itself, although it has not been All told, this Court is constrained to rule that respondent Arthur Scalzo, an agent of the United States
formally impleaded.23 Drug Enforcement Agency allowed by the Philippine government to conduct activities in the country to
In United States of America vs. Guinto,24 involving officers of the United States Air Force and special help contain the problem on the drug traffic, is entitled to the defense of state immunity from suit.
officers of the Air Force Office of Special Investigators charged with the duty of preventing the WHEREFORE, on the foregoing premises, the petition is DENIED. No costs.
distribution, possession and use of prohibited drugs, this Court has ruled - SO ORDERED.
"While the doctrine (of state immunity) appears to prohibit only suits against the state without its
consent, it is also applicable to complaints filed against officials of the state for acts allegedly performed
by them in the discharge of their duties. x x x. It cannot for a moment be imagined that they were acting
in their private or unofficial capacity when they apprehended and later testified against the complainant.
It follows that for discharging their duties as agents of the United States, they cannot be directly
impleaded for acts imputable to their principal, which has not given its consent to be sued. x x x As they
have acted on behalf of the government, and within the scope of their authority, it is that government,
and not the petitioners personally, [who were] responsible for their acts."25
This immunity principle, however, has its limitations. Thus, Shauf vs. Court of Appeals26 elaborates:
"It is a different matter where the public official is made to account in his capacity as such for acts
contrary to law and injurious to the rights of the plaintiff. As was clearly set forth by Justice Zaldivar in
Director of the Bureau of Telecommunications, et al., vs. Aligaen, et al. (33 SCRA 368): `Inasmuch as the
State authorizes only legal acts by its officers, unauthorized acts of government officials or officers are
not acts of the State, and an action against the officials or officers by one whose rights have been invaded
or violated by such acts, for the protection of his rights, is not a suit against the State within the rule of
immunity of the State from suit. In the same tenor, it has been said that an action at law or suit in equity
against a State officer or the director of a State department on the ground that, while claiming to act for
the State, he violates or invades the personal and property rights of the plaintiff, under an
unconstitutional act or under an assumption of authority which he does not have, is not a suit against the
State within the constitutional provision that the State may not be sued without its consent. The
rationale for this ruling is that the doctrine of state immunity cannot be used as an instrument for
perpetrating an injustice.
"x x x x x x x x x
"(T)he doctrine of immunity from suit will not apply and may not be invoked where the public official is
being sued in his private and personal capacity as an ordinary citizen. The cloak of protection afforded
the officers and agents of the government is removed the moment they are sued in their individual
capacity. This situation usually arises where the public official acts without authority or in excess of the
powers vested in him. It is a well-settled principle of law that a public official may be liable in his personal
private capacity for whatever damage he may have caused by his act done with malice and in bad faith or
beyond the scope of his authority and jurisdiction."27
A foreign agent, operating within a territory, can be cloaked with immunity from suit but only as long as it
can be established that he is acting within the directives of the sending state. The consent of the host
state is an indispensable requirement of basic courtesy between the two sovereigns. Guinto and Shauf
both involve officers and personnel of the United States, stationed within Philippine territory, under the
RP-US Military Bases Agreement. While evidence is wanting to show any similar agreement between the
governments of the Philippines and of the United States (for the latter to send its agents and to conduct
surveillance and related activities of suspected drug dealers in the Philippines), the consent or
imprimatur of the Philippine government to the activities of the United States Drug Enforcement Agency,
however, can be gleaned from the facts heretofore elsewhere mentioned. The official exchanges of
communication between agencies of the government of the two countries, certifications from officials of
both the Philippine Department of Foreign Affairs and the United States Embassy, as well as the
participation of members of the Philippine Narcotics Command in the "buy-bust operation" conducted at
the residence of Minucher at the behest of Scalzo, may be inadequate to support the "diplomatic status"
of the latter but they give enough indication that the Philippine government has given its imprimatur, if
not consent, to the activities within Philippine territory of agent Scalzo of the United States Drug
Enforcement Agency. The job description of Scalzo has tasked him to conduct surveillance on suspected
drug suppliers and, after having ascertained the target, to inform local law enforcers who would then be
expected to make the arrest. In conducting surveillance activities on Minucher, later acting as the poseur-
buyer during the buy-bust operation, and then becoming a principal witness in the criminal case against
Minucher, Scalzo hardly can be said to have acted beyond the scope of his official function or duties.

125
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-1988 February 24, 1948
JESUS MIQUIABAS, petitioner, vs.
COMMANDING GENERAL, PHILIPPINE-RYUKYUS COMMAND, UNITED STATES ARMY, respondents.
Lorenzo Sumulong and Esteban P. Garcia for petitioner.
J. A. Wolfson for respondent.
MORAN, C.J.:
This is a petition for a writ of habeas corpus filed by Jesus Miquiabas against the Commanding General
Philippine-Ryukyus Command, United States Army, who is alleged to have petitioner under custody and
to have appointed a General Court-Martial to try petitioner in connection with an offense over which the
said court has no jurisdiction.
Petitioner is a Filipino citizen and a civilian employee of the United States Army in the Philippines, who
has been charged with disposing in the Port of Manila Area of things belonging to the United States
Army, in violation of the 94th Article of War of the United States. He has been arrested for that reason
and a General Court-Martial appointed by respondent tried and found him guilty and sentenced him to
15 years imprisonment. This sentence, however, is not yet final for it is still subject to review.
It may be stated as a rule that the Philippines, being a sovereign nation, has jurisdiction over all offenses
committed within its territory, but it may, by treaty or by agreement, consent that the United States or
any other foreign nation, shall exercise jurisdiction over certain offenses committed within certain
portions of said territory. On March 11, 1947, the Republic of the Philippines and the Government of the
United States of America, entered into an agreement concerning military bases, and Article XIII thereof is
as follows:
JURISDICTION
1. The Philippines consents that the United States shall have the right to exercise jurisdiction over the
following offenses:
(a) Any offense committed by any person within any base except where the offender and offended
parties are both Philippine citizens (not members of the armed forces of the United States on active duty)
or the offense is against the security of the Philippines;
(b) Any offense committed outside the bases by any member of the armed forces of the United States in
which the offended party is also a member of the armed forces of the United States; and
(c) Any offense committed outside the bases by any member of the armed forces of the United States
against the security of the United States.
2. The Philippines shall have the right to exercise jurisdiction over all other offenses committed outside
the bases by any member of the armed forces of the United States.
3. Whenever for special reasons the United States may desire not to exercise the jurisdiction reserved to
it in paragraphs 1 and 6 of this Article, the officer holding the offender in custody shall so notify the fiscal
(prosecuting attorney) of the city or province in which the offense has been committed within ten days
after his arrest, and in such case the Philippines shall exercise jurisdiction.
4. Whenever for special reasons the Philippines may desire not to exercise the jurisdiction reserved to it
in paragraph 2 of this Article, the fiscal (prosecuting attorney) of the city or province where the offense
has been committed shall so notify the officer holding the offender in custody within ten days after his
arrest, and in such a case the United States shall be free to exercise jurisdiction. If any offense falling
under paragraph 2 of this article is committed by any member of the armed forces of the United States.
(a) While engaged in the actual performance of a specific military duty, or
(b) during a period of national emergency declared by either Government and the fiscal (prosecuting
attorney) so finds from the evidence, he shall immediately notify the officer holding the offender in
custody that the United States is free to exercise jurisdiction. In the event the fiscal (prosecuting
attorney) finds that the offense was not committed in the actual performance of a specific military duty,
the offender's commanding officer shall have the right to appeal from such finding to the Secretary of
Justice within ten days from the receipt of the decision of the fiscal and the decision of the Secretary of
Justice shall be final.
5. In all cases over which the Philippines exercises jurisdiction the custody of the accused, pending trial
and final judgment, shall be entrusted without delay to the commanding officer of the nearest base, who
shall acknowledge in writing that such accused has been delivered to him for custody pending trial in a
competent court of the Philippines and that he will be held ready to appear and will be produced before
said court when required by it. The commanding officer shall be furnished by the fiscal (prosecuting
attorney) with a copy of the information against the accused upon the filing of the original in the
competent court.
6. Notwithstanding the foregoing provisions, it is naturally agreed that in time of war the United States
shall have the right to exercise exclusive jurisdiction over any offenses which may be committed by
members of the armed forces of the United States in the Philippines.
7. The United States agrees that it will not grant asylum in any of the bases to any person fleeing from the
lawful jurisdiction of the Philippines. Should such person be found in any base, he will be surrendered on
demand to the competent authorities of the Philippines.
8. In every case in which jurisdiction over an offense is exercised by the United States, the offended party
may institute a separate civil action against the offender in the proper court of the Philippines to enforce
the civil liability which under the laws of the Philippines may arise from the offense.
Under paragraph 1 (a), the General Court-Martial would have jurisdiction over the criminal case against
petitioner if the offense had been committed within a base. Under paragraph 1 (b), if the offense had
been committed outside a base, still the General Court-Martial would have jurisdiction if the offense had
been committed by a "member of the armed forces of the United States" there being no question that
the offended party in this case is the United States. It is not necessary therefore, to consider whether the
offense is against "the security of the United States" under paragraph 1 (c), or whether petitioner
committed it in "the actual performance of a specific military duty" or in time of a declared "national
emergency" under paragraph 4, or whether we are still in a state of war under paragraph 6, for in all
these instances the military jurisdiction depends also upon whether the offender is a member of the
armed forces of the United States. We shall then determine in this case (1) whether the offense has been
committed within or without a base, and, in the second instance, (2) whether the offender is or is not a
member of the armed forces of the United States.
As to the first question, Article XXVI of the Agreement provides that "bases are those area named in
Annex A and Annex B and such additional areas as may be acquired for military purposes pursuant to the
terms of this Agreement." Among the areas specified in Annexes A and B, there is none that has
reference to the Port Area of Manila where the offense has allegedly been committed. On the contrary, it
appears in Annex A that "army communications system" is included, but with "the deletion of all stations
in the Port of Manila Area."
Paragraph 2 of Article XXI is invoked by respondent. The whole article is as follows:
TEMPORARY INSTALLATIONS
1. It is mutually agreed that the United States shall retain the right to occupy temporary quarters and
installations now existing outside the bases mentioned in Annex A and Annex B, for such reasonable
time, not exceeding two years, as may be necessary to develop adequate facilities within the bases for
the United States armed forces. If circumstances require an extension of time, such a period will be fixed
by mutual agreement of the two Governments; but such extension shall not apply to the existing
temporary quarters and installations within the limits of the City of Manila and shall in no case exceed a
period of three years.
2. Notwithstanding the provisions of the preceding paragraph, the Port of Manila reservation with
boundaries as of 1941 will be available for use to the United States armed forces until such time as other
arrangements can be made for the supply of the bases by mutual agreement of the two Governments.
3. The terms of this agreement pertaining to bases shall be applicable to temporary quarters and
installations referred to in paragraph 1 of this article while they are so occupied by the armed forces of
the United States; provided, that offenses committed within the temporary quarters and installations
located within the present limits of the City of Manila shall not be considered as offenses within the
bases but shall be governed by the provisions of Article XIII, paragraphs 2 and 4, except that the election
not to exercise the jurisdiction reserved to the Philippines shall be made by the Secretary of Justice. It is
agreed that the United States shall have full use and full control of all these quarters and installations
while they are occupied by the armed forces of the United States, including the exercise of such
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measures as may be necessary to police said quarters for the security of the personnel and property
therein.
The subject matter of this article, as indicated by its heading, is "Temporary Installations." Paragraph 1
refers to temporary quarters and installations existing outside the bases specified in Annex A and Annex
B, which may be retained by the United States armed forces for such reasonable time as may be
necessary not exceeding two years in duration, extendible fro not more than three years, the extension
not being applicable to existing temporary quarters and installations within the limits of the City of
Manila.
Paragraph 2, of Article XXI, refers to the Port of Manila Reservation, which will be available for use to the
United States armed forces, also as a temporary quarters and installations, its temporariness not being
for a definite period of time, but "until such time as other arrangements can be made for supply of the
bases by mutual agreement of the two Governments." There is in paragraph 2 absolutely nothing that
may be construed as placing the Port of Manila Reservation in the category of a permanent base.
Paragraph 3, of Article XXI, provides "that offenses committed within the temporary quarters and
installations located within the present limits of the City of Manila shall not be considered as offenses
within the bases but shall be governed by the provisions of Article XIII, paragraphs 2 and 4." Therefore,
the offense at bar cannot be considered as committed within, but without, a base, since it has been
committed in the Port of Manila Area, which is not one of the bases mentioned in Annexes A and B to the
Agreement, and is merely temporary quarters located within the present limits of the City of Manila.
The next inquiry is whether or not the offender may be considered as a member of the armed forces of
the United States under Article XIII, paragraph 1 (b). As above stated, petitioner is a Filipino citizen and a
civilian employee of the United States Army in the Philippines. Under the terms of the Agreement, a
civilian employee cannot be considered as a member of the armed forces of the United States. Articles
XI, XVI and XVIII of the Agreement make mention of civilian employees separately from members of the
armed forces of the United States, which is a conclusive indication that under said Agreement armed
forces do not include civilian employees.
Respondent invokes Articles II of the Articles of War of the United States, which enumerates, among the
persons subject to military law, persons accompanying or serving with the armies of the United States.
But this case should be decided not under the Articles of War, but under the terms of the Base
Agreement between the United States and the Philippines. And not because a person is subject to
military law under the Articles of War does he become, for that reason alone, a member of the armed
forces under the Base Agreement. And even under the Articles of War, the mere fact that a civilian
employee is in the service of the United States Army does not make him a member of the armed forces
of the United States. Otherwise, it would have been necessary for said Article to enumerate civilian
employees separately from members of the armed forces of the United States.
Respondent maintains that petitioner has no cause of action because the Secretary of Justice had not
notified the officer holding the petitioner in custody whether or not the Philippines desired to retain
jurisdiction under Article XXI, paragraph 3, of the Military Base Agreement. It is sufficient to state in this
connection that in cases like the present where the offender is a civilian employee and not a member of
the Unites States armed forces, no waiver can be made either by the prosecuting attorney of by the
Secretary of Justice, under paragraphs 2 and 4 of Article XIII in connection with paragraph 3 of Article XXI,
of the Agreement.
We are, therefore, of the opinion and so hold, that the General Court-Martial appointed by respondent
has no jurisdiction to try petitioner for the offense allegedly committed by him and, consequently, the
judgment rendered by said court sentencing the petitioner to 15 years' imprisonment is null and void for
lack of jurisdiction.
It is ordered that petitioner be released immediately by respondent without prejudice to any criminal
action which may be instituted in the proper court of the Philippines.
Let a copy of this decision be sent immediately to the Honorable, Secretary of Justice.
Paras, Feria, Pablo, Hilado, Bengzon, Briones, Padilla, and Tuason, JJ, concur.
Separate Opinions
PERFECTO, J., concurring:
One of the attributes of national sovereignty is the power to try and punish offenses, criminal and
otherwise. The exercise of that power is, by virtue of express provision of our Constitution, vested in the
Supreme Court and in inferior courts established by law. (Sec. 1, Art. VIII) The fundamental law refers to
inferior courts created by an enactment of a national legislature, Assembly or Congress, not to foreign
courts martial, created by foreign countries.
All this is in accordance with elemental principles of political law.
If petitioner is liable for a criminal offense, according to our laws, the jurisdiction to try him belongs to a
justice of the peace or municipal court or to a court of first instance.
The jurisdiction can be transferred to other courts by virtue of a law that may be enacted to said effect.
The law, to be effective, must not violate the constitutional Bill of Rights, among them the guarantee of
fair trial in favor of an accused, the equal protection of the law, the due process of law, the guarantees
against illegal detentions and searches, and others.
Petitioner is a Filipino citizen and a civilian employee of the U. S. Army, rendering services in the
Philippines. He attacks the power of the Commanding General, Philippine Ryukus Command, U.S. Army,
to have him under military custody and tried by a general court-martial of said army. Respondent invokes,
in opposing the petition, the provisions of the agreement on military Bases entered into by the Republic
of the Philippines and the government of the United States of America on March 14, 1947.
The agreement appears to be a concession to two weaknesses: the American distrust in Philippine
tribunals and Filipino yielding to much distrust; on one hand, undisguised prejudice, — national, racial, or
otherwise, — on the other, meek submission to the natural consequences of an unreasonable prejudice;
on one side, the haughtiness of a powerful nation, proud in the consciousness of its power, on the other,
the moral surrender of a new nation, not yet so sure in the exercise to their fullness of sovereign
prerogatives. Extra-territoriality is wrong per se.
It is, therefore, assailable on two opposing fronts. On constitutional ground, it is hardly defensible.
The Bill of Rights has been embodied in the Constitution for the protection of all human beings within the
territorial jurisdiction of the Philippines. All persons covered by the waivers made in the agreement,
whether Americans or Filipinos, whether citizens or aliens, are denied the constitutional guarantee of the
equal protection of the law. Their fundamental rights are safeguarded by the Constitution, and the
agreement places them outside the Constitution.
Our conclusion is, therefore, that the agreement in question, so far as it stipulates waiver of the
jurisdiction of our courts of justice on the class of persons mentioned therein, is null and void, being in
open conflict with clear provisions of our fundamental law.
Upon this ground, petitioner is entitled to be released by respondent and by the court martial which tried
him.
Even in the erroneous hypothesis that the waiver clauses of the agreement are valid, we concur in the
reasoning of the Chief Justice in support of the position that petitioner is not comprehended in said
waiver clauses. With more reason, respondent has no power nor jurisdiction to hold petitioner in
confinement, nor to have him tried by a U.S. army court-martial.
Notice must be served to the whole world that, in rendering the decision in this case, the Supreme Court,
in the fullness of judicial maturity, acted not as a mere agency of national sovereignty, but in the
consciousness that the administration of justice, more than national, is a human function, untethered by
the narrow provincialism of the points of view of a country, but founded on the universal and permanent
interests of mankind, as expressed in principles with equal value regardless of the hemisphere of the
latitude where a person may be placed.
There is a suggestion that, because it has not found articulate expression in this case, it should be
ignored, when it is boiling in many minds, and it is that respondent, shielded by his military power and
the overwhelming national power of his country, may ignore our decision, and we will be powerless to
enforce it. The fact that respondent appeared before us, through counsel, without any reservation,
answers the suggestion, and gives full justice to the sense of moral values of the respondent.
Besides, in the present state of international affairs, when America is engaged in the noble task of making
a reality the ideal of one world, it can not compromise its moral leadership by any showing of reckless
disregard to the decision of a court of justice. The cry that there must be one world or none can receive
but one satisfactory answer; the reality of world justice. Only in justice hinges the salvation of humanity.
Only justice can give real peace and provide the basis for contentment and happiness.
We concur in the decision, ordering the immediate release of the petitioner.
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 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-5270 January 15, 1910
THE UNITED STATES, plaintiff-appellee, vs.
H. N. BULL, defendant-appellant.
Bruce & Lawrence, for appellant.
Office of the Solicitor-General Harvey, for appellee.
ELLIOTT, J.:
The appellant was convicted in the Court of First Instance of a violation of section 1 of Act No. 55, as
amended by section 1 of Act No. 275, and from the judgment entered thereon appealed to this court,
where under proper assignments of error he contends: (1) that the complaint does not state facts
sufficient to confer jurisdiction upon the court; (2) that under the evidence the trial court was without
jurisdiction to hear and determine the case; (3) that Act No. 55 as amended is in violation of certain
provisions of the Constitution of the United States, and void as applied to the facts of this case; and (4)
that the evidence is insufficient to support the conviction.
The information alleges:
That on and for many months prior to the 2d day of December, 1908, the said H. N. Bull was then and
there master of a steam sailing vessel known as the steamship Standard, which vessel was then and
there engaged in carrying and transporting cattle, carabaos, and other animals from a foreign port and
city of Manila, Philippine Islands; that the said accused H. N. Bull, while master of said vessel, as
aforesaid, on or about the 2d day of December, 1908, did then and there willfully, unlawfully, and
wrongly carry, transport, and bring into the port and city of Manila, aboard said vessel, from the port of
Ampieng, Formosa, six hundred and seventy-seven (677) head of cattle and carabaos, without providing
suitable means for securing said animals while in transit, so as to avoid cruelty and unnecessary suffering
to the said animals, in this, to wit, that the said H. N. Bull, master, as aforesaid, did then and there fail to
provide stalls for said animals so in transit and suitable means for trying and securing said animals in a
proper manner, and did then and there cause some of said animals to be tied by means of rings passed
through their noses, and allow and permit others to be transported loose in the hold and on the deck of
said vessel without being tied or secured in stalls, and all without bedding; that by reason of the
aforesaid neglect and failure of the accused to provide suitable means for securing said animals while so
in transit, the noses of some of said animals were cruelly torn, and many of said animals were tossed
about upon the decks and hold of said vessel, and cruelly wounded, bruised, and killed.
All contrary to the provisions of Acts No. 55 and No. 275 of the Philippine Commission.
Section 1 of Act No. 55, which went into effect January 1, 1901, provides that —
The owners or masters of steam, sailing, or other vessels, carrying or transporting cattle, sheep, swine, or
other animals, from one port in the Philippine Islands to another, or from any foreign port to any port
within the Philippine Islands, shall carry with them, upon the vessels carrying such animals, sufficient
forage and fresh water to provide for the suitable sustenance of such animals during the ordinary period
occupied by the vessel in passage from the port of shipment to the port of debarkation, and shall cause
such animals to be provided with adequate forage and fresh water at least once in every twenty-four
hours from the time that the animals are embarked to the time of their final debarkation.
By Act No. 275, enacted October 23, 1901, Act No. 55 was amended by adding to section 1 thereof the
following:
The owners or masters of steam, sailing, or other vessels, carrying or transporting cattle, sheep, swine, or
other animals from one port in the Philippine Islands to another, or from any foreign port to any port
within the Philippine Islands, shall provide suitable means for securing such animals while in transit so as
to avoid all cruelty and unnecessary suffering to the animals, and suitable and proper facilities for loading
and unloading cattle or other animals upon or from vessels upon which they are transported, without
cruelty or unnecessary suffering. It is hereby made unlawful to load or unload cattle upon or from vessels
by swinging them over the side by means of ropes or chains attached to the thorns.
Section 3 of Act No. 55 provides that —
Any owner or master of a vessel, or custodian of such animals, who knowingly and willfully fails to
comply with the provisions of section one, shall, for every such failure, be liable to pay a penalty of not
less that one hundred dollars nor more that five hundred dollars, United States money, for each offense.
Prosecution under this Act may be instituted in any Court of First Instance or any provost court organized
in the province or port in which such animals are disembarked.
1. It is contended that the information is insufficient because it does not state that the court was sitting
at a port where the cattle were disembarked, or that the offense was committed on board a vessel
registered and licensed under the laws of the Philippine Islands.
Act No. 55 confers jurisdiction over the offense created thereby on Courts of First Instance or any provost
court organized in the province or port in which such animals are disembarked, and there is nothing
inconsistent therewith in Act No. 136, which provides generally for the organization of the courts of the
Philippine Islands. Act No. 400 merely extends the general jurisdiction of the courts over certain offenses
committed on the high seas, or beyond the jurisdiction of any country, or within any of the waters of the
Philippine Islands on board a ship or water craft of any kind registered or licensed in the Philippine
Islands, in accordance with the laws thereof. (U.S. vs. Fowler, 1 Phil. Rep., 614.) This jurisdiction may be
exercised by the Court of First Instance in any province into which such ship or water upon which the
offense or crime was committed shall come after the commission thereof. Had this offense been
committed upon a ship carrying a Philippine registry, there could have been no doubt of the Jurisdiction
of the court, because it is expressly conferred, and the Act is in accordance with well recognized and
established public law. But the Standard was a Norwegian vessel, and it is conceded that it was not
registered or licensed in the Philippine Islands under the laws thereof. We have then the question
whether the court had jurisdiction over an offense of this character, committed on board a foreign ship
by the master thereof, when the neglect and omission which constitutes the offense continued during
the time the ship was within the territorial waters of the United States. No court of the Philippine Islands
had jurisdiction over an offenses or crime committed on the high seas or within the territorial waters of
any other country, but when she came within 3 miles of a line drawn from the headlines which embrace
the entrance to Manila Bay, she was within territorial waters, and a new set of principles became
applicable. (Wheaton, Int. Law (Dana ed.), p. 255, note 105; Bonfils, Le Droit Int., sec 490 et seq.; Latour,
La Mer Ter., ch. 1.) The ship and her crew were then subject to the jurisdiction of the territorial sovereign
subject through the proper political agency. This offense was committed within territorial waters. From
the line which determines these waters the Standard must have traveled at least 25 miles before she
came to anchor. During that part of her voyage the violation of the statue continued, and as far as the
jurisdiction of the court is concerned, it is immaterial that the same conditions may have existed while
the vessel was on the high seas. The offense, assuming that it originated at the port of departure in
Formosa, was a continuing one, and every element necessary to constitute it existed during the voyage
across the territorial waters. The completed forbidden act was done within American waters, and the
court therefore had jurisdiction over the subject-matter of the offense and the person of the offender.
The offense then was thus committed within the territorial jurisdiction of the court, but the objection to
the jurisdiction raises the further question whether that jurisdiction is restricted by the fact of the
nationality of the ship. Every. Every state has complete control and jurisdiction over its territorial waters.
According to strict legal right, even public vessels may not enter the ports of a friendly power without
permission, but it is now conceded that in the absence of a prohibition such ports are considered as open
to the public ship of all friendly powers. The exemption of such vessels from local jurisdiction while
within such waters was not established until within comparatively recent times. In 1794, Attorney-
General Bradford, and in 1796 Attorney-General Lee, rendered opinions to the effect that "the laws of
nations invest the commander of a foreign ship of war with no exemption from the jurisdiction of the
country into which he comes." (1, Op. U.S. Attys. Gen., 46, 87.) This theory was also supported by Lord
Stowell in an opinion given by him to the British Government as late as 1820. In the leading case of the
Schooner Exchange vs. McFadden (7 Cranch (U.S.), 116, 144), Chief Justice Marshall said that the implied
license under which such vessels enter a friendly port may reasonably be construed as "containing
exemption from the jurisdiction of the sovereign within whose territory she claims the rights of
hospitality." The principle was accepted by the Geneva Arbitration Tribunal, which announced that "the
priviledge of exterritoriality accorded to vessels of war has been admitted in the law of nations; not as an
absolute right, but solely as a proceeding founded on the principle of courtesy and mutual deference
between nations."
(2 Moore, Int. Law Dig., secs. 252 and 254; Hall, Int. Law, sec. 55; Taylor, Int. Law, sec. 256; Ortolan, Dip de
la Mer, 2. C.X.)
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Such vessels are therefore permitted during times of peace to come and go freely. Local official exercise
but little control over their actions, and offenses committed by their crew are justiciable by their own
officers acting under the laws to which they primarily owe allegiance. This limitation upon the general
principle of territorial sovereignty is based entirely upon comity and convenience, and finds its
justification in the fact that experience shows that such vessels are generally careful to respect local laws
and regulation which are essential to the health, order, and well-being of the port. But comity and
convenience does not require the extension of the same degree of exemption to merchant vessels. There
are two well-defined theories as to extent of the immunities ordinarily granted to them, According to the
French theory and practice, matters happening on board a merchant ship which do not concern the
tranquillity of the port or persons foreign to the crew, are justiciable only by the court of the country to
which the vessel belongs. The French courts therefore claim exclusive jurisdiction over crimes committed
on board French merchant vessels in foreign ports by one member of the crew against another. (See
Bonfils, Le Droit Int. (quat. ed.), secs. 624-628; Martens, Le Droit Int., tome 2, pp. 338, 339; Ortolan, Dip.
de la Mer, tit. 1, p. 292; Masse, Droit Int., tome 2, p. 63.) Such jurisdiction has never been admitted or
claim by Great Britain as a right, although she has frequently conceded it by treaties. (Halleck, Int. Law
(Baker's ed.), vol. 1, 231; British Territorial Waters Act, 1878.) Writers who consider exterritoriality as a
fact instead of a theory have sought to restrict local jurisdiction, but Hall, who is doubtless the leading
English authority, says that —
It is admitted by the most thoroughgoing asserters of the territoriality of merchant vessels that so soon
as the latter enter the ports of a foreign state they become subject to the local jurisdiction on all points in
which the interests of the country are touched. (Hall, Int. Law, p. 263.)
The United States has adhered consistently to the view that when a merchant vessel enters a foreign port
it is subject to the jurisdiction of the local authorities, unless the local sovereignty has by act of
acquiescence or through treaty arrangements consented to waive a portion of such jurisdiction. (15 Op.
Attys. Gen., U. S., 178; 2 Moore, Int. Law Dig., sec. 204; article by Dean Gregory, Mich. Law Review, Vol. II,
No. 5.) Chief Justice Marshall, in the case of the Exchange, said that —
When merchant vessels enter for the purpose of trade, in would be obviously in convinient and
dangerous to society and would subject the laws to continual infraction and the government to
degradation if such individual merchants did not owe temporary and local allegiance, and were not
amendable to the jurisdiction of the country.
The Supreme Court of the United States has recently said that the merchant vessels of one country
visiting the ports of another for the purpose of trade, subject themselves to the laws which govern the
ports they visit, so long as they remain; and this as well in war as in peace, unless otherwise provided by
treaty. (U. S. vs. Diekelman, 92 U. S., 520-525.)
Certain limitations upon the jurisdiction of the local courts are imposed by article 13 of the treaty of
commerce and navigation between Sweden and Norway and the United States, of July 4, 1827, which
concedes to the consul, vice-consuls, or consular agents of each country "The right to sit as judges and
arbitrators in such differences as may arise between the captains and crews of the vessels belonging to
the nation whose interests are committed to their charge, without the interference of the local
authorities, unless the conduct of the crews or of the captains should disturb the order or tranquillity of
the country." (Comp. of Treaties in Force, 1904, p. 754.) This exception applies to controversies between
the members of the ship's company, and particularly to disputes regarding wages. (2 Moore, Int. Law
Dig., sec. 206, p. 318; Tellefsen vs. Fee, 168 Mass., 188.) The order and tranquillity of the country are
affected by many events which do not amount to a riot or general public disturbance. Thus an assault by
one member of the crew upon another, committed upon the ship, of which the public may have no
knowledge whatever, is not by this treaty withdrawn from the cognizance of the local authorities.
In 1876 the mates of the Swedish bark Frederike and Carolina engaged in a "quarrel" on board the vessel
in the port of Galveston, Texas. They were prosecuted before a justice of the peace, but the United States
district attorney was instructed by the Government to take the necessary steps to have the proceedings
dismissed, and the aid of the governor of Texas was invoked with the view to "guard against a repetition
of similar proceedings." (Mr. Fish, Secretary of State, to Mr. Grip, Swedish and Norwegian charged, May
16, 1876; Moore, Int. Law Dig.) It does not appear that this "quarrel" was of such a nature as to amount
to a breach of the criminal laws of Texas, but when in 1879 the mate for the Norwegian bark Livingston
was prosecuted in the courts of Philadelphia County for an assault and battery committed on board the
ship while lying in the port of Philadelphia, it was held that there was nothing in the treaty which
deprived the local courts of jurisdiction. (Commonwealth vs. Luckness, 14 Phila. (Pa.), 363.)
Representations were made through diplomatic channels to the State Department, and on July 30, 1880,
Mr. Evarts, Secretary of State, wrote to Count Lewenhaupt, the Swedish and Norwegian minister, as
follows:
I have the honor to state that I have given the matter careful consideration in connection with the views
and suggestion of your note and the provisions of the thirteenth article of the treaty of 1827 between
the United States and Sweden and Norway. The stipulations contained in the last clause of that article . . .
are those under which it is contended by you that jurisdiction is conferred on the consular officers, not
only in regard to such differences of a civil nature growing out of the contract of engagement of the
seamen, but also as to disposing of controversies resulting from personal violence involving offense for
which the party may be held amenable under the local criminal law.
This Government does not view the article in question as susceptible of such broad interpretation. The
jurisdiction conferred upon the consuls is conceived to be limited to their right to sit as judges or
abitrators in such differences as may arise between captains and crews of the vessels, where such
differences do not involve on the part of the captain or crew a disturbance of the order or tranquillity of
the country. When, however, a complaint is made to a local magistrate, either by the captain or one or
more of the crew of the vessel, involving the disturbance of the order or tranquillity of the country, it is
competent for such magistrate to take cognizance of the matter in furtherance of the local laws, and
under such circumstances in the United States it becomes a public duty which the judge or magistrate is
not at liberty voluntarily to forego. In all such cases it must necessarily be left to the local judicial
authorities whether the procedure shall take place in the United States or in Sweden to determine if in
fact there had been such disturbance of the local order and tranquillity, and if the complaint is supported
by such proof as results in the conviction of the party accused, to visit upon the offenders such
punishment as may be defined against the offense by the municipal law of the place." (Moore, Int. Law
Dig., vol. 2, p. 315.)
The treaty does not therefore deprive the local courts of jurisdiction over offenses committed on board a
merchant vessel by one member of the crew against another which amount to a disturbance of the order
or tranquillity of the country, and a fair and reasonable construction of the language requires un to hold
that any violation of criminal laws disturbs the order or traquillity of the country. The offense with which
the appellant is charged had nothing to so with any difference between the captain and the crew. It was a
violation by the master of the criminal law of the country into whose port he came. We thus find that
neither by reason of the nationality of the vessel, the place of the commission of the offense, or the
prohibitions of any treaty or general principle of public law, are the court of the Philippine Islands
deprived of jurisdiction over the offense charged in the information in this case.
It is further contended that the complaint is defective because it does not allege that the animals were
disembarked at the port of Manila, an allegation which it is claimed is essential to the jurisdiction of the
court sitting at that port. To hold with the appellant upon this issue would be to construe the language of
the complaint very strictly against the Government. The disembarkation of the animals is not necessary
in order to constitute the completed offense, and a reasonable construction of the language of the
statute confers jurisdiction upon the court sitting at the port into which the animals are bought. They are
then within the territorial jurisdiction of the court, and the mere fact of their disembarkation is
immaterial so far as jurisdiction is concerned. This might be different if the disembarkation of the animals
constituted a constitutional element in the offense, but it does not.
It is also contended that the information is insufficient because it fails to allege that the defendant
knowingly and willfully failed to provide suitable means for securing said animals while in transit, so as to
avoid cruelty and unnecessary suffering. The allegation of the complaint that the act was committed
willfully includes the allegation that it was committed knowingly. As said in Woodhouse vs. Rio Grande
R.R. Company (67 Texas, 416), "the word 'willfully' carries the idea, when used in connection with an act
forbidden by law, that the act must be done knowingly or intentionally; that, with knowledge, the will
consented to, designed, and directed the act." So in Wong vs. City of Astoria (13 Oregon, 538), it was
said: "The first one is that the complaint did not show, in the words of the ordinance, that the appellant
'knowingly' did the act complained of. This point, I think, was fully answered by the respondent's counsel
— that the words 'willfully' and 'knowingly' conveyed the same meaning. To 'willfully' do an act implies
that it was done by design — done for a certain purpose; and I think that it would necessarily follow that
129
it was 'knowingly' done." To the same effect is Johnson vs. The People (94 Ill., 505), which seems to be on
all fours with the present case.
The evidence shows not only that the defendant's acts were knowingly done, but his defense rests upon
the assertion that "according to his experience, the system of carrying cattle loose upon the decks and in
the hold is preferable and more secure to the life and comfort of the animals." It was conclusively proven
that what was done was done knowingly and intentionally.
In charging an offense under section 6 of General Orders, No. 58, paragraph 3, it is only necessary to
state the act or omission complained of as constituting a crime or public offense in ordinary and concise
language, without repitition. It need not necessarily be in the words of the statute, but it must be in such
form as to enable a person of common understanding to know what is intended and the court to
pronounce judgment according to right. A complaint which complies with this requirement is good. (U.S.
vs. Sarabia, 4 Phil. Rep., 556.)
The Act, which is in the English language, impose upon the master of a vessel the duty to "provide
suitable means for securing such animals while in transit, so as to avoid all cruelty and unnecessary
suffering to the animals." The allegation of the complaint as it reads in English is that the defendant
willfully, unlawfully, and wrongfully carried the cattle "without providing suitable means for securing said
animals while in transit, so as to avoid cruelty and unnecessary suffering to the said animals in this . . .
that by reason of the aforesaid neglect and failure of the accused to provide suitable means for securing
said animals were cruelty torn, and many of said animals were tossed about upon the decks and hold of
said vessels, and cruelty wounded, bruised, and killed."
The appellant contends that the language of the Spanish text of the information does not charge him
with failure to provide "sufficient" and "adequate" means. The words used are "medios suficientes" and
"medios adecuados." In view of the fact that the original complaint was prepared in English, and that the
word "suitable" is translatable by the words "adecuado," "suficiente," and "conveniente," according to
the context and circumstances, we determine this point against the appellant, particularly in view of the
fact that the objection was not made in the court below, and that the evidence clearly shows a failure to
provide "suitable means for the protection of the animals."
2. The appellant's arguments against the constitutionality of Act No. 55 and the amendment thereto
seems to rest upon a fundamentally erroneous conception of the constitutional law of these Islands. The
statute penalizes acts and ommissions incidental to the transportation of live stock between foreign ports
and ports of the Philippine Islands, and had a similar statute regulating commerce with its ports been
enacted by the legislature of one of the States of the Union, it would doubtless have been in violation of
Article I, section 3, of the Constitution of the United States. (Stubbs vs. People (Colo.), 11 L. R. A., N. S.,
1071.)
But the Philippine Islands is not a State, and its relation to the United States is controlled by
constitutional principles different from those which apply to States of the Union. The importance of the
question thus presented requires a statement of the principles which govern those relations, and
consideration of the nature and extent of the legislative power of the Philippine Commission and the
Legislature of the Philippines. After much discussion and considerable diversity of opinion certain
applicable constitutional doctrines are established.
The Constitution confers upon the United States the express power to make war and treaties, and it has
the power possessed by all nations to acquire territory by conquest or treaty. Territory thus acquired
belongs to the United States, and to guard against the possibility of the power of Congress to provide for
its government being questioned, the framers of the Constitution provided in express terms that
Congress should have the power "to dispose of and make all needful rules and regulations respecting
territory and other property belonging to the United States." (Art. IV, sec. 3, par. 3.) Upon the acquisition
of the territory by the United States, and until it is formally incorporated into the Union, the duty of
providing a government therefor devolves upon Congress. It may govern the territory by its direct acts, or
it may create a local government, and delegate thereto the ordinary powers required for local
government. (Binns vs. U. S., 194 U. S., 486.) This has been the usual procedure. Congress has provided
such governments for territories which were within the Union, and for newly acquired territory not yet
incorporated therein. It has been customary to organize a government with the ordinary separation of
powers into executive, legislative, and judicial, and to prescribe in an organic act certain general
conditions in accordance with which the local government should act. The organic act thus became the
constitution of the government of the territory which had not been formally incorporated into the Union,
and the validity of legislation enacted by the local legislature was determined by its conformity with the
requirements of such organic act. (National Bank vs. Yankton, 11 Otto (U. S.), 129.) To the legislative body
of the local government Congress has delegated that portion of legislative power which in its wisdom it
deemed necessary for the government of the territory, reserving, however, the right to annul the action
of the local legislature and itself legislate directly for the territory. This power has been exercised during
the entire period of the history of the United States. The right of Congress to delegate such legislative
power can no longer be seriously questioned. (Dorr vs. U. S., 195 U. S., 138; U. S. vs. Heinszen, 206 U. S.,
370, 385.)
The Constitution of the United States does not by its own force operate within such territory, although
the liberality of Congress in legislating the Constitution into contiguous territory tended to create an
impression upon the minds of many people that it went there by its own force. (Downes vs. Bidwell, 182
U. S., 289.) In legislating with reference to this territory, the power of Congress is limited only by those
prohibitions of the Constitution which go to the very root of its power to act at all, irrespective of time or
place. In all other respects it is plenary. (De Lima vs. Bidwell, 182 U. S., 1; Downes vs. Bidwell, 182 U. S.,
244; Hawaii vs. Mankichi, 190 U. S., 197; Dorr vs. U. S., 195 U. S., 138; Rassmussen vs. U. S., 197 U. S.,
516.)
This power has been exercised by Congress throughout the whole history of the United States, and
legislation founded on the theory was enacted long prior to the acquisition of the present Insular
possessions. Section 1891 of the Revised Statutes of 1878 provides that "The Constitution and all laws of
the United States which are not locally inapplicable shall have the same force and effect within all the
organized territories, and in every Territory hereafter organized, as elsewhere within the United States."
When Congress organized a civil government for the Philippines, it expressly provided that this section of
the Revised Statutes should not apply to the Philippine Islands. (Sec. 1, Act of 1902.)
In providing for the government of the territory which was acquired by the United States as a result of
the war with Spain, the executive and legislative authorities have consistently proceeded in conformity
with the principles above state. The city of Manila was surrendered to the United States on August 13,
1898, and the military commander was directed to hold the city, bay, and harbor, pending the conclusion
of a peace which should determine the control, disposition, and government of the Islands. The duty
then devolved upon the American authorities to preserve peace and protect person and property within
the occupied territory. Provision therefor was made by proper orders, and on August 26 General Merritt
assumed the duties of military governor. The treaty of peace was signed December 10, 1898. On the 22d
of December, 1898, the President announced that the destruction of the Spanish fleet and the surrender
of the city had practically effected the conquest of the Philippine Islands and the suspension of the
Spanish sovereignty therein, and that by the treaty of peace the future control, disposition, and
government of the Islands had been ceded to the United States. During the periods of strict military
occupation, before the treaty of peace was ratified, and the interim thereafter, until Congress acted
(Santiago vs. Noueral, 214 U.S., 260), the territory was governed under the military authority of the
President as commander in chief. Long before Congress took any action, the President organized a civil
government which, however, had its legal justification, like the purely military government which it
gradually superseded, in the war power. The military power of the President embraced legislative,
executive personally, or through such military or civil agents as he chose to select. As stated by Secretary
Root in his report for 1901 —
The military power in exercise in a territory under military occupation includes executive, legislative, and
judicial authority. It not infrequently happens that in a single order of a military commander can be found
the exercise of all three of these different powers — the exercise of the legislative powers by provisions
prescribing a rule of action; of judicial power by determination of right; and the executive power by the
enforcement of the rules prescribed and the rights determined.
President McKinley desired to transform military into civil government as rapidly as conditions would
permit. After full investigation, the organization of civil government was initiated by the appointment of a
commission to which civil authority was to be gradually transferred. On September 1, 1900, the authority
to exercise, subject to the approval of the President. "that part of the military power of the President in
the Philippine Islands which is legislative in its character" was transferred from the military government
to the Commission, to be exercised under such rules and regulations as should be prescribed by the
Secretary of War, until such time as complete civil government should be established, or congress
otherwise provided. The legislative power thus conferred upon the Commission was declared to include
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"the making of rules and orders having the effect of law for the raising of revenue by taxes, customs
duties, and imposts; the appropriation and expenditure of public funds of the Islands; the establishment
of an educational system to secure an efficient civil service; the organization and establishment of courts;
the organization and establishment of municipal and departmental government, and all other matters of
a civil nature which the military governor is now competent to provide by rules or orders of a legislative
character." This grant of legislative power to the Commission was to be exercised in conformity with
certain declared general principles, and subject to certain specific restrictions for the protection of
individual rights. The Commission were to bear in mind that the government to be instituted was "not for
our satisfaction or for the expression of our theoretical views, but for the happiness, peace, and
prosperity of the people of the Philippine Island, and the measures adopted should be made to conforms
to their customs, their habits, and even their prejudices, to the fullest extent consistent with the
accomplishment of the indispensable requisites of just and effective government." The specific
restrictions upon legislative power were found in the declarations that "no person shall be deprived of
life, liberty, or property without due process of law; that private property shall not be taken for public use
without just compensation; that in all criminal prosecutions the accused shall enjoy the right to a speedy
and public trial, to be informed of the nature and cause of the accusation, to be confronted with the
witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the
assistance of counsel for his defense; that excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishment inflicted; that no person shall be put twice in jeopardy for
the same offense or be compelled in any criminal case to be a witness against himself; that the right to
be secure against unreasonable searches and seizures shall not be violated; that neither slavery nor
involuntary servitude shall exist except as a punishment for crime; that no bill of attainder or ex post
facto law shall be passed; that no law shall be passed abridging the freedom of speech or of the press or
of the rights of the people to peaceably assemble and petition the Government for a redress of
grievances; that no law shall be made respecting an establishment of religion or prohibiting the free
exercise thereof, and that the free exercise and enjoyment of religious profession and worship without
discrimination or preference shall forever be allowed."
To prevent any question as to the legality of these proceedings being raised, the Spooner amendment to
the Army Appropriation Bill passed March 2, 1901, provided that "all military, civil, and judicial powers
necessary to govern the Philippine Islands . . . shall until otherwise provided by Congress be vested in
such person and persons, and shall be exercised in such manner, as the President of the United States
shall direct, for the establishment of civil government, and for maintaining and protecting the inhabitants
of said Islands in the free enjoyment of their liberty, property, and religion." Thereafter, on July 4, 1901,
the authority, which had been exercised previously by the military governor, was transferred to that
official. The government thus created by virtue of the authority of the President as Commander in Chief
of the Army and Navy continued to administer the affairs of the Islands under the direction of the
President until by the Act of July 1, 1902, Congress assumed control of the situation by the enactment of
a law which, in connection with the instructions of April 7, 1900, constitutes the organic law of the
Philippine Islands.
The Act of July 1, 1902, made no substancial changes in the form of government which the President had
erected. Congress adopted the system which was in operation, and approved the action of the President
in organizing the government. Substantially all the limitations which had been imposed on the legislative
power by the President's instructions were included in the law, Congress thus extending to the Islands by
legislative act nor the Constitution, but all its provisions for the protection of the rights and privileges of
individuals which were appropriate under the conditions. The action of the President in creating the
Commission with designated powers of government, in creating the office of the Governor-General and
Vice-Governor-General, and through the Commission establishing certain executive departments, was
expressly approved and ratified. Subsequently the action of the President in imposing a tariff before and
after the ratification of the treaty of peace was also ratified and approved by Congress. (Act of March 8,
1902; Act of July 1, 1902; U.S. vs. Heinszen, 206 U.S., 370; Lincoln vs. U.S., 197 U.S., 419.) Until otherwise
provided by law the Islands were to continue to be governed "as thereby and herein provided." In the
future the enacting clause of all statutes should read "By authority of the United States" instead of "By
the authority of the President." In the course of time the legislative authority of the Commission in all
parts of the Islands not inhabited by Moros or non-Christian tribes was to be transferred to a legislature
consisting of two houses — the Philippine Commission and the Philippine Assembly. The government of
the Islands was thus assumed by Congress under its power to govern newly acquired territory not
incorporated into the United States.
This Government of the Philippine Islands is not a State or a Territory, although its form and organization
somewhat resembles that of both. It stands outside of the constitutional relation which unites the States
and Territories into the Union. The authority for its creation and maintenance is derived from the
Constitution of the United States, which, however, operates on the President and Congress, and not
directly on the Philippine Government. It is the creation of the United States, acting through the
President and Congress, both deriving power from the same source, but from different parts thereof. For
its powers and the limitations thereon the Government of the Philippines looked to the orders of the
President before Congress acted and the Acts of Congress after it assumed control. Its organic laws are
derived from the formally and legally expressed will of the President and Congress, instead of the popular
sovereign constituency which lies upon any subject relating to the Philippines is primarily in Congress,
and when it exercise such power its act is from the viewpoint of the Philippines the legal equivalent of an
amendment of a constitution in the United States.
Within the limits of its authority the Government of the Philippines is a complete governmental organism
with executive, legislative, and judicial departments exercising the functions commonly assigned to such
departments. The separation of powers is as complete as in most governments. In neither Federal nor
State governments is this separation such as is implied in the abstract statement of the doctrine. For
instance, in the Federal Government the Senate exercises executive powers, and the President to some
extent controls legislation through the veto power. In a State the veto power enables him to exercise
much control over legislation. The Governor-General, the head of the executive department in the
Philippine Government, is a member of the Philippine Commission, but as executive he has no veto
power. The President and Congress framed the government on the model with which Americans are
familiar, and which has proven best adapted for the advancement of the public interests and the
protection of individual rights and priviliges.
In instituting this form of government of intention must have been to adopt the general constitutional
doctrined which are inherent in the system. Hence, under it the Legislature must enact laws subject to
the limitations of the organic laws, as Congress must act under the national Constitution, and the States
under the national and state constitutions. The executive must execute such laws as are constitutionally
enacted. The judiciary, as in all governments operating under written constitutions, must determine the
validity of legislative enactments, as well as the legality of all private and official acts. In performing these
functions it acts with the same independence as the Federal and State judiciaries in the United States.
Under no other constitutional theory could there be that government of laws and not of men which is
essential for the protection of rights under a free and orderly government.
Such being the constitutional theory of the Government of the Philippine Islands, it is apparent that the
courts must consider the question of the validity of an act of the Philippine Commission or the Philippine
Legislature, as a State court considers an act of the State legislature. The Federal Government exercises
such powers only as are expressly or impliedly granted to it by the Constitution of the United States,
while the States exercise all powers which have not been granted to the central government. The former
operates under grants, the latter subject to restrictions. The validity of an Act of Congress depends upon
whether the Constitution of the United States contains a grant of express or implied authority to enact it.
An act of a State legislature is valid unless the Federal or State constitution expressly or impliedly
prohibits its enaction. An Act of the legislative authority of the Philippines Government which has not
been expressly disapproved by Congress is valid unless its subject-matter has been covered by
congressional legislation, or its enactment forbidden by some provision of the organic laws.
The legislative power of the Government of the Philippines is granted in general terms subject to specific
limitations. The general grant is not alone of power to legislate on certain subjects, but to exercise the
legislative power subject to the restrictions stated. It is true that specific authority is conferred upon the
Philippine Government relative to certain subjects of legislation, and that Congress has itself legislated
upon certain other subjects. These, however, should be viewed simply as enactments on matters wherein
Congress was fully informed and ready to act, and not as implying any restriction upon the local
legislative authority in other matters. (See Opinion of Atty. Gen. of U. S., April 16, 1908.)
The fact that Congress reserved the power to annul specific acts of legislation by the Government of the
Philippine tends strongly to confirm the view that for purposes of construction the Government of the
Philippines should be regarded as one of general instead of enumerated legislative powers. The situation
131
was unusual. The new government was to operate far from the source of its authority. To relieve That a suitable and practicable manner in which to transport cattle abroad steamship coming into Manila
Congress from the necessity of legislating with reference to details, it was thought better to grant general Bay and unloading in the city of Manila is by way of individual stalls for such cattle, providing partitions
legislative power to the new government, subject to broad and easily understood prohibitions, and between the cattle and supports at the front sides, and rear thereof, and cross-cleats upon the floor on
reserve to Congress the power to annul its acts if they met with disapproval. It was therefore provided which they stand and are transported, of that in case of storms, which are common in this community at
"that all laws passed by the Government of the Philippine Islands shall be reported to Congress, which sea, such cattle may be able to stand without slipping and pitching and falling, individually or collectively,
hereby reserves the power and authority to annul the same." (Act of Congress, July 1, 1902, sec. 86.) This and to avoid the production of panics and hazard to the animals on account or cattle were transported in
provision does not suspend the acts of the Legislature of the Philippines until approved by Congress, or this case. Captain Summerville of the steamship Taming, a very intelligent and experienced seaman, has
when approved, expressly or by acquiescence, make them the laws of Congress. They are valid acts of the testified, as a witness in behalf of the Government, and stated positively that since the introduction in
Government of the Philippine Islands until annulled. (Miners Bank vs. Iowa, 12 How. (U. S.), 1.) the ships with which he is acquainted of the stall system for the transportation of animals and cattle he
In order to determine the validity of Act No. 55 we must then ascertain whether the Legislature has been has suffered no loss whatever during the last year. The defendant has testified, as a witness in his own
expressly or implication forbidden to enact it. Section 3, Article IV, of the Constitution of the United behalf, that according to his experience the system of carrying cattle loose upon the decks and in the
States operated only upon the States of the Union. It has no application to the Government of the hold is preferable and more secure to the life and comfort of the animals, but this theory of the case is
Philippine Islands. The power to regulate foreign commerce is vested in Congress, and by virtue of its not maintainable, either by the proofs or common reason. It can not be urged with logic that, for
power to govern the territory belonging to the United States, it may regulate foreign commerce with instance, three hundred cattle supports for the feet and without stalls or any other protection for them
such territory. It may do this directly, or indirectly through a legislative body created by it, to which its individually can safely and suitably carried in times of storm upon the decks and in the holds of ships;
power in this respect if delegate. Congress has by direct legislation determined the duties which shall be such a theory is against the law of nature. One animal falling or pitching, if he is untied or unprotected,
paid upon goods imported into the Philippines, and it has expressly authorized the Government of the might produce a serious panic and the wounding of half the animals upon the ship if transported in the
Philippines to provide for the needs of commerce by improving harbors and navigable waters. A few manner found in this case.
other specific provisions relating to foreign commerce may be found in the Acts of Congress, but its The defendant was found guilty, and sentenced to pay a fine of two hundred and fifty pesos, with
general regulation is left to the Government of the Philippines, subject to the reserved power of Congress subsidiary imprisonment in case of insolvency, and to pay the costs. The sentence and judgment is
to annul such legislation as does not meet with its approval. The express limitations upon the power of affirmed. So ordered.
the Commission and Legislature to legislate do not affect the authority with respect to the regulation of Arellano, C.J., Torres, Johnson, Carson and Moreland, JJ., concur.
commerce with foreign countries. Act No. 55 was enacted before Congress took over the control of the
Islands, and this act was amended by Act No. 275 after the Spooner amendment of March 2, 1901, was
passed. The military government, and the civil government instituted by the President, had the power,
whether it be called legislative or administrative, to regulate commerce between foreign nations and the
ports of the territory. (Cross vs. Harrison, 16 How. (U.S.), 164, 190; Hamilton vs. Dillin, 21 Wall. (U.S.), 73,
87.) This Act has remained in force since its enactment without annulment or other action by Congress,
and must be presumed to have met with its approval. We are therefore satisfied that the Commission
had, and the Legislature now has, full constitutional power to enact laws for the regulation of commerce
between foreign countries and the ports of the Philippine Islands, and that Act No. 55, as amended by
Act No. 275, is valid.
3. Whether a certain method of handling cattle is suitable within the meaning of the Act can not be left
to the judgment of the master of the ship. It is a question which must be determined by the court from
the evidence. On December 2, 1908, the defendant Bull brought into and disembarked in the port and
city of Manila certain cattle, which came from the port of Ampieng, Formosa, without providing suitable
means for securing said animals while in transit, so as to avoid cruelty and unnecessary suffering to said
animals, contrary to the provisions of section 1 of Act No. 55, as amended by section 1 of Act No. 275.
The trial court found the following facts, all of which are fully sustained by the evidence:
That the defendant, H. N. Bull, as captain and master of the Norwegian steamer known as the Standard,
for a period of six months or thereabouts prior to the 2d day of December, 1908, was engaged in the
transportation of cattle and carabaos from Chines and Japanese ports to and into the city of Manila,
Philippine Islands.
That on the 2d day of December, 1908, the defendant, as such master and captain as aforesaid, brought
into the city of Manila, aboard said ship, a large number of cattle, which ship was anchored, under the
directions of the said defendant, behind the breakwaters in front of the city of Manila, in Manila Bay, and
within the jurisdiction of this court; and that fifteen of said cattle then and there had broken legs and
three others of said cattle were dead, having broken legs; and also that said cattle were transported and
carried upon said ship as aforesaid by the defendant, upon the deck and in the hold of said ship, without
suitable precaution and care for the transportation of said animals, and to avoid danger and risk to their
lives and security; and further that said cattle were so transported abroad said ship by the defendant and
brought into the said bay, and into the city of Manila, without any provisions being made whatever upon
said decks of said ship and in the hold thereof to maintain said cattle in a suitable condition and position
for such transportation.

132
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-5887 December 16, 1910
THE UNITED STATES, plaintiff-appellee, vs.
LOOK CHAW (alias LUK CHIU), defendant-appellant.
Thos. D. Aitken for appellant.
Attorney-General Villamor for appellee.
ARELLANO, C. J.:
The first complaint filed against the defendant, in the Court of First Instance of Cebu, stated that he
"carried, kept, possessed and had in his possession and control, 96 kilogrammes of opium," and that "he
had been surprised in the act of selling 1,000 pesos worth prepared opium."
The defense presented a demurrer based on two grounds, the second of which was the more than one
crime was charged in the complaint. The demurrer was sustained, as the court found that the complaint
contained two charges, one, for the unlawful possession of opium, and the other, for the unlawful sale of
opium, and, consequence of that ruling, it ordered that the fiscal should separated one charge from the
other and file a complaint for each violation; this, the fiscal did, and this cause concerns only the unlawful
possession of opium. It is registered as No. 375, in the Court of First Instance of Cebu, and as No. 5887 on
the general docket of this court.
The facts of the case are contained in the following finding of the trial court:
The evidence, it says, shows that between 11 and 12 o'clock a. m. on the present month (stated as
August 19, 1909), several persons, among them Messrs. Jacks and Milliron, chief of the department of
the port of Cebu and internal-revenue agent of Cebu, respectively, went abroad the steamship Erroll to
inspect and search its cargo, and found, first in a cabin near the saloon, one sack (Exhibit A) and
afterwards in the hold, another sack (Exhibit B). The sack referred to as Exhibit A contained 49 cans of
opium, and the other, Exhibit B, the larger sack, also contained several cans of the same substance. The
hold, in which the sack mentioned in Exhibit B was found, was under the defendant's control, who
moreover, freely and of his own will and accord admitted that this sack, as well as the other referred to in
Exhibit B and found in the cabin, belonged to him. The said defendant also stated, freely and voluntarily,
that he had bought these sacks of opium, in Hongkong with the intention of selling them as contraband
in Mexico or Vera Cruz, and that, as his hold had already been searched several times for opium, he
ordered two other Chinamen to keep the sack. Exhibit A.
It is to be taken into account that the two sacks of opium, designated as Exhibits A and B, properly
constitute the corpus delicti. Moreover, another lot of four cans of opium, marked, as Exhibit C, was the
subject matter of investigation at the trial, and with respect to which the chief of the department of the
port of Cebu testified that they were found in the part of the ship where the firemen habitually sleep,
and that they were delivered to the first officer of the ship to be returned to the said firemen after the
vessel should have left the Philippines, because the firemen and crew of foreign vessels, pursuant to the
instructions he had from the Manila custom-house, were permitted to retain certain amounts of opium,
always provided it should not be taken shore.
And, finally, another can of opium, marked "Exhibit D," is also corpus delicti and important as evidence in
this cause. With regard to this the internal-revenue agent testified as follows:itc-alf
FISCAL. What is it?
WITNESS. It is a can opium which was bought from the defendant by a secret-service agent
and taken to the office of the governor to prove that the accused had opium in his possession
to sell.
On motion by the defense, the court ruled that this answer might be stricken out "because it refers to a
sale." But, with respect to this answer, the chief of the department of customs had already given this
testimony, to wit:
FISCAL. Who asked you to search the vessel?
WITNESS. The internal-revenue agent came to my office and said that a party brought him a
sample of opium and that the same party knew that there was more opium on board the
steamer, and the agent asked that the vessel be searched.
The defense moved that this testimony be rejected, on the ground of its being hearsay evidence, and the
court only ordered that the part thereof "that there was more opium, on board the vessel" be stricken
out.
The defense, to abbreviate proceedings, admitted that the receptacles mentioned as Exhibits A, B, and C,
contained opium and were found on board the steamship Erroll, a vessel of English nationality, and that it
was true that the defendant stated that these sacks of opium were his and that he had them in his
possession.
According to the testimony of the internal-revenue agent, the defendant stated to him, in the presence of
the provincial fiscal, of a Chinese interpreter (who afterwards was not needed, because the defendant
spoke English), the warden of the jail, and four guards, that the opium seized in the vessel had been
bought by him in Hongkong, at three pesos for each round can and five pesos for each one of the others,
for the purpose of selling it, as contraband, in Mexico and Puerto de Vera Cruz; that on the 15th the
vessel arrived at Cebu, and on the same day he sold opium; that he had tried to sell opium for P16 a can;
that he had a contract to sell an amount of the value of about P500; that the opium found in the room of
the other two Chinamen prosecuted in another cause, was his, and that he had left it in their stateroom
to avoid its being found in his room, which had already been searched many times; and that, according to
the defendant, the contents of the large sack was 80 cans of opium, and of the small one, 49, and the
total number, 129.
It was established that the steamship Erroll was of English nationality, that it came from Hongkong, and
that it was bound for Mexico, via the call ports of Manila and Cebu.
The defense moved for a dismissal of the case, on the grounds that the court had no jurisdiction to try
the same and the facts concerned therein did not constitute a crime. The fiscal, at the conclusion of his
argument, asked that the maximum penalty of the law be imposed upon the defendant, in view of the
considerable amount of opium seized. The court ruled that it did not lack jurisdiction, inasmuch as the
crime had been committed within its district, on the wharf of Cebu.
The court sentenced the defendant to five years' imprisonment, to pay a fine of P10,000, with additional
subsidiary imprisonment in case of insolvency, though not to exceed one third of the principal penalty,
and to the payment of the costs. It further ordered the confiscation, in favor of the Insular Government,
of the exhibits presented in the case, and that, in the event of an appeal being taken or a bond given, or
when the sentenced should have been served, the defendant be not released from custody, but turned
over to the customs authorities for the purpose of the fulfillment of the existing laws on immigration.
From this judgment, the defendant appealed to this court.lawphi1.net
The appeal having been heard, together with the allegations made therein by the parties, it is found:
That, although the mere possession of a thing of prohibited use in these Islands, aboard a foreign vessel
in transit, in any of their ports, does not, as a general rule, constitute a crime triable by the courts of this
country, on account of such vessel being considered as an extension of its own nationality, the same rule
does not apply when the article, whose use is prohibited within the Philippine Islands, in the present case
a can of opium, is landed from the vessel upon Philippine soil, thus committing an open violation of the
laws of the land, with respect to which, as it is a violation of the penal law in force at the place of the
commission of the crime, only the court established in that said place itself had competent jurisdiction, in
the absence of an agreement under an international treaty.
It is also found: That, even admitting that the quantity of the drug seized, the subject matter of the
present case, was considerable, it does not appear that, on such account, the two penalties fixed by the
law on the subject, should be imposed in the maximum degree.
Therefore, reducing the imprisonment and the fine imposed to six months and P1,000, respectively, we
affirm in all other respects the judgment appealed from, with the costs of this instance against the
appellant. So ordered.
Torres, Mapa, Johnson, Carson, Moreland and Trent, JJ., concur.
133
 Republic of the Philippines sufficient that the opium was brought into the waters of the Philippine Islands on a boat
SUPREME COURT destined for a Philippine port and which subsequently anchored in a port of the Philippine
Manila Islands with intent to discharge its cargo.
EN BANC Resolving whatever doubt was exist as to the authority of the views just quoted, we return to an
G.R. No. L-13005 October 10, 1917 examination of the applicable provisions of the law. It is to be noted that section 4 of Act No. 2381
THE UNITED STATES, plaintiff-appellee, vs. begins, "Any person who shall unlawfully import or bring any prohibited drug into the Philippine Islands."
AH SING, defendant-appellant. "Import" and "bring" are synonymous terms. The Federal Courts of the United States have held that the
Antonio Sanz for appellant. mere act of going into a port, without breaking bulk, is prima facie evidence of importation. (The Mary
Acting Attorney-General Paredes for appellee. [U. S.], 16 Fed. Cas., 932, 933.) And again, the importation is not the making entry of goods at the custom
house, but merely the bringing them into port; and the importation is complete before entry of the
MALCOLM, J.: Custom House. (U. S. vs. Lyman [U. S.], 26, Fed. Cas., 1024, 1028; Perots vs. U. S., 19 Fed. Cas., 258.) As
This is an appeal from a judgment of the Court of First Instance of Cebu finding the defendant guilty of a applied to the Opium Law, we expressly hold that any person unlawfully imports or brings any prohibited
violation of section 4 of Act No. 2381 (the Opium Law), and sentencing him to two years imprisonment, drug into the Philippine Islands, when the prohibited drug is found under this person's control on a vessel
to pay a fine of P300 or to suffer subsidiary imprisonment in case of insolvency, and to pay the costs. which has come direct from a foreign country and is within the jurisdictional limits of the Philippine
The following facts are fully proven: The defendant is a subject of China employed as a fireman on the Islands. In such case, a person is guilty of illegal importation of the drug unless contrary circumstances
steamship Shun Chang. The Shun Chang is a foreign steamer which arrived at the port of Cebu on April exist or the defense proves otherwise. Applied to the facts herein, it would be absurb to think that the
25, 1917, after a voyage direct from the port of Saigon. The defendant bought eight cans of opium in accused was merely carrying opium back and forth between Saigon and Cebu for the mere pleasure of so
Saigon, brought them on board the steamship Shun Chang, and had them in his possession during the doing. It would likewise be impossible to conceive that the accused needed so large an amount of opium
trip from Saigon to Cebu. When the steamer anchored in the port of Cebu on April 25, 1917, the for his personal use. No better explanation being possible, the logical deduction is that the defendant
authorities on making a search found the eight cans of opium above mentioned hidden in the ashes intended this opium to be brought into the Philippine Islands. We accordingly find that there was illegal
below the boiler of the steamer's engine. The defendant confessed that he was the owner of this opium, importation of opium from a foreign country into the Philippine Islands. To anticipate any possible
and that he had purchased it in Saigon. He did not confess, however, as to his purpose in buying the misunderstanding, let it be said that these statements do not relate to foreign vessels in transit, a
opium. He did not say that it was his intention to import the prohibited drug into the Philippine Islands. situation not present.
No other evidence direct or indirect, to show that the intention of the accused was to import illegally this The defendant and appellant, having been proved guilty beyond a reasonable doubt as charged and the
opium into the Philippine Islands, was introduced. sentence of the trial court being within the limits provided by law, it results that the judgment must be
Has the crime of illegal importation of opium into the Philippine Islands been proven? affirmed with the costs of this instance against the appellant. So ordered.
Two decisions of this Court are cited in the judgment of the trial court, but with the intimation that there
exists inconsistently between the doctrines laid down in the two cases. However, neither decision is
directly a precedent on the facts before us.
In the case of United States vs. Look Chaw ([1910], 18 Phil., 573), in the opinion handed down by the
Chief Justice, it is found —
That, although the mere possession of a thing of prohibited use in these Islands, aboard a
foreign vessel in transit, in any of their ports, does not, as a general rule, constitute a crime
triable by the courts of this country, on account of such vessel being considered as an
extension of its own nationality, the same rule does no apply when the article, whose use is
prohibited within the Philippine Islands, in the present case a can of opium, is landed from the
vessel upon Philippine soil, thus committing an open violation of the laws of the land, with
respect to which, as it is a violation of the penal law in force at the place of the commission of
the crime, only the court established in the said place itself has competent jurisdiction, in the
absence of an agreement under an international treaty.1awphil.net
A marked difference between the facts in the Look Chaw case and the facts in the present instance is
readily observable. In the Look Chaw case, the charge case the illegal possession and sale of opium — in
the present case the charge as illegal importation of opium; in the Look Chaw case the foreign vessel was
in transit — in the present case the foreign vessel was not in transit; in the Look Chaw case the opium
was landed from the vessel upon Philippine soil — in the present case of United States vs. Jose ([1916],
34 Phil., 840), the main point, and the one on which resolution turned, was that in a prosecution based
on the illegal importation of opium or other prohibited drug, the Government must prove, or offer
evidence sufficient to raise a presumption, that the vessel from which the drug is discharged came into
Philippine waters from a foreign country with the drug on board. In the Jose case, the defendants were
acquitted because it was not proved that the opium was imported from a foreign country; in the present
case there is no question but what the opium came from Saigon to Cebu. However, in the opinion in the
Jose case, we find the following which may be obiter dicta, but which at least is interesting as showing
the view of the writer of the opinion:
The importation was complete, to say the least, when the ship carrying it anchored in Subic
Bay. It was not necessary that the opium discharged or that it be taken from the ship. It was

134
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-18924 October 19, 1922
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellant, vs.
WONG CHENG (alias WONG CHUN), defendant-appellee.
Attorney-General Villa-Real for appellant.
Eduardo Gutierrez Repide for appellee.
ROMUALDEZ, J.:
In this appeal the Attorney-General urges the revocation of the order of the Court of First Instance of
Manila, sustaining the demurrer presented by the defendant to the information that initiated this case
and in which the appellee is accused of having illegally smoked opium, aboard the merchant vessel
Changsa of English nationality while said vessel was anchored in Manila Bay two and a half miles from
the shores of the city.
The demurrer alleged lack of jurisdiction on the part of the lower court, which so held and dismissed the
case.
The question that presents itself for our consideration is whether such ruling is erroneous or not; and it
will or will not be erroneous according as said court has or has no jurisdiction over said offense.
The point at issue is whether the courts of the Philippines have jurisdiction over crime, like the one
herein involved, committed aboard merchant vessels anchored in our jurisdiction waters. 1awph!l.net
There are two fundamental rules on this particular matter in connection with International Law; to wit,
the French rule, according to which crimes committed aboard a foreign merchant vessels should not be
prosecuted in the courts of the country within whose territorial jurisdiction they were committed, unless
their commission affects the peace and security of the territory; and the English rule, based on the
territorial principle and followed in the United States, according to which, crimes perpetrated under such
circumstances are in general triable in the courts of the country within territory they were committed. Of
this two rules, it is the last one that obtains in this jurisdiction, because at present the theories and
jurisprudence prevailing in the United States on this matter are authority in the Philippines which is now
a territory of the United States.
In the cases of The Schooner Exchange vs. M'Faddon and Others (7 Cranch [U. S.], 116), Chief Justice
Marshall said:
. . . When merchant vessels enter for the purposes of trade, it would be obviously
inconvenient and dangerous to society, and would subject the laws to continual infraction,
and the government to degradation, if such individuals or merchants did not owe temporary
and local allegiance, and were not amenable to the jurisdiction of the country. . . .
In United States vs. Bull (15 Phil., 7), this court held:
. . . No court of the Philippine Islands had jurisdiction over an offense or crime committed on
the high seas or within the territorial waters of any other country, but when she came within
three miles of a line drawn from the headlands, which embrace the entrance to Manila Bay,
she was within territorial waters, and a new set of principles became applicable. (Wheaton,
International Law [Dana ed.], p. 255, note 105; Bonfils, Le Droit Int., secs. 490 et seq.; Latour,
La Mer Ter., ch. 1.) The ship and her crew were then subject to the jurisdiction of the
territorial sovereign subject to such limitations as have been conceded by that sovereignty
through the proper political agency. . . .
It is true that in certain cases the comity of nations is observed, as in Mali and Wildenhus vs. Keeper of
the Common Jail (120 U.., 1), wherein it was said that:
. . . The principle which governs the whole matter is this: Disorder which disturb only the
peace of the ship or those on board are to be dealt with exclusively by the sovereignty of the
home of the ship, but those which disturb the public peace may be suppressed, and, if need
be, the offenders punished by the proper authorities of the local jurisdiction. It may not be
easy at all times to determine which of the two jurisdictions a particular act of disorder
belongs. Much will undoubtedly depend on the attending circumstances of the particular
case, but all must concede that felonious homicide is a subject for the local jurisdiction, and
that if the proper authorities are proceeding with the case in the regular way the consul has
no right to interfere to prevent it.
Hence in United States vs. Look Chaw (18 Phil., 573), this court held that:
Although the mere possession of an article of prohibited use in the Philippine Islands, aboard
a foreign vessel in transit in any local port, does not, as a general rule, constitute a crime
triable by the courts of the Islands, such vessels being considered as an extension of its own
nationality, the same rule does not apply when the article, the use of which is prohibited in
the Islands, is landed from the vessels upon Philippine soil; in such a case an open violation of
the laws of the land is committed with respect to which, as it is a violation of the penal law in
force at the place of the commission of the crime, no court other than that established in the
said place has jurisdiction of the offense, in the absence of an agreement under an
international treaty.
As to whether the United States has ever consented by treaty or otherwise to renouncing such
jurisdiction or a part thereof, we find nothing to this effect so far as England is concerned, to which
nation the ship where the crime in question was committed belongs. Besides, in his work "Treaties,
Conventions, etc.," volume 1, page 625, Malloy says the following:
There shall be between the territories of the United States of America, and all the territories
of His Britanic Majesty in Europe, a reciprocal liberty of commerce. The inhabitants of the two
countries, respectively, shall have liberty freely and securely to come with their ships and
cargoes to all such places, ports and rivers, in the territories aforesaid, to which other
foreigners are permitted to come, to enter into the same, and to remain and reside in any
parts of the said territories, respectively; also to hire and occupy houses and warehouses for
the purposes of their commerce; and, generally, the merchants and traders of each nation
respectively shall enjoy the most complete protection and security for their commerce, but
subject always to the laws and statutes of the two countries, respectively. (Art. 1, Commerce
and Navigation Convention.)
We have seen that the mere possession of opium aboard a foreign vessel in transit was held by this court
not triable by or courts, because it being the primary object of our Opium Law to protect the inhabitants
of the Philippines against the disastrous effects entailed by the use of this drug, its mere possession in
such a ship, without being used in our territory, does not being about in the said territory those effects
that our statute contemplates avoiding. Hence such a mere possession is not considered a disturbance of
the public order.
But to smoke opium within our territorial limits, even though aboard a foreign merchant ship, is certainly
a breach of the public order here established, because it causes such drug to produce its pernicious
effects within our territory. It seriously contravenes the purpose that our Legislature has in mind in
enacting the aforesaid repressive statute. Moreover, as the Attorney-General aptly observes:
. . . The idea of a person smoking opium securely on board a foreign vessel at anchor in the
port of Manila in open defiance of the local authorities, who are impotent to lay hands on
him, is simply subversive of public order. It requires no unusual stretch of the imagination to
conceive that a foreign ship may come into the port of Manila and allow or solicit Chinese
residents to smoke opium on board.
The order appealed from is revoked and the cause ordered remanded to the court of origin for further
proceedings in accordance with law, without special findings as to costs. So ordered.
135
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 17958 February 27, 1922
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs.
LOL-LO and SARAW, defendants-appellants.
Thos. D. Aitken for appellants.
Acting Attorney-General Tuason for appellee.
MALCOLM, J.:
The days when pirates roamed the seas, when picturesque buccaneers like Captain Avery and Captain
Kidd and Bartholomew Roberts gripped the imagination, when grostesque brutes like Blackbeard
flourished, seem far away in the pages of history and romance. Nevertheless, the record before us tells a
tale of twentieth century piracy in the south seas, but stripped of all touches of chivalry or of generosity,
so as to present a horrible case of rapine and near murder.
On or about June 30, 1920, two boats left matuta, a Dutch possession, for Peta, another Dutch
possession. In one of the boats was one individual, a Dutch subject, and in the other boat eleven men,
women, and children, likewise subjects of Holland. After a number of days of navigation, at about 7
o'clock in the evening, the second boat arrived between the Islands of Buang and Bukid in the Dutch East
Indies. There the boat was surrounded by six vintas manned by twenty-four Moros all armed. The Moros
first asked for food, but once on the Dutch boat, too for themselves all of the cargo, attacked some of the
men, and brutally violated two of the women by methods too horrible to the described. All of the
persons on the Dutch boat, with the exception of the two young women, were again placed on it and
holes were made in it, the idea that it would submerge, although as a matter of fact, these people, after
eleven days of hardship and privation, were succored violating them, the Moros finally arrived at Maruro,
a Dutch possession. Two of the Moro marauder were Lol-lo, who also raped one of the women, and
Saraw. At Maruro the two women were able to escape.
Lol-lo and Saraw later returned to their home in South Ubian, Tawi-Tawi, Sulu, Philippine Islands. There
they were arrested and were charged in the Court of First Instance of Sulu with the crime of piracy. A
demurrer was interposed by counsel de officio for the Moros, based on the grounds that the offense
charged was not within the jurisdiction of the Court of First Instance, nor of any court of the Philippine
Islands, and that the facts did not constitute a public offense, under the laws in force in the Philippine
Islands. After the demurrer was overruled by the trial judge, trial was had, and a judgment was rendered
finding the two defendants guilty and sentencing each of them to life imprisonment (cadena perpetua),
to return together with Kinawalang and Maulanis, defendants in another case, to the offended parties,
the thirty-nine sacks of copras which had been robbed, or to indemnify them in the amount of 924
rupees, and to pay a one-half part of the costs.
A very learned and exhaustive brief has been filed in this court by the attorney de officio. By a process of
elimination, however, certain questions can be quickly disposed of.
The proven facts are not disputed. All of the elements of the crime of piracy are present. Piracy is robbery
or forcible depredation on the high seas, without lawful authority and done animo furandi, and in the
spirit and intention of universal hostility.
It cannot be contended with any degree of force as was done in the lover court and as is again done in
this court, that the Court of First Instance was without jurisdiction of the case. Pirates are in law hostes
humani generis. Piracy is a crime not against any particular state but against all mankind. It may be
punished in the competent tribunal of any country where the offender may be found or into which he
may be carried. The jurisdiction of piracy unlike all other crimes has no territorial limits. As it is against all
so may it be punished by all. Nor does it matter that the crime was committed within the jurisdictional 3-
mile limit of a foreign state, "for those limits, though neutral to war, are not neutral to crimes." (U.S. vs.
Furlong [1820], 5 Wheat., 184.)
The most serious question which is squarely presented to this court for decision for the first time is
whether or not the provisions of the Penal Code dealing with the crime of piracy are still in force. Article
153 to 156 of the Penal Code reads as follows:
ART. 153. The crime of piracy committed against Spaniards, or the subjects of another nation
not at war with Spain, shall be punished with a penalty ranging from cadena temporal to
cadena perpetua.
If the crime be committed against nonbelligerent subjects of another nation at war with Spain,
it shall be punished with the penalty of presidio mayor.
ART. 154. Those who commit the crimes referred to in the first paragraph of the next
preceding article shall suffer the penalty of cadena perpetua or death, and those who commit
the crimes referred to in the second paragraph of the same article, from cadena temporal to
cadena perpetua:
1. Whenever they have seized some vessel by boarding or firing upon the same.
2. Whenever the crime is accompanied by murder, homicide, or by any of the
physical injuries specified in articles four hundred and fourteen and four hundred
and fifteen and in paragraphs one and two of article four hundred and sixteen.
3. Whenever it is accompanied by any of the offenses against chastity specified in
Chapter II, Title IX, of this book.
4. Whenever the pirates have abandoned any persons without means of saving
themselves.
5. In every case, the captain or skipper of the pirates.
ART. 155. With respect to the provisions of this title, as well as all others of this code, when
Spain is mentioned it shall be understood as including any part of the national territory.
ART. 156. For the purpose of applying the provisions of this code, every person, who,
according to the Constitution of the Monarchy, has the status of a Spaniard shall be
considered as such.
The general rules of public law recognized and acted on by the United States relating to the effect of a
transfer of territory from another State to the United States are well-known. The political law of the
former sovereignty is necessarily changed. The municipal law in so far as it is consistent with the
Constitution, the laws of the United States, or the characteristics and institutions of the government,
remains in force. As a corollary to the main rules, laws subsisting at the time of transfer, designed to
secure good order and peace in the community, which are strictly of a municipal character, continue until
by direct action of the new government they are altered or repealed. (Chicago, Rock Islands, etc., R. Co.
vs. McGlinn [1885], 114 U.S., 542.)
These principles of the public law were given specific application to the Philippines by the Instructions of
President McKinley of May 19, 1898, to General Wesley Meritt, the Commanding General of the Army of
Occupation in the Philippines, when he said:
Though the powers of the military occupant are absolute and supreme, and immediately
operate upon the political condition of the inhabitants, the municipal laws of the conquered
territory, such as affect private rights of person and property, and provide for the punishment
of crime, are considered as continuing in force, so far as they are compatible with the new
order of things, until they are suspended or superseded by the occupying belligerent; and
practice they are not usually abrogated, but are allowed to remain in force, and to be
administered by the ordinary tribunals, substantially as they were before the occupations. This
enlightened practice is so far as possible, to be adhered to on the present occasion. (Official
Gazette, Preliminary Number, Jan. 1, 1903, p. 1. See also General Merritt Proclamation of
August 14, 1898.)
It cannot admit of doubt that the articles of the Spanish Penal Code dealing with piracy were meant to
include the Philippine Islands. Article 156 of the Penal Code in relation to article 1 of the Constitution of
the Spanish Monarchy, would also make the provisions of the Code applicable not only to Spaniards but
to Filipinos.
The opinion of Grotius was that piracy by the law of nations is the same thing as piracy by the civil law,
and he has never been disputed. The specific provisions of the Penal Code are similar in tenor to
statutory provisions elsewhere and to the concepts of the public law. This must necessarily be so,
considering that the Penal Code finds its inspiration in this respect in the Novelas, the Partidas, and the
Novisima Recopilacion.
The Constitution of the United States declares that the Congress shall have the power to define and
punish piracies and felonies committed on the high seas, and offenses against the law of nations. (U.S.
136
Const. Art. I, sec. 8, cl. 10.) The Congress, in putting on the statute books the necessary ancillary
legislation, provided that whoever, on the high seas, commits the crime of piracy as defined by the law of
nations, and is afterwards brought into or found in the United States, shall be imprisoned for life. (U.S.
Crim. Code, sec. 290; penalty formerly death: U.S. Rev. Stat., sec. 5368.) The framers of the Constitution
and the members of Congress were content to let a definition of piracy rest on its universal conception
under the law of nations.
It is evident that the provisions of the Penal Code now in force in the Philippines relating to piracy are not
inconsistent with the corresponding provisions in force in the United States.
By the Treaty of Paris, Spain ceded the Philippine Islands to the United States. A logical construction of
articles of the Penal Code, like the articles dealing with the crime of piracy, would be that wherever
"Spain" is mentioned, it should be substituted by the words "United States" and wherever "Spaniards"
are mentioned, the word should be substituted by the expression "citizens of the United States and
citizens of the Philippine Islands." somewhat similar reasoning led this court in the case of United States
vs. Smith ([1919], 39 Phil., 533) to give to the word "authority" as found in the Penal Code a limited
meaning, which would no longer comprehend all religious, military, and civil officers, but only public
officers in the Government of the Philippine Islands.
Under the construction above indicated, article 153 of the Penal Code would read as follows:
The crime of piracy committed against citizens of the United States and citizens of the
Philippine Islands, or the subjects of another nation not at war with the United States, shall be
punished with a penalty ranging from cadena temporal to cadena perpetua.
If the crime be committed against nonbelligerent subjects of another nation at war with the
United States, it shall be punished with the penalty of presidio mayor.
We hold those provisions of the Penal code dealing with the crime of piracy, notably articles 153 and 154,
to be still in force in the Philippines.
The crime falls under the first paragraph of article 153 of the Penal Code in relation to article 154. There
are present at least two of the circumstances named in the last cited article as authorizing either cadena
perpetua or death. The crime of piracy was accompanied by (1) an offense against chastity and (2) the
abandonment of persons without apparent means of saving themselves. It is, therefore, only necessary
for us to determine as to whether the penalty of cadena perpetua or death should be imposed. In this
connection, the trial court, finding present the one aggravating circumstance of nocturnity, and
compensating the same by the one mitigating circumstance of lack of instruction provided by article 11,
as amended, of the Penal Code, sentenced the accused to life imprisonment. At least three aggravating
circumstances, that the wrong done in the commission of the crime was deliberately augmented by
causing other wrongs not necessary for its commission, that advantage was taken of superior strength,
and that means were employed which added ignominy to the natural effects of the act, must also be
taken into consideration in fixing the penalty. Considering, therefore, the number and importance of the
qualifying and aggravating circumstances here present, which cannot be offset by the sole mitigating
circumstance of lack of instruction, and the horrible nature of the crime committed, it becomes our duty
to impose capital punishment.
The vote upon the sentence is unanimous with regard to the propriety of the imposition of the death
penalty upon the defendant and appellant Lo-lo (the accused who raped on of the women), but is not
unanimous with regard to the court, Mr. Justice Romualdez, registers his nonconformity. In accordance
with provisions of Act No. 2726, it results, therefore, that the judgment of the trial court as to the
defendant and appellant Saraw is affirmed, and is reversed as to the defendant and appellant Lol-lo, who
is found guilty of the crime of piracy and is sentenced therefor to be hung until dead, at such time and
place as shall be fixed by the judge of first instance of the Twenty-sixth Judicial District. The two
appellants together with Kinawalang and Maulanis, defendants in another case, shall indemnify jointly
and severally the offended parties in the equivalent of 924 rupees, and shall pay a one-half part of the
costs of both instances. So ordered.
Araullo, C.J., Johnson, Avanceña, Villamor, Ostrand, Johns and Romualdez, JJ., concur.

137
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 123918 December 9, 1999
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.
AUGUSTO LORETO RINGOR, JR., accused-appellant.
PURISIMA, J.:
For automatic review is the Decision 1 dated November 13, 1995 of Branch 6 of the Regional Trial Court
in Baguio City, finding accused-appellant Augusto Loreto Ringor, Jr. guilty of the crime of murder and
sentencing him to suffer the supreme penalty death in Criminal Case No. 13102-R, also guilty of illegal
possession of firearms under P.D. No. 1866 in Criminal Case No. 13100-R for and disposing thus:
WHEREFORE, Judgment is rendered as follows:
1. In Criminal Case No. 13102, the Court Finds (sic) the accused Augusto Loreto Ringor Guilty beyond
reasonable doubt of the crime of Murder defined and penalized under Article 248 of the Revised Penal
Code as amended by Section 6, RA 7659, qualified by Treachery and as further qualified by the use of an
unlicensed firearm and hereby sentences him to suffer the supreme penalty of Death; to indemnify the
heirs of deceased Marcelino Florida, Jr., the sum of P50,000.00 for his death and the sum of P100,000.00
as Moral damages for his death, both indemnification being without subsidiary imprisonment in case of
insolvency and to pay the costs.
2. In Criminal Case No. 13100-R, the Court Finds (sic) accused Augusto Loreto Ringor Guilty beyond
reasonable doubt of the offense of Violation of Section 1 PD 1866 (Illegal Possession of firearm and
ammunitions) as charged in the Information and hereby sentences him, applying the Indeterminate
Sentence Law, to an imprisonment ranging from 17 years 4 months and 1 day as Minimum to 20 years as
Maximum and to pay the costs.
The subject gun, caliber .38 (Paltik) bearing Serial Number 853169 (Exh. A) being the subject of the
offense is hereby declared confiscated and forfeited in favor of the State.
The accused Augusto Loreto Ringor is entitled to be credited in the service of his sentence four fifth (4/5)
of his preventive imprisonment in accordance with Article 29 of the Revised Penal Code.
SO ORDERED.2
Filed on June 28, 1994, the Informations against accused-appellant, alleges:
In Criminal Case No. 13102-R
That on or about the 23rd day of June, 1994, in the City of Baguio, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, being then armed with a Caliber 38 handgun paltick
with Serial Number 853169 and with intent to kill, did then and there willfully, unlawfully, and feloniously
attack, assault and shoot MARCELINO BUSLAY FLORIDA, JR. thereby inflicting upon the latter hypovolemic
shock secondary to massive hemorrhage; multiple gunshot wounds of the liver, stomach, small intestine
and mesentric blood vessels, which injuries directly caused his death.
That the qualifying circumstance of TREACHERY attended the commission of the crime when the accused
suddenly attacked victim and shot him several times at the back, with the use of a handgun, thus
employing means, methods of forms in the execution thereof which tend directly and specially to insure
its execution, without risk to himself arising from the defense which the offended party might make.
CONTRARY TO LAW.3
and in Criminal Case No. 13100-R
That on or about the 23rd day of June, 1994, in the City of Baguio, Philippines, and within the jurisdiction
of this honorable Court, the above-named accused, did then and there willfully, unlawfully and
feloniously possess and carry outside of his residence, a firearm, Caliber .38 revolver (Paltik) bearing
Serial Number 853169, without any legal authority or permit from any government official or authority
concerned, in violation of the above cited provision of law.
CONTRARY TO LAW. 4
With the accused-appellant, assisted by counsel, entering a plea of Not Guilty upon arraignment, a joint
trial of the two cases ensued.
The inculpatory facts and circumstances sued upon are succinctly summarized in the Appellee's Brief as
follows:
On June 23, 1994, at around 6:00 P.M. (sic), Fely Batanes, a waitress at People's Restaurant located at
Kalantiao St., Baguio City, saw appellant Ringor and his two companions enter the restaurant. (Tsn,
December 8, 1994, p. 4). After seating themselves, the group ordered a bottle of gin (ibid., p. 6). Minutes
later, appellant approached one of the tables where Florida, the restaurant's cook was drinking beer.
Without any warning, appellant pulled Florida's hair and poked a knife on the latter's throat. Florida
stood up and pleaded with appellant not to harm him (ibid., p. 7). Appellant relented and released his
grip on Florida. Thereafter, he left the restaurant together with his companions. However, a few minutes
latter he was back (ibid, p. 8).
Appellant brandished a gun and menacingly entered the restaurant. Not encountering any resistance, he
thus proceeded to the kitchen where Florida worked (ibid). Stealthily approaching Florida from behind,
appellant fired six successive shots at Florida who fell down (ibid., p. 9). His evil deed accomplished,
appellant left the kitchen and fled (ibid).
Appellant was chased by a man who while running, shouted at onlookers that the person he was running
after was armed and had just killed somebody. Alerted, SPO2 Fernandez, who was then in the vicinity,
went into action and nabbed appellant. He frisked appellant and recovered from him a Paltik revolver,
caliber. 38, with Serial Number 853169 (Exh. A). He checked the revolver's cylinder and found six empty
cartridges (Exhs. T to T-6). He noted that it smelled of gunpowder. He and PO1 Ortega turned over
appellant and the confiscated firearm to the Investigation Division of the Baguio Police and then executed
a Joint Affidavit of Arrest (Exhibit O). On the same night, Fely Batanes gave her sworn statement (Exhibit
E) to the Baguio Police wherein she positively identified appellant as the assailant.
xxx xxx xxx
NBI Forensic Chemist Ms. Carina Javier found both hands of appellant positive for nitrates as stated in her
Chemist Report No. C-94-22. She conducted a microscopic chemical examination on the subject firearm
and found that the gun was fired within one week prior to June 27, 1994.
Elmer Nelson Piedad, Ballistician of the Firearm Investigation Division, NBI, Manila, tested and concluded
that the slugs recovered from the victim were fired from appellant's firearm. Upon verification from the
Firearms Explosive division, Camp Crame, Quezon City, it was found that appellant is not a licensed
firearm holder nor, was the subject firearm duly registered with the said office (Exh. A). 5
The autopsy conducted by Dr. John Tinoyan on the cadaver of the deceased yielded a Necropsy Report,
which states:
POST MORTEM FINDINGS
Body of a male, 1.66 m. height, medium built, with complete rigor mortis, lividity well developed on the
dependent parts, cloudy cornea and dilated pupils with very pale papebral conjunctive.
Gunshot wounds: GSW no. 1 measuring 10 x 10 mm. serrated edges, positive powder burns located at
the left mid clavicular line, posterior, 2 inches below the shoulder. It was directed downward towards the
mid-body, penetrating the skin. (sic) soft tissue, middle 3rd of the 3rd rib, the upper and lower lobes of
the left lung to the diaphragm, through and through the stomach, lacerating the superior mesentric
vessels, perforating the small intestine then lodged at the superior surface of the urinary bladder (slug
was recovered marked no. 1)
138
GSW no. 2 measures 8 mm. diameter, positive powder burns, located on the right shoulder near the s.
joint posteriorly, penetrating the skin, soft tissue, then lodged at the surface of the fractured surgical
neck of the humorous (sic) (slug recovered). Marked no. 2.
GSW no. 3 measures 8 mm. Diameter, positive powder burns, located on the right shoulder posteriorly
near the joint penetrating the skin, soft tissues, and the head of the Humorous, (sic) then dislodged form
the same entry point.
GSW no. 4 measures 8 x 10 mm, oval shaped, with abrasion superiorly located at the anterior left
parasternal line at the level of the 6th ICS. It was directed downward towards the posterior of the body,
penetrating the skin, soft tissue, the left lobe of the liver with partial avulsion, then perforating the
stomach through and though the duodenum lumbar muscle then lodged underneath the skin, (1)
paravertebral, level of L3 (slug recovered marked no. 4).
CAUSE OF DEATH:
HYPOVOLEMIC SHOCK SECONDARY TO MASSIVE HEMORRHAGE; MULTIPLE GUNSHOT WOUND(S) OF THE
LIVER, STOMACH, SMALL INTESTINE AND MESENTRIC BLOOD VESSELS. Multiple Gunshot Wound(s) of the
body. 6
Accused-appellant admitted shooting the victim but theorized that he acted in self-defense. As embodied
in the Appellant's Brief, the defense version runs thus:
3.01 On June 23, 1994, at a little after five o'clock in the afternoon, appellant, together with two (2) other
companions, entered the People's Restaurant in Baguio City to order drinks. They sat at a table next to
another then occupied by Marcelino B. Florida, Jr. (Florida) and a woman companion (TSN, Testimony of
Augusto Loreto G. Ringor, Jr., May 4, 1995, pp. 3-6).
3. 02 Soon after receiving their orders, appellant's companion, Ramon Fernandez, stood up and
approached Florida to inquire about his (Fernandez') brother, Cesar. Florida angrily responded to the
query and said, "Putang ina ninyo! anong pakialam ko diyan!"
3.03 A quarrel thereafter ensued between Fernandez and Florida prompting the appellant to intervene
and pacify Fernandez. When Fernandez drew out a gun from his waist, appellant immediately seized the
same directing his friend to leave the restaurant before he started hurting other people with his gun. No
sooner had Fernandez stepped out, however, Florida, armed with a bolo, came charging in from the
kitchen and headed towards the appellant. (Ibid., pp. 6-7)
3.04 Surprised, appellant shot Florida with the gun he was holding just as the latter was about to hit him
with the bolo. Thereafter, appellant put the gun on the table and walked out of the restaurant. Once
already outside the restaurant, appellant's other companion, Virgilio, followed him and handed to him
the gun he (appellant) left at the table. He then proceeded to surrender the gun and report the incident
at the nearest police station. (Ibid., pp. 8-9)
3.05 Before appellant could reach the police station, however, appellant was already arrested by off-duty
policeman who brought him back to the People's Restaurant. Appellant was thereafter incarcerated at
the Baguio City Police Station. (Ibid., pp. 10-12) 7
On November 13, 1995, the trial court handed down decision under automatic review. Accused-appellant
contends that:
I defend himself, there would have been no cause for accused-appellant to pump several bullets into the
THE TRIAL COURT ERRED IN CONVICTING THE APPELLANT FOR SIMPLE ILLEGAL POSSESSION OF
FIREARMS AND SENTENCING HIM TO SUFFER AN INDETERMINATE SENTENCE OF 17 YEARS AND 1 DAY AS
MINIMUM TO 20 YEARS AS MAXIMUM.
II
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED OF MURDER.
III
THE TRIAL COURT SERIOUSLY ERRED IN SENTENCING THE ACCUSED TO DEATH ON THE GROUNDS THAT:
(i) THE CHARGE OF MURDER WAS NOT PROVED BY THE PROSECUTION; AND (ii) ASSUMING ARGUENDO
THAT MURDER WAS COMMITTED BY APPELLANT, THE APPROPRIATE PENALTY FOR THE OFFENSE IS
RECLUSION PERPETUA THERE BEING NO AGGRAVATING CIRCUMSTANCE TO RAISE THE PENALTY TO
DEATH. 8
Well-settled is the rule that in interposing self-defense, the offender admits authorship of the killing. The
onus probandi is thus shifted to him to prove the elements of self-defense and that the killing was
justified; 9 otherwise, having admitted the killing, conviction is inescapable. Concomitantly, he must rely
on the strength of his own evidence and not on the weakness of the prosecution's evidence. 10
For self-defense to prosper, it must be established that: (1) there was unlawful aggression by the victim;
(2) that the means employed to prevent or repel such aggression was reasonable; and (3) that there was
lack of sufficient provocation on the part of person defending himself. 11
In the case at bar, accused-appellant failed to prove the element of unlawful aggression. The allegation
that the victim allegedly went out of the kitchen armed with a bolo, and was about to hack him (accused-
appellant) who was then at an almost prone lying position on the table he was occupying, 12 is a self-
serving and unconvincing statement which did not anyway constitute the requisite quantum of proof for
unlawful aggression. Prosecution witness Fely Batanes, a waitress in the restaurant where the shooting
incident occurred, was firm in her declaration that the victim was in the kitchen unarmed 13 when the
accused-appellant shot him. The victim had no weapon or bolo. He was neither threatening to attack nor
in any manner manifesting any aggressive act which could have imperiled accused-appellant's safety and
well-being.
No improper motive having been shown on the part of Fely Batanes to testify falsely against accused-
appellant or to implicate him in the commission of the crime, the logical conclusion is that there was no
such improper motive and her testimony is worthy of full faith and credit. 14
What is more, the testimony of Fely Batanes is buttressed by the fact that immediately after the incident,
the body of the victim was found lying in the kitchen and not outside; thus weakening further the theory
of accused-appellant that he shot the victim while they were at the dining area. 15
Then too, the nature, location and number of gunshot wounds inflicted on the deceased belie accused-
appellant's theory of self-defense. 16 The deceased sustained three gun shot wounds on the back and
one in front. Dr. John Tinoyan, who conducted the autopsy on the cadaver of the victim, testified that the
gunshot wound on the frontal portion of the victim's body showed a downward trajectory of the bullet
on his chest, penetrating the liver, perforating the stomach down to the small intestine, and then lodged
underneath the skin. 17 Verily, such finding negates the claim of accused-appellant that he shot the
victim while he was at an almost prone lying position and the victim was standing in front of him about to
strike with a bolo. If this were true, the trajectory of the bullet should have been upward or better still, it
should have been at the level at which the gun was fired while he (accused-appellant) was in a prone
lying position.
Rather telling are the three gunshot wounds on the back of the victim, which wounds showed traces of
gunpowder which, according to Dr. Tinoyan, indicated that the weapon used was at a distance of less
than one meter. 18 Evidently, accused-appellant stealthily approached the victim from behind and fired
at him six successive shots, four of which hit him, to ensure his death. 19 If he shot the victim merely to
body of the victim.
139
In light of the foregoing, the imputation of unlawful aggression on the part of the victim cannot be
believed. Absent the element of unlawful aggression by the deceased, there can be no self-defense,
complete or incomplete. If there was no unlawful aggression, there was nothing to prevent or repel and
the second and third requisites of self-defense would have no basis. 20
The Court a quo properly appreciated the aggravating circumstance of treachery which qualified the
crime to murder. It was clearly established that the accused-appellant fired six successive shots on the
victim, suddenly, without warning, and from behind, giving the victim no chance to flee or to prepare for
his defense or to put up the least resistance to such sudden assault. There is treachery when the means,
manner or method of attack employed by the offender offered no risk to himself from any defensive or
retaliatory act which the victim might have taken. 21
All things studiedly considered and viewed in proper perspective, the mind of the Court can rest easy on
a finding that accused-appellant Augusto Loreto Ringor, Jr. is guilty beyond reasonable doubt of the crime
of murder, and did not act in self-defense.
Art. 248 of the Revised Penal Code, as amended, prescribes the penalty of reclusion perpetua to death
for the crime of murder. When, as in this case, neither aggravating nor mitigating circumstance is
attendant, the lesser penalty of reclusion perpetua has to be applied, 22 in accordance with Article 63(2)
of the Revised Penal Code.
With respect to the conviction of accused-appellant for illegal possession of firearms under P.D. No. 1866,
it was held in the case of People vs.
Molina 23 and reiterated in the recent case of People vs. Ronaldo Valdez, 24 that in cases where murder
or homicide is committed with the use of an unlicensed firearm, there can be no separate conviction for
the crime of illegal possession of firearms under P.D. No. 1866 in view of the amendments introduced by
Republic Act No. 8294. Thereunder, the use of unlicensed firearm in murder or homicide is simply
considered as an aggravating circumstance in the murder or homicide and no longer as a separate
offense. Furthermore, the penalty for illegal possession of firearms shall be imposed provided that no
other crime is committed. 25 In other words, where murder or homicide was committed, the penalty for
illegal possession of firearms is no longer imposable since it becomes merely a special aggravating
circumstance. 26
term "penalty" in the subject provision is obviously meant to be the penalty for illegal possession of
firearm and not the penalty for for homicide or murder. We explicitly stated in Tac-an:
There is no law which renders the use of an unlicensed firearm as an aggravating circumstances in
homicide or murder. Under an information charging homicide or muder, the fact that the death weapon
was an unlicensed firearm cannot be used to increase the penalty of the second offense of homicide or
murder to death (or reclusion perpetua under 1987 Constitution). The essential point is that the
unlicensed character or condition of the instrument used in destroying human life or committing some
other crime, is not included on the inventory of aggravating circumstances set out in Article 14 of the
Revised Penal Code.
A law may, of course, be enacted making the use of an unlicensed firearm as a qualifying circumstance.
28 (Emphasis supplied)
Thus, before R.A. No. 8294 (which took effect on July 6, 1997) made the use of unlicensed firearm as an
aggravating circumstance in murder or homicide, the penalty for the murder committed by accused-
appellant on June 23, 1994 was not death, as erroneously imposed by the trial court. There was yet no
such aggravating circumstance of use of unlicensed firearm to raise the penalty for murder from reclusion
perpetua to death, at the time of commission of the crime.
The amendatory law making the "use of an unlicensed firearm" as an aggravating circumstance in murder
or homicide, cannot be applied here because the said provision of R.A. No. 8294 is not favorable to
accused-appellant, lest it becomes an ex post facto law. 29
WHEREFORE, the decision in Criminal Case No. 13102-R is AFFIRMED with the modification that accused-
appellant Augusto Loreto Ringor, Jr. is hereby sentenced to suffer the penalty of reclusion perpetua. It is
understood that the civil liabilities imposed below are UPHELD.
Criminal Case No. 13100-R instituted pursuant to Presidential Decree No. 1866 is DISMISSED. No
pronouncement as to costs.
SO ORDERED.

It bears stressing, however, that the dismissal of the present case for illegal possession of firearm should Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-
not be misinterpreted to mean that there can no longer be any prosecution for the offense of illegal Santiago and De Leon, Jr., JJ., concur.
possession of firearms. In general, all pending cases involving illegal possession of firearms should
continue to be prosecuted and tried if no other crimes expressly provided in R. A. No. 8294 are involved Davide, Jr., C.J. and Panganiban, J., in the result.
(murder or homicide, under Section 1, and rebellion, insurrection, sedition or attempted coup d' etat,
under Section 3). 27

Pursuant to Article 22 of the Revised Penal Code, where the new law is favorable to the accused, it has to
be applied retroactively. Thus, insofar as it spares accused-appellant a separate conviction for illegal
possession of firearms, Republic Act No. 8294 has to be given retroactive application in Criminal Case No.
13100-R.

On the matter of the aggravating circumstance of "use of unlicensed firearm" in the commission of
murder or homicide, the trial court erred in appreciating the same to qualify to death the penalty for the
murder committed by accused-appellant. It should be noted that at the time accused-appellant
perpetrated the offense, the unlicensed character of a firearm used in taking the life of another was not
yet an aggravating circumstance in homicide or murder; to wit:

Neither is the second paragraph of Section 1 meant to punish homicide or murder with death if either
crime is committed with the use of an unlicensed firearm, i.e., to consider such use merely as a qualifying
circumstance and not as an offense. That could not have been the intention of the lawmaker because the

140
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-30026 January 30, 1971
MARIO GUMABON, BLAS BAGOLBAGOL, GAUDENCIO AGAPITO, EPIFANIO PADUA and PATERNO
PALMARES, petitioners, vs.
THE DIRECTOR OF THE BUREAU OF PRISONS, respondent.
Jose W. Diokno for petitioners.
Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Antonio A. Torres and Solicitor
Eduardo C. Abaya for respondent.
FERNANDO, J.:
Habeas corpus, the great writ of liberty, is relied upon by petitioners, five in number, for their release
from imprisonment. Meted out life terms for the complex crime of rebellion with murder and other
crimes, they would invoke the People v. Hernandez1 doctrine, negating the existence of such an offense,
a ruling that unfortunately for them was not handed down until after their convictions had become final.
Nor is this the first instance, a proceeding of this character was instituted, as in Pomeroy v. Director of
Prisons,2 likewise a petition for habeas corpus, a similar question was presented. The answer given was
in the negative. Petitioners plead for a new look on the matter. They would premise their stand on the
denial of equal protection if their plea would not be granted. Moreover they did invoke the codal
provision that judicial decisions shall form part of the legal system of the Philippines,3 necessarily
resulting in the conclusion that the Hernandez decision once promulgated calls for a retroactive effect
under the explicit mandate of the Revised Penal Code as to penal laws having such character even if at
the time of their application a final sentence has been rendered "and the convict is serving the same."4
These arguments carry considerable persuasion. Accordingly we find for petitioners, without going so far
as to overrule Pomeroy.
Petitioner Mario Gumabon, after pleading guilty, was sentenced on May 5, 1953 to suffer reclusion
perpetua for the complex crime of rebellion with multiple murder, robbery, arson and kidnapping.
Petitioners Gaudencio Agapito, Paterno Palmares and Epifanio Padua, likewise pleaded guilty to the
complex crime of rebellion with multiple murder and other offenses, and were similarly made to suffer
the same penalty in decisions rendered, as to the first two, on March 8, 1954 and, as to the third, on
December 15, 1955. The last petitioner, Blas Bagolbagol, stood trial also for the complex crime of
rebellion with multiple murder and other offenses and on January 12, 1954 penalized with reclusion
perpetua. Each of the petitioners has been since then imprisoned by virtue of the above convictions.
Each of them has served more than 13 years.5
Subsequently, in People v. Hernandez,6 as above noted, this Court ruled that the information against the
accused in that case for rebellion complexed with murder, arson and robbery was not warranted under
Article 134 of the Revised Penal Code, there being no such complex offense.7 In the recently-decided
case of People vs. Lava,8 we expressly reaffirmed the ruling in the Hernandez case rejecting the plea of
the Solicitor General for the abandonment of such doctrine. It is the contention of each of the petitioners
that he has served, in the light of the above, more than the maximum penalty that could have been
imposed upon him. He is thus entitled to freedom, his continued detention being illegal.9
The fear that the Pomeroy ruling stands as an obstacle to their release on a habeas corpus proceeding
prompted petitioners, as had been mentioned, to ask that it be appraised anew and, if necessary,
discarded. We can resolve the present petition without doing so. The plea there made was unconvincing,
there being a failure to invoke the contentions now pressed vigorously by their counsel, Attorney Jose W.
Diokno, as to the existence of a denial of a constitutional right that would suffice to raise a serious
jurisdictional question and the retroactive effect to be given a judicial decision favorable to one already
sentenced to a final judgment under Art. 22 of the Revised Penal Code. To repeat, these two grounds
carry weight. We have to grant this petition.
1. The fundamental issue, to repeat, is the availability of the writ of habeas corpus under the
circumstances disclosed. Its latitudinarian scope to assure that illegality of restraint and detention be
avoided is one of the truisms of the law. It is not known as the writ of liberty for nothing. The writ
imposes on judges the grave responsibility of ascertaining whether there is any legal justification for a
deprivation of physical freedom. Unless there be such a showing, the confinement must thereby cease. If
there be a valid sentence it cannot, even for a moment, be extended beyond the period provided for by
law. Any deviation from the legal norms call for the termination of the imprisonment.
Rightly then could Chafee refer to the writ as "the most important human rights provision" in the
fundamental law. 10 Nor is such praise unique. Cooley spoke of it as "one of the principal safeguards to
personal liberty." 11 For Willoughby, it is "the greatest of the safeguards erected by the civil law against
arbitrary and illegal imprisonment by whomsoever detention may be exercised or ordered." 12 Burdick
echoed a similar sentiment, referring to it as "one of the most important bulwarks of liberty." 13 Fraenkel
made it unanimous, for to him, "without it much else would be of no avail." 14 Thereby the rule of law is
assured.
A full awareness of the potentialities of the writ of habeas corpus in the defense of liberty coupled with
its limitations may be detected in the opinions of former Chief Justices Arellano, 15 Avanceña, 16 Abad
Santos, 17 Paras, 18 Bengzon, 19 and the present Chief Justice. 20 It fell to Justice Malcolm's lot, however
to emphasize quite a few times the breadth of its amplitude and of its reach. In Villavicencio v. Lukban, 21
the remedy came in handy to challenge the validity of the order of the then respondent Mayor of Manila
who, for the best of reasons but without legal justification, ordered the transportation of more than 150
inmates of houses of ill-repute to Davao. After referring to the writ of habeas corpus as having been
devised and existing "as a speedy and effectual remedy to relieve persons from unlawful restraint" the
opinion of Justice Malcolm continued: "The essential object and purpose of the writ of habeas corpus is
to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person
therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient." 22
The liberality with which the judiciary is to construe habeas corpus petitions even if presented in
pleadings on their face devoid of merit was demonstrated in Ganaway v. Quilen, 23 where this Court,
again through Justice Malcolm, stated: "As standing alone the petition for habeas corpus was fatally
defective in its allegations, this court, on its motion, ordered before it the record of the lower court in the
case entitled Thomas Casey, et al. v. George Ganaway." 24 It is to Justice Malcolm likewise in Conde v.
Rivera, 25 to whom is traceable the doctrine, one that broadens the field of the operation of the writ,
that a disregard of the constitutional right to speedy trial ousts the court of jurisdiction and entitles the
accused if "restrained of his liberty, by habeas corpus to obtain his
freedom." 26
So it is in the United States. An 1830 decision 27 of Chief Justice Marshall put the matter thus: "The writ
of habeas corpus is a high prerogative writ, known to the common law, the great object of which is the
liberation of those who may be imprisoned without sufficient cause." Then there is this affirmation from
an 1869 decision 28 of the then Chief Justice Chase: "The great writ of habeas corpus has been for
centuries esteemed the best and only sufficient defense of personal freedom." The passing of the years
has only served to confirm its primacy as a weapon on in the cause of liberty. Only the other year, Justice
Fortas spoke for the United States Supreme Court thus: "The writ of habeas corpus is the fundamental
instrument for safeguarding individual freedom against arbitrary and lawless state action. ... The scope
and flexibility of the writ — its capacity to reach all manner of illegal detention — its ability to cut
through barriers of form and procedural mazes — have always been emphasized and jealously guarded
by courts and lawmakers. The very nature of the writ demands that it be administered with the initiative
and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected."
29 Justice Fortas explicitly made reference to Blackstone, who spoke of it as "the great and efficacious
writ, in all manner of illegal confinement." Implicit in his just estimate of its pre-eminent role is his
adoption of Holmes' famous dissent in Frank v. Mangum: 30 "But habeas corpus cuts through all forms
and goes to the very tissue of the structure."
141
2. Where, however, the detention complained of finds its origin in what has been judicially ordained, the
range of inquiry in a habeas corpus proceeding is considerably narrowed. For if "the person alleged to be
restrained of his liberty is in the custody of an officer under process issued by a court or judge or by
virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue
the process, render the judgment, or make the order," the writ does not lie. 31 That principle dates back
to 1902, 32 when this Court announced that habeas corpus was unavailing where the person detained
was in the custody of an officer under process issued by a court or magistrate. This is understandable, as
during the time the Philippines was under American rule, there was necessarily an adherence to
authoritative doctrines of constitutional law there followed.
One such principle is the requirement that there be a finding of jurisdictional defect. As summarized by
Justice Bradley in Ex parte Siebold, an 1880 decision: "The only ground on which this court, or any court,
without some special statute authorizing it, will give relief on habeas corpus to a prisoner under
conviction and sentence of another court is the want of jurisdiction in such court over the person or the
cause, or some other matter rendering its proceedings void." 33
There is the fundamental exception though, that must ever be kept in mind. Once a deprivation of a
constitutional right is shown to exist, the court that rendered the judgment is deemed ousted of
jurisdiction and habeas corpus is the appropriate remedy to assail the legality of the detention. 34
3. Petitioners precisely assert a deprivation of a constitutional right, namely, the denial of equal
protection. According to their petition: "In the case at bar, the petitioners were convicted by Courts of
First Instance for the very same rebellion for which Hernandez, Geronimo, and others were convicted.
The law under which they were convicted is the very same law under which the latter were convicted. It
had not and has not been changed. For the same crime, committed under the same law, how can we, in
conscience, allow petitioners to suffer life imprisonment, while others can suffer only prision mayor?" 35
They would thus stress that, contrary to the mandate of equal protection, people similarly situated were
not similarly dealt with. What is required under this required constitutional guarantee is the uniform
operation of legal norms so that all persons under similar circumstances would be accorded the same
treatment both in the privileges conferred and the liabilities imposed. As was noted in a recent decision:
"Favoritism and undue preference cannot be allowed. For the principle is that equal protection and
security shall be given to every person under circumstances, which if not identical are analogous. If law
be looked upon in terms of burden or charges, those that fall within a class should be treated in the same
fashion, whatever restrictions cast on some in the group equally binding on the rest." 36
The argument of petitioners thus possesses a persuasive ring. The continued incarceration after the
twelve-year period when such is the maximum length of imprisonment in accordance with our
controlling doctrine, when others similarly convicted have been freed, is fraught with implications at war
with equal protection. That is not to give it life. On the contrary, it would render it nugatory. Otherwise,
what would happen is that for an identical offense, the only distinction lying in the finality of the
conviction of one being before the Hernandez ruling and the other after, a person duly sentenced for the
same crime would be made to suffer different penalties. Moreover, as noted in the petition before us,
after our ruling in People v. Lava, petitioners who were mere followers would be made to languish in jail
for perhaps the rest of their natural lives when the leaders had been duly considered as having paid their
penalty to society, and freed. Such a deplorable result is to be avoided.
4. Petitioners likewise, as was made mention at the outset, would rely on Article 22 of the Revised Penal
Code which requires that penal judgment be given a retroactive effect. In support of their contention,
petitioners cite U.S. v. Macasaet, 37 U.S. vs.Parrone, 38 U.S. v. Almencion, 39 People v. Moran, 40 and
People v. Parel. 41 While reference in the above provision is made not to judicial decisions but to
legislative acts, petitioners entertain the view that it would be merely an exaltation of the literal to deny
its application to a case like the present. Such a belief has a firmer foundation. As was previously noted,
the Civil Code provides that judicial decisions applying or interpreting the Constitution, as well as
legislation, form part of our legal system. Petitioners would even find support in the well-known dictum
of Bishop Hoadley:
"Whoever hath an absolute authority to interpret any written or spoken laws, it is he who is truly the law-
giver to all intents and purposes, and not the person who first thought or spoke them." It is to be
admitted that constitutional law scholars, notably
Frankfurter, 42 Powell, 43 and Thayer, 44 in discussing judicial review as well as the jurist John Chipman
Gray, were much impressed with the truth and the soundness of the above observations. We do not have
to go that far though. Enough for present purposes that both the Civil Code and the Revised Penal Code
allow, if they do not call for, a retroactive application.
It being undeniable that if the Hernandez ruling were to be given a retroactive effect petitioners had
served the full term for which they could have been legally committed, is habeas corpus the appropriate
remedy? The answer cannot be in doubt. As far back as 1910 the prevailing doctrine was announced in
Cruz v. Director of Prisons. 45 Thus: "The courts uniformly hold that where a sentence imposes
punishment in excess of the power of the court to impose, such sentence is void as to the excess, and
some of the courts hold that the sentence is void in toto; but the weight of authority sustains the
proposition that such a sentence is void only as to the excess imposed in case the parts are separable, the
rule being that the petitioner is not entitled to his discharge on a writ of habeas corpus unless he has
served out so much of the sentence as was valid." 46 There is a reiteration of such a principle in Director
v. Director of Prisons 47 where it was explicitly announced by this Court "that the only means of giving
retroactive effect to a penal provision favorable to the accused ... is the writ of habeas corpus." 48 While
the above decision speaks of a trial judge losing jurisdiction over the case, insofar as the remedy of
habeas corpus is concerned, the emphatic affirmation that it is the only means of benefiting the accused
by the retroactive character of a favorable decision holds true. Petitioners clearly have thus successfully
sustained the burden of justifying their release.
WHEREFORE, the petition for habeas corpus is granted, and it is ordered that petitioners be forthwith set
at liberty.
Dizon and Zaldivar, JJ., concur.
Concepcion, C.J., concurs in the result.
Castro and Makasiar, JJ., took no part.
Separate Opinions
TEEHANKEE, J., concurring and dissenting:
The petitioners at bar, three of whom pleaded guilty1 and two of whom stood
trial,2 were meted out life terms in 1953, 1954 and 1955 for the so-called complex crime of rebellion
with multiple murder and other crimes, and have served or are now entering into their 17th year of
imprisonment, save for petitioner Epifanio Padua who was sentenced on December 15, 1955 and is
completing his 15th year of imprisonment, (excluding the periods they were under pre-conviction
142
detention). The leaders of the rebellion who were meted out death and life sentences for the same
charge by the Court of First Instance of Manila had their sentences reduced last near to ten years of
prision mayor by the Court in People v. Lava,3 wherein the Court expressly re-affirmed the doctrine first
laid down in 1956 in People vs. Hernandez,4 that the crime of rebellion cannot be complexed with other
common crimes since such common crimes "assume the political complexion of the main crime of which
they are mere ingredients and consequently cannot be punished separately from the principal offense, or
complexed with the same, to justify the imposition of a graver penalty." The Court rejected therein the
State's plea for the reexamination and setting aside of such doctrine, declaring that "(T)his Court has
given this plea of the Solicitor General a very serious consideration, but after a mature deliberation the
members of this Court have decided to maintain that ruling in the Hernandez case and to adhere to what
this Court said in that case." The said leaders have since been duly freed as having served out their
penalty, but their followers, herein petitioners, are still serving their life sentences.
I concede the validity of the ruling in Pomeroy vs. Director of Prisons5 that "(W)ith reference to persons
in custody pursuant to a final judgment, the rule is that the writ of habeas corpus can issue only for want
of jurisdiction of the sentencing court, and cannot function as a writ of error." "I grant, too, that at the
time of the Pomeroy decision in 1960, as noted therein, "the existence of the 'complexed' rebellion (was)
still upheld by a sizable number of lawyers, prosecutors, judges and even justices of this Court." But with
the doctrine first enunciated in 1956 in Hernandez by a bare six-to-four majority vote having withstood
the test of time6 and having been just last year unreservedly reaffirmed without a single dissent in Lava,
it cannot now be gainsaid that it is now part of our legal system that the crime of "complexed" rebellion
does not exist in our Revised Penal Code. No prosecutor would now file an information for "complexed"
rebellion but simply for the offense of simple rebellion as defined in Article 134 of the Revised Penal
Code, and even if such an information for "complexed" rebellion to be so filed, the trial courts would be
bound to quash such information as not charging an offense on the strength of Lava and Hernandez.
Petitioners have therefore properly invoked in their favor the provisions of Article 22 of the Revised Penal
Code that:
ART. 22. Retroactive effect of penal laws.—Penal laws shall have a retroactive effect insofar as they favor
the person guilty of a felony, who is not a habitual criminal, as this term is defined in rule 5 of article 62
of this Code, although at the time of the publication of such laws a final sentence has been pronounced
and the convict is serving the same.
in relation to the provisions of Article 8 of the Civil Code that "(J)udicial decisions applying or interpreting
the laws or the Constitution shall form a part of the legal system of the Philippines."
The situation of petitioners is no different than it would be if, say, the penalty of reclusion perpetua were
imposed by statute for the crime of simple rebellion at the time of their conviction and they were
accordingly sentenced, and the statutory penalty were now reduced to prision mayor or 12 years
imprisonment; having served out the maximum penalty of 12 years now imposed by the amended
statute, they would be entitled to invoke the retroactive effect of the statute favoring them.lâwphî1.ñèt
The only difference between the situation given and the present case is that here it is this Supreme
Court, interpreting the laws in discharge of its constitutional prerogative, that has laid down the doctrine
since Hernandez in 1956 that no offense of "complexed" rebellion exists and petitioners should therefore
be now equally entitled to the retroactive favorable effect of such doctrine.
The actual case of petitioners is that at the time of their conviction, it was
believed — erroneously — that the crime committed by them was punishable by life imprisonment, but
the Court has subsequently judicially determined it not be so and that the maximum imposable penalty is
prision mayor or 12 years. Petitioners-convicts are entitled to the benefit of this later judicial declaration,
just as if a statutory amendment had been enacted—not because the sentencing court had no
jurisdiction or is now ousted of jurisdiction. The writ prayed for should issue, since as held in Directo vs.
Director of Prisons,7 "the only means of giving retroactive effect to a penal provision favorable to the
accused where the trial judge has lost jurisdiction over the case, is the writ of habeas corpus."
The question of jurisdiction of the sentencing court therefore is moot, for it is universally recognized that
relief by habeas corpus may be properly sought in cases of imposition of excessive penalty, such that the
part of the sentence beyond or in excess of the power of the court to impose is held void, the applicant
having already served out the entire part of the sentence within the court's power. 8 As pointed out by
the Court in Rodriguez vs. Director of Prisons,9 furthermore, "Article 22 of the Revised Penal Code ...
extends its benefits even to convicts serving sentence, and the only legal remedy open to them to make
use of such benefits is the writ of habeas corpus inasmuch as, if the penalty imposed upon them under
the former penal law was decreased by the revised code, the excess has become illegal."
Regardless, therefore, of whether the trial courts that sentenced petitioners to life sentences had
jurisdiction or not to impose such penalty, or were right or wrong in imposing such penalty, the only
relevant question now is whether petitioners have served the maximum — and lesser — sentence of
prision mayor that this Court has by firm judicial doctrine since 1956 determined to be the penalty that
the Revised Penal Code fixes for the crime of rebellion. Since they have actually served much more than
the maximum imposable penalty, the excess of the sentence imposed upon them over the imposable
maximum of twelve years of prision mayor cannot but be declared illegal and they should now be set
free.
In People vs. Parel, 10 the Court held that the provisions of a new law (Act 3030) for the prescription of
certain election offenses (fixing the same at one year after commission) were more favorable to the
accused than those of the pre-existing law and were therefore retroactive as to the same offenses
committed before the enactment of the new law. In meeting the objection that the reduced prescription
period was by its terms applicable only to offenses resulting from the new law (which amended the pre-
existing Election Law) and could not be given retroactive effect, the Court found "that practically all of the
offenses defined in the former law are also defined in the same language in Act 3030 (the new law), the
only difference being that the penalties have been increased." Holding that the retroactivity clause of
Article 22 of the Penal Code must apply in all in which the new law is more favorable to the accused, in
the absence of any express statutory exception, the Court drew this analogy: "Let us suppose that a
statute is enacted defining the crime of murder in the same language in which it is defined in the Penal
Code, but providing that the maximum penalty for the crime defined in the new statute shall be life
imprisonment, the statute containing no provision that it shall not be retroactive in its effect. Would
anyone then maintain that the death penalty might still be imposed for murder committed before the
new statute was enacted?"
The case at bar for petitioners is much stronger. Here, there is no question even as to the enactment of a
law statute describing the crime in the same language and imposing a lesser penalty, but the settled
doctrine of this Court that there does not exist in our legal system the complex crime of rebellion of
which the petitioners stand convicted, "since rebellion cannot form a complex with common crimes,
because the latter are either absorbed by the rebellion itself or are punishable as independent offenses."
11 Petitioners here have been convicted for the very same rebellion and under the very same law for
which their leaders, Jose Lava et al., have been convicted. Yet, while their leaders have since been freed
after serving their sentences of ten years of prision mayor, petitioners as mere followers are serving out
the life sentences imposed on them, notwithstanding their already having served out much more than
the maximum penalty of twelve years of prision mayor imposable upon them. The fact that the legal
doubts about the non-existence of the crime of "complexed" rebellion were cleared up only in 1956 after
they had already been convicted and were serving their sentences does not make the excess in the
penalty imposed upon them beyond the maximum of twelve years any less illegal.
The rule of prospective and non-retroactive operation of judicial doctrines, and its corollary rule of the
law of the case, have no application here. These salutary rules decree that rights of parties having been
decisively settled and determined by final judgment of the court of competent jurisdiction with the party
adversely affected having had the opportunity to raise in the case all relevant questions, the decision
becomes the law of the case, and vested rights would be impaired, judicial chaos and disorder ensue and
litigation would be never-ending and would become more intolerable than the wrongs it is intended to
143
redress, should an adjudicated case be reopened simply because in another and subsequent case, this
Court adopted a new or different construction of the law under which a different result of the
adjudicated case might have been obtained. Here, the whole question
turns — simply — on the nature of the crime of rebellion as defined in section 134 of the Revised Penal
Code and the maximum penalty imposable therefor under section 135 of the same Code. As this Court
had ruled since 1956--which is now settled doctrine—that only the crime of simple rebellion exists in our
legal system for which the maximum penalty of prision mayor may be imposed, the excess of the life
sentences imposed upon petitioners over the imposable maximum of prision mayor cannot stand and
must necessarily be declared void.

Prescinding then from the question of jurisdiction of the sentencing courts, the case at bar presents a
clear case of an excess in penalty imposed beyond twelve years of prision mayor which has become
illegal by virtue of this Court's settled doctrine that the crime of rebellion cannot be complexed with
other common crimes. On this ground, as well as on the further and more fundamental ground that to
hold them liable to continue serving life sentences for a crime that the law—at the time of their
conviction as well as now—punishes only with prision mayor which they have more than fully served,
would be to deny them their constitutional rights of due process and equal protection of the law.

Any further detention of petitioners, in my view as above discussed, is illegal and unconstitutional and
the petition for habeas corpus should be granted and petitioners forthwith set at liberty.

Reyes, J.B.L., Makalintal and Villamor, JJ., concur.

144
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 100210 April 1, 1998
THE PEOPLE OF THE PHILIPPINES, petitioner, vs.
HON. OSCAR B. PIMENTEL, as Judge, RTC of Makati, Metro Manila, Branch 148 and ANTONIO A. TUJAN,
respondents.
MARTINEZ, J.:
Is the Court of Appeals, in affirming the order of the Regional Trial Court, correct in ruling that Subversion
is the "main offense" in a charge of Illegal Possession of Firearm and Ammunition in Furtherance of
Subversion under P.D. No. 1866, as amended, and that, therefore, the said charge should be quashed in
view of a previous charge of Subversion under R.A. No. 1700, as amended by P.D. No. 885, against the
same accused pending in another court?
Stated differently, is the accused charged with the same offense in both cases, which would justify the
dismissal of the second charge on the ground of double jeopardy?
This is the pith issue presented before us in this appeal by certiorari interposed by the People under Rule
45 of the Revised Rules of Court, seeking a review of the decision1 of the Court of Appeals (Sixteenth
Division) dated May 27, 1991, in CA-G.R. SP No. 24273, entitled "THE PEOPLE OF THE PHILIPPINES,
Petitioner, versus HON. OSCAR B. PIMENTEL, as Judge, RTC of Makati, Metro Manila, Branch 148 and
ANTONIO A. TUJAN, Respondents."
The record discloses the following antecedent facts:
As early as 1983, private respondent Antonio Tujan was charged with Subversion under Republic Act No.
1700 (the Anti-Subversion Law), as amended, before the Regional Trial Court of Manila (Branch 45),
National Capital Region, docketed as Criminal Case No. 64079.2 As a consequence thereof, a warrant for
his arrest was issued on July 29, 1983,3 but it remained unserved as he could not be found.
Almost seven (7) years thereafter, or on June 5, 1990, Antonio Tujan was arrested on the basis of the
warrant of arrest in the subversion case.4 When arrested, an unlicensed .38 caliber special revolver and
six (6) rounds of live ammunition were found in his possession.5
Consequently, on June 14, 1990, Antonio Tujan was charged with Illegal Possession of Firearm and
Ammunition in Furtherance of Subversion under Presidential Decree No. 1866, as amended, before the
Regional Trial Court of Makati (Branch 148), docketed as Criminal Case No. 1789. The Information reads:
That on or about the 5th day of June, 1990, in the Municipality of Parañaque, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused, being a member of a
communist party of the Philippines, and its front organization, did then and there willfully, unlawfully and
feloniously have in his possession, control and custody, in furtherance of or incident to, or in connection
with the crime of subversion, a special edition ARMSCOR PHILS. caliber .38 special revolver with Serial
No. 1026387 and with six (6) live ammunitions, without first securing the necessary license or permit
thereof from competent government authority.6
The above Information recommended no bail for Antonio Tujan, which recommendation was approved
by the trial court in an Order dated June 19, 1990.7 The same order also directed the continued
detention of Antonio Tujan at MIG 15 of the Intelligence Service of the Armed Forces of the Philippines
(ISAFP), Bago Bantay, Quezon City, while his case is pending.
On June 26, 1990, Antonio Tujan, through counsel, filed a motion8 invoking his right to a preliminary
investigation pursuant to Section 7, Rule 112 of the Revised Rules of Court and praying that his
arraignment be held in abeyance until the preliminary investigation is terminated.
However, on June 27, 1990, during the hearing of Antonio Tujan's motion for preliminary investigation,
his counsel withdrew the motion since he would file a motion to quash the Information, for which reason
counsel requested a period of twenty (20) days to do so. This was granted by the trial court on that same
day.9
On July 16, 1990, Antonio Tujan did file the motion to quash10 the Information in Criminal Case No. 1789
on the ground that he "has been previously in jeopardy of being convicted of the offense charged" in
Criminal Case No. 64079 (for subversion) of the Regional Trial Court of Manila (Branch 45). The said
ground is based on Sections 3 (h) and 7, Rule 117 of the 1985 Rules on Criminal Procedure. In support of
the motion, Antonio Tujan contends that "common crimes such as illegal possession of firearms and
ammunition should actually be deemed absorbed in subversion,"11 citing the cases of Misolas vs. Panga,
et al. (G.R. No. 83341, January 30, 1990, 181 SCRA 648) and Enrile vs. Salazar, et al. (G.R. No. 92163, June
5, 1990, 186 SCRA 217). Antonio Tujan then avers that "the present case is the twin prosecution" of "the
earlier subversion case" and, therefore, he "is entitled to invoke the constitutional protection against
double jeopardy."12
The petitioner opposed13 the motion to quash, arguing that Antonio Tujan does not stand in jeopardy of
being convicted a second time because: (a) he has not even been arraigned in the subversion case, and
(b) the offense charged against him in Criminal Case No. 64079 is for Subversion, punishable under
Republic Act No. 1700; while the present case is for Illegal Possession of Firearm and Ammunition in
Furtherance of Subversion, punishable under a different law (Presidential Decree No. 1866). Moreover,
petitioner contends that Antonio Tujan's reliance on the Misolas and Enrile cases "is misplaced."14 Tujan
merely relies on the dissenting opinions in the Misolas case. Also, the Enrile case which involved a
complex crime of rebellion with murder is inapplicable to the instant case which is not a complex offense.
Thus, the "absorption rule" as held applicable in the Enrile ruling "has no room for application in the
present case because (illegal) possession of firearm and ammunition is not a necessary means of
committing the offense of subversion, nor is subversion a necessary means of committing the crime of
illegal possession of firearm and ammunition."15
The trial court, in an order dated October 12, 1990, granted the motion to quash the Information in
Criminal Case No. 1789, the dispositive portion of the order reading:
WHEREFORE, the motion to quash the information is hereby GRANTED, but only in so far as the accused
may be placed in jeopardy or in danger of being convicted or acquitted of the crime of Subversion and as
a consequence the Information is hereby quashed and the case dismissed without prejudice to the filing
of Illegal Possession of Firearm. SO ORDERED.16
It is best to quote the disquisition of the respondent court in quashing the information and dismissing the
case:
xxx xxx xxx
In other words, the main offense the accused is being charged in this case is also Subversion considering
that the alleged Illegal Possession of the Firearm and Ammunition is only in furtherance thereof.
Now, subversion being a continuing offense as has been previously held by the Supreme Court, the fact
that the accused has been previously charged of Subversion before another court before the institution
of this instant case is just a continuing offense of his former charge or that his acts constituting
subversion is a continuation of the acts he committed before.
The court therefore cannot subscribe to the position taken by the prosecution that this case is very
different from the other case and that double jeopardy will attach in this particular case.
This court agrees with the position taken by the defense that double jeopardy will attach to the
accusation of subversion, punishable now under Republic Act 1700, as Rule 117 of the Rules of Court
particularly Section 1 thereof, provides:
Time to move to quash — At anytime before entering his plea, the accused may move to quash the
complaint or information.(la)
In other words, there is no necessity that the accused should be arraigned first before he can move to
quash the information. It is before he pleads which the accused did in this case.
On the other submissions by the prosecution, that the possession of firearms and ammunitions is not a
necessary means of committing the offense of subversion or vice versa, then if the court follows such
argument, there could be no offense of Illegal Possession of Firearm and Ammunition in furtherance of
Subversion, for even the prosecution admits also that in subversion which is an offense involving
propaganda, counter propaganda, a battle of the hearts and mind of the people does not need the
possession or use of firearms and ammunitions.
The prosecution even admits and to quote:
The defense of double jeopardy. while unquestionably available to the accused, had not been clearly
shown to be invokable(sic) at this point in time.
But the rule says otherwise as previously stated as provided for under Section 1 of Rule 117 of the Rules
of Court.
Thus, if ever the accused is caught in possession of a firearm and ammunition which is separate and
distinct from the crime of subversion and is not a necessary ingredient thereof and the court believed so,
145
the prosecution will have to file another information as they may wish. The court therefore has to grant
the motion to quash on the aforestated grounds, subject to Section 5 of Rule 117, considering that the
only offense to which the accused in this case may be placed in jeopardy is Subversion and not Illegal
Possession of Firearms and Ammunitions.
The prosecution may file any information as warranted within ten (10) days from receipt of this order
otherwise the court will order the release of the accused, unless he is in custody for some other
offense.17 (Emphasis ours)
Petitioner's motion for reconsideration18 was also denied in an order dated December 28, 1990.19
The petitioner elevated the case to the Court of Appeals through a petition for certiorari, docketed as CA-
G.R. SP No. 24273. However, the appellate court found that the trial court did not commit any grave
abuse of discretion amounting to lack or excess of jurisdiction in quashing the questioned Information. In
dismissing the petition, the appellate court, in its decision dated May 27, 1991, basically reiterated the
aforequoted ruling of the trial court.
Petitioner now comes to this Court, claiming that: (1) the decision of the Court of Appeals is not in accord
with the law and applicable jurisprudence; and (2) it was deprived of due process to prosecute and prove
its case against private respondent Antonio Tujan in Criminal Case No. 1789.
We agree with the petitioner.
The Court of Appeals considered as duplicitous the Information for violation of P.D. No. 1866 filed against
private respondent Antonio Tujan. It ruled:
The foregoing information (for Illegal Possession of Firearm and Ammunition in Furtherance of
Subversion) filed before the Makati court shows that the main case is subversion considering that there is
an allegation that the alleged illegal possession of firearms was made "in furtherance of or incident to, or
in connection with the crime of subversion." Also, the information alleged likewise that the accused is a
member of a communist party of the Philippines and its front organization. Basically, the information
refers to the crime of Subversion qualified by Illegal Possession of Firearms. . . .20
The ruling of the Court of Appeals is erroneous.
Section 1 of Presidential Decree No. 1866, under which Antonio Tujan is charged in Criminal Case No.
1789 before the Regional Trial Court of Makati (Branch 148), provides as follows:
Sec. 1. Unlawful Manufacture, Sales, Acquisition, Disposition or Possession of Firearms or Ammunition or
Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. — The penalty
of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any person
who shall unlawfully manufacture, deal in, acquire, dispose, or posses any firearms, part of firearm,
ammunition, or machinery, tool or instrument used or intended to be used in the manufacture of any
firearm or ammunition.
If homicide or murder is committed with the use of an unlicensed firearms, the penalty of death shall be
imposed.
If the violation of this Section is in furtherance of, or incident to, or in connection with the crimes of
rebellion, insurrection or subversion, the penalty of death shall be imposed.
The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon
the owner, president, manager, director or other responsible officer of any public or private firm,
company, corporation or entity, who shall willfully or knowingly allow any of the firearms owned by such
firm, company, corporation or entity to be used by any person or persons found guilty of violating the
provisions of the preceding paragraphs.
The penalty of prision mayor shall be imposed upon any person who shall carry any licensed firearm
outside his residence without legal authority therefor. (Emphasis ours)
The above-quoted provisions of P.D. No. 1866 are plain and simple. Under the first paragraph of Section
1, the mere possession of an unlicensed firearm or ammunition is the crime itself which carries the
penalty of reclusion temporal in its maximum period to reclusion perpetua. The third paragraph of the
same Section makes the use of said firearm and ammunition "in furtherance of, or incident to, or in
connection with the crimes of rebellion, insurrection or subversion" a circumstance to increase the
penalty to death. Thus, the allegation in the Information in Criminal Case No. 1789 that the unlicensed
firearm found in the possession of Antonio Tujan, "a member of the communist party of the Philippines
and its front organization," was used "in furtherance of or incident to, or in connection with the crime of
subversion" does not charge him with the separate and distinct crime of Subversion in the same
Information, but simply describes the mode or manner by which the violation of Section 1 of P.D. No.
1866 was committed21 so as to qualify the penalty to death.
There is, therefore, only one offense charged in the questioned information, that is, the illegal possession
of firearm and ammunition, qualified by its being used in furtherance of subversion.22 There is nothing in
P.D. No. 1866, specifically Section 1 thereof, which decrees categorically or by implication that the crimes
of rebellion, insurrection or subversion are the very acts that are being penalized. This is clear from the
title of the law itself which boldly indicates the specific acts penalized under it:
CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION, MANUFACTURE, DEALING IN, ACQUISITION
OR DISPOSITION, OF FIREARMS, AMMUNITION OR EXPLOSIVES OR INSTRUMENTS USED IN THE
MANUFACTURE OF FIREARMS, AMMUNITION OR EXPLOSIVES, AND IMPOSING STIFFER PENALTIES FOR
CERTAIN VIOLATIONS THEREOF AND FOR RELEVANT PURPOSES. (Emphasis ours)
On the other hand, the previous subversion charge against Antonio Tujan in Criminal Case No. 64079,
before the Regional Trial Court of Manila (Branch 45), is based on a different law, that is, Republic Act No.
1700, as amended. Section 3 thereof penalizes any person who "knowingly, willfully and by overt act
affiliates with, becomes or remains a member of a subversive association or organization . . ." Section 4 of
said law further penalizes "such member [of the Communist Party of the Philippines and/or its successor
or of any subversive association] (who) takes up arms against the Government." Thus, in the present
case, private respondent Antonio Tujan could be charged either under P.D. No. 1866 or R.A. No. 1700,23
or both.
This leads us to the issue of whether or not private respondent Antonio Tujan was placed in double
jeopardy with the filing of the second Information for Illegal Possession of Firearm and Ammunition in
Furtherance of Subversion.
We rule in the negative.
Article III of the Constitution provides:
Sec. 21. No person shall be twice put in jeopardy of punishment for the same offense. If an act is
punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another
prosecution for the same act. (Emphasis ours)
Complementing the above constitutional provision, Rule 117 of the Revised Rules of Court states:
Sec. 7. Former conviction or acquittal; double jeopardy. — When an accused has been convicted or
acquitted, or the case against him dismissed or otherwise terminated without his express consent by a
court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in
form and substance to sustain a conviction and after the accused had pleaded to the charge, the
conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution
for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense
which necessarily includes or is necessarily included in the offense charged in the former complaint or
information.
xxx xxx xxx
The right of an accused against double jeopardy is a matter which he may raise in a motion to quash to
defeat a subsequent prosecution for the same offense. The pertinent provision of Rule 117 of the Revised
Rules of Court provides:
Sec. 3. Grounds. — The accused may move to quash the complaint or information on any of the following
grounds:
xxx xxx xxx
(h) That the accused has been previously convicted or in jeopardy of being convicted, or acquitted of the
offense charged. (2a) (Emphasis ours)
In order that the protection against double jeopardy may inure to the benefit of an accused, the
following requisites must have obtained in the first criminal action: (a) a valid complaint or information;
(b) a competent court; (c) the defendant had pleaded to the charge;24 and (d) the defendant was
acquitted, or convicted, or the case against him was dismissed or otherwise terminated without his
express consent.25
Suffice it to say that in the present case, private respondent's motion to quash filed in the trial court did
not actually raise the issue of double jeopardy simply because it had not arisen yet. It is noteworthy that
the private respondent has not even been arraigned in the first criminal action for subversion. Besides, as
earlier discussed, the two criminal charges against private respondent are not of the same offense as
required by Section 21, Article III of the Constitution.
146
It is clear from the foregoing, that the assailed decision of the Court of Appeals is not in accordance with This decision is IMMEDIATELY EXECUTORY.
the law and jurisprudence and thus should be reversed. No pronouncement as to costs.
While we hold that both the subversion charge under R.A. No. 1700, as amended, and the one for illegal SO ORDERED.
possession of firearm and ammunition in furtherance of subversion under P.D. No. 1866, as amended, Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
can co-exist, the subsequent enactment of Republic Act No. 7636 on September 22, 1992, totally Panganiban, Quisumbing and Purisima, JJ., concur.
repealing R.A. No. 1700, as amended, has substantially changed the complexion of the present case,
inasmuch as the said repealing law being favorable to the accused-private respondent, who is not a
habitual delinquent, should be given retroactive effect.26
Although this legal effect of R.A. No. 7636 on private-respondent's case has never been raised as an issue
by the parties — obviously because the said law came out only several months after the questioned
decision of the Court of Appeals was promulgated and while the present petition is pending with this
Court — we should nonetheless fulfill our duty as a court of justice by applying the law to whomsoever is
benefited by it regardless of whether or not the accused or any party has sought the application of the
beneficent provisions of the repealing law.27
That R.A. No. 7636 should apply retroactively to accused-private respondent is beyond question. The
repeal by said law of R.A. No. 1700, as amended, was categorical, definite and absolute. There was no
saving clause in the repeal. The legislative intent of totally abrogating the old anti-subversion law is clear.
Thus, it would be illogical for the trial courts to try and sentence the accused-private respondent for an
offense that no longer exists.28
As early as 1935, we ruled in People vs. Tamayo:29
There is no question that at common law and in America a much more favorable attitude towards the
accused exists relative to statutes that have been repealed than has been adopted here. Our rule is more
in conformity with the Spanish doctrine, but even in Spain, where the offense ceases to be criminal,
prosecution cannot be had. (1 Pacheco Commentaries, 296) (Emphasis ours)
Where, as here, the repeal of a penal law is total and absolute and the act with was penalized by a prior
law ceases to be criminal under the new law, the previous offense is obliterated.30 It is a recognized rule
in this jurisdiction that a total repeal deprives the courts of jurisdiction to try, convict and sentence
persons charged with violation of the old law prior to the repeal.31
With the enactment of R.A. No. 7636, the charge of subversion against the accused-private respondent
has no more legal basis and should be dismissed.
As regards the other charge of illegal possession of firearm and ammunition, qualified by subversion, this
charge should be amended to simple illegal possession of firearm and ammunition since, as earlier
discussed, subversion is no longer a crime.
Moreover, the offense of simple illegal possession of firearm and ammunition is now bailable under
Republic Act No. 8294 which was enacted on June 6, 1997. R.A. No. 8294 has amended Presidential
Decree No. 1866, as amended, by eliminating the provision in said P.D. that if the unlicensed firearm is
used in furtherance of subversion, the penalty of death shall he imposed.32 Under the new law (R.A. No.
8294), the penalty prescribed for simple illegal possession of firearm (.38 caliber) is now reduced to
prision correccional in its maximum period and a fine of not less than Fifteen thousand pesos
(P15,000.00).33 The reduced penalty of imprisonment — which is four (4) years, two (2) months and one
(1) day to six (6) years — entitles the accused-private respondent to bail. Considering, however, that the
accused-private respondent has been detained since his arrest on June 5, 1990 up to the present (as far
as our record has shown), or more than seven (7) years now, his immediate release is in order. This is so
because even if he were convicted for illegal possession of firearm and ammunition, the length of his
detention while his case is pending has already exceeded the penalty prescribed by the new law.
WHEREFORE, the assailed decision of the Court of Appeals dated May 27, 1991, in CA-G.R. SP No. 24273,
including the orders dated October 12, 1990 and December 28, 1990 of the Regional Trial Court of Makati
(Branch 148), National Capital Region, in Criminal Case No. 1789, are hereby REVERSED and SET ASIDE.
The subversion charge against accused-private respondent Antonio A. Tujan in Criminal Case No. 64079
of the Regional Trial Court of Manila, Branch 45, is hereby DISMISSED.
The other Information for illegal possession of firearm and ammunition in furtherance of subversion
against the same accused in Criminal Case No. 1789 of the Regional Trial Court of Makati, Branch 148, is
DEEMED AMENDED to Simple Illegal Possession of Firearm and Ammunition. The accused-appellant is
hereby ordered RELEASED IMMEDIATELY from detention for the reason stated above, unless he is being
detained for any other offense.

147
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-2873 February 28, 1950
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
EUGENIO GARCIA Y MADRIGAL, defendant-appellant.
Dominador A. Alafriz for appellant.
First Assistant Solicitor General Roberto A. Gianzon and Solicitor Rafael P. Cañiza for appellee.
TUASON, J.:
The sole question presented on this appeal is whether the appellant, being 17 years of age at the time of
at the time of the commission of the crime, was entitled to the privileged mitigating circumstance of
article 68, paragraph 2, of the Revised Penal Code. The lower court, ignoring defendant's minority,
sentenced him to an indeterminate penalty of from 4 years, 2 months and 1 day of prision correccional to
8 years of prision mayor for the crime of robbery of which he was found guilty. He was also sentenced to
pay the offended party, jointly and severally with the other accused, the sum of P85 as indemnity.
Republic Act No. 47, which amended article 80 of the Revised Penal Code by reducing from 18 to 16 the
age below which accused have to "be committed to the custody or care of a public or private, benevolent
or charitable institution," instead of being convicted and sentenced to prison, has given rise to the
controversy. The Solicitor General believes that the amendment by implication has also amended
paragraph 2 of article 68 of the Revised Pena Code, which provides that when the offender is over fifteen
and under eighteen years age, "The penalty next lower than that prescribed by law shall be imposed, but
always in the proper period."
There are well recognized rules of statutory construction which are against the Government's contention.
One of these rules is that all parts of a statute are to be harmonized and reconciled so that effect may be
given to each and every part thereof, and that conflicting intention in the same statute are never to be
supposed or so regarded, unless forced upon the court by an unambiguous language. (59 C. J., 999.)
This rule applies in the construction of a statute and its amendment, both being read together as whole.
"An amended act is ordinarily to be construed as if the original statute has been repealed, and a new and
independent act in the amended form had been adopted in its stead; or, as frequently stated by the
courts, so far as regards any action after the adoption of the amendment, as if the statute had been
originally enacted in its amended form the amendment becomes a part of the original statute as if it had
always been contained therein, unless such amendment involves the abrogation of contractual relations
between the state and others. Where an amendment leaves certain portions of the original act
unchanged, such portions are continued in force, with the same meaning and effect they had before the
amendment. So where an amendatory act provides that an existing statute shall be amended to read as
recited in the amendatory act, such portions of the existing law as are retained, either literally or
substantially, are regarded as a continuation of the existing law, and not as a new enactment." (59 C. J.,
1096, 1097.)
We find no irreconcilable conflict between article 68, paragraph 2, as it nowstands and article 80 as
amended. There is no incompatibility between granting accused of the ages of 15 to 18 a privileged
mitigating circumstance and fixing at 16 the maximum age of persons who are to be placed in a
reformatory institution. In other words, there is no inconsistency between sending defendants of certain
ages to prison and giving them a penalty lower than the imposable one on adults under the same or
similar circumstances. Let it be remember that the privilege of article 68, supra, is not by its nature
inherent in age but purely statutory and conventional, and that this privilege is granted adult offenders
under given conditions.
At least there is no clear intention on the part of the Congress to amend article 68. Indeed the rational
presumption is that if there had been such an intention the lawmakers should have said so expressly,
instead of leaving the change to inference.
One other rule of interpretation that quarrels with the theory of implied repeal or amendment is that
penal law is to be construed, in case of doubt, strictly against the state. "Criminal and penal statutes must
be strictly construed, that is, they cannot be enlarged or extended by intendment, implication, or by any
equitable considerations. In other words, the language cannot be enlarged beyond the ordinary meaning
of its terms in order to carry into effect the general purpose for which the statute was enacted. Only
those persons, offenses, and penalties, clearly included, beyond any reasonable doubt, will be considered
within the statute's operation. They must come clearly within both the spirit and the letter of the statute,
and where there is any reasonable doubt, it must be resolved in favor of the person accused of violating
the statute; that is, all questions in doubt will be resolved in favor of those from whom the penalty is
sought." (Statutory Construction, Crawford, pp. 460-462.)
The offense charged in the information of which the appellant was found guilty is punishable under
article 294, case No. 5, of the Revised Penal Code, as amended by section 6 of Republic Act No. 18, with
prision correccional in its maximum period to prision mayor in its medium period. The penalty one
degree lower than this is arresto mayor in its maximum period to prision correccional in its medium
period. There being no modifying circumstance, the appropriate penalty in the present case is from 6
months and 1 day of arresto mayor to 2 years and 4 months of prision correccional. Being entitled to an
indeterminate penalty as provided in section 1 of Act No. L-4103 as amended, the accused should be,
and he is hereby sentenced to imprisonment of not less than 4 months of arresto mayor and not more
than 2 years and 4 months of prision correccional. In all other respect the appealed judgment is affirmed.
The appellant will pay the costs of this appeal.
Moran, C.J., Ozaeta, Pablo, Bengzon, Padilla, Montemayor, Reyes and Torres, JJ., concur.
RESOLUTION ON MOTION FOR RECONSIDERATION
April 12, 1950
TUASON, J.:
This is a motion for reconsideration of our decision.
The main theme of the Solicitor General's argument is that articles 13 (2) and 68 (2) of the Revised Penal
code "complement each other;" that "the application of article 68 takes place only when the court has to
render judgment and impose a penalty upon a minor who has been proceeded against in accordance
with article 80 and who had misbehaved or is found incorrigible," and that "article 80 must be applied
first before article 68 can come into operation, and the court can not apply the latter article in total
disregard of the former." In short, as we infer from this line of reasoning, what article 80 does not touch,
article 68 can not touch.
We do not think the premise and conclusion of the motion are correct. There seems to be a confusion of
ideas.
It may do us well to make brief review of the legislation, past and present, relative to juvenile offenders
and dissect and analyze its various provisions and the differences between them and the role assigned to
each. .
Article 68 of the Revised Penal code provides:.
Penalty to be imposed upon a person under eighteen years of age. — When the offender is a minor under
eighteen years and his case is one coming under the provisions of the paragraph next to the last of article
80 of this Code, the following rules shall be observed:
1. Upon a person under fifteen but over nine years of age, who is not exempted from liability by reason
of the court having declared that he acted with discernment, a discretionary penalty shall be imposed,
but always lower by two degrees at least than that prescribed by law for the crime which he committed.
2. Upon a person over fifteen and under eighteen years of the penalty next lower than that prescribed by
law shall be imposed but always in the proper period.
Sub-paragraph 1 and 2 of the foregoing article are a reproduction of article 85 of the Spanish Penal Code.
Into the Revised Penal Code, the Juvenile Delinquency Act was incorporated. It has become in the new
code article 80, the first paragraph of which provides that "whenever a minor under 18 years of age, of
either sex, be accused of a crime, the court . . . shall commit such minor to the custody or care of a public
or private, benevolent or charitable, institution, etc." And in the paragraph immediately preceding the
last, it is further provided that "In case the minor fails to behave properly or to comply with the
regulation of the institution to which he has been committed, or with the conditions imposed upon him
when he was committed to the care of a responsible person, or in case he should be found incorrigible or
his continued stay in such institution should be inadvisable, he shall be returned to the court in order that
the same may render the judgment corresponding to the crime committed by him."
The latest legislation on the subject was Republic Act No. 47, which amended article 80 of the Revised
Penal Code so as to reduce to below 16 the age of minors coming within its purview.
148
A close examination of articles 68 and 80 will disclose that article 68, according to its main paragraph, is
to lay off and watch while the minor is in the hands of a charitable institution or person mentioned in
article 80 trying to reform him or her. This has to be so because article 68 is a rule for the application of
penalties, and there is no penalty when there is no judgment when the delinquent is in Welfareville or
other place of similar character or entrusted to the care of a private person. However, if and when the
minor turns out to be hopeless or incorrigible, he is returned to the proper court and the court passes
sentence on him or her. In other words, article 80 withdraws, as it were, and sub-paragraph 1 and 2, as
the case maybe, of article 68 takes control.
From this it will be seen that article 68 is not dependent on article 80, nor do these articles complement
each other if by complement is meant that they are two mutually completing parts so that article 68
could not stand without article 80. It is more appropriate to say that article 68 merely adjusts itself to
article 80 but is, in all other respects, self-sufficient and independent of the latter. Parts of one system of
penology and working in coordination with each other, they pursue different ends. It is to be noticed that
article 68 falls under section 2 of Chapter IV entitled "Application of Penalties," while article 80 comes
under section 1 of Chapter V entitled "Execution and Service of Penalties." Two different subjects, these.
It will also be seen that article 68, sub-paragraphs 1 and 2, and article 80 of the Revised Penal Code do
not function at the same time and are designed for different purposes. Each has its assigned, separate
sphere of action without in any way intermingling with the other. When article 80 operates, article 68
keeps out of the way; article 68 steps in when article 80 steps out.
While a minor is in the process of being reformed he is, in a manner of speaking, in an intermediate or
indeterminate state, neither in prison nor free. Through repentance and by observing good conduct, he is
rewarded with freedom, released upon reaching the age of majority or before, but if he shows no
promise of turning a new leaf, Bilibid claims him.
It is the minors so situated; it is selection of two should be committed to are formatory school or to the
custody of a private person with which article 80 has to do, and no more. Article 80 does not concern
itself with what should be done with minors when they are consigned to jail because of misbehavior;
much less is it concerned over minors who, after the passage of Republic Act No. 47, are condemned to
prison without having been under the custody of a benevolent institution or private person like youths
between 16 and 18. On the other hand, article 68 is intended for minors who are sent to jail, a matter
foreign to the province of article 80.
To press the argument further, article 85 of the original Penal Code conferred upon minors under 18 the
right to a penalty. Then came the Juvenile Delinquency Act giving additional concession to juvenile
delinquents. When, later, Republic Act No. 47 amended article 80 so as to eliminate from its beneficent
provisions minor of the age of 16 or over and under 18, the logical effect of the amendment can no other
than to correspondingly reduce the age of minors regarding whom the suspensory inhibition on article 68
is to be confined. Only to the extent and within the limits that article 80 applies is article 68 bound to
defer to that article. Where article 80 does not apply article 68 is supreme. When article 80 says that it
will deal only with minors below 16, it relinquishes authority over minors above that age in favor of
article 68. When and if article 80 should by amendment further reduce the age to 15, to that extent the
operation of article 68 will be correspondingly enlarged.
In fact, if Republic Act No. 47, instead of limiting the operation of article 80 to minors under 16, had
totally abolished the scheme of juvenile reformation, sub-paragraphs 1 and 2 of article 68 of the Revised
Penal Code would, in our opinion, remain intact, with the only difference that, as before, they would have
full sway, unhampered by any consideration of suspended judgment. The predecessor of article 68 was in
the original Penal Code since that code was put in force in Spain in 1870 and in the Philippines in 1884,
long before the idea embodied in article 80 was conceived. Before the Revised Penal Code went into
effect, article 85 of the old Penal Code and the Juvenile Delinquency Act worked in the manner herein set
forth although there was not any express provision coordinating their operation. It can safely be said that
the main paragraph of article 68 was inserted merely to explain in clear and express terms when it should
stand aloof and when it should play its role. The Revised Penal Code merely states the obvious as befits a
scientific system of law.
In conclusion, when Republic Act No. 47 amended article 80 of the Revised Penal Code by reducing the
age of persons who may be placed on probation under that article, the amendment did not change in any
form or manner the degree of punishment that should be meted out to those who are to be committed
to jail or how they are to treated. After the minor is turned over to the court for sentence, article 80
ceases to have any interest in him or her. In saying that the 16-and 18-year old should no longer be given
a trial or placed on probation in a reformatory institution but should go straight to prison upon
conviction, Republic Act No. 47 does not, by implication or otherwise, connote that such minors should
also be deprived of a reduced penalty. In no standard of statutory construction is there support for the
proposition that the mitigating circumstance which minors between 16 and 18 enjoyed before Republic
Act No. 47 came into being, notwithstanding the fact that they had shown evidence of incorrigibility,
should be denied them now for no other reason than that the right to be committed to a reformatory
school has been taken away from them; now that they are confined in jail without having committed any
fault other than the crime for which they were prosecuted in the first instance.
Let it be remembered that by virtue of the amendment minors between 16 and 18 do not now come
under the provisions of the paragraph next to the last of article 80.
Of course, the effect of a law amendment would different if the amendatory law had absorbed the law
which it had amended. In that case, the original law become part and parcel of the new law, with the
result that if the amendatory law be later repealed, both that law and the law which it had superseded or
amended would be considered abrogated. There was no law of its own force could survive. But, as we
have indicated, article 68 as well as its predecessor is an independent provision and has not been merged
with article 80 or any other article of the Revised Penal code. It is an independent provision inoperative
only during the suspension of the sentence but possessing all the vigor which article 85 of Spanish Code
had, when the minors are sentenced to jail.
In the decision sought to be reconsidered, we emphasize the rule of statutory construction to the effect
that all parts of a statute are to be harmonized and reconciled so that effect may be given to each and
every part thereof, and that conflicting intentions in the same statute are never to be supposed or so
regarded, unless forced upon the court by an unambiguous language. (59 C. J., 999.) The motion for
reconsideration has not pointed to any conflict, and we can not find any, between the retention of the
privileged or special mitigating circumstance in favor of minors below 18 and over 16 and the fact that
such minors are not entitled to the benefits of article 80 under any circumstances. The motion for
reconsideration is conspicuous for its silence on any incongruity or absurdity that might result from our
ruling on the scope and extent of Republic Act No. 47.
The sole consideration that might commend itself in favor of the Government's position is the general
welfare. For the good of society it may have been better if Republic Act No. 47 had amended articles 13
and 68 also by correspondingly reducing the age of accused minors entitled to a mitigating circumstance
by reason of age. But it is write to say that we are not authorized to insert into a law what we think
should be in it or to supply what we think the legislature would have supplied if its attention had been
called to the omission. This is specially true in penal legislation which, as we have repeatedly stressed in
our decision, has to be construed strictly. But there is not even room for construction in this case. The
preamble or explanatory note to Republic Act No. 47 can not be used as basis for giving it an meaning not
apparent on its face. A preamble or explanatory not is resorted to only for clarification in cases of doubt.
There is no ambiguity in Republic Act No. 47.
The motion and the request to set it for oral argument are denied.
Moran, C.J., Ozaeta, Pablo, Bengzon, Montemayor, Reyes and Torres, JJ., concur.
149
 Republic of the Philippines The third paragraph of the article 344 of the Revised Penal Code, which relates to the prosecution of the
SUPREME COURT crimes of adultery, concubinage, seduction, rape and acts of lasciviousness reads as follows:
Manila The offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted
EN BANC except upon a complaint filed by the offended party or her parents, grandparents, or
G.R. No. L-38725 October 31, 1933 guardian, nor, in any case, if the offender has been expressly pardoned by the above-named
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. persons, as the case may be.
PEDRO MANABA, defendant-appellant. The Spanish text of this paragraph is as follows:
Jose Ma. Cavanna for appellant. Tampoco puede procederse por causa de estupro, rapto, violacion o abusos deshonestos, sino
Office of the Solicitor-General Hilado for appellee. en virtud de denuncia de la parte agraviada, o de sus padres, o abuelos o tutor, ni despues de
VICKERS, J.: haberse otorgado al ofensor, perdon expreso por dicha partes, segun los casos.
This is an appeal from a decision of Judge Eulalio Garcia in this Court of First Instance of Oriental Negros It will be observed that the Spanish equivalent of the word "filed" is not found in the Spanish text, which
in criminal case No. 1827 dated November 15, 1932, finding the defendant guilty of rape and sentencing is controlling, as it was the Spanish text of the Revised Penal Code that was approved by the Legislature.
him to suffer seventeen years and four months of reclusion temporal, and the accessory penalties of the The first complaint filed against the defendant was signed and sworn to by the chief of police of
law, to indemnify the offended party, Celestina Adapon, in the amount of P500, to maintain the offspring, Dumaguete. As it was not the complaint of the offended party, it was not a valid complaint in accordance
if any, at P5 a month until said offspring should become of age, and to pay the costs. with the law. The judgment of the court was therefore void for lack of jurisdiction over the subject
The defendant appealed to this court, and his attorney de oficio now makes the following assignments of matter, and the defendant was never in jeopardy.
error: It might be observed in this connection that the judgment was set aside and the case dismissed on the
1. El juzgado a quo erro al no estimar en favor del acusado apelante la defensa de double jeopardy o motion of defendant's attorney, who subsequently set up the plea of double jeopardy in the present
legal jeopardy que ha interpuesto. case.
2. El Juzgado a quo erro al no declarar insuficientes las pruebas de identificacion del acusado apelante. The other assignments of error relate to the sufficiency of the evidence, which in our opinion fully
3. El Juzgado a quo tambien erro al pasar por alto las incoherencias de los testigos de la acusacion y al no sustains the findings of the trial judge.
declarar que no se ha establecido fuera de toda duda la responsabilidad del apelante. The recommendation of the Solicitor-General is erroneous in several respects, chiefly due to the fact that
4. El Juzgado a quo erro al condenar al acusado apelante por el delito de violacion y al no acceder a su it is based on the decision of July 30, 1932 that was set aside, and not on the decision now under
mocion de nueva vista. consideration. The accused should not be ordered to acknowledge the offspring, if should there be any,
It appears that on May 10, 1932, the chief of police of Dumaguete subscribed and swore to a criminal because the record shows that the accused is a married man.
complaint wherein he charged Pedro Manaba with the crime of rape, committed on the person of It appears that the lower court should have taken into consideration the aggravating circumstances of
Celestina Adapon. This complaint was filed with the justice of the peace of Dumaguete on June 1, 1932 nocturnity. The defendant is therefore sentenced to suffer seventeen years, four months, and one day of
and in due course the case reached the Court of First Instance. The accused was tried and convicted, but reclusion temporal, to indemnify the offended party, Celestina Adapon, in the sum of P500, and to
on motion of the attorney for the defendant the judgment was set aside and the case dismissed on the support the offspring, if any. As thus modified, the decision appealed from is affirmed, with the costs of
ground that the court had no jurisdiction over the person of the defendant or the subject matter of the both instances against the appellant.
action, because the complaint had not been filed by the offended party, but by the chief of police
(criminal case No. 1801).
On August 17, 1932, the offended girl subscribed and swore to a complaint charging the defendant with
the crime of rape. This complaint was filed in the Court of First Instance (criminal case No. 1872), but was
referred to the justice of the peace of Dumaguete for preliminary investigation. The defendant waived his
right to the preliminary investigation, but asked for the dismissal of the complaint on the ground that he
had previously been placed in jeopardy for the same offense. This motion was denied by the justice of
the peace, and the case was remanded to the Court of First Instance, where the provincial fiscal in an
information charged the defendant with having committed the crime of rape as follows:1awphil.net
Que en o hacia la noche del dia 9 de mayo de 1932, en el Municipio de Dumaguete, Provincia
de Negros Oriental, Islas Filipinas, y dentro de la jurisdiccion de este Juzgado. el referido
acusado Pedro Manaba, aprovechandose de la oscuridad de la noche y mediante fuerza,
violencia e intimidacion, voluntaria, ilegal y criminalmente yacio y tuvo acceso carnal con una
niña llamada Celestina Adapon, contra la voluntad de esta. El acusado Pedro Manaba ya ha
sido convicto por Juzgado competente y en sentencia firme por este mismo delito de
violacion.
Hecho cometido con infraccion de la ley.
The defendant renewed his motion for dismissal in the case on the ground of double jeopardy, but his
motion was denied; and upon the termination of the trial the defendant was found guilty and sentenced
as hereinabove stated.
Whether the defendant was placed in jeopardy for the second time or not when he was tried in the
present case depends on whether or not he was tried on a valid complaint in the first case. The offense in
question was committed on May 9, 1932, or subsequent to the date when the Revised Penal Code
became effective.

150
 SECOND DIVISION
G.R. No. 138962 October 4, 2002
PRESCILLA TUATES and ANDRES DE LA PAZ, petitioners, vs.
HON. LUCAS P. BERSAMIN, as Presiding Judge, Branch 96, RTC Quezon City,
People of the Philippines and I.C. Construction, Inc., respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before us is a petition for review on certiorari under Rule 45 of the Rules of Court, seeking to annul the
following: (1) Decision dated April 30, 1999 and Resolution dated June 9, 1999, rendered by the Court of
Appeals in CA-G.R. SP No. 46845;1 (2) Decision dated September 10, 1997 and the Order dated January
28, 1998 issued by the Regional Trial Court of Quezon City (Branch 96) in Criminal Cases Nos. Q-97-70428
and Q-97-70429;2 and (3) Decision dated December 16, 1996 of the Metropolitan Trial Court of Quezon
City (Branch 38) in Criminal Cases Nos. 38-0130 and 38-0131.3
The facts are as follows:
Convicted by the MTC-Quezon City (Branch 38) of the crime of Violation of Presidential Decree No. 772 or
the Anti-Squatting Law, petitioners Prescilla Tuates and Andres de la Paz, appealed to the RTC of Quezon
City (Branch 96). Their conviction was affirmed in toto by the RTC in its decision dated September 10,
1997. Pending resolution of their motion for reconsideration, however, Republic Act No. 8368, "An Act
Repealing Presidential Decree No. 772, entitled ‘Penalizing Squatting and Other Similar Acts’" was
enacted.
In its Order, dated January 28, 1998, the RTC ruled that only petitioners’ criminal convictions were
extinguished by R.A. 8368, and the civil aspect, i.e., the removal of petitioners’ illegally constructed house
and improvements, shall remain executory against them.4
On a petition for review, the Court of Appeals sustained the ruling of the RTC and denied due course to
the petition per its Decision, dated April 30, 1999.5 Petitioners’ motion for reconsideration was likewise
denied by the CA in its Resolution dated June 9, 1999.6
Hence, the present recourse taken by petitioners, raising the following issues:
"1. That petitioners, being charged with Violation of Presidential Decree No. 772, the express
repeal of said decree absolves the petitioners of any criminal or civil liability;
"2. That public respondent erred in holding that ‘the civil aspect of the judgment rendered x x
x shall be executory against the accused; and
"3. That the Honorable Court of Appeals, in affirming the Order of the Regional Trial Court of
Quezon City (Branch 96), dated June 9, 1999, grossly erred in ignoring applicable laws and
jurisprudence."7
Petitioners argue that the repeal of P.D. 772 by R.A. 8368 carries with it the extinction of both the
criminal and civil aspects of the crime. Private respondent, however, insists that public respondents were
correct in ruling that only the criminal liability was absolved and the civil liability remains inasmuch as it
was not extinguished in accordance with Article 113 of the Revised Penal Code, which reads:
"ART. 113. Obligation to satisfy civil liability. -- Except in case of extinction of his civil liability as provided
in the next preceding article, the offender shall continue to be obliged to satisfy the civil liability resulting
from the crime committed by him, notwithstanding the fact that he has served his sentence consisting of
deprivation of liberty or other rights, or has not been required to serve the same by reason of amnesty,
pardon, commutation of sentence or any other reason."
In its Motion to Deny Due Course, private respondent also argues that the petition should now be denied
as its title to the land subject of this case has already been adjudged in its favor. 8
In its Comment, the Office of the Solicitor General, in behalf of public respondents, agrees with
petitioners that both the criminal and civil liability were rendered extinct with the repeal of P.D. 772, and
recommended that the assailed issuances be reversed and set aside.
We find the petition to be meritorious.
Republic Act No. 8368, otherwise known as the "Anti-Squatting Law Repeal Act of 1997," provides:
"SECTION 1. Title. -- This Act shall be known as the ‘Anti-Squatting Law Repeal Act of 1997.’
"SEC. 2. Repeal. -- Presidential Decree No. 772, entitled ‘Penalizing Squatting and Other
Similar Acts’ is hereby repealed.
"SEC. 3. Effect on Pending Cases. -- All pending cases under the provisions of Presidential
Decree No. 772 shall be dismissed upon the effectivity of this Act.
"SEC. 4. Effect on Republic Act No. 7279. -- Nothing herein shall be construed to nullify,
eliminate or diminish in any way Section 27 of Republic Act No. 7279 or any of its provisions
relative to sanctions against professional squatters and squatting syndicates.
"SEC. 5. Effectivity. -- This Act shall take effect thirty (30) days after its publication in two (2)
newspapers of national circulation.
"Approved, October 27, 1997."9
The repeal of P.D. No. 772 under Section 2 of R.A. No. 8368 is explicit, categorical, definite and absolute.
As such, the act that was penalized by P.D. 772, i.e., squatting, ceases to be criminal under R.A. 8368, and
the previous offense is obliterated. 10
In the same vein, the absolute repeal of P.D. 772 has the effect of depriving a court of its authority to
punish a person charged with violation of the old law prior to its repeal. This is because an unqualified
repeal of a penal law constitutes a legislative act of rendering legal what had been previously declared as
illegal, such that the offense no longer exists and it is as if the person who committed it never did so. 11
Specially so, as in the present case where it is unconditionally stated in Section 3 of R.A. No. 8368 that:
"(A)ll pending cases under the provisions of Presidential Decree No. 772 shall be dismissed upon the
effectivity of this Act."12 Obviously, it was the clear intent of the law to decriminalize or do away with the
crime of squatting. Hence, there being no criminal liability, there is likewise no civil liability because the
latter is rooted in the former. Where an act or omission is not a crime, no person can be held liable for
such act or omission. There being no delict, logically, civil liability ex delicto is out of the question. 13
In fact, in People v. Leachon, Jr.14 we implicitly recognized the unconditional repeal of P.D. 772 by R.A.
8368 when we ordered the dismissal of the petition filed in said case, without any qualification
whatsoever, because of the enactment of R.A. 8368, viz.:
"But the foregoing antecedent facts and proceedings notwithstanding, the petition cannot now prosper
because on October 27, 1997, Republic Act No. 8368, entitled ‘An Act Repealing Presidential Decree No.
772 Entitled ‘Penalizing Squatting and Other Similar Acts’ was "enacted. Section 3 of the said Act provides
that ‘all pending cases under the provisions of Presidential Decree No. 772 shall be dismissed upon the
effectivity of this Act.’"15
This is not to say, however, that people now have the unbridled license to illegally occupy lands they do
not own. R.A. No. 836816 was unanimously approved by the members of the Senate of the Philippines
present on its third reading.17 The legislature considered it a major piece of legislation on the country’s
anti-poverty program18 as it sought to confront the perennial problem of poverty at its root, abolish an
otherwise inutile and oppressive law, and pave the way for a genuine urban housing and land reform
program. Senate records reveal that it is the manifest intent of the authors of R.A. 8368 to decriminalize
squatting but does not encourage or protect acts of squatting on somebody else’s land.19 The law is not
intended to compromise the property rights of legitimate landowners.20 Recourse may be had in cases of
violation of their property rights, such as those provided for in Republic Act No. 7279 or the Urban
Development and Housing Act, penalizing professional squatters and squatting syndicates as defined
therein, who commit nefarious and illegal activities21; the Revised Penal Code providing for criminal
prosecution in cases of Trespass to Property,22 Occupation of Real Property or Usurpation of Real Rights in
Property,23 and similar violations, and, cases for Forcible Entry and Unlawful Detainer under the Rules of
Court,24 as well as civil liability for Damages under the Civil Code.
Considering that prosecution for criminal as well as civil liability under P.D. 772 has been rendered
nugatory with the passage of R.A. 8368, both criminal and civil aspects of Criminal Cases Nos. Q-97-
70428 and Q-97-70429 in the RTC as well as Criminal Cases Nos. 38-0130 and 38-0131 in the MTC filed
against petitioners should be dismissed.
WHEREFORE, finding the petition for review to be with merit, the Decision dated April 30, 1999 of the
Court of Appeals in CA-G.R. SP No. 46845, is REVERSED and SET ASIDE. A new judgment is hereby entered
modifying the Decision dated September 10, 1997 of the Regional Trial Court of Quezon City (Branch 96)
in Criminal Cases No. Q-97-70428 and Q-97-70429 and the Decision dated December 16, 1996 issued by
the Metropolitan Trial Court of Quezon City (Branch 38), to the effect that the dismissal of the
aforementioned criminal cases likewise include the dismissal of the civil aspects thereof, without
prejudice to the filing of civil and/or criminal actions under the prevailing laws.
151
 SECOND DIVISION
G.R. No. 125359 September 4, 2001
ROBERTO S. BENEDICTO and HECTOR T. RIVERA, petitioners, vs.
THE COURT OF APPEALS, HON. GUILLERMO L. LOJA, SR., PRESIDING JUDGE, REGIONAL TRIAL COURT OF
MANILA, BRANCH 26, and PEOPLE OF THE PHILIPPINES, respondents.
QUISUMBING, J.:
Assailed in this petition is the consolidated decision rendered on May 23, 1996, by the Court of Appeals
in CA-G.R. SP No. 35928 and CA-G.R. SP No. 35719. CA-G.R. SP No. 35928 had affirmed the order dated
September 6, 1994, of the Regional Trial Court, Manila, Branch 26, insofar as it denied petitioners’
respective Motions to Quash the Informations in twenty-five (25) criminal cases for violation of Central
Bank Circular No. 960. Therein included were informations involving: (a) consolidated Criminal Cases Nos.
91-101879 to 91-101883 filed against Mrs. Imelda R. Marcos, Roberto S. Benedicto, and Hector T. Rivera;
(b) consolidated Criminal Cases Nos. 91-101884 to 91-101892 filed against Mrs. Marcos and Benedicto;
and (c) Criminal Cases Nos. 92-101959 to 92-101969 also against Mrs. Marcos and Benedicto. Note,
however, that the Court of Appeals already dismissed Criminal Case No. 91-101884.
The factual antecedents of the instant petition are as follows:
On December 27, 1991, Mrs. Imelda Marcos and Messrs. Benedicto and Rivera were indicted for violation
of Section 10 of Circular No. 9601 relation to Section 342 of the Central Bank Act (Republic Act No. 265, as
amended) in five Informations filed with the Regional Trial Court of Manila. Docketed as Criminal Cases
Nos. 91-101879 to 91-101883, the charge sheets alleged that the trio failed to submit reports of their
foreign exchange earnings from abroad and/or failed to register with the Foreign Exchange Department
of the Central Bank within the period mandated by Circular No. 960. Said Circular prohibited natural and
juridical persons from maintaining foreign exchange accounts abroad without prior authorization from
the Central Bank.3 It also required all residents of the Philippines who habitually earned or received
foreign currencies from invisibles, either locally or abroad, to report such earnings or receipts to the
Central Bank. Violations of the Circular were punishable as a criminal offense under Section 34 of the
Central Bank Act.
That same day, nine additional Informations charging Mrs. Marcos and Benedicto with the same offense,
but involving different accounts, were filed with the Manila RTC, which docketed these as Criminal Cases
Nos. 91-101884 to 91-101892. The accusatory portion of the charge sheet in Criminal Case No. 91-
101888 reads:
That from September 1, 1983 up to 1987, both dates inclusive, and for sometime thereafter, both
accused, conspiring and confederating with each other and with the late President Ferdinand E. Marcos,
all residents of Manila, Philippines, and within the jurisdiction of this Honorable Court, did then and
there wilfully, unlawfully and feloniously fail to submit reports in the prescribed form and/or register with
the Foreign Exchange Department of the Central Bank within 90 days from October 21, 1983 as required
of them being residents habitually/customarily earning, acquiring or receiving foreign exchange from
whatever source or from invisibles locally or from abroad, despite the fact they actually earned interests
regularly every six (6) months for the first two years and then quarterly thereafter for their investment of
$50-million, later reduced to $25-million in December 1985, in Philippine-issued dollar denominated
treasury notes with floating rates and in bearer form, in the name of Bank Hofmann, AG, Zuring,
Switzerland, for the benefit of Avertina Foundation, their front organization established for economic
advancement purposes with secret foreign exchange account Category (Rubric) C.A.R. No. 211925-02 in
Swiss Credit Bank (also known as SKA) in Zurich, Switzerland, which earned, acquired or received for the
accused Imelda Romualdez Marcos and her late husband an interest of $2,267,892 as of December 16,
1985 which was remitted to Bank Hofmann, AG, through Citibank, New York, United States of America,
for the credit of said Avertina account on December 19, 1985, aside from the redemption of $25 million
(one-half of the original $50-M) as of December 16, 1985 and outwardly remitted from the Philippines in
the amounts of $7,495,297.49 and $17,489,062.50 on December 18, 1985 for further investment outside
the Philippine without first complying with the Central Bank reporting/registering
requirements.1âwphi1.nêt
CONTRARY TO LAW.4
The other charge sheets were similarly worded except the days of the commission of the offenses, the
name(s) of the alleged dummy or dummies, the amounts in the foreign exchange accounts maintained,
and the names of the foreign banks where such accounts were held by the accused.
On January 3, 1992, eleven more Informations accusing Mrs. Marcos and Benedicto of the same offense,
again in relation to different accounts, were filed with the same court, docketed as Criminal Cases Nos.
92-101959 to 92-101969. The Informations were similarly worded as the earlier indictments, save for the
details as to the dates of the violations of Circular No. 960, the identities of the dummies used, the
balances and sources of the earnings, and the names of the foreign banks where these accounts were
maintained.
All of the aforementioned criminal cases were consolidated before Branch 26 of the said trial court.
On the same day that Criminal Cases Nos. 92-101959 to 92-101969 were filed, the Central Bank issued
Circular No. 13185 which revised the rules governing non-trade foreign exchange transactions. It took
effect on January 20, 1992.
On August 24, 1992, the Central Bank, pursuant to the government’s policy of further liberalizing foreign
exchange transactions, came out with Circular No. 1356,6 which amended Circular No. 1318. Circular No.
1353 deleted the requirement of prior Central Bank approval for foreign exchange-funded expenditures
obtained from the banking system.
Both of the aforementioned circulars, however, contained a saving clause, excepting from their coverage
pending criminal actions involving violations of Circular No. 960 and, in the case of Circular No. 1353,
violations of both Circular No. 960 and Circular No. 1318.
On September 19, 1993, the government allowed petitioners Benedicto and Rivera to return to the
Philippines, on condition that they face the various criminal charges instituted against them, including
the dollar-salting cases. Petitioners posted bail in the latter cases.
On February 28, 1994, petitioners Benedicto and Rivera were arraigned. Both pleaded not guilty to the
charges of violating Central Bank Circular No. 960. Mrs. Marcos had earlier entered a similar plea during
her arraignment for the same offense on February 12, 1992.
On August 11, 1994, petitioners moved to quash all the Informations filed against them in Criminal Cases
Nos. 91-101879 to 91-101883; 91-101884 to 91-101892, and 91-101959 to 91-101969. Their motion was
grounded on lack of jurisdiction, forum shopping, extinction of criminal liability with the repeal of Circular
No. 960, prescription, exemption from the Central Bank’s reporting requirement, and the grant of
absolute immunity as a result of a compromise agreement entered into with the government.
On September 6, 1994, the trial court denied petitioners’ motion. A similar motion filed on May 23, 1994
by Mrs. Marcos seeking to dismiss the dollar-salting cases against her due to the repeal of Circular No.
960 had earlier been denied by the trial court in its order dated June 9, 1994. Petitioners then filed a
motion for reconsideration, but the trial court likewise denied this motion on October 18, 1994.
On November 21, 1994, petitioners moved for leave to file a second motion for reconsideration. The trial
court, in its order of November 23, 1994, denied petitioners’ motion and set the consolidated cases for
trial on January 5, 1995.
Two separate petitions for certiorari and prohibition, with similar prayers for temporary restraining
orders and/or writs of preliminary injunction, docketed as CA-G.R. SP No. 35719 and CA-G.R. SP No.
35928, were respectively filed by Mrs. Marcos and petitioners with the Court of Appeals. Finding that
both cases involved violations of Central Bank Circular No. 960, the appellate court consolidated the two
cases.
On May 23, 1996, the Court of Appeals disposed of the consolidated cases as follows:
WHEREFORE, finding no grave abuse of discretion on the part of respondent Judge in denying petitioners’
respective Motions to Quash, except that with respect to Criminal Case No. 91-101884, the instant
petitions are hereby DISMISSED for lack of merit. The assailed September 6, 1994 Order, in so far as it
denied the Motion to Quash Criminal Case No. 91-101884 is hereby nullified and set aside, and said case
is hereby dismissed. Costs against petitioners. SO ORDERED.7
Dissatisfied with the said decision of the court a quo, except with respect to the portion ordering the
dismissal of Criminal Case No. 91-101884, petitioners filed the instant petition, attributing the following
errors to the appellate court:
THAT THE COURT ERRED IN NOT FINDING THAT THE INFORMATIONS/CASES FILED AGAINST PETITIONERS-
APPELLANTS ARE QUASHABLE BASED ON THE FOLLOWING GROUNDS:
(A) LACK OF JURISDICTION/FORUM SHOPPING/NO VALID PRELIMINARY INVESTIGATION
(B) EXTINCTION OF CRIMINAL LIABILITY
1) REPEAL OF CB CIRCULAR NO. 960 BY CB CIRCULAR NO. 153;
2) REPEAL OF R.A. 265 BY R.A. 76538
152
(C) PRESCRIPTION
(D) EXEMPTION FROM CB REPORTING REQUIREMENT GRANT OF ABSOLUTE IMMUNITY. 9
Simply stated, the issues for our resolution are:
(1) Did the Court of Appeals err in denying the Motion to Quash for lack of jurisdiction on the part of the
trial court, forum shopping by the prosecution, and absence of a valid preliminary investigation?
(2) Did the repeal of Central Bank Circular No. 960 and Republic Act No. 265 by Circular No. 1353 and
Republic Act No. 7653 respectively, extinguish the criminal liability of petitioners?
(3) Had the criminal cases in violation of Circular No. 960 already prescribed?
(4) Were petitioners exempted from the application and coverage of Circular No. 960?
(5) Were petitioners’ alleged violations of Circular No. 960 covered by the absolute immunity granted in
the Compromise Agreement of November 3, 1990?
On the first issue, petitioners assail the jurisdiction of the Regional Trial Court. They aver that the dollar-
salting charges filed against them were violations of the Anti-Graft Law or Republic Act No. 3019, and the
Sandiganbayan has original and exclusive jurisdiction over their cases.
Settled is the rule that the jurisdiction of a court to try a criminal case is determined by the law in force at
the time the action is instituted.10 The 25 cases were filed in 1991-92. The applicable law on jurisdiction
then was Presidential Decree 1601.11 Under P.D. No. 1606, offenses punishable by imprisonment of not
more than six years fall within the jurisdiction of the regular trial courts, not the Sandiganbayan. 12
In the instant case, all the Informations are for violations of Circular No. 960 in relation to Section 34 of
the Central Bank Act and not, as petitioners insist, for transgressions of Republic Act No. 3019. Pursuant
to Section 34 of Republic Act No. 265, violations of Circular No. 960 are punishable by imprisonment of
not more than five years and a fine of not more than P20,000.00. Since under P.D. No. 1606 the
Sandiganbayan has no jurisdiction to try criminal cases where the imposable penalty is less than six years
of imprisonment, the cases against petitioners for violations of Circular No. 960 are, therefore cognizable
by the trial court. No error may thus be charged to the Court of Appeals when it held that the RTC of
Manila had jurisdiction to hear and try the dollar-salting cases.
Still on the first issue, petitioners next contend that the filing of the cases for violations of Circular No.
960 before the RTC of Manila Constitutes forum shopping. Petitioners argue that the prosecution, in an
attempt to seek a favorable verdict from more than one tribunal, filed separate cases involving virtually
the same offenses before the regular trial courts and the Sandiganbayan. They fault the prosecution with
splitting the cases. Petitioners maintain that while the RTC cases refer only to the failure to report interest
earnings on Treasury Notes, the Sandiganbayan cases seek to penalize the act of receiving the same
interest earnings on Treasury Notes in violation of the Anti-Graft Law’s provisions on prohibited
transactions. Petitioners aver that the violation of Circular No. 960 is but an element of the offense of
prohibited transactions punished under Republic Act No. 3019 and should, thus, be deemed absorbed by
the prohibited transactions cases pending before the Sandiganbayan.
For the charge of forum shopping to prosper, there must exist between an action pending in one court
and another action pending in one court and another action before another court: (a) identity of parties,
or at least such parties as represent the same interests in both actions; (b) identity of rights asserted and
relief prayed for, the relief being founded on the same facts; and (c) the identity of the two preceding
particulars is such that any judgment rendered in the other action will, regardless of which party is
successful, amount to res judicata in the action under consideration.13 Here, we find that the single act of
receiving unreported interest earnings on Treasury Notes held abroad constitutes an offense against two
or more distinct and unrelated laws, Circular No. 960 and R.A. 3019. Said laws define distinct offenses,
penalize different acts, and can be applied independently.14 Hence, no fault lies at the prosecution’s door
for having instituted separate cases before separate tribunals involving the same subject matter.
With respect to the RTC cases, the receipt of the interest earnings violate Circular No. 960 in relation to
Republic Act No. 265 because the same was unreported to the Central Bank. The act to be penalized here
is the failure to report the interest earnings from the foreign exchange accounts to the proper authority.
As to the anti-graft cases before the Sandiganbayan involving the same interest earnings from the same
foreign exchange accounts, the receipt of the interest earnings transgresses Republic Act No. 3019
because the act of receiving such interest is a prohibited transaction prejudicial to the government. What
the State seeks to punish in these anti-graft cases is the prohibited receipt of the interest earnings. In
sum, there is no identity of offenses charged, and prosecution under one law is not an obstacle to a
prosecution under the other law. There is no forum shopping.
Finally, on the first issue, petitioners contend that the preliminary investigation by the Department of
Justice was invalid and in violation of their rights to due process. Petitioners argue that government’s ban
on their travel effectively prevented them from returning home and personally appearing at the
preliminary investigation. Benedicto and Rivera further point out that the joint preliminary investigation
by the Department of Justice, resulted to the charges in one set of cases before the Sandiganbayan for
violations of Republic Act No. 3019 and another set before the RTC for violation of Circular No. 960.
Preliminary investigation is not part of the due process guaranteed by the Constitution. 15 It is an inquiry
to determine whether there is sufficient ground to engender a well-founded belief that a crime has been
committed and the respondent is probably guilty thereof.16 Instead, the right to a preliminary
investigation is personal. It is afforded to the accused by statute, and can be waived, either expressly or
by implication.17 The waiver extends to any irregularity in the preliminary investigation, where one was
conducted.
The petition in the present case contains the following admissions:
1. Allowed to return to the Philippines on September 19, 1993 … on the condition that he face the
criminal charges pending in courts, petitioner-appellant Benedicto, joined by his co-petitioner Rivera, lost
no time in attending to the pending criminal charges by posting bail in the above-mentioned cases.
2. Not having been afforded a real opportunity of attending the preliminary investigation because of their
forced absence from the Philippines then, petitioners-appellants invoked their right to due process thru
motions for preliminary investigation … Upon denial of their demands for preliminary investigation, the
petitioners intended to elevate the matter to the Honorable Court of Appeals and actually caused the
filing of a petition for certiorari/prohibition sometime before their arraignment but immediately caused
the withdrawal thereof … in view of the prosecution’s willingness to go to pre-trial wherein petitioner
would be allowed access to the records of preliminary investigation which they could use for purposes of
filing a motion to quash if warranted.
3. Thus, instead of remanding the Informations to the Department of Justice … respondent Judge set the
case for pre-trial in order to afford all the accused access to the records of prosecution…
xxx
5. On the basis of disclosures at the pre-trial, the petitioners-appellants Benedicto and Rivera moved for
the quashing of the informations/cases…18
The foregoing admissions lead us to conclude that petitioners have expressly waived their right to
question any supposed irregularity in the preliminary investigation or to ask for a new preliminary
investigation. Petitioners, in the above excerpts from this petition, admit posting bail immediately
following their return to the country, entered their respective pleas to the charges, and filed various
motions and pleadings. By so doing, without simultaneously demanding a proper preliminary
investigation, they have waived any and all irregularities in the conduct of a preliminary investigation.19
The trial court did not err in denying the motion to quash the informations on the ground of want of or
improperly conducted preliminary investigation. The absence of a preliminary investigation is not a
ground to quash the information.20
On the second issue, petitioners contend that they are being prosecuted for acts punishable under laws
that have already been repealed. They point to the express repeal of Central Bank Circular No. 960 by
Circular Nos. 1318 and 1353 as well as the express repeal of Republic Act No. 265 by Republic Act No.
7653. Petitioners, relying on Article 22 of the Revised Penal Code,21 contend that repeal has the effect of
extinguishing the right to prosecute or punish the offense committed under the old laws. 22
As a rule, an absolute repeal of a penal law has the effect of depriving a court of its authority to punish a
person charged with violation of the old law prior to its repeal.23 This is because an unqualified repeal of
a penal law constitutes a legislative act of rendering legal what had been previously declared as illegal,
such that the offense no longer exists and it is as if the person who committed it never did so. There are,
however, exceptions to the rule. One is the inclusion of a saving clause in the repealing statute that
provides that the repeal shall have no effect on pending actions.24 Another exception is where the
repealing act reenacts the former statute and punishes the act previously penalized under the old law. In
such instance, the act committed before the reenactment continues to be an offense in the statute books
and pending cases are not affected, regardless of whether the new penalty to be imposed is more
favorable to the accused.25
In the instant case, it must be noted that despite the repeal of Circular No. 960, Circular No. 1353
retained the same reportorial requirement for residents receiving earnings or profits from non-trade
153
foreign exchange transactions.26 Second, even the most cursory glance at the repealing circulars, Circular
Nos. 1318 and 1353 shows that both contain a saving clause, expressly providing that the repeal of
Circular No. 960 shall have no effect on pending actions for violation of the latter Circular.27 A saving
clause operates to except from the effect of the repealing law what would otherwise be lost under the
new law.28 In the present case, the respective saving clauses of Circular Nos. 1318 and 1353 clearly
manifest the intent to reserve the right of the State to prosecute and punish offenses for violations of the
repealed Circular No. 960, where the cases are either pending or under investigation.
Petitioners, however, insist that the repeal of Republic Act No. 265, particularly Section 34, 29 by Republic
Act No. 7653, removed the applicability of any special sanction for violations of any non-trade foreign
exchange transactions previously penalized by Circular No. 960. Petitioners posit that a comparison of the
two provisions shows that Section 3630 of Republic Act No. 7653 neither retained nor reinstated Section
34 of Republic Act No. 265. Since, in creating the Bangko Sentral ng Pilipinas, Congress did not include in
its charter a clause providing for the application of Section 34 of Republic Act No. 265 to pending cases,
petitioners’ pending dollar-salting cases are now bereft of statutory penalty, the saving clause in Circular
No. 1353 notwithstanding. In other words, absent a provision in Republic Act No. 7653 expressly reviving
the applicability of any penal sanction for the repealed mandatory foreign exchange reporting regulations
formerly required under Circular No. 960, violations of aforesaid repealed Circular can no longer be
prosecuted criminally.
A comparison of the old Central Bank Act and the new Bangko Sentral’s charter repealing the former
show that in consonance with the general objective of the old law and the new law "to maintain internal
and external monetary stability in the Philippines and preserve the international value of the peso," 31
both the repealed law and the repealing statute contain a penal cause which sought to penalize in
general, violations of the law as well as orders, instructions, rules, or regulations issued by the Monetary
Board. In the case of the Bangko Sentral, the scope of the penal clause was expanded to include
violations of "other pertinent banking laws enforced or implemented by the Bangko Sentral." In the
instant case, the acts of petitioners sought to be penalized are violations of rules and regulations issued
by the Monetary Board. These acts are proscribed and penalized in the penal clause of the repealed law
and this proviso for proscription and penalty was reenacted in the repealing law. We find, therefore, that
while Section 34 of Republic Act No. 265 was repealed, it was nonetheless, simultaneously reenacted in
Section 36 of Republic Act No. 7653. Where a clause or provision or a statute for the matter is
simultaneously repealed and reenacted, there is no effect, upon the rights and liabilities which have
accrued under the original statute, since the reenactment, in effect "neutralizes" the repeal and
continues the law in force without interruption.32 The rule applies to penal laws and statutes with penal
provisions. Thus, the repeal of a penal law or provision, under which a person is charged with violation
thereof and its simultaneous reenactment penalizing the same act done by him under the old law, will
neither preclude the accused’s prosecution nor deprive the court of its jurisdiction to hear and try his
case.33 As pointed out earlier, the act penalized before the reenactment continues to remain an offense
and pending cases are unaffected. Therefore, the repeal of Republic Act No. 265 by Republic Act No. 7653
did not extinguish the criminal liability of petitioners for transgressions of Circular No. 960 and cannot,
under the circumstances of this case, be made a basis for quashing the indictments against petitioners.
Petitioners, however, point out that Section 36 of Republic Act No. 7653, in reenacting Section 34 of the
old Central Act, increased the penalty for violations of rules and regulations issued by the Monetary
Board. They claim that such increase in the penalty would give Republic Act No. 7653 an ex post facto
application, violating the Bill of Rights.34
Is Section 36 of Republic Act No. 7653 and ex post facto legislation?
An ex post facto law is one which: (1) makes criminal an act done before the passage of the law and
which was innocent when done, and punishes such an act; (2) aggravates a crime, or makes it greater
than it was when committed; (3) changes the punishment and inflicts a greater punishment than the law
annexed to the crime when committed; (4) alters the legal rules of evidence, and authorizes conviction
upon less or different testimony than the law required at the time of the commission of the offense; (5)
assuming to regulate civil rights, and remedies only, in effect imposes penalty or deprivation of a right for
something which when done was lawful; and (6) deprives a person accused of a crime of some lawful
protection to which he has become entitled such as the protection of a former conviction or acquittal, or
a proclamation of amnesty.35
The test whether a penal law runs afoul of the ex post facto clause of the Constitution is: Does the law
sought to be applied retroactively take "from an accused any right that was regarded at the time of the
adoption of the constitution as vital for the protection of life and liberty and which he enjoyed at the
time of the commission of the offense charged against him." 36
The crucial words in the test are "vital for the protection of life and liberty."37 We find, however, the test
inapplicable to the penal clause of Republic Act No. 7653. Penal laws and laws which, while not penal in
nature, nonetheless have provisions defining offenses and prescribing penalties for their violation
operate prospectively.38 Penal laws cannot be given retroactive effect, except when they are favorable to
the accused.39 Nowhere in Republic Act No. 7653, and in particular Section 36, is there any indication that
the increased penalties provided therein were intended to operate retroactively. There is, therefore, no
ex post facto law in this case.
On the third issue, petitioners ask us to note that the dollar interest earnings subject of the criminal cases
instituted against them were remitted to foreign banks on various dates between 1983 to 1987. They
maintain that given the considerable lapse of time from the dates of the commission of the offenses to
the institution of the criminal actions in 1991 and 1992, the State’s right to prosecute them for said
offenses has already prescribed. Petitioners assert that the Court of Appeals erred in computing the
prescriptive period from February 1986. Petitioners theorize that since the remittances were made
through the Central Bank as a regulatory authority, the dates of the alleged violations are known, and
prescription should thus be counted from these dates.
In ruling that the dollar-salting cases against petitioners have not yet prescribed, the court a quo quoted
with approval the trial court’s finding that:
[T]he alleged violations of law were discovered only after the EDSA Revolution in 1986 when the
dictatorship was toppled down. The date of the discovery of the offense, therefore, should be the basis in
computing the prescriptive period. Since (the) offenses charged are punishable by imprisonment of not
more than five (5) years, they prescribe in eight (8) years. Thus, only a little more than four (4) years had
elapsed from the date of discovery in 1986 when the cases were filed in 1991.40
The offenses for which petitioners are charged are penalized by Section 34 of Republic Act No. 265 "by a
fine of not more than Twenty Thousand Pesos (P20,000.00) and by imprisonment of not more than five
years." Pursuant to Act No. 3326, which mandates the periods of prescription for violations of special
laws, the prescriptive period for violations of Circular No. 960 is eight (8) years.41 The period shall
commence "to run from the day of the commission of the violation of the law, and if the same be not
known at the time, from the discovery thereof and institution of judicial proceedings for its investigation
and punishment."42 In the instant case, the indictments against petitioners charged them with having
conspired with the late President Ferdinand E. Marcos in transgressing Circular No. 960. Petitioners’
contention that the dates of the commission of the alleged violations were known and prescription
should be counted from these dates must be viewed in the context of the political realities then
prevailing. Petitioners, as close associates of Mrs. Marcos, were not only protected from investigation by
their influence and connections, but also by the power and authority of a Chief Executive exercising
strong-arm rule. This Court has taken judicial notice of the fact that Mr. Marcos, his family, relations, and
close associates "resorted to all sorts of clever schemes and manipulations to disguise and hide their
illicit acquisitions."43 In the instant case, prescription cannot, therefore, be made to run from the dates of
the commission of those offenses were not known as of those dates. It was only after the EDSA
Revolution of February, 1986, that the recovery of ill-gotten wealth became a highly prioritized state
policy,44 pursuant to the explicit command of the Provisional Constitution.45 To ascertain the relevant
facts to recover "ill-gotten properties amassed by the leaders and supporters of the (Marcos) regime" 46
various government agencies were tasked by the Aquino administration to investigate, and as the
evidence on hand may reveal, file and prosecute the proper cases. Applying the presumption "that
official duty has been regularly performed",47 we are more inclined to believe that the violations for
which petitioners are charged were discovered only during the post-February 1986 investigations and the
tolling of the prescriptive period should be counted from the dates of discovery of their commission. The
criminal actions against petitioners, which gave rise to the instant case, were filed in 1991 and 1992, or
well within the eight-year prescriptive period counted from February 1986.
The fourth issue involves petitioners’ claim that they incurred no criminal liability for violations of Circular
No. 960 since they were exempted from its coverage.
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Petitioners postulate that since the purchases of treasury notes were done through the Central Bank’s
Securities Servicing Department and payments of the interest were coursed through its Securities
Servicing Department/Foreign Exchange Department, their filing of reports would be surplusage, since
the requisite information were already with the Central Bank. Furthermore, they contend that the foreign
currency investment accounts in the Swiss banks were subject to absolute confidentiality as provided for
by Republic Act No. 6426,48 as amended by Presidential Decree Nos. 1035, 1246, and 1453, and fell
outside the ambit of the reporting requirements imposed by Circular No. 960. Petitioners further rely on
the exemption from reporting provided for in Section 10(q),49 Circular No. 960, and the confidentiality
granted to Swiss bank accounts by the laws of Switzerland.
Petitioners correctly point out that Section 10(q) of Circular No. 960 exempts from the reporting
requirement foreign currency eligible for deposit under the Philippine Foreign Exchange Currency Deposit
System, pursuant to Republic Act No. 6426, as amended. But, in order to avail of the aforesaid
exemption, petitioners must show that they fall within its scope. Petitioners must satisfy the
requirements for eligibility imposed by Section 2, Republic Act No. 6426.50 Not only do we find the record
bare of any proof to support petitioners’ claim of falling within the coverage of Republic Act No. 6426, we
likewise find from a reading of Section 2 of the Foreign Currency Deposit Act that said law is inapplicable
to the foreign currency accounts in question. Section 2, Republic Act No. 6426 speaks of "deposit with
such Philippine banks in good standing, as may…be designated by the Central Bank for the purpose." 51
The criminal cases filed against petitioners for violation of Circular No. 960 involve foreign currency
accounts maintained in foreign banks, not Philippine banks. By invoking the confidentiality guarantees
provided for by Swiss banking laws, petitioners admit such reports made. The rule is that exceptions are
strictly construed and apply only so far as their language fairly warrants, with all doubts being resolved in
favor of the general proviso rather than the exception.52 Hence, petitioners may not claim exemption
under Section 10(q).
With respect to the banking laws of Switzerland cited by petitioners, the rule is that Philippine courts
cannot take judicial notice of foreign laws.53 Laws of foreign jurisdictions must be alleged and proved.54
Petitioners failed to prove the Swiss law relied upon, either by: (1) an official publication thereof; or (2) a
copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied by
a certification from the secretary of the Philippine embassy or legation in such country or by the
Philippine consul general, consul, vice-consul, or consular agent stationed in such country, or by any
other authorized officer in the Philippine foreign service assigned to said country that such officer has
custody.55 Absent such evidence, this Court cannot take judicial cognizance of the foreign law invoked by
Benedicto and Rivera.
Anent the fifth issue, petitioners insist that the government granted them absolute immunity under the
Compromise Agreement they entered into with the government on November 3, 1990. Petitioners cite
our decision in Republic v. Sandiganbayan, 226 SCRA 314 (1993), upholding the validity of the said
Agreement and directing the various government agencies to be consistent with it. Benedicto and Rivera
now insist that the absolute immunity from criminal investigation or prosecution granted to petitioner
Benedicto, his family, as well as to officers and employees of firms owned or controlled by Benedicto
under the aforesaid Agreement covers the suits filed for violations of Circular No. 960, which gave rise to
the present case.
The pertinent provisions of the Compromise Agreement read:
WHEREAS, this Compromise Agreement covers the remaining claims and the cases of the Philippine
Government against Roberto S. Benedicto including his associates and nominees, namely, Julita C.
Benedicto, Hector T. Rivera, x x x
WHEREAS, specifically these claims are the subject matter of the following cases (stress supplied):
1. Sandiganbayan Civil Case No. 9
2. Sandiganbayan Civil Case No. 24
3. Sandiganbayan Civil Case No. 34
4. Tanodbayan (Phil-Asia)
5. PCGG I.S. No. 1. x x x
WHEREAS, following the termination of the United States and Swiss cases, and also without admitting the
merits of their respective claims and counterclaims presently involved in uncertain, protracted and
expensive litigation, the Republic of the Philippines, solely motivated by the desire for the immediate
accomplishment of its recovery mission and Mr. Benedicto being interested to lead a peaceful and
normal pursuit of his endeavors, the parties have decided to withdraw and/or dismiss their mutual claims
and counterclaims under the cases pending in the Philippines, earlier referred to (underscoring supplied);
xxx
II. Lifting of Sequestrations, Extension of Absolute Immunity and Recognition of the Freedom to Travel
a) The Government hereby lifts the sequestrations over the assets listed in Annex "C" hereof, the same
being within the capacity of Mr. Benedicto to acquire from the exercise of his profession and conduct of
business, as well as all the haciendas listed in his name in Negro Occidental, all of which were inherited
by him or acquired with income from his inheritance…and all the other sequestered assets that belong to
Benedicto and his corporation/nominees which are not listed in Annex "A" as ceded or to be ceded to the
Government.
Provided, however, (that) any asset(s) not otherwise settled or covered by this Compromise Agreement,
hereinafter found and clearly established with finality by proper competent court as being held by Mr.
Roberto S. Benedicto in trust for the family of the late Ferdinand E. Marcos, shall be returned or
surrendered to the Government for appropriate custody and disposition.
b) The Government hereby extends absolute immunity, as authorized under the pertinent provisions of
Executive Orders Nos. 1, 2, 14 and 14-A, to Benedicto, the members of his family, officers and employees
of his corporations above mentioned, who are included in past, present and future cases and
investigations of the Philippine Government, such that there shall be no criminal investigation or
prosecution against said persons for acts (or) omissions committed prior to February 25, 1986, that may
be alleged to have violated any laws, including but not limited to Republic Act No. 3019, in relation to the
acquisition of any asset treated, mentioned or included in this Agreement. x x x56
In construing contracts, it is important to ascertain the intent of the parties by looking at the words
employed to project their intention. In the instant case, the parties clearly listed and limited the
applicability of the Compromise Agreement to the cases listed or identified therein. We have ruled in
another case involving the same Compromise Agreement that:
[T]he subject matters of the disputed compromise agreement are Sandiganbayan Civil Case No. 0009,
Civil Case No. 00234, Civil Case No. 0034, the Phil-Asia case before the Tanodbayan and PCGG I.S. No. 1.
The cases arose from complaints for reconveyance, reversion, accounting, restitution, and damages
against former President Ferdinand E. Marcos, members of his family, and alleged cronies, one of whom
was respondent Roberto S. Benedicto.57
Nowhere is there a mention of the criminal cases filed against petitioners for violations of Circular No.
960. Conformably with Article 1370 of the Civil Code,58 the Agreement relied upon by petitioners should
include only cases specifically mentioned therein. Applying the parol evidence rule,59 where the parties
have reduced their agreement into writing, the contents of the writing constitute the sole repository of
the terms of the agreement between the parties.60 Whatever is not found in the text of the Agreement
should thus be construed as waived and abandoned.61 Scrutiny of the Compromise Agreement will reveal
that it does not include all cases filed by the government against Benedicto, his family, and associates.
Additionally, the immunity covers only "criminal investigation or prosecution against said persons for acts
(or) omissions committed prior to February 25, 1986 that may be alleged to have violated any penal laws,
including but not limited to Republic Act No. 3019, in relation to the acquisition of any asset treated,
mentioned, or included in this Agreement."62 It is only when the criminal investigation or case involves
the acquisition of any ill-gotten wealth "treated mentioned, or included in this Agreement" 63 that
petitioners may invoke immunity. The record is bereft of any showing that the interest earnings from
foreign exchange deposits in banks abroad, which is the subject matter of the present case, are "treated,
mentioned, or included" in the Compromise Agreement. The phraseology of the grant of absolute
immunity in the Agreement precludes us from applying the same to the criminal charges faced by
petitioners for violations of Circular No. 960. A contract cannot be construed to include matters distinct
from those with respect to which the parties intended to contract.64
In sum, we find that no reversible error of law may be attributed to the Court of Appeals in upholding the
orders of the trial court denying petitioners’ Motion to Quash the Informations in Criminal Case Nos. 91-
101879 to 91-101883, 91-101884 to 91-101892, and 92-101959 to 92-101969. In our view, none of the
grounds provided for in the Rules of Court65 upon which petitioners rely, finds applications in this case.
On final matter. During the pendency of this petition, counsel for petitioner Roberto S. Benedicto gave
formal notice to the Court that said petitioner died on May 15, 2000. The death of an accused prior to
final judgment terminates his criminal liability as well as the civil liability based solely thereon.66
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WHEREFORE, the instant petition is DISMISSED. The assailed consolidated Decision of the Court of
Appeals dated May 23, 1996, in CA-G.R. SP No. 35928 and CA G.R. SP No. 35719, is AFFIRMED WITH
MODIFICATION that the charges against deceased petitioner, Roberto S. Benedicto, particularly in
Criminal Cases Nos. 91-101879 to 91-101883, 91-101884 to 101892, and 92-101959 to 92-101969,
pending before the Regional Trial Court of Manila, Branch 26, are ordered dropped and that any criminal
as well as civil liability ex delicto that might be attributable to him in the aforesaid cases are declared
extinguished by reason of his death on May 15, 2000.lawphil.net No pronouncement as to costs.
SO ORDERED.

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