EN BANC

G.R. No. 162230 April 28, 2010

ISABELITA C. VINUYA, VICTORIA C. DELA PEÑA, HERMINIHILDA MANIMBO, LEONOR H. SUMAWANG,

CANDELARIA L. SOLIMAN, MARIA L. QUILANTANG, MARIA L. MAGISA, NATALIA M. ALONZO, LOURDES M.
NAVARO, FRANCISCA M. ATENCIO, ERLINDA MANALASTAS, TARCILA M. SAMPANG, ESTER M. PALACIO,
MAXIMA R. DELA CRUZ, BELEN A. SAGUM, FELICIDAD TURLA, FLORENCIA M. DELA PEÑA, EUGENIA M.
LALU, JULIANA G. MAGAT, CECILIA SANGUYO, ANA ALONZO, RUFINA P. MALLARI, ROSARIO M. ALARCON,
RUFINA C. GULAPA, ZOILA B. MANALUS, CORAZON C. CALMA, MARTA A. GULAPA, TEODORA M.
HERNANDEZ, FERMIN B. DELA PEÑA, MARIA DELA PAZ B. CULALA, ESPERANZA MANAPOL, JUANITA M.
BRIONES, VERGINIA M. GUEVARRA, MAXIMA ANGULO, EMILIA SANGIL, TEOFILA R. PUNZALAN, JANUARIA
G. GARCIA, PERLA B. BALINGIT, BELEN A. CULALA, PILAR Q. GALANG, ROSARIO C. BUCO, GAUDENCIA C.
DELA PEÑA, RUFINA Q. CATACUTAN, FRANCIA A. BUCO, PASTORA C. GUEVARRA, VICTORIA M. DELA CRUZ,
PETRONILA O. DELA CRUZ, ZENAIDA P. DELA CRUZ, CORAZON M. SUBA, EMERINCIANA A. VINUYA, LYDIA
A. SANCHEZ, ROSALINA M. BUCO, PATRICIA A. BERNARDO, LUCILA H. PAYAWAL, MAGDALENA LIWAG,
ESTER C. BALINGIT, JOVITA A. DAVID, EMILIA C. MANGILIT, VERGINIA M. BANGIT, GUILLERMA S. BALINGIT,
TERECITA PANGILINAN, MAMERTA C. PUNO, CRISENCIANA C. GULAPA, SEFERINA S. TURLA, MAXIMA B.
TURLA, LEONICIA G. GUEVARRA, ROSALINA M. CULALA, CATALINA Y. MANIO, MAMERTA T. SAGUM,
CARIDAD L. TURLA, et al. In their capacity and as members of the "Malaya Lolas Organization", Petitioners,

vs.

THE HONORABLE EXECUTIVE SECRETARY ALBERTO G. ROMULO, THE HONORABLE SECRETARY OF

FOREIGN AFFAIRS DELIA DOMINGO-ALBERT, THE HONORABLE SECRETARY OF JUSTICE MERCEDITAS N.
GUTIERREZ, and THE HONORABLE SOLICITOR GENERAL ALFREDO L. BENIPAYO, Respondents.

DECISION

DEL CASTILLO, J.:

The Treaty of Peace with Japan, insofar as it barred future claims such as those asserted by plaintiffs in
these actions, exchanged full compensation of plaintiffs for a future peace. History has vindicated the
wisdom of that bargain. And while full compensation for plaintiffs' hardships, in the purely economic
sense, has been denied these former prisoners and countless other survivors of the war, the
immeasurable bounty of life for themselves and their posterity in a free society and in a more peaceful
world services the debt.1

There is a broad range of vitally important areas that must be regularly decided by the Executive
Department without either challenge or interference by the Judiciary. One such area involves the delicate
arena of foreign relations. It would be strange indeed if the courts and the executive spoke with different
voices in the realm of foreign policy. Precisely because of the nature of the questions presented, and the
lapse of more than 60 years since the conduct complained of, we make no attempt to lay down general
guidelines covering other situations not involved here, and confine the opinion only to the very questions
necessary to reach a decision on this matter.

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Factual Antecedents

This is an original Petition for Certiorari under Rule 65 of the Rules of Court with an application for the
issuance of a writ of preliminary mandatory injunction against the Office of the Executive Secretary, the
Secretary of the Department of Foreign Affairs (DFA), the Secretary of the Department of Justice (DOJ),
and the Office of the Solicitor General (OSG).

Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit organization registered with
the Securities and Exchange Commission, established for the purpose of providing aid to the victims of
rape by Japanese military forces in the Philippines during the Second World War.

Petitioners narrate that during the Second World War, the Japanese army attacked villages and
systematically raped the women as part of the destruction of the village. Their communities were
bombed, houses were looted and burned, and civilians were publicly tortured, mutilated, and
slaughtered. Japanese soldiers forcibly seized the women and held them in houses or cells, where they
were repeatedly raped, beaten, and abused by Japanese soldiers. As a result of the actions of their
Japanese tormentors, the petitioners have spent their lives in misery, having endured physical injuries,
pain and disability, and mental and emotional suffering.2

Petitioners claim that since 1998, they have approached the Executive Department through the DOJ, DFA,
and OSG, requesting assistance in filing a claim against the Japanese officials and military officers who
ordered the establishment of the "comfort women" stations in the Philippines. However, officials of the
Executive Department declined to assist the petitioners, and took the position that the individual claims
of the comfort women for compensation had already been fully satisfied by Japan’s compliance with the
Peace Treaty between the Philippines and Japan.

Issues

Hence, this petition where petitioners pray for this court to (a) declare that respondents committed grave
abuse of discretion amounting to lack or excess of discretion in refusing to espouse their claims for the
crimes against humanity and war crimes committed against them; and (b) compel the respondents to
espouse their claims for official apology and other forms of reparations against Japan before the
International Court of Justice (ICJ) and other international tribunals.

Petitioners’ arguments

Petitioners argue that the general waiver of claims made by the Philippine government in the Treaty of
Peace with Japan is void. They claim that the comfort women system established by Japan, and the brutal
rape and enslavement of petitioners constituted a crime against humanity,3 sexual slavery,4 and
torture.5 They allege that the prohibition against these international crimes is jus cogens norms from
which no derogation is possible; as such, in waiving the claims of Filipina comfort women and failing to
espouse their complaints against Japan, the Philippine government is in breach of its legal obligation not
to afford impunity for crimes against humanity. Finally, petitioners assert that the Philippine

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government’s acceptance of the "apologies" made by Japan as well as funds from the Asian Women’s
Fund (AWF) were contrary to international law.

Respondents’ Arguments

Respondents maintain that all claims of the Philippines and its nationals relative to the war were dealt
with in the San Francisco Peace Treaty of 1951 and the bilateral Reparations Agreement of 1956.6

Article 14 of the Treaty of Peace7 provides:

Article 14. Claims and Property

a) It is recognized that Japan should pay reparations to the Allied Powers for the damage and suffering
caused by it during the war. Nevertheless it is also recognized that the resources of Japan are not presently
sufficient, if it is to maintain a viable economy, to make complete reparation for all such damage and
suffering and at the present time meet its other obligations.

b) Except as otherwise provided in the present Treaty, the Allied Powers waive all reparations claims of
the Allied Powers, other claims of the Allied Powers and their nationals arising out of any actions taken by
Japan and its nationals in the course of the prosecution of the war, and claims of the Allied Powers for
direct military costs of occupation.

In addition, respondents argue that the apologies made by Japan8 have been satisfactory, and that Japan
had addressed the individual claims of the women through the atonement money paid by the Asian
Women’s Fund.

Historical Background

The comfort women system was the tragic legacy of the Rape of Nanking. In December 1937, Japanese
military forces captured the city of Nanking in China and began a "barbaric campaign of terror" known as
the Rape of Nanking, which included the rapes and murders of an estimated 20,000 to 80,000 Chinese
women, including young girls, pregnant mothers, and elderly women.9

In reaction to international outcry over the incident, the Japanese government sought ways to end
international condemnation10 by establishing the "comfort women" system. Under this system, the
military could simultaneously appease soldiers' sexual appetites and contain soldiers' activities within a
regulated environment.11 Comfort stations would also prevent the spread of venereal disease among
soldiers and discourage soldiers from raping inhabitants of occupied territories.12

Daily life as a comfort woman was "unmitigated misery."13 The military forced victims into barracks-style
stations divided into tiny cubicles where they were forced to live, sleep, and have sex with as many 30
soldiers per day.14 The 30 minutes allotted for sexual relations with each soldier were 30-minute
increments of unimaginable horror for the women.15 Disease was rampant.16 Military doctors regularly
examined the women, but these checks were carried out to prevent the spread of venereal diseases; little

3
notice was taken of the frequent cigarette burns, bruises, bayonet stabs and even broken bones inflicted
on the women by soldiers.

Fewer than 30% of the women survived the war.17 Their agony continued in having to suffer with the
residual physical, psychological, and emotional scars from their former lives. Some returned home and
were ostracized by their families. Some committed suicide. Others, out of shame, never returned home.18

Efforts to Secure Reparation

The most prominent attempts to compel the Japanese government to accept legal responsibility and pay
compensatory damages for the comfort women system were through a series of lawsuits, discussion at
the United Nations (UN), resolutions by various nations, and the Women’s International Criminal Tribunal.
The Japanese government, in turn, responded through a series of public apologies and the creation of the
AWF.19

Lawsuits

In December 1991, Kim Hak-Sun and two other survivors filed the first lawsuit in Japan by former
comfort women against the Japanese government. The Tokyo District Court however dismissed their
case.20 Other suits followed,21 but the Japanese government has, thus far, successfully caused the
dismissal of every case.22

Undoubtedly frustrated by the failure of litigation before Japanese courts, victims of the comfort women
system brought their claims before the United States (US). On September 18, 2000, 15 comfort women
filed a class action lawsuit in the US District Court for the District of Columbia23 "seeking money
damages for [allegedly] having been subjected to sexual slavery and torture before and during World War
II," in violation of "both positive and customary international law." The case was filed pursuant to the
Alien Tort Claims Act ("ATCA"),24 which allowed the plaintiffs to sue the Japanese government in a US
federal district court.25 On October 4, 2001, the district court dismissed the lawsuit due to lack of
jurisdiction over Japan, stating that "[t]here is no question that this court is not the appropriate forum in
which plaintiffs may seek to reopen x x x discussions nearly half a century later x x x [E]ven if Japan did
not enjoy sovereign immunity, plaintiffs' claims are non-justiciable and must be dismissed."

The District of Columbia Court of Appeals affirmed the lower court's dismissal of the case.26 On appeal,
the US Supreme Court granted the women’s petition for writ of certiorari, vacated the judgment of the
District of Columbia Court of Appeals, and remanded the case.27 On remand, the Court of Appeals
affirmed its prior decision, noting that "much as we may feel for the plight of the appellants, the courts of
the US simply are not authorized to hear their case."28 The women again brought their case to the US
Supreme Court which denied their petition for writ of certiorari on February 21, 2006.

Efforts at the United Nations

In 1992, the Korean Council for the Women Drafted for Military Sexual Slavery by Japan (KCWS), submitted
a petition to the UN Human Rights Commission (UNHRC), asking for assistance in investigating crimes

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committed by Japan against Korean women and seeking reparations for former comfort women.29 The
UNHRC placed the issue on its agenda and appointed Radhika Coomaraswamy as the issue's special
investigator. In 1996, Coomaraswamy issued a Report reaffirming Japan's responsibility in forcing Korean
women to act as sex slaves for the imperial army, and made the following recommendations:

A. At the national level

137. The Government of Japan should:

(a) Acknowledge that the system of comfort stations set up by the Japanese Imperial Army during the
Second World War was a violation of its obligations under international law and accept legal responsibility
for that violation;

(b) Pay compensation to individual victims of Japanese military sexual slavery according to principles
outlined by the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection
of Minorities on the right to restitution, compensation and rehabilitation for victims of grave violations of
human rights and fundamental freedoms. A special administrative tribunal for this purpose should be set
up with a limited time-frame since many of the victims are of a very advanced age;

(c) Make a full disclosure of documents and materials in its possession with regard to comfort stations
and other related activities of the Japanese Imperial Army during the Second World War;

(d) Make a public apology in writing to individual women who have come forward and can be
substantiated as women victims of Japanese military sexual slavery;

(e) Raise awareness of these issues by amending educational curricula to reflect historical realities;

(f) Identify and punish, as far as possible, perpetrators involved in the recruitment and institutionalization
of comfort stations during the Second World War.

Gay J. McDougal, the Special Rapporteur for the UN Sub-Commission on Prevention of Discrimination
and Protection of Minorities, also presented a report to the Sub-Committee on June 22, 1998 entitled
Contemporary Forms of Slavery: Systematic Rape, Sexual Slavery and Slavery-like Practices During Armed
Conflict. The report included an appendix entitled An Analysis of the Legal Liability of the Government of
Japan for 'Comfort Women Stations' established during the Second World War,30 which contained the
following findings:

68. The present report concludes that the Japanese Government remains liable for grave violations of
human rights and humanitarian law, violations that amount in their totality to crimes against humanity.
The Japanese Government’s arguments to the contrary, including arguments that seek to attack the
underlying humanitarian law prohibition of enslavement and rape, remain as unpersuasive today as they
were when they were first raised before the Nuremberg war crimes tribunal more than 50 years ago. In
addition, the Japanese Government’s argument that Japan has already settled all claims from the Second
World War through peace treaties and reparations agreements following the war remains equally
unpersuasive. This is due, in large part, to the failure until very recently of the Japanese Government to
admit the extent of the Japanese military’s direct involvement in the establishment and maintenance
of these rape centres. The Japanese Government’s silence on this point during the period in which peace

5
and reparations agreements between Japan and other Asian Governments were being negotiated
following the end of the war must, as a matter of law and justice, preclude Japan from relying today on
these peace treaties to extinguish liability in these cases.

69. The failure to settle these claims more than half a century after the cessation of hostilities is a
testament to the degree to which the lives of women continue to be undervalued. Sadly, this failure to
address crimes of a sexual nature committed on a massive scale during the Second World War has added
to the level of impunity with which similar crimes are committed today. The Government of Japan has
taken some steps to apologize and atone for the rape and enslavement of over 200,000 women and girls
who were brutalized in "comfort stations" during the Second World War. However, anything less than full
and unqualified acceptance by the Government of Japan of legal liability and the consequences that flow
from such liability is wholly inadequate. It must now fall to the Government of Japan to take the necessary
final steps to provide adequate redress.

The UN, since then, has not taken any official action directing Japan to provide the reparations sought.

Women's International War Crimes Tribunal

The Women's International War Crimes Tribunal (WIWCT) was a "people's tribunal" established by a
number of Asian women and human rights organizations, supported by an international coalition of non-
governmental organizations.31 First proposed in 1998, the WIWCT convened in Tokyo in 2000 in order to
"adjudicate Japan's military sexual violence, in particular the enslavement of comfort women, to bring
those responsible for it to justice, and to end the ongoing cycle of impunity for wartime sexual violence
against women."

After examining the evidence for more than a year, the "tribunal" issued its verdict on December 4, 2001,
finding the former Emperor Hirohito and the State of Japan guilty of crimes against humanity for the rape
and sexual slavery of women.32 It bears stressing, however, that although the tribunal included
prosecutors, witnesses, and judges, its judgment was not legally binding since the tribunal itself was
organized by private citizens.

Action by Individual Governments

On January 31, 2007, US Representative Michael Honda of California, along with six co-sponsor
representatives, introduced House Resolution 121 which called for Japanese action in light of the ongoing
struggle for closure by former comfort women. The Resolution was formally passed on July 30, 2007,33
and made four distinct demands:

[I]t is the sense of the House of Representatives that the Government of Japan (1) should formally
acknowledge, apologize, and accept historical responsibility in a clear and unequivocal manner for its
Imperial Armed Forces' coercion of young women into sexual slavery, known to the world as "comfort
women", during its colonial and wartime occupation of Asia and the Pacific Islands from the 1930s through
the duration of World War II; (2) would help to resolve recurring questions about the sincerity and status
of prior statements if the Prime Minister of Japan were to make such an apology as a public statement in
his official capacity; (3) should clearly and publicly refute any claims that the sexual enslavement and
trafficking of the "comfort women" for the Japanese Imperial Army never occurred; and (4) should

6
educate current and future generations about this horrible crime while following the recommendations
of the international community with respect to the "comfort women."34

In December 2007, the European Parliament, the governing body of the European Union, drafted a
resolution similar to House Resolution 121.35 Entitled, "Justice for Comfort Women," the resolution
demanded: (1) a formal acknowledgment of responsibility by the Japanese government; (2) a removal of
the legal obstacles preventing compensation; and (3) unabridged education of the past. The resolution
also stressed the urgency with which Japan should act on these issues, stating: "the right of individuals to
claim reparations against the government should be expressly recognized in national law, and cases for
reparations for the survivors of sexual slavery, as a crime under international law, should be prioritized,
taking into account the age of the survivors."

The Canadian and Dutch parliaments have each followed suit in drafting resolutions against Japan.
Canada's resolution demands the Japanese government to issue a formal apology, to admit that its
Imperial Military coerced or forced hundreds of thousands of women into sexual slavery, and to restore
references in Japanese textbooks to its war crimes.36 The Dutch parliament's resolution calls for the
Japanese government to uphold the 1993 declaration of remorse made by Chief Cabinet Secretary Yohei
Kono.

The Foreign Affairs Committee of the United Kingdom’s Parliament also produced a report in November,
2008 entitled, "Global Security: Japan and Korea" which concluded that Japan should acknowledge the
pain caused by the issue of comfort women in order to ensure cooperation between Japan and Korea.

Statements of Remorse made by representatives of the Japanese government

Various officials of the Government of Japan have issued the following public statements concerning the
comfort system:

a) Statement by the Chief Cabinet Secretary Yohei Kono in 1993:

The Government of Japan has been conducting a study on the issue of wartime "comfort women" since
December 1991. I wish to announce the findings as a result of that study.

As a result of the study which indicates that comfort stations were operated in extensive areas for long
periods, it is apparent that there existed a great number of comfort women. Comfort stations were
operated in response to the request of the military authorities of the day. The then Japanese military was,
directly or indirectly, involved in the establishment and management of the comfort stations and the
transfer of comfort women. The recruitment of the comfort women was conducted mainly by private
recruiters who acted in response to the request of the military. The Government study has revealed that
in many cases they were recruited against their own will, through coaxing coercion, etc., and that, at
times, administrative/military personnel directly took part in the recruitments. They lived in misery at
comfort stations under a coercive atmosphere.

As to the origin of those comfort women who were transferred to the war areas, excluding those from
Japan, those from the Korean Peninsula accounted for a large part. The Korean Peninsula was under
Japanese rule in those days, and their recruitment, transfer, control, etc., were conducted generally
against their will, through coaxing, coercion, etc.

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Undeniably, this was an act, with the involvement of the military authorities of the day, that severely
injured the honor and dignity of many women. The Government of Japan would like to take this
opportunity once again to extend its sincere apologies and remorse to all those, irrespective of place of
origin, who suffered immeasurable pain and incurable physical and psychological wounds as comfort
women.

It is incumbent upon us, the Government of Japan, to continue to consider seriously, while listening to the
views of learned circles, how best we can express this sentiment.

We shall face squarely the historical facts as described above instead of evading them, and take them to
heart as lessons of history. We hereby reiterated our firm determination never to repeat the same mistake
by forever engraving such issues in our memories through the study and teaching of history.

As actions have been brought to court in Japan and interests have been shown in this issue outside Japan,
the Government of Japan shall continue to pay full attention to this matter, including private researched
related thereto.

b) Prime Minister Tomiichi Murayama’s Statement in 1994

On the issue of wartime "comfort women", which seriously stained the honor and dignity of many women,
I would like to take this opportunity once again to express my profound and sincere remorse and
apologies"

c) Letters from the Prime Minister of Japan to Individual Comfort Women

The issue of comfort women, with the involvement of the Japanese military authorities at that time, was
a grave affront to the honor and dignity of a large number of women.

As Prime Minister of Japan, I thus extend anew my most sincere apologies and remorse to all the women
who endured immeasurable and painful experiences and suffered incurable physical and psychological
wounds as comfort women.

I believe that our country, painfully aware of its moral responsibilities, with feelings of apology and
remorse, should face up squarely to its past history and accurately convey it to future generations.

d) The Diet (Japanese Parliament) passed resolutions in 1995 and 2005

Solemnly reflecting upon the many instances of colonial rule and acts of aggression that occurred in
modern world history, and recognizing that Japan carried out such acts in the past and inflicted suffering
on the people of other countries, especially in Asia, the Members of this House hereby express deep
remorse. (Resolution of the House of Representatives adopted on June 9, 1995)

e) Various Public Statements by Japanese Prime Minister Shinzo AAb

I have talked about this matter in the Diet sessions last year, and recently as well, and to the press. I have
been consistent. I will stand by the Kono Statement. This is our consistent position. Further, we have been
apologizing sincerely to those who suffered immeasurable pain and incurable psychological wounds as
comfort women. Former Prime Ministers, including Prime Ministers Koizumi and Hashimoto, have issued
letters to the comfort women. I would like to be clear that I carry the same feeling. This has not changed
even slightly. (Excerpt from Remarks by Prime Minister Abe at an Interview by NHK, March 11, 2007).

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I am apologizing here and now. I am apologizing as the Prime Minister and it is as stated in the statement
by the Chief Cabinet Secretary Kono. (Excerpt from Remarks by Prime Minister Abe at the Budget
Committee, the House of Councilors, the Diet of Japan, March 26, 2007).

I am deeply sympathetic to the former comfort women who suffered hardships, and I have expressed my
apologies for the extremely agonizing circumstances into which they were placed. (Excerpt from
Telephone Conference by Prime Minister Abe to President George W. Bush, April 3, 2007).

I have to express sympathy from the bottom of my heart to those people who were taken as wartime
comfort women. As a human being, I would like to express my sympathies, and also as prime minister of
Japan I need to apologize to them. My administration has been saying all along that we continue to stand
by the Kono Statement. We feel responsible for having forced these women to go through that hardship
and pain as comfort women under the circumstances at the time. (Excerpt from an interview article "A
Conversation with Shinzo Abe" by the Washington Post, April 22, 2007).

x x x both personally and as Prime Minister of Japan, my heart goes out in sympathy to all those who
suffered extreme hardships as comfort women; and I expressed my apologies for the fact that they were
forced to endure such extreme and harsh conditions. Human rights are violated in many parts of the world
during the 20th Century; therefore we must work to make the 21st Century a wonderful century in which
no human rights are violated. And the Government of Japan and I wish to make significant contributions
to that end. (Excerpt from Prime Minister Abe's remarks at the Joint Press Availability after the summit
meeting at Camp David between Prime Minister Abe and President Bush, April 27, 2007).

The Asian Women's Fund

Established by the Japanese government in 1995, the AWF represented the government's concrete
attempt to address its moral responsibility by offering monetary compensation to victims of the comfort
women system.37 The purpose of the AWF was to show atonement of the Japanese people through
expressions of apology and remorse to the former wartime comfort women, to restore their honor, and
to demonstrate Japan’s strong respect for women.38

The AWF announced three programs for former comfort women who applied for assistance: (1) an
atonement fund paying ¥2 million (approximately $20,000) to each woman; (2) medical and welfare
support programs, paying ¥2.5-3 million ($25,000-$30,000) for each woman; and (3) a letter of apology
from the Japanese Prime Minister to each woman. Funding for the program came from the Japanese
government and private donations from the Japanese people. As of March 2006, the AWF provided ¥700
million (approximately $7 million) for these programs in South Korea, Taiwan, and the Philippines; ¥380
million (approximately $3.8 million) in Indonesia; and ¥242 million (approximately $2.4 million) in the
Netherlands.

On January 15, 1997, the AWF and the Philippine government signed a Memorandum of Understanding
for medical and welfare support programs for former comfort women. Over the next five years, these
were implemented by the Department of Social Welfare and Development.

Our Ruling

9
Stripped down to its essentials, the issue in this case is whether the Executive Department committed
grave abuse of discretion in not espousing petitioners’ claims for official apology and other forms of
reparations against Japan.

The petition lacks merit.

From a Domestic Law Perspective, the Executive Department has the exclusive prerogative to determine
whether to espouse petitioners’ claims against Japan.

Baker v. Carr39 remains the starting point for analysis under the political question doctrine. There the US
Supreme Court explained that:

x x x Prominent on the surface of any case held to involve a political question is found a textually
demonstrable constitutional commitment of the issue to a coordinate political department or a lack of
judicially discoverable and manageable standards for resolving it, or the impossibility of deciding without
an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's
undertaking independent resolution without expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning adherence to a political decision already made; or the
potentiality of embarrassment from multifarious pronouncements by various departments on question.

In Tañada v. Cuenco,40 we held that political questions refer "to those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or executive branch of the government. It is
concerned with issues dependent upon the wisdom, not legality of a particular measure."

Certain types of cases often have been found to present political questions.41 One such category
involves questions of foreign relations. It is well-established that "[t]he conduct of the foreign relations of
our government is committed by the Constitution to the executive and legislative--'the political'--
departments of the government, and the propriety of what may be done in the exercise of this political
power is not subject to judicial inquiry or decision."42 The US Supreme Court has further cautioned that
decisions relating to foreign policy

are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only
by those directly responsible to the people whose welfare they advance or imperil. They are decisions of
a kind for which the Judiciary has neither aptitude, facilities nor responsibility.43

To be sure, not all cases implicating foreign relations present political questions, and courts certainly
possess the authority to construe or invalidate treaties and executive agreements.44 However, the
question whether the Philippine government should espouse claims of its nationals against a foreign
government is a foreign relations matter, the authority for which is demonstrably committed by our
Constitution not to the courts but to the political branches. In this case, the Executive Department has
already decided that it is to the best interest of the country to waive all claims of its nationals for
reparations against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the courts
to question. Neither could petitioners herein assail the said determination by the Executive Department
via the instant petition for certiorari.

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In the seminal case of US v. Curtiss-Wright Export Corp.,45 the US Supreme Court held that "[t]he
President is the sole organ of the nation in its external relations, and its sole representative with foreign
relations."

It is quite apparent that if, in the maintenance of our international relations, embarrassment -- perhaps
serious embarrassment -- is to be avoided and success for our aims achieved, congressional legislation
which is to be made effective through negotiation and inquiry within the international field must often
accord to the President a degree of discretion and freedom from statutory restriction which would not be
admissible where domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity
of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He
has his confidential sources of information. He has his agents in the form of diplomatic, consular and other
officials. x x x

This ruling has been incorporated in our jurisprudence through Bayan v. Executive Secretary46 and
Pimentel v. Executive Secretary;47 its overreaching principle was, perhaps, best articulated in (now Chief)
Justice Puno’s dissent in Secretary of Justice v. Lantion:48

x x x The conduct of foreign relations is full of complexities and consequences, sometimes with life and
death significance to the nation especially in times of war. It can only be entrusted to that department of
government which can act on the basis of the best available information and can decide with decisiveness.
x x x It is also the President who possesses the most comprehensive and the most confidential information
about foreign countries for our diplomatic and consular officials regularly brief him on meaningful events
all over the world. He has also unlimited access to ultra-sensitive military intelligence data. In fine, the
presidential role in foreign affairs is dominant and the President is traditionally accorded a wider degree
of discretion in the conduct of foreign affairs. The regularity, nay, validity of his actions are adjudged under
less stringent standards, lest their judicial repudiation lead to breach of an international obligation,
rupture of state relations, forfeiture of confidence, national embarrassment and a plethora of other
problems with equally undesirable consequences.

The Executive Department has determined that taking up petitioners’ cause would be inimical to our
country’s foreign policy interests, and could disrupt our relations with Japan, thereby creating serious
implications for stability in this region. For us to overturn the Executive Department’s determination
would mean an assessment of the foreign policy judgments by a coordinate political branch to which
authority to make that judgment has been constitutionally committed.

In any event, it cannot reasonably be maintained that the Philippine government was without authority
to negotiate the Treaty of Peace with Japan. And it is equally true that, since time immemorial, when
negotiating peace accords and settling international claims:

x x x [g]overnments have dealt with x x x private claims as their own, treating them as national assets, and
as counters, `chips', in international bargaining. Settlement agreements have lumped, or linked, claims
deriving from private debts with others that were intergovernmental in origin, and concessions in regard
to one category of claims might be set off against concessions in the other, or against larger political
considerations unrelated to debts.49

Indeed, except as an agreement might otherwise provide, international settlements generally wipe out
the underlying private claims, thereby terminating any recourse under domestic law. In Ware v. Hylton,50

11
a case brought by a British subject to recover a debt confiscated by the Commonwealth of Virginia
during the war, Justice Chase wrote:

I apprehend that the treaty of peace abolishes the subject of the war, and that after peace is concluded,
neither the matter in dispute, nor the conduct of either party, during the war, can ever be revived, or
brought into contest again. All violences, injuries, or damages sustained by the government, or people of
either, during the war, are buried in oblivion; and all those things are implied by the very treaty of peace;
and therefore not necessary to be expressed. Hence it follows, that the restitution of, or compensation
for, British property confiscated, or extinguished, during the war, by any of the United States, could only
be provided for by the treaty of peace; and if there had been no provision, respecting these subjects, in
the treaty, they could not be agitated after the treaty, by the British government, much less by her
subjects in courts of justice. (Emphasis supplied).

This practice of settling claims by means of a peace treaty is certainly nothing new. For instance, in Dames
& Moore v. Regan,51 the US Supreme Court held:

Not infrequently in affairs between nations, outstanding claims by nationals of one country against the
government of another country are "sources of friction" between the two sovereigns. United States v.
Pink, 315 U.S. 203, 225, 62 S.Ct. 552, 563, 86 L.Ed. 796 (1942). To resolve these difficulties, nations have
often entered into agreements settling the claims of their respective nationals. As one treatise writer puts
it, international agreements settling claims by nationals of one state against the government of another
"are established international practice reflecting traditional international theory." L. Henkin, Foreign
Affairs and the Constitution 262 (1972). Consistent with that principle, the United States has repeatedly
exercised its sovereign authority to settle the claims of its nationals against foreign countries. x x x Under
such agreements, the President has agreed to renounce or extinguish claims of United States nationals
against foreign governments in return for lump-sum payments or the establishment of arbitration
procedures. To be sure, many of these settlements were encouraged by the United States claimants
themselves, since a claimant's only hope of obtaining any payment at all might lie in having his
Government negotiate a diplomatic settlement on his behalf. But it is also undisputed that the "United
States has sometimes disposed of the claims of its citizens without their consent, or even without
consultation with them, usually without exclusive regard for their interests, as distinguished from those
of the nation as a whole." Henkin, supra, at 262-263. Accord, Restatement (Second) of Foreign Relations
Law of the United States § 213 (1965) (President "may waive or settle a claim against a foreign state x x x
[even] without the consent of the [injured] national"). It is clear that the practice of settling claims
continues today.

Respondents explain that the Allied Powers concluded the Peace Treaty with Japan not necessarily for
the complete atonement of the suffering caused by Japanese aggression during the war, not for the
payment of adequate reparations, but for security purposes. The treaty sought to prevent the spread of
communism in Japan, which occupied a strategic position in the Far East. Thus, the Peace Treaty
compromised individual claims in the collective interest of the free world.

This was also the finding in a similar case involving American victims of Japanese slave labor during the
war.52 In a consolidated case in the Northern District of California,53 the court dismissed the lawsuits
filed, relying on the 1951 peace treaty with Japan,54 because of the following policy considerations:

12
The official record of treaty negotiations establishes that a fundamental goal of the agreement was to
settle the reparations issue once and for all. As the statement of the chief United States negotiator, John
Foster Dulles, makes clear, it was well understood that leaving open the possibility of future claims would
be an unacceptable impediment to a lasting peace:

Reparation is usually the most controversial aspect of peacemaking. The present peace is no exception.

On the one hand, there are claims both vast and just. Japan's aggression caused tremendous cost, losses
and suffering.

On the other hand, to meet these claims, there stands a Japan presently reduced to four home islands
which are unable to produce the food its people need to live, or the raw materials they need to work. x x
x

The policy of the United States that Japanese liability for reparations should be sharply limited was
informed by the experience of six years of United States-led occupation of Japan. During the occupation
the Supreme Commander of the Allied Powers (SCAP) for the region, General Douglas MacArthur,
confiscated Japanese assets in conjunction with the task of managing the economic affairs of the
vanquished nation and with a view to reparations payments. It soon became clear that Japan's financial
condition would render any aggressive reparations plan an exercise in futility. Meanwhile, the importance
of a stable, democratic Japan as a bulwark to communism in the region increased. At the end of 1948,
MacArthur expressed the view that "[t]he use of reparations as a weapon to retard the reconstruction of
a viable economy in Japan should be combated with all possible means" and "recommended that the
reparations issue be settled finally and without delay."

That this policy was embodied in the treaty is clear not only from the negotiations history but also from
the Senate Foreign Relations Committee report recommending approval of the treaty by the Senate.
The committee noted, for example:

Obviously insistence upon the payment of reparations in any proportion commensurate with the claims
of the injured countries and their nationals would wreck Japan's economy, dissipate any credit that it may
possess at present, destroy the initiative of its people, and create misery and chaos in which the seeds of
discontent and communism would flourish. In short, [it] would be contrary to the basic purposes and
policy of x x x the United States x x x.

We thus hold that, from a municipal law perspective, that certiorari will not lie. As a general principle –
and particularly here, where such an extraordinary length of time has lapsed between the treaty’s
conclusion and our consideration – the Executive must be given ample discretion to assess the foreign
policy considerations of espousing a claim against Japan, from the standpoint of both the interests of the
petitioners and those of the Republic, and decide on that basis if apologies are sufficient, and whether
further steps are appropriate or necessary.

The Philippines is not under any international obligation to espouse petitioners’ claims.

In the international sphere, traditionally, the only means available for individuals to bring a claim within
the international legal system has been when the individual is able to persuade a government to bring
a claim on the individual’s behalf.55 Even then, it is not the individual’s rights that are being asserted,
but rather, the state’s own rights. Nowhere is this position more clearly reflected than in the dictum of

13
the Permanent Court of International Justice (PCIJ) in the 1924 Mavrommatis Palestine Concessions
Case:

By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial
proceedings on his behalf, a State is in reality asserting its own right to ensure, in the person of its subjects,
respect for the rules of international law. The question, therefore, whether the present dispute originates
in an injury to a private interest, which in point of fact is the case in many international disputes, is
irrelevant from this standpoint. Once a State has taken up a case on behalf of one of its subjects before
an international tribunal, in the eyes of the latter the State is sole claimant.56

Since the exercise of diplomatic protection is the right of the State, reliance on the right is within the
absolute discretion of states, and the decision whether to exercise the discretion may invariably be
influenced by political considerations other than the legal merits of the particular claim.57 As clearly
stated by the ICJ in

Barcelona Traction:

The Court would here observe that, within the limits prescribed by international law, a State may
exercise diplomatic protection by whatever means and to whatever extent it thinks fit, for it is its own
right that the State is asserting. Should the natural or legal person on whose behalf it is acting consider
that their rights are not adequately protected, they have no remedy in international law. All they can
do is resort to national law, if means are available, with a view to furthering their cause or obtaining
redress. The municipal legislator may lay upon the State an obligation to protect its citizens abroad, and
may also confer upon the national a right to demand the performance of that obligation, and clothe the
right with corresponding sanctions.1awwphi1 However, all these questions remain within the province
of municipal law and do not affect the position internationally.58 (Emphasis supplied)

The State, therefore, is the sole judge to decide whether its protection will be granted, to what extent it
is granted, and when will it cease. It retains, in this respect, a discretionary power the exercise of which
may be determined by considerations of a political or other nature, unrelated to the particular case.

The International Law Commission’s (ILC’s) Draft Articles on Diplomatic Protection fully support this
traditional view. They (i) state that "the right of diplomatic protection belongs to or vests in the State,"59
(ii) affirm its discretionary nature by clarifying that diplomatic protection is a "sovereign prerogative" of
the State;60 and (iii) stress that the state "has the right to exercise diplomatic protection

on behalf of a national. It is under no duty or obligation to do so."61

It has been argued, as petitioners argue now, that the State has a duty to protect its nationals and act
on his/her behalf when rights are injured.62 However, at present, there is no sufficient evidence to
establish a general international obligation for States to exercise diplomatic protection of their own
nationals abroad.63 Though, perhaps desirable, neither state practice nor opinio juris has evolved in such
a direction. If it is a duty internationally, it is only a moral and not a legal duty, and there is no means of
enforcing its fulfillment.64

We fully agree that rape, sexual slavery, torture, and sexual violence are morally reprehensible as well
as legally prohibited under contemporary international law.65 However, petitioners take quite a
theoretical leap in claiming that these proscriptions automatically imply that that the Philippines is under

14
a non-derogable obligation to prosecute international crimes, particularly since petitioners do not
demand the imputation of individual criminal liability, but seek to recover monetary reparations from the
state of Japan. Absent the consent of states, an applicable treaty regime, or a directive by the Security
Council, there is no non-derogable duty to institute proceedings against Japan. Indeed, precisely because
of states’ reluctance to directly prosecute claims against another state, recent developments support the
modern trend to empower individuals to directly participate in suits against perpetrators of international
crimes.66 Nonetheless, notwithstanding an array of General Assembly resolutions calling for the
prosecution of crimes against humanity and the strong policy arguments warranting such a rule, the
practice of states does not yet support the present existence of an obligation to prosecute international
crimes.67 Of course a customary duty of prosecution is ideal, but we cannot find enough evidence to
reasonably assert its existence. To the extent that any state practice in this area is widespread, it is in the
practice of granting amnesties, immunity, selective prosecution, or de facto impunity to those who
commit crimes against humanity."68

Even the invocation of jus cogens norms and erga omnes obligations will not alter this analysis. Even if we
sidestep the question of whether jus cogens norms existed in 1951, petitioners have not deigned to show
that the crimes committed by the Japanese army violated jus cogens prohibitions at the time the Treaty
of Peace was signed, or that the duty to prosecute perpetrators of international crimes is an erga omnes
obligation or has attained the status of jus cogens.

The term erga omnes (Latin: in relation to everyone) in international law has been used as a legal term
describing obligations owed by States towards the community of states as a whole. The concept was
recognized by the ICJ in Barcelona Traction:

x x x an essential distinction should be drawn between the obligations of a State towards the
international community as a whole, and those arising vis-à-vis another State in the field of diplomatic
protection. By their very nature, the former are the concern of all States. In view of the importance of the
rights involved, all States can be held to have a legal interest in their protection; they are obligations erga
omnes.http://www.search.com/reference/Erga_omnes - _note-0#_note-0

Such obligations derive, for example, in contemporary international law, from the outlawing of acts of
aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human
person, including protection from slavery and racial discrimination. Some of the corresponding rights of
protection have entered into the body of general international law … others are conferred by international
instruments of a universal or quasi-universal character.

The Latin phrase, ‘erga omnes,’ has since become one of the rallying cries of those sharing a belief in the
emergence of a value-based international public order. However, as is so often the case, the reality is
neither so clear nor so bright. Whatever the relevance of obligations erga omnes as a legal concept, its
full potential remains to be realized in practice.69

The term is closely connected with the international law concept of jus cogens. In international law, the
term "jus cogens" (literally, "compelling law") refers to norms that command peremptory authority,
superseding conflicting treaties and custom. Jus cogens norms are considered peremptory in the sense
that they are mandatory, do not admit derogation, and can be modified only by general international
norms of equivalent authority.70

15
Early strains of the jus cogens doctrine have existed since the 1700s,71 but peremptory norms began to
attract greater scholarly attention with the publication of Alfred von Verdross's influential 1937 article,
Forbidden Treaties in International Law.72 The recognition of jus cogens gained even more force in the
1950s and 1960s with the ILC’s preparation of the Vienna Convention on the Law of Treaties (VCLT).73
Though there was a consensus that certain international norms had attained the status of jus cogens,74
the ILC was unable to reach a consensus on the proper criteria for identifying peremptory norms.

After an extended debate over these and other theories of jus cogens, the ILC concluded ruefully in 1963
that "there is not as yet any generally accepted criterion by which to identify a general rule of international
law as having the character of jus cogens."75 In a commentary accompanying the draft convention, the
ILC indicated that "the prudent course seems to be to x x x leave the full content of this rule to be worked
out in State practice and in the jurisprudence of international tribunals."76 Thus, while the existence of
jus cogens in international law is undisputed, no consensus exists on its substance,77 beyond a tiny core
of principles and rules.78

Of course, we greatly sympathize with the cause of petitioners, and we cannot begin to comprehend the
unimaginable horror they underwent at the hands of the Japanese soldiers. We are also deeply concerned
that, in apparent contravention of fundamental principles of law, the petitioners appear to be without a
remedy to challenge those that have offended them before appropriate fora. Needless to say, our
government should take the lead in protecting its citizens against violation of their fundamental human
rights. Regrettably, it is not within our power to order the Executive Department to take up the
petitioners’ cause. Ours is only the power to urge and exhort the Executive Department to take up
petitioners’ cause.

WHEREFORE, the Petition is hereby DISMISSED.

SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice

WE CONCUR:

REYNATO S. PUNO

Chief Justice

ANTONIO T. CARPIO

Associate Justice RENATO C. CORONA

Associate Justice

CONCHITA CARPIO MORALES

Associate Justice PRESBITERO J. VELASCO, JR.

Associate Justice

ANTONIO EDUARDO B. NACHURA

16
Associate Justice TERESITA J. LEONARDO-DE CASTRO

Associate Justice

ARTURO D. BRION

Associate Justice DIOSDADO M. PERALTA

Associate Justice

LUCAS P. BERSAMIN

Associate Justice ROBERTO A. ABAD

Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice JOSE PORTUGAL PEREZ

Associate Justice

JOSE CATRAL MENDOZA

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the
above Decision had been reached in consultation before the case was assigned to the writer of the opinion
of the Court.

REYNATO S. PUNO

Chief Justice

Footnotes

1 In Re World War II Era Japanese Forced Labor Litigation, 114 F. Supp. 2d 939 (N.D. Cal. 2000).

2 U.N. Doc. E/CN.4/1996/53/Add.1 (January 4, 1996), Report of the Special Rapporteur on violence against
women, its causes and consequences, Ms. Radhika Coomaraswamy, in accordance with Commission on
Human Rights resolution 1994/45.

3 Treaty and customary law both provide that when rape is committed as part of a widespread or
systematic attack directed at any civilian population, regardless of its international or internal character,
then it constitutes one of the gravest crimes against humanity. This principle is codified under Article 6(c)
of the 1945 Nuremberg Charter as well as Article 5(c) of the Tokyo Charter, which enumerated "murder,
extermination, enslavement, deportation, and other inhumane acts committed against any civilian

17
populations, before or during the war" as crimes against humanity, and extended in scope to include
imprisonment, torture and rape by Control Council Law No. 10.

4 Article 1 of the Slavery Convention provides:

For the purpose of the present Convention, the following definitions are agreed upon:

(1) Slavery is the status or condition of a person over whom any or all of the powers attaching to the right
of ownership are exercised.

(2) The slave trade includes all acts involved in the capture, acquisition or disposal of a person with intent
to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging
him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged,
and, in general, every act of trade or transport in slaves.

Slavery, Servitude, Forced Labour and Similar Institutions and Practices Convention of 1926 (Slavery
Convention of 1926), 60 L.N.T.S. 253, entered into force March 9, 1927.

5 Torture is defined as any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him or a third person, information
or a confession, punishing him for an act he or a third person has committed or is suspected of having
committed, or intimidating or coercing him or a third person, or for any reason based on discrimination
of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity. It does not include pain or
suffering arising only from, inherent in or incidental to lawful sanctions. (Convention Against Torture,
Article 1.1)

6 Signed at San Francisco, September 8, 1951; Initial entry into force: April 28, 1952. The treaty was signed
by Argentina, Australia, Belgium, Bolivia, Brazil, Cambodia, Canada, Chile, Colombia, Costa Rica, Cuba,
Czechoslovakia, Dominican Republic, Ecuador, Egypt, El Salvador, Ethiopia, France, Greece, Guatemala,
Haiti, Honduras, Indonesia, Iran, Iraq, Japan, Laos, Lebanon, Liberia, Luxembourg, Mexico, the
Netherlands, New Zealand, Nicaragua, Norway, Pakistan, Panama, Paraguay, Peru, The Philippines,
Poland, Saudi Arabia, the Soviet Union, Sri Lanka, South Africa,Syria, Turkey, the United Kingdom, the
United States, Uruguay, Venezuela, Vietnam. The signatories for the Republic of the Philippines were
Carlos P. Romulo, J.M. Elizalde, Vicente Francisco, Diosdado Macapagal, Emiliano Tirona, and V.G. Sinco.

7 Signed in San Francisco, September 8, 1951, ratified by the Philippine Senate on July 16, 1956. Signed
by the Philippine President on July 18, 1956. Entered into force on July 23, 1956.

8 On September 21, 1992, the Japanese Embassy formally confirmed to the Philippine government the
involvement of the Japanese Imperial Army in the establishment of comfort women stations.

In May 1993, Japan approved textbooks featuring an account of how comfort women were forced to work
as prostitutes for the Japanese Imperial Army.

On August 4, 1993, Japanese Prime Minister Miyazawa, before resigning, formally apologized to women
all over the world who were forced to serve as comfort women:

The Japanese government regrets and sincerely apologizes for the unbearable pain that these women
regardless of their nationalities, suffered while being forced to work as so-called comfort women.

18
The Japanese government expresses its heartfelt sentiments of reflection and apology to all the women
for their many sufferings and the injuries to mind and body that cannot be healed.

The Philippine government, under the administration of then President Fidel V. Ramos, accepted the
formal apology given the Japanese Government. Though the formal apology came late, it is a most
welcome gesture from the government of Japan, which has been very supportive of our economic
development.

9 Richard J. Galvin, The Case for a Japanese Truth Commission Covering World War II Era Japanese War
Crimes, 11 Tul. J. Int'l & Comp. L. 59, 64 (2003).

10 See Argibay, Ad Litem Judge, International Criminal Tribunal for the Former Yugoslavia, Speech at the
Stefan A. Riesenfeld Symposium: Sexual Slavery and the "Comfort Women" of World War II, in 21 Berkeley
J. Int'l L. 375, 376 (2003).

11 Id.

12 Nearey, Seeking Reparations in the New Milleunium: Will Japan Compensate the "Comfort Women" of
World War II?, 15 Temp. Int'l & Comp. L.J. 121, 134 (2001).

13 Ustinia Dolgopol & Snehal Paranjape, Comfort Women: An Unfinished Ordeal 15 (1994).

14 Id. at 48.

15 See Johnson, Comment, Justice for "Comfort Women": Will the Alien Tort Claims Act Bring Them the
Remedies They Seek?, 20 Penn St. Int'l L. Rev. 253, 260 (2001).

16 Id. at 261. Soldiers disregarded rules mandating the use of condoms, and thus many women became
pregnant or infected with sexually transmitted diseases.

17 Boling, Mass Rape, Enforced Prostitution, and the Japanese Imperial Army: Japan Eschews
International Legal Responsibility? 3 Occasional Papers/Reprint Series Contemporary Asian Studies 8
(1995).

18 Id.

19 Yamamoto et al., Race, Rights and Reparation 435-38 (2001).

20 Meade, From Shanghai to Globocourt: An Analysis of the "Comfort Women's" Defeat in Hwang v.
Japan, 35 Vand. J. Transnat'l L. 211, 233 (2002).

21 Numerous lawsuits immediately followed, including lawsuits filed by the Korean Council for Women
Drafted for Sexual Slavery, and a suit by a Dutch former comfort woman; Fisher, Japan's Postwar
Compensation Litigation, 22 Whittier L. Rev. 35, 44 (2000).

22 The lower court ruling in Ha v. Japan has been the lone courtroom victory for comfort women. On
December 25, 1992, ten Korean women filed the lawsuit with the Yamaguchi Prefectural Court, seeking
an official apology and compensation from the Japanese government. The plaintiffs claimed that Japan
had a moral duty to atone for its wartime crimes and a legal obligation to compensate them under
international and domestic laws. More than five years later, on April 27, 1998, the court found the
Japanese government guilty of negligence and ordered it to pay ¥300,000, or $2,270, to each of the three

19
plaintiffs. However, the court denied plaintiffs’ demands that the government issue an official apology.
Both parties appealed, but Japan's High Court later overturned the ruling. See Park, Broken Silence:
Redressing the Mass Rape and Sexual Enslavement of Asian Women by the Japanese Government in an
Appropriate Forum, 3 Asian-Pac. L. & Pol'y J. 40 (2002); Kim & Kim, Delayed Justice: The Case of the
Japanese Imperial Military Sex Slaves, 16 UCLA Pac. Basin L.J. 263 (1998). Park, Comfort Women During
WW II: Are U.S. Courts a Final Resort for Justice?, 17 Am. U. Int'l L. Rev. 403, 408 (2002).

23 Hwang Geum Joo v. Japan ("Hwang I"), 172 F. Supp. 2d 52 (D.D.C. 2001), affirmed, 332 F.3d 679 (D.C.
Cir. 2003), vacated, 542 U.S. 901 (2004), remanded to 413 F.3d 45 (D.C. Cir. 2005), cert. denied, 126 S. Ct.
1418 (2006).

24 Alien Tort Claims Act, 28 U.S.C. § 1350 (2000). The ATCA gives US federal district courts original
jurisdiction to adjudicate civil cases and award tort damages for violations of the law of nations or United
States treaties. See Ahmed, The Shame of Hwang v. Japan: How the International Community Has Failed
Asia's "Comfort Women, 14 Tex. J. Women & L. 121, 141-42 (2004).

25 Under the ATCA, when a "cause of action is brought against a sovereign nation, the only basis for
obtaining personal jurisdiction over the defendant is through an exception to the Foreign Sovereign
Immunities Act (FSIA)." See Jeffords, Will Japan Face Its Past? The Struggle for Justice for Former Comfort
Women, 2 Regent J. Int'l L. 145, 158 (2003/2004). The FSIA (28 U.S.C. § 1604 (1994 & Supp. 1999).) grants
foreign states immunity from being sued in US district courts unless the state waives its immunity or the
claims fall within certain enumerated exceptions. The Japanese government successfully argued that it is
entitled to sovereign immunity under the FSIA. The government additionally argued that post-war treaties
had resolved the issue of reparations, which were non-justiciable political questions.

26 See Hwang Geum Joo v. Japan ("Hwang II"), 332 F.3d 679, 680-81 (D.C. Cir. 2003), vacated, 542 U.S.
901 (2004), remanded to 413 F.3d 45 (D.C. Cir. 2005), cert. denied, 126 S. Ct. 1418 (2006).

27 See Hwang Geum Joo v. Japan ("Hwang III"), 542 U.S. 901 (2004) (memorandum), remanded to 413
F.3d 45 (D.C. Cir. 2005), cert. denied, 126 S. Ct. 1418 (2006).

28 Id.

29 Soh, The Comfort Women Project, San Francisco State University (1997-2001),
http://online.sfsu.edu/~soh/comfortwomen.html, at 1234-35.

30 An Analysis Of The Legal Liability Of The Government Of Japan For "Comfort Women Stations"
Established During The Second World War (Appendix); Report on Contemporary Forms of Slavery:
Systematic rape, sexual slavery and slavery-like practices During Armed Conflict, Final report submitted
by Ms. Gay J. McDougall, Special Rapporteur, Sub-Commission on Prevention of Discrimination and
Protection of Minorities, Commission on Human Rights (Fiftieth Session) E/CN.4/Sub.2/1998/13 (June 22,
1998).

31 Chinkin, Women's International Tribunal on Japanese Sexual Slavery, 95 Am. J. Int'l. L. 335 (2001).

32 A large amount of evidence was presented to the tribunal for examination. Sixty-four former comfort
women from Korea and other surrounding territories in the Asia-Pacific region testified before the court.
Testimony was also presented by historical scholars, international law scholars, and two former Japanese
soldiers. Additional evidence was submitted by the prosecution teams of ten different countries,

20
including: North and South Korea, China, Japan, the Philippines, Indonesia, Taiwan, Malaysia, East Timor,
and the Netherlands. Id. at 336.

33 Press Release, Congressman Mike Honda, Rep. Honda Calls on Japan to Apologize for World War II
Exploitation of "Comfort Women" (January 31, 2007).

34 H.R. Res. 121, 110th Cong. (2007) (enacted).

35 European Parliament, Human rights: Chad, Women's Rights in Saudi Arabia, Japan's Wartime Sex
Slaves, Dec. 17, 2007, http:// www.europarl.europa.eu/sides/getDoc.do?language=EN&type=IM-
PRESS&reference=20071210BRI14639&secondRef=ITEM-008-EN.

36 The Comfort Women--A History of Trauma,

http:// taiwan.yam.org.tw/womenweb/conf_women/index_e.html.

37 Yamamoto et al., supra note 19 at 437. The government appointed Bunbei Hara, former Speaker of the
Upper House of the Diet, as the first President of the Asian Women's Fund (1995-1999). Former Prime
Minister Tomiichi Murayama succeeded Hara as the second president of the program (1999-present). See
Jeffords, supra note 25 at 158.

38 The Asian Women's Fund, http://www.awf.or.jp/english/project_ atonement.html, at 55.

39 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).

40 103 Phil 1051, 1068 (1957).

41 See Baker v. Carr, 369 U.S. at 211-222.

42 Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918).

43 Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948).

44 Constitution, Art. VIII, Sec. 5(2)(a).

45 299 US 304, 57 S. Ct. 216, 81 L. Ed, 255 (1936).

46 396 Phil 623, 663 (2000). We held:

By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the sole
organ and authority in the external affairs of the country. In many ways, the President is the chief architect
of the nation's foreign policy; his "dominance in the field of foreign relations is (then) conceded." Wielding
vast powers and influence, his conduct in the external affairs of the nation, as Jefferson describes, is
"executive altogether".

47 501 Phil. 304, 313 (2005). We stated:

In our system of government, the President, being the head of state, is regarded as the sole organ and
authority in external relations and is the country's sole representative with foreign nations. As the chief
architect of foreign policy, the President acts as the country's mouthpiece with respect to international
affairs. Hence, the President is vested with the authority to deal with foreign states and governments,
extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact

21
the business of foreign relations. In the realm of treaty-making, the President has the sole authority to
negotiate with other states.

48 379 Phil. 165, 233-234 (2004).

49 Henkin, Foreign Affairs and the Constitution 300 (2d 1996); see Dames and Moore v. Regan, 453 U.S.
654, 688, 101 S.Ct. 2972, 69 L.Ed.2d 918 (1981) (upholding the President's authority to settle claims of
citizens as "a necessary incident to the resolution of a major foreign policy dispute between our country
and another [at least] where ... Congress acquiesced in the President's action"); Am. Ins. Ass'n v.
Garamendi, 539 U.S. 396, 424, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003) (acknowledging "President's
authority to provide for settling claims in winding up international hostilities"). See also Akbayan Citizens
Action Party ("Akbayan") v. Aquino, G.R. No. 170516, July 16, 2008, 558 SCRA 468, 517 where we held
that:

x x x While, on first impression, it appears wise to deter Philippine representatives from entering into
compromises, it bears noting that treaty negotiations, or any negotiation for that matter, normally involve
a process of quid pro quo, and oftentimes negotiators have to be willing to grant concessions in an area
of lesser importance in order to obtain more favorable terms in an area of greater national interest.

50 3 U.S. (3 Dall.) 199, 230, 1 L.Ed. 568 (1796).

51 453 U.S. 654, 101 S.Ct. 2972 (1981) (re the establishment of the Iran-United States Claims Tribunal
following the seizure of American personnel as hostages at the American Embassy in Tehran).

52 Bazyler, The Holocaust Restitution Movement in Comparative Perspective, 20 Berkeley J. Int’l. L. 11,
25-32 (2002).

53 In Re World War II Era Japanese Forced Labor Litigation, supra note 1.

54 Treaty of Peace with Japan 1951, 136 UNTS 45.

55 The conceptual understanding that individuals have rights and responsibilities in the international
arena does not automatically mean that they have the ability to bring international claims to assert their
rights. Thus, the Permanent Court of International Justice declared that "it is scarcely necessary to point
out that the capacity to possess civil rights does not necessarily imply the capacity to exercise those rights
oneself." Appeal from a Judgment of the Hungaro/Czeochoslovak Mixed Arbitral Tribunal, Judgment,
1933, PCIJ, Ser. A/B No. 61, p. 208 at 231.

56 PCIJ, Ser. A, No. 2, p. 11, at 16. This traditional view was repeated by the PCIJ in the Panevezys-
Saldutiskis Railway Case, the Case Concerning the Payment of Various Serbian Loans issued in France,
Judgment of July 12, 1929, PCIJ Reports, Series A No. 20; and in the Case Concerning the Factory at
Chorzow, Judgment of September 13, 1928, Merits, PCIJ Reports, Series A No. 17. The ICJ has adopted it
in the Reparation for injuries suffered in the service of the United Nations Advisory Opinion: ICJ Reports
1949, p. 174; the Nottebohm Case (second phase) Judgment of April 6, 1955: ICJ Reports 1955, p. 4 at p.
24; the Interhandel Case (Judgment of March 21st, 1959: ICJ Reports 1959, p. 6 at p. 27) and the Barcelona
Traction, Light and Power Company, Limited case, (Belg. v. Spain), 1970 I.C.J. 3, 32 (Feb. 5).

57 See Borchard, E., Diplomatic Protection of Citizens Abroad at VI (1915). Under this view, the
considerations underlying the decision to exercise or not diplomatic protection may vary depending on

22
each case and may rely entirely on policy considerations regardless of the interests of the directly-injured
individual, and the State is not required to provide justification for its decision.

58 Barcelona Traction, Light and Power Company, Limited, case, supra note 56, at p. 44 par. 78.

59 ILC First Reading Draft Articles on Diplomatic Protection, U.N. Doc. A/CN.4/484, ILC Report, A/53/10
(F), par. 60, Commentary to Draft Article 2, par. (1); see also, Commentary to Draft Article 1, par. (3), and
text of Draft Article 2.

60 Report of the International Law Commission on the work of its 50th session, supra note 60, par. 77.

61 ILC First Reading Draft Articles on Diplomatic Protection, supra note 60, commentary to Draft Article
2, par. (2).

62 For instance, Special Rapporteur Dugard proposed that the ILC adopt in its Draft Articles a provision
under which States would be internationally obliged to exercise diplomatic protection in favor of their
nationals injured abroad by grave breaches to jus cogens norms, if the national so requested and if he/she
was not afforded direct access to an international tribunal. The proposed article reads as follows:

Article [4]1. Unless the injured person is able to bring a claim for such injury before a competent
international court or tribunal, the State of his/her nationality has a legal duty to exercise diplomatic
protection on behalf of the injured person upon request, if the injury results from a grave breach of a jus
cogens norm attributable to another State. 2. The state of nationality is relieved of this obligation if: (a)
The exercise of diplomatic protection would seriously endanger the overriding interests of the State
and/or its people; (b) Another State exercises diplomatic protection on behalf of the injured person; (c)
The injured person does not have the effective and dominant nationality of the State. States are obliged
to provide in their municipal law for the enforcement of this right before a competent domestic court or
other independent national authority". Special Rapporteur John Dugard, appointed in 1999, First Report
on Diplomatic Protection, par. 74 (UN Doc. A/CN.4/506 (March 7, 2000) and Corr. 1 (June 7, 2000) and
Add. 1 (April 20, 2000).

However, the proposal was not accepted by the ILC, as "the question was still not ripe for treatment"
because "the State practice and their opinio juris still had not evolved in such direction". Official Records
of the General Assembly: 55th session, Supplement No. 10, Doc. A/55/10 (2000), Report of the ILC on the
work of its 52nd session, p. 131. Instead, Draft Article 19, entitled ‘Recommended Practice’, suggests that
states should be encouraged to exercise diplomatic protection ‘especially when significant injury
occurred’ to the national. Drafted in soft language, the Article does not purport to create any binding
obligations on the state.

In addition, some States have incorporated in their municipal law a duty to exercise diplomatic protection
in favor of their nationals. (Dugard identifies this "obligation" to exist in the Constitutions of Albania,
Belarus, Bosnia and Herzegovina, Bulgaria, Cambodia, China, Croatia, Estonia, Georgia, Guyana, Hungary,
Italy, Kazakhstan, Lao People´s Democratic Republic, Latvia, Lithuania, Poland, Portugal, Republic of Korea,
Romania, Russian Federation, Spain, the former Yugoslav Republic of Macedonia, Turkey, Ukraine, Viet
Nam and Yugoslavia, albeit with different reaches. J. Dugard, First Report on diplomatic protection, supra
note 13, par. 80), but their enforceability is also, to say the least, questionable (in many cases there are
not even courts competent to review the decision). Moreover, their existence in no way implies that
international law imposes such an obligation, simply suggesting "that certain States consider diplomatic

23
protection for their nationals abroad to be desirable" (ILC First Reading Draft Articles on Diplomatic
Protection, supra note 60, Commentary to Draft Article 2, par (2)).

63 Even decisions of national courts support the thesis that general international law as it stands does not
mandate an enforceable legal duty of diplomatic protection.

The traditional view has been challenged in the UK in a case arising from the unlawful detention by the
US of prisoners in Guantanamo Bay. In Abbasi v. Secretary of State for Foreign and Commonwealth Affairs
([2002] EWCA Civ 1316, 19 September 2002), the applicant (a British national) sought judicial review of
the adequacy of the diplomatic actions of the British government with the US government. The UK Court
of Appeals came to the conclusion that diplomatic protection did not as such give rise to an enforceable
duty under English Law. It found that "on no view would it be appropriate to order the Secretary of State
to make any specific representations to the United States, even in the face of what appears to be a clear
breach of a fundamental human right, as it is obvious that this would have an impact on the conduct of
foreign policy."

Courts in the UK have also repeatedly held that the decisions taken by the executive in its dealings with
foreign states regarding the protection of British nationals abroad are non-justiciable.

(1) R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Pirbhai (107 ILR 462 (1985):

"x x x in the context of a situation with serious implications for the conduct of international relations, the
courts should act with a high degree of circumspection in the interests of all concerned. It can rarely, if
ever, be for judges to intervene where diplomats fear to tread." (p.479, per Sir John Donaldson MR)

(2) R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Ferhut Butt (116 ILR 607
(1999):

"The general rule is well established that the courts should not interfere in the conduct of foreign relations
by the Executive, most particularly where such interference is likely to have foreign policy repercussions
(see R. v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett [1989] 1 QB 811 at
820). This extends to decisions whether or not to seek to persuade a foreign government of any
international obligation (e.g. to respect human rights) which it has assumed. What if any approach should
be made to the Yemeni authorities in regard to the conduct of the trial of these terrorist charges must be
a matter for delicate diplomacy and the considered and informed judgment of the FCO. In such matters
the courts have no supervisory role." (p. 615, per Lightman J).

"Whether and when to seek to interfere or to put pressure on in relation to the legal process, if ever it is
a sensible and a right thing to do, must be a matter for the Executive and no one else, with their access to
information and to local knowledge. It is clearly not a matter for the courts. It is clearly a high policy
decision of a government in relation to its foreign relations and is not justiciable by way of judicial review."
(p.622, per Henry LJ).

(3) R. (Suresh and Manickavasagam) v. Secretary of State for the Home Department [2001] EWHC Admin
1028 (unreported, 16 November 2001):

"... there is, in my judgment, no duty upon the Secretary of State to ensure that other nations comply with
their human rights obligations. There may be cases where the United Kingdom Government has, for

24
example by diplomatic means, chosen to seek to persuade another State to take a certain course in its
treatment of British nationals; but there is no duty to do so." (paragraph 19, per Sir Richard Tucker).

The South African Constitutional Court in Kaunda and others v. President of the Republic of South Africa
and others (Case CCCT23/04) recognized the constitutional basis of the right of diplomatic protection as
enshrined in the South African Constitution, but went on to hold that the nature and extent of this
obligation was an aspect of foreign policy within the discretion of the executive.

64 Borchard, E., Diplomatic Protection of Citizens Abroad, 29 (1915).

65 The concept of rape as an international crime is relatively new. This is not to say that rape has never
been historically prohibited, particularly in war. But modern-day sensitivity to the crime of rape did not
emerge until after World War II. In the Nuremberg Charter, the word rape was not mentioned. The article
on crimes against humanity explicitly set forth prohibited acts, but rape was not mentioned by name. (For
example, the Treaty of Amity and Commerce between Prussia and the United States provides that in time
of war all women and children "shall not be molested in their persons." The Treaty of Amity and
Commerce, Between his Majesty the King of Prussia and the United States of America, art. 23, Sept. 10,
1785, U.S.-Pruss., 8 Treaties & Other Int'l Agreements Of The U.S. 78, 85. The 1863 Lieber Instructions
classified rape as a crime of "troop discipline." (Mitchell, The Prohibition of Rape in International
Humanitarian Law as a Norm of Jus cogens: Clarifying the Doctrine, 15 Duke J. Comp. Int’l. L. 219, 224). It
specified rape as a capital crime punishable by the death penalty (Id. at 236). The 1907 Hague Convention
protected women by requiring the protection of their "honour." ("Family honour and rights, the lives of
persons, and private property, as well as religious convictions and practice, must be respected."
Convention (IV) Respecting the Laws & Customs of War on Land, art. 46, Oct. 18, 1907. General Assembly
resolution 95 (I) of December 11, 1946 entitled, "Affirmation of the Principles of International Law
recognized by the Charter of the Nürnberg Tribunal"; General Assembly document A/64/Add.1 of 1946;
See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis,
Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279. Article 6(c) of the Charter established crimes against humanity
as the following:

CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other
inhumane acts committed against any civilian population, before or during the war, or persecutions on
political, racial or religious grounds in execution of or in connection with any crime within the Jurisdiction
of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

The Nuremberg Judgment did not make any reference to rape and rape was not prosecuted. (Judge
Gabrielle Kirk McDonald, The International Criminal Tribunals Crime and Punishment in the International
Arena,7 ILSA J. Int’l. Comp. L. 667, 676.) However, International Military Tribunal for the Far East
prosecuted rape crimes, even though its Statute did not explicitly criminalize rape. The Far East Tribunal
held General Iwane Matsui, Commander Shunroku Hata and Foreign Minister Hirota criminally
responsible for a series of crimes, including rape, committed by persons under their authority. (The Tokyo
Judgment: Judgment Of The International Military Tribunal For The Far East 445-54 (1977).

The first mention of rape as a specific crime came in December 1945 when Control Council Law No. 10
included the term rape in the definition of crimes against humanity. Law No. 10, adopted by the four
occupying powers in Germany, was devised to establish a uniform basis for prosecuting war criminals in
German courts. (Control Council for Germany, Law No. 10: Punishment of Persons Guilty of War Crimes,

25
Crimes Against Peace and Against Humanity, Dec. 20, 1945, 3 Official Gazette Control Council for Germany
50, 53 (1946))

The 1949 Geneva Convention Relative to the Treatment of Prisoners of War was the first modern-day
international instrument to establish protections against rape for women. Geneva Convention Relative to
the Protection of Civilian Persons in Time of War, Aug. 12, 1949, art. 27, 6 U.S.T. 3316, 75 U.N.T.S. 287
(entry into force Oct. 20, 1950) [hereinafter Fourth Geneva Convention].Furthermore, the ICC, the ICTY,
and the International Criminal Tribunal for Rwanda (ICTR) have significantly advanced the crime of rape
by enabling it to be prosecuted as genocide, a war crime, and a crime against humanity.

Rape is clearly emerging as a core crime within humanitarian law. (Appleman, Military Tribunals and
International Crimes 299 (1954); Meron, Human Rights and Humanitarian Norms as Customary Law 47
(1989). A major step in this legal development came in 1949, when rape and sexual assault were included
in the Geneva Conventions. Rape is included in the following acts committed against persons protected
by the 1949 Geneva Conventions: "willful killing, torture or inhuman treatment, including biological
experiments; willfully causing great suffering or serious injury to body or health." Rape as a violation of
the laws or customs of war generally consists of violations of Article 3 of the 1949 Geneva Conventions,
which, in part, prohibits "violence to life and person, in particular mutilation, cruel treatment and torture;
outrages upon personal dignity, in particular humiliating and degrading treatment." (See Geneva
Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field,
art. 3(1)(c), 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick
and Shipwrecked Members of Armed Forces at Sea, art. 3(1)(c), 75 U.N.T.S. 85; Geneva Convention
Relative to the Treatment of Prisoners of War, art. 3(1)(c), 75 U.N.T.S. 973; Fourth Geneva Convention,
supra note 23, art. 3(1)(c).

Article 27 of the Fourth Geneva Convention, directed at protecting civilians during time of war, states that
"women shall be especially protected against any attack on their honour, in particular against rape,
enforced prostitution, or any form of indecent assault."

Protocol I of the Geneva Conventions continues to expand the protected rights by providing that "women
shall be the object of special respect and shall be protected in particular against rape, forced prostitution
and any form of indecent assault." (Protocol Additional to the Geneva Conventions of August 12, 1949,
and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Article 76(1), 1125
U.N.T.S. 4).

66 For instance, the International Criminal Court was established to deal with the "most serious crimes of
concern to the international community," with jurisdiction over genocide, crimes against humanity, and
war crimes, as defined in the Rome Statute. The ICC Prosecutor can investigate allegations of crimes not
only upon referral from the Security Council and state parties, but also on information from victims, non-
governmental organizations or any other reliable source (Article 15). See also the Statute of the
International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International
Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, U.N. Doc. S/25704 at
36, annex (1993) and S/25704/Add.1 (1993), adopted by Security Council on 25 May 1993, U.N. Doc.
S/RES/827 (1993).

67 Scharf, The Letter of the Law: The Scope of the International Legal Obligation To Prosecute Human
Rights Crimes, 59(4) Law & Contemp. Probs. 41, 59 (1996). Dugard, Dealing with Crimes of a Past Regime:

26
Is Amnesty Still an Option?, 12 Leiden J. Int'l L. 1001, 1003 (1999). Gavron, Amnesties in Light of
Developments in International Law and the Establishment of the International Criminal Court, 51 Int'l &
Comp. L.Q. 91, 106 (2002).

68 O'Shea, Amnesty for Crime in International Law and Practice 35 (2002).

69 Bruno Simma’s much-quoted observation encapsulates this feeling of disappointment:‘Viewed

realistically, the world of obligations erga omnes is still the world of the "ought" rather than of the "is"’The
Charter of the United Nations: A commentary 125 (Simma, ed. 1995). See Tams, Enforcing Obligations
Erga omnes in International Law (2005). In all cases where this principle has been cited, even the ICJ has
found a way to avoid giving force to the claims based on the erga omnes character of the obligation,
despite having recognized them in principle. In the South West Africa Case, the ICJ declared that an action
popularis was incompatible with existing international law. In the Nicaragua case, it evaded the
consequences of a violation of erga omnes obligations by treating human rights conventions as self-
contained regimes. Nicaragua v. US, Merits, ICJ Reports 1986, 14 et seq. (134, par. 267): "However, where
human rights are protected by international conventions, that protection takes the form of such
arrangements for monitoring or ensuring respect for human rights as are provided for in the conventions
themselves." In the East Timor Case, it denied jurisdiction on the ground that Indonesia was an
"indispensable third party" to the proceedings which had not accepted jurisdiction. (Portugal v. Australia,
ICJ Reports 1995, 90 (102, par 29) "Portugal’s assertion that the right of peoples to self-determination…
has an erga omnes character, is irreproachable."

70 See Vienna Convention on the Law of Treaties art. 53, opened for signature May 23, 1969, 1155 U.N.T.S.
331, 8 I.L.M. 679 [hereinafter VCLT].

71 Classical publicists such as Hugo Grotius, Emer de Vattel, and Christian Wolff drew upon the Roman
law distinction between jus dispositivum (voluntary law) and jus scriptum (obligatory law) to differentiate
consensual agreements between states from the "necessary" principles of international law that bind all
states as a point of conscience regardless of consent. (See Hugonis Grotii, De Jure Belli et Pacis [On the
Law of War and Peace] (William Whewell ed. & trans., John W. Parker, London 2009) (1625); Emer de
Vattel, Le Droit des Gens ou Principes de la Loi Naturelle [The Law of Nations or Principles of Natural Law]
§§ 9, 27 (1758) (distinguishing "le Droit des Gens Naturel, ou Nécessaire" from "le Droit Volontaire");
Christian Wolff, Jus Gentium Methodo Scientifica Pertractorum [A Scientific Method for Understanding
the Law of Nations] ¶ 5 (James Brown Scott ed., Joseph H. Drake trans., Clarendon Press 1934) (1764)).
Early twentieth-century publicists such as Lassa Oppenheim and William Hall asserted that states could
not abrogate certain "universally recognized principles" by mutual agreement. (William Hall, A Treatise
on International Law 382-83 (8th ed. 1924) (asserting that "fundamental principles of international law"
may "invalidate [], or at least render voidable," conflicting international agreements); 1 Lassa Oppenheim,
International Law 528 (1905).) Judges on the Permanent Court of International Justice affirmed the
existence of peremptory norms in international law by referencing treaties contra bonos mores (contrary
to public policy) in a series of individual concurring and dissenting opinions. (For example, in the 1934
Oscar Chinn Case, Judge Schücking's influential dissent stated that neither an international court nor an
arbitral tribunal should apply a treaty provision in contradiction to bonos mores. Oscar Chinn Case, 1934
P.C.I.J. (ser. A/B) No. 63, at 149-50 (Dec. 12) (Schücking, J., dissenting).

72 Verdross argued that certain discrete rules of international custom had come to be recognized as
having a compulsory character notwithstanding contrary state agreements. At first, Verdross's vision of

27
international jus cogens encountered skepticism within the legal academy. These voices of resistance soon
found themselves in the minority, however, as the jus cogens concept gained enhanced recognition and
credibility following the Second World War. (See Lauri Hannikainen, Peremptory Norms (Jus cogens) in
International Law: Historical Development, Criteria, Present Status 150 (1988) (surveying legal scholarship
during the period 1945-69 and reporting that "about eighty per cent [of scholars] held the opinion that
there are peremptory norms existing in international law").

73 In March 1953, the ILC's Special Rapporteur, Sir Hersch Lauterpacht, submitted for the ILC's
consideration a partial draft convention on treaties which stated that "[a] treaty, or any of its provisions,
is void if its performance involves an act which is illegal under international law and if it is declared so to
be by the International Court of Justice." Hersch Lauterpacht, Law of Treaties: Report by Special
Rapporteur, [1953] 2 Y.B. Int'l L. Comm'n 90, 93, U.N. Doc. A/CN.4/63.

74 See Summary Records of the 877th Meeting, [1966] 1 Y.B. Int'l L. Comm'n 227, 230-231, U.N. Doc.
A/CN.4/188 (noting that the "emergence of a rule of jus cogens banning aggressive war as an international
crime" was evidence that international law contains "minimum requirement[s] for safeguarding the
existence of the international community").

75 Second Report on the Law of Treaties, [1963] 2 Y.B. Int'l L. Comm'n 1, 52, U.N. Doc. A/CN.4/156.

76 Id. at 53.

77 While the ICJ recently endorsed the jus cogens concept for the first time in its 2006 Judgment on
Preliminary Objections in Armed Activities on the Territory of the Congo (Congo v. Rwanda), it declined to
clarify jus cogens's legal status or to specify any criteria for identifying peremptory norms. (Armed
Activities on the Territory of the Congo, Jurisdiction of the Court and Admissibility of the Application (Dem.
Rep. Congo v. Rwanda) (Judgment of February 3, 2006), at 31-32, available at http://www.icj-
cij.org/docket/files/126/10435.pdf.

In some municipal cases, courts have declined to recognize international norms as peremptory while
expressing doubt about the proper criteria for identifying jus cogens. (See, e.g., Sampson v. Federal
Republic of Germany, 250 F.3d 1145, 1149 (7th Cir. 2001) (expressing concern that jus cogens should be
invoked "[o]nly as a last resort")).

In other cases, national courts have accepted international norms as peremptory, but have hesitated to
enforce these norms for fear that they might thereby compromise state sovereignty. (See, e.g., Bouzari v.
Iran, [2004] 71 O.R.3d 675 (Can.) (holding that the prohibition against torture does not entail a right to a
civil remedy enforceable in a foreign court)).

In Congo v. Rwanda, for example, Judge ad hoc John Dugard observed that the ICJ had refrained from
invoking the jus cogens concept in several previous cases where peremptory norms manifestly clashed
with other principles of general international law. (See Armed Activities on the Territory of the Congo
(Dem. Rep. Congo v. Rwanda) (Judgment of February 3, 2006), at 2 (Dissenting Opinion of Judge Dugard))

Similarly, the European Court of Human Rights has addressed jus cogens only once, in Al-Adsani v. United
Kingdom, when it famously rejected the argument that jus cogens violations would deprive a state of
sovereign immunity. Al-Adsani v. United Kingdom, 2001-XI Eur. Ct. H.R. 79, ¶ 61).

78 Sztucki, Jus cogens and the Vienna Convention on the Law of Treaties 119-123 (1974).

28
SECOND DIVISION

G.R. No. 191756 November 25, 2013

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee

vs.

JONAS GUILLEN y ATIENZA, Accused-Appellant.

DECISION

DEL CASTILLO, J.:

On appeal is the November 26, 2009 Decision1 of the Court of Appeals CA) in CA-G.R. CR-H.C. No. 03476
which affirmed the June 10, 2008 Decision2 of the Regional Trial Court RTC) of Manila, Branch 48 finding
appellant Jonas Guillen y Atienza guilty beyond reasonable doubt of the crime of rape.

On May 31, 2002, an Information3 was filed charging appellant with the crime of rape, the accusatory
portion of which reads as follows:

That on or about May 20, 2002, in the City of Manila, Philippines, the said accused, by means of force,
violence and intimidation, by entering the room of "AAA",4 poking a balisong at her neck, forcing her to
lie down on the floor, pressing her with his thighs and removing her duster and panty and thereafter
pulling down his brief and shorts, did then and there wilfully, unlawfully and feloniously [insert] his penis
into her vagina and succeeded in having carnal knowledge of "AAA" against the latter’s will and consent,
thereby gravely endangering her growth and development to the damage and prejudice of the said "AAA".

Contrary to law.

When arraigned on July 11, 2002, appellant pleaded not guilty.5

Factual Antecedents

The version of the prosecution as summarized by the Office of the Solicitor General (OSG) are as follows:

On May 20, 2002, around 12 midnight, x x x "AAA" was inside her room on the second floor of a two-
storey house located at x x x Sampaloc, Manila. At that time "AAA" was playing cards x x x while waiting
for her common-law husband to arrive. Momentarily, someone knocked at the door. When "AAA" opened
the door, appellant Jonas Guillen y Atienza, who was her neighbor, entered the room and suddenly poked
a balisong on her neck. Appellant then turned off the lights, removed his clothes, placed himself on top of
"AAA," and inserted his penis inside her private parts. After the rape was consummated, appellant stood
up and casually left the room.

x x x "AAA" immediately went out and x x x sought assistance from her sister-in-law. After being told of
the incident, "AAA’s" sister-in-law contacted the police. When the responding police officers arrived,
appellant, who was readily identified by "AAA" since he was her neighbor, was immediately arrested.

29
Per request for a medico legal examination prepared by P/Sr. Supt. Amador Serrano Pabustan of the
Western Police District, "AAA" was brought to the National Bureau of Investigation (NBI) for physical
examination. Dra. Annabelle Soliman, NBI medico-legal officer, conducted medical and genital
examinations on "AAA". The Preliminary Report dated May 20, 2002 issued by Dra. Soliman shows the
following findings: 1) With extragenital physical injury noted; 2) Healed hymenal laceration present; and
3) Pending laboratory examination result.

The Medico-Legal Report Number MG-02-366 issued by Dra. Soliman shows that private complainant’s
hymen had "deep healed laceration at 7 o’clock position;" positive for spermatozoa; and that there was
"evident sign of extragenital physical injury noted on the body of the subject at the time of the
examination.6

Appellant denied the charge against him. He claimed that he had a drinking spree at Galas, Quezon City
and went home to Sampaloc, Manila at around 1:00 o’clock in the morning of May 20, 2002. He surmised
that "AAA" filed the charge against him because of his prior altercation with "AAA’s" husband.

Ruling of the Regional Trial Court

In a Decision dated June 10, 2008, the trial court found appellant guilty as charged. The dispositive portion
of the Decision reads:

WHEREFORE, the Court finds accused JONAS GUILLEN Y ATIENZA guilty beyond reasonable doubt for the
felony of RAPE and pursuant to law, he is sentenced to suffer a prison term of reclusion perpetua and to
pay victim the following:

₱50,000.00 as moral damages;

₱30,000.00 as exemplary damages; and

To pay the cost.

The BJMP of the Manila City Jail is ordered to commit the accused to the National Bilibid Prison without
unnecessary delay.

SO ORDERED.7

Aggrieved, appellant filed a Notice of Appeal8 which was given due course by the trial court in its Order9
dated June 13, 2008.

Ruling of the Court of Appeals

After the filing of the parties’ briefs, the CA rendered its Decision disposing as follows:

WHEREFORE, in the light of all the foregoing, the instant appeal is DISMISSED for lack of merit. The
decision of the trial court dated June 10, 2008 is AFFIRMED.

30
SO ORDERED.10

Hence, this appeal.

ISSUE

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF RAPE DESPITE THE
PROSECUTION’S FAILURE TO OVERTHROW THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE IN HIS
FAVOR.11

Appellant claims that the trial court gravely erred when it deemed his silence at the police station
immediately after his arrest as an implied admission of guilt. He also argues that aside from being
incredible, "AAA’s" testimony is insufficient to establish his guilt beyond reasonable doubt. Moreover, he
insists that "AAA’s" healed lacerations do not prove that he indeed raped "AAA."

OUR RULING

The appeal lacks merit.

Indeed, records show that appellant remained silent and passive despite being confronted by "AAA" with
the rape charge at the police station immediately after his arrest. In taking appellant’s silence as an implied
admission of guilt, the RTC ratiocinated that:

Owing to the complaint of the victim, the accused was apprehended by responding police officer[s] of the
Sampaloc Police Station. At the police precinct, the accused was presented to the victim and [he] was
positively identified as the person who raped her. At this juncture, the accused after he was positively
identified as the malefactor who sexually molested and raped the victim x x x just [remained] SILENT. In
other words, he did not DENY the accusation lodged against him by the victim much less register any
vehement PROTEST at the station.

The aforesaid blatant FAILURE of the accused to deny victim’s complaint against him is equivalent to an
IMPLIED ADMISSION of guilt. Assuming arguendo that he is innocent of the accusation filed against him,
he should have stood firm in his contention that he didn’t rape/abuse the victim and should have stressed
at the police station that on the date and time of the incident he was having a drinking spree with his
friends.

A person who is accused of a felony/offense which he did not commit should be as BOLD and FEROCIOUS
as a LION in protecting the trampled rights as an innocent person.12

Appellant claims that his silence should not be used against him as he was just exercising his constitutional
right to remain silent.

We agree with the appellant.

31
It should be borne in mind that when appellant was brought to the police station, he was already a suspect
to the crime of rape. As such, he was already under custodial investigation. Section 12, Article III of the
Constitution explicitly provides, viz:

Any person under investigation for the commission of an offense shall have the right to be informed of
his right to remain silent and to have competent and independent counsel preferably of his own choice.
If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be
waived except in writing and in the presence of counsel.

Clearly, when appellant remained silent when confronted by the accusation of "AAA" at the police station,
he was exercising his basic and fundamental right to remain silent. At that stage, his silence should not be
taken against him. Thus, it was error on the part of the trial court to state that appellant’s silence should
be deemed as implied admission of guilt. In fact, this right cannot be waived except in writing and in the
presence of counsel and any admission obtained in violation of this rule shall be inadmissible in
evidence.13

In any case, we agree with the Decision of the trial court, as affirmed by the CA, finding appellant guilty of
the crime of rape. The trial court’s Decision convicting appellant of rape was anchored not solely on his
silence and so-called implied admission. More importantly, it was based on the testimony of "AAA" which,
standing alone, is sufficient to establish his guilt beyond reasonable doubt.

Article 266-A of the Revised Penal Code specifically provides that rape may be committed by a man who
shall have carnal knowledge of a woman through force, threats or intimidation. In this case, "AAA"
categorically testified that appellant forcibly undressed her, poked a knife at her neck, and inserted his
penis into her vagina without her consent and against her will. Thus, all elements of the crime of rape
were duly established from the testimony of "AAA". Moreover, "AAA" positively identified appellant as
her assailant.

Appellant could only offer alibi and denial as his defenses. However, alibi and denial are weak defenses
especially when measured up against the positive identification made by the victim pointing to appellant
as the malefactor. Besides, appellant failed to prove that it was physically impossible for him to be at the
crime scene at the time of its commission. Aside from claiming that he was at Galas, Quezon City when
the rape incident happened, he failed to submit any proof to show that it is physically impossible for him
to be at Sampaloc, Manila where and when the rape happened. Besides, appellant’s alibi crumbles in the
face of his apprehension near the scene of the crime immediately after "AAA" reported the incident to
the police authorities.

We are not persuaded by appellant’s contention that he could not have raped "AAA" inside her room as
the discovery of the crime would have been more likely considering its proximity to the room of "AAA’s"
sister-in-law. Jurisprudence teaches us that rape may be committed even in places where people
congregate. Thus, it is not impossible or unlikely that rape is perpetrated inside a room adjacent to a room
occupied by other persons, as in this case.

Likewise, the failure of "AAA" to shout for help should not be taken against her.1âwphi1 People react
differently when confronted with a shocking or startling situation. Some may show aggressive resistance
while others may opt to remain passive. The failure of "AAA" to shout for help and seek assistance should

32
not be construed as consent, or as voluntarily engaging in an illicit relationship with the appellant, as
implied by the defense. It would be recalled that appellant poked a knife at "AAA’s" neck. Such threat of
immediate danger to her life cowed "AAA" to submit to the carnal desires of the appellant. However,
immediately after appellant left, "AAA" lost no time in seeking the help of her sister-in-law and in reporting
the incident to the police authorities. In fact, the police authorities were able to apprehend appellant
because "AAA" immediately reported the incident to them.

Anent appellant’s contention that "AAA’s" healed hymenal laceration does not prove rape, we find the
same irrelevant and immaterial. Hymenal laceration, whether fresh or healed, is not an element of the
crime of rape. Even a medical examination is not necessary as it is merely corroborative. As we mentioned
before, the fact of rape in this case was satisfactorily established by the testimony of "AAA" alone.

All the elements of rape having been established beyond reasonable doubt, both the trial court and the
CA properly found appellant guilty as charged and correctly imposed on him the penalty of reclusion
perpetua.14

The RTC, as affirmed by the CA, awarded "AAA" moral damages of ₱50,000.00, exemplary damages of
₱30,000.00 and cost of suit. In line with prevailing jurisprudence, "AAA" is also entitled to an award of civil
indemnity of ₱50,000.00. In addition, all damages awarded shall earn interest at the rate of 6 per annum
from date of finality of judgment until fully paid.

WHEREFORE, the appeal is DISMISSED. The November 26, 2009 Decision of the Court of Appeals in CA-
G.R. CR-H.C. No. 03476 which affirmed the June 10, 2008 Decision of the Regional Trial Court of Manila,
Branch 48 finding appellant Jonas Guillen y Atienza guilty beyond reasonable doubt of the crime of rape
and sentencing him to suffer the penalty of reclusion perpetua is AFFIRMED with MODIFICATIONS that
appellant is further ordered to pay AAA civil indemnity in the amount of ₱50,000.00 and interest on all
damages awarded at the rate of 6% per annum from date of finality of judgment until fully paid.

SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO

Associate Justice

Chairperson

ARTURO D. BRION

Associate Justice ROBERTO A. ABAD*

Associate Justice

JOSE PORTUGAL PEREZ

33
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.

ANTONIO T. CARPIO

Associate Justice

Chairperson

CERTIFICATION

Pursuant to Section 13 Article VIII of the Constitution and the Division Chairperson s Attestation, I certify
that the conclusions in the above Decision had been reached in consultation before the case was assigned
to the writer of the opinion of the Court’s Division.

MARIA LOURDES P. A. SERENO

Chief Justice

Footnotes

* Per Special Order No. 1619 dated November 22, 2013.

1 CA rollo, pp. 89-99; penned by Associate Justice Amelita G. Tolentino and concurred in by Associate
Justices Vicente S.E. Veloso and Stephen C. Cruz.

2 Records, pp. 170-176; penned by Judge Silverio Q. Castillo.

3 Id. at 1.

4 "The real names of the victim and of the members of her immediate family are withheld pursuant to
Republic Act No. 7610 (Special Protection of Children Against Child Abuse, Exploitation and Discrimination
Act) and Republic Act No. 9262 (Anti-Violence Against Women and Their Children Act of 2004)"; People v.
Teodoro, G.R. No. 175876, February 20, 2013.

5 Records, p. 13.

6 CA rollo, pp. 64-66.

7 Records, p. 183.

8 Id. at 184.

9 Id. at 186.

34
10 CA rollo, p. 99.

11 Id. at 29.

12 Records, pp. 181-182.

13 Section 12(3), Article III of the Constitution provides:

Any confession or admission obtained in violation of this or the preceding section shall be inadmissible in
evidence against him.

14 REVISED PENAL CODE Art. 266-8.

35
Carter v. Canada 2015 SCC S

1 Introduction

On 6 February 2015, the Supreme Court of Canada released its decision regarding physician-assisted dying
in Carter v. Canada (Attorney General).1 This decision declared that sections 241(b) and 14 of the Criminal
Code,2 which prohibit a physician's assistance in terminating life, infringe upon the right to life, liberty
and security of the person for individuals who want access to physician-assisted death. The Court
suspended its declaration so that it would not come into effect for 12 months, stating that "it is for
Parliament and the provincial legislatures to respond, should they so choose, by enacting legislation
consistent with the constitutional parameters set out in [the reasons for judgment]."3

Carter could have profound effects on end-of-life decision-making in Canada. This paper explains the facts
and legal reasoning behind the decision in order to help readers better understand the case and its
implications. First, context is provided for the Carter decision by summarizing Rodriguez v. British
Columbia (Attorney General), the 1993 decision in which the Supreme Court of Canada upheld the
Criminal Code prohibition against assisted suicide. An explanation of the difference between "physician-
assisted suicide" and "physician-assisted dying" follows - an important distinction when considering the
potential implications of the decision. Next is a summary of the decisions in Carter of the trial judge, the
Court of Appeal, and finally, the Supreme Court of Canada. The paper concludes by highlighting some of
the responses by key stakeholders, and notes developments that have occurred since the release of the
decision.

1.1 Rodriguez V. British Columbia (attorney General)

In 1993, the Supreme Court of Canada heard a constitutional challenge to the Criminal Code prohibition
against assisted suicide.4 Section 241(b) of the Criminal Code makes assisting a person to commit suicide
an offence punishable by up to 14 years in prison. Section 14 of the Criminal Code prohibits individuals
from consenting to having death inflicted on them and states that such consent cannot absolve from
criminal responsibility individuals who cause another's death.

Sue Rodriguez, a woman living with amyotrophic lateral sclerosis (ALS), a fatal disease that causes
progressive paralysis and pain while leaving cognitive functions intact, challenged the Criminal Code
provisions. Her life expectancy was between two and 14 months. She had lost her claim at trial,5 and the
British Columbia Court of Appeal had rejected her appeal in a 2–1 decision earlier that year.6 She sought
an order that "would allow a qualified medical practitioner to set up technological means by which she
might, by her own hand, at the time of her choosing, end her life."

Ms. Rodriguez's challenge of the prohibition against assisted suicide was based on rights set out in the
Canadian Charter of Rights and Freedoms. The first right upon which she based her claim was section 7,
which states as follows:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof
except in accordance with the principles of fundamental justice.

The second right was section 15, which states the following:

36
Every individual is equal before and under the law and has the right to the equal protection and equal
benefit of the law without discrimination and, in particular, without discrimination based on race, national
or ethnic origin, colour, religion, sex, age or mental or physical disability.8

The Supreme Court in Rodriguez was deeply divided. Five of the nine justices dismissed the appeal, and
three separate dissenting decisions were delivered. Justice John Major, who formed part of the majority
in 1993, has since spoken publicly in the media about Rodriguez. He noted that the Court struggled with
the decision and that some of his "former colleagues may have thought one way one day and a different
way the next day."9 He called it "a haunting type of case."10

The majority in Rodriguez held that, while infringement of the section 7 right to security of the person did
exist, the infringement was in accordance with the principles of fundamental justice. The majority chose
not to perform a section 15 analysis on the basis that any violation would be "clearly" justified under
section 1 of the Charter, which states that Charter rights are subject to "reasonable limits prescribed by
law [that] can be demonstrably justified in a free and democratic society." Ms. Rodriguez died in 1994
with the assistance of an anonymous physician.

2 Carter V. Canada (attorney General)

In 2009, Gloria Taylor was diagnosed with ALS. A month after her diagnosis, she was told that she would
likely be paralyzed within six months and die within a year. In 2012, along with the British Columbia Civil
Liberties Association, Ms. Taylor decided to challenge the prohibition on assisted suicide.

Ms. Taylor was joined in her claim by three other individual plaintiffs. One of the plaintiffs was Dr. William
Shoichet, a physician willing to perform assisted suicide in appropriate cases if the law were changed. The
two other plaintiffs, Lee Carter and Hollis Johnson, are the daughter and son-in-law of Kay Carter, a
woman with spinal stenosis. Spinal stenosis may cause increasing mobility limitations and pain, while
leaving cognitive functions intact. When Kay Carter found her condition had become intolerable, she
asked her daughter and son-in-law to help her travel to an assisted suicide clinic in Switzerland. Lee Carter
and Hollis Johnson agreed, despite knowing they could face prosecution.

2.1 Terminology: "physician-assisted Dying" Versus "Physician Assisted Suicide"

In Rodriguez, the plaintiff took the position that the Criminal Code prohibition against "assisted suicide"
was contrary to the Canadian Charter of Rights and Freedoms. The term "assisted suicide," referred to in
section 241(b) of the Criminal Code, was used throughout the decision.

In Carter, the plaintiffs argued that the provisions infringe their Charter rights by prohibiting "physician-
assisted dying." According to the plaintiffs, "physician-assisted dying" includes both "physician-assisted
suicide," which they defined as:

an assisted suicide where assistance to obtain or administer medication or other treatment that
intentionally brings about the patient's own death is provided by a medical practitioner … or by a person
acting under the general supervision of a medical practitioner, to a grievously and irremediably ill patient
in the context of a patient–physician relationship

and "consensual physician-assisted death," which they defined as:

37
the administration of medication or other treatment that intentionally brings about a patient's death by
the act of a medical practitioner … or by the act of a person acting under the general supervision of a
medical practitioner, at the request of a grievously and irremediably ill patient in the context of a patient-
physician relationship. 11

A distinction did not appear to be made between "consensual physician-assisted death" and "voluntary
euthanasia." The trial judge explained that "'[v]oluntary euthanasia' means euthanasia performed in
accordance with the wishes of a competent individual, whether those wishes have been made known
personally or by a valid, written advance directive."

2.2 The Trial Decision

The plaintiffs claimed at trial that the prohibition against assisted death (primarily section 241(b) and
related sections 14, 21, 22 and 222)13 violated their rights under sections 7 and 15 of the Charter.14 The
Attorney General of Canada argued that an absolute prohibition on assisted suicide was necessary to
avoid risking the deaths of incompetent persons, deaths that are involuntary (i.e., that are coerced), the
deaths of individuals with treatable conditions, the deaths of "ambivalent" individuals, the deaths of
"misinformed" individuals, and the deaths of vulnerable populations, including the elderly and people
with disabilities.15

The plaintiffs were successful; the trial judge, Justice Lynn Smith, found violations of both sections 7 and
15. When a Charter violation is found, however, the infringement may still be "saved" by section 1 of the
Charter. As noted above, that section states that:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject
only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic
society.

Justice Smith concluded that the infringement could not be demonstrably justified.

The plaintiffs had submitted that physician-assisted death should be accessible to "grievously and
irremediably ill persons," defining that term as follows:

"[G]rievously and irremediably ill persons" refers to persons who have a serious medical condition that
has been diagnosed as such by a medical practitioner and which is without remedy, as determined by
reference to treatment options acceptable to the person, and which causes the person enduring physical,
psychological or psychosocial suffering that is intolerable to that person and cannot be alleviated by any
medical treatment acceptable to that person.16

Justice Smith rejected the argument that "grievously and irremediably ill" should include "psychosocial
suffering"17 and specified that "'grievously and irremediably ill persons' should be limited to those who
are also in an advanced state of weakening capacities, with no chance of improvement."18 She also
rejected the claimant's position that physician-assisted dying "should include the provision of assistance
by persons other than physicians."19

Justice Smith was constrained by legal precedent in her decision. The principle of stare decisis ("to stand
by that which is decided") is a cornerstone of the common law system, promoting consistency and
predictability.20 It requires lower courts to follow the decisions of higher courts. Generally, a decision of
the Supreme Court of Canada is binding on all other Canadian courts. Justice Smith held, however, that

38
the Rodriguez precedent did not preclude her from finding in favour of the plaintiffs for a number of
reasons.

Two of these reasons related to the legal test that is applied when determining whether section 7 rights
have been infringed. The test involves two stages: determining whether there has been a deprivation of
the right to life, liberty or security of the person, and then, where a breach is found, determining whether
it is contrary to the principles of fundamental justice. With respect to section 7, Justice Smith noted that
when the Supreme Court in Rodriguez examined whether those rights were infringed, it considered only
the rights to liberty and security of the person, and not Ms. Rodriguez's right to life. In addition, when
considering whether the infringements were in accordance with the principles of fundamental justice,
Justice Smith noted that section 7 analysis has evolved since Rodriguez and the court should now consider
two additional principles of fundamental justice.21 Finally, Justice Smith noted that the Court in Rodriguez
"did not address whether or, if so, how, s. 241(b) infringes s. 15 of the Charter,"22 and concluded that "it
[was] open to this Court to assess the plaintiffs' s. 15 claim."23

Justice Smith held that the prohibition on assisted death is invalid to the extent that it violates the section
7 and section 15 rights of a defined population in situations akin to Ms. Taylor's. Justice Smith defined the
invalidity as follows:

[The assisted suicide prohibition is] of no force and effect to the extent that [it prohibits] physician-
assisted suicide by a medical practitioner in the context of a physician-patient relationship, where the
assistance is provided to a fully-informed, non-ambivalent competent adult patient who: (a) is free from
coercion and undue influence, is not clinically depressed and who personally (not through a substituted
decision-maker) requests physician-assisted death; and (b) is materially physically disabled or is soon to
become so, has been diagnosed by a medical practitioner as having a serious illness, disease or disability
(including disability arising from traumatic injury), is in a state of advanced weakening capacities with no
chance of improvement, has an illness that is without remedy as determined by reference to treatment
options acceptable to the person, and has an illness causing enduring physical or psychological suffering
that is intolerable to that person and cannot be alleviated by any medical treatment acceptable to that
person.24

She suspended her declaration of invalidity for 12 months, which the Attorney General of Canada had
submitted was the minimum required to "allow Parliament to have time to draft and consider any
legislation."25

The suspended declaration of invalidity would not have allowed Ms. Taylor to access assisted death legally
at least until the end of the 12-month period. Ms. Taylor was therefore granted a personal remedy: a
constitutional exemption, which would have made her exempt from the prohibition while it was still in
force. The trial judge included several conditions for accessing the constitutional exemption, including
that Ms. Taylor's physician had to attest that she was terminally ill and near death. Ms. Taylor did not
make use of this exemption, however, as she died of an infection in October 2012.

2.3 The British Columbia Court Of Appeal Decision

The governments of Canada and British Columbia appealed the trial judge's declaration that the sections
of the Criminal Code relating to physician-assisted dying were invalid. The British Columbia Court of

39
Appeal overturned the trial decision on 10 October 2013 in a 2–1 decision.26 The majority did not consider
the merits of the constitutional claims in any depth, focusing instead on the principle of stare decisis. The
majority held that "the trial judge was bound to find that the plaintiffs' case had been authoritatively
decided by Rodriguez,"27 and further that "[i]f the constitutional validity of s. 241 of the Criminal Code is
to be reviewed notwithstanding Rodriguez, it is for the Supreme Court of Canada to do so."

Although the matter was moot because of Ms. Taylor's death, the majority of the Court of Appeal held
that the remedy of constitutional exemption would be appropriate for circumstances in which "a
generally sound law … has an extraordinary, even cruel, effect on a small number of individuals."29

2.4 The Supreme Court Of Canada Decision

The Supreme Court heard the Carter appeal on 15 October 2014. Of the nine judges present for the
hearing, only Chief Justice Beverley McLachlin was a Supreme Court of Canada Justice at the time of the
Rodriguez appeal. She had written one of the three dissenting opinions, and would have found that
section 241(b) unjustifiably infringes section 7 of the Charter. In that decision, she did not consider section
15 arguments, on the basis that Rodriguez was not "a case about discrimination."

The Court rendered its decision in Carter on 6 February 2015. The first notable feature of the decision is
its authorship. Not only was the decision unanimous, it was authored by "the Court." This authorship is
generally reserved for controversial cases or ones in which the Court wants to emphasize its unanimity by
speaking with one voice.30

Early in the decision, the Court states that:

two of [the provisions of the Criminal Code] are at the core of the constitutional challenge: s. 241(b) …
and s. 14 … It is these two provisions that prohibit the provision of assistance in dying. Sections 21, 22 and
222 are only engaged so long as the provision of assistance in dying is itself an "unlawful act" or offence.31

For that reason, there is no discussion of or declaration made with respect to sections 21, 22 or 222.

The decision mentions the debate that has taken place in Canada and abroad since Rodriguez was decided,
referring to private member's bills on the subject,32 the Senate Special Committee on Euthanasia and
Assisted Suicide,33 and international legislative developments.34

2.4.1 Stare Decisis

The Court began its legal analysis by exploring whether the trial judge was bound by Rodriguez, and
concluded that she was not. The Court held that "stare decisis is not a straitjacket that condemns the law
to stasis."35 Following its 2013 decision in Canada (Attorney General) v. Bedford,36 the Court applied the
following legal test to determine when lower courts may reconsider settled rulings of higher courts:

(1) where a new legal issue is raised [or] (2) where there is a change in the circumstances or evidence that
"fundamentally shifts the parameters of the debate."37

This approach to stare decisis is much more flexible than the decision the Court of Appeal had relied upon
in Carter.38 The Supreme Court found that both of the Bedford stare decisis criteria were met and that
the developments identified in the trial judge's analysis of section 7 were sufficient to meet the "new legal
issue" criterion.

40
Although the Supreme Court did not specifically identify the evidence that met the second criterion, it
noted that the record before the trial judge contained evidence that, if accepted, could undermine the
Rodriguez finding that there is a "'substantial consensus' in Western countries that a blanket prohibition
[against assisted suicide] is necessary" to protect vulnerable people.39 Examples included evidence from
several jurisdictions that now permit assisted suicide, as well as reports of the Royal Society of Canada
and the Select Committee of the Assemblée nationale du Québec, all of which were considered at trial in
the context of societal views on assisted suicide.40

2.4.2 Section 7 Of The Canadian Charter Of Rights And Freedoms

As explained earlier, to demonstrate a violation of section 7 of the Charter, a claimant must show that a
law interferes with his or her life, liberty or security of the person. Then the claimant must show that this
deprivation is not in accordance with the principles of fundamental justice. The Supreme Court held that
all three parts of section 7 (life, liberty and security of the person) were violated.

The Court held that the right to life "is engaged where the law … imposes death or an increased risk of
death on a person, either directly or indirectly."41 Having found that the assisted suicide prohibition can
lead some people to end their lives prematurely while they are still capable of doing so, the Court held
that the prohibition infringes the right to life.

Next, the Court considered the rights to liberty and security of the person. While it stated that these are
distinct interests, it considered them together for the purpose of the appeal. The right to liberty protects
"the right to make fundamental personal choices free from state interference."42 The right to security of
the person incorporates

a notion of personal autonomy involving … control over one's bodily integrity free from state interference
… and it is engaged by state interference with an individual's physical or psychological integrity, including
any state action that causes physical or serious psychological suffering.43

The Court held that a prohibition on physician-assisted death interferes with the ability of grievously ill
individuals "to make decisions concerning their bodily integrity and medical care and thus trenches on
liberty." Furthermore, "by leaving people like Ms. Taylor to endure intolerable suffering, [the prohibition
on physician-assisted dying] impinges on their security of the person."44

Having found that all three section 7 interests were engaged, the Court went on to determine whether
the interference with these interests was in accordance with the principles of fundamental justice.

No exhaustive list of principles of fundamental justice exists. The trial judge identified the principles of
overbreadth and gross disproportionality as elements that had not been part of the section 7 analysis in
Rodriguez.

A law may be considered overbroad if it "takes away rights in a way that generally supports the object of
the law, [but] goes too far by denying the rights of some individuals in a way that bears no relation to the
object."45 The Court identified the objective of the prohibition to be "preventing vulnerable persons
from being induced to commit suicide at a time of weakness." 46 It concluded that the prohibition was
overbroad because it not only prevented vulnerable persons from committing suicide, but also persons
such as Ms. Taylor who are "competent, fully-informed, and free from coercion or duress."47 The Court

41
stated that, given its conclusion that the prohibition was overbroad, it was not necessary to decide
whether the principle against gross disproportionality was also violated.

2.4.3 Section 15 Of The Canadian Charter Of Rights And Freedoms

At trial, Justice Smith had found that the prohibition against assisted death violates the equality rights of
individuals with disabilities by imposing a disproportionate burden on them. While able-bodied individuals
may commit suicide legally, people with certain disabilities may be physically unable to commit suicide,
but may not seek assistance without subjecting another person to potential prosecution.

The Supreme Court held that, given its finding that there was a section 7 violation, it was "unnecessary to
consider" whether there was a section 15 violation.48 Recently, the Supreme Court has tended to avoid
consideration of the merits of an equality claim when another section of the Charter has been claimed as
well.49

2.4.4 Section 1 Of The Canadian Charter Of Rights And Freedoms

In accordance with the section 1 test established by case law, the government needs to demonstrate that
the measure employed to protect its objective (in this case, "protecting the vulnerable from being induced
to take their own lives in times of weakness"50 ) impairs the right as little as possible. In Carter, the
Supreme Court held that the section 7 violation was not "minimally impairing," meaning that the objective
of section 241(b) could have been achieved in a substantial manner without a blanket prohibition,
therefore allowing certain individuals to access physician-assisted death. Specifically, the Court held that
the evidence at trial indicated that a "permissive regime with properly designed and administered
safeguards was capable of protecting vulnerable people from abuse and error."51

2.4.5 Disposition

Having found an unjustifiable violation of section 7, the Supreme Court declared that sections 241(b) and
14 of the Criminal Code

are void insofar as they prohibit physician-assisted death for a competent adult person who (1) clearly
consents to the termination of life; and (2) has a grievous and irremediable medical condition (including
an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the
circumstances of his or her condition.

"Irremediable," according to the Court, "does not require the patient to undertake treatments that are
not acceptable to the individual." The Court noted further that the scope of its declaration responded to
the facts in the case before it, and did not pronounce on other situations in which assisted death might
be sought.

The trial judge had granted Ms. Taylor a personal constitutional exemption to access physician-assisted
dying. The Supreme Court concluded:

In view of the fact that Ms. Taylor has now passed away and that none of the remaining litigants seeks a
personal exemption, this is not a proper case for creating [a mechanism for exemptions during the period
of suspended validity].55

The Court highlighted the concerns of some of the interveners that physicians' freedom of conscience and
religion (as protected by section 2(a) of the Canadian Charter of Rights of Freedoms) might be infringed if

42
they were forced to participate in physician-assisted death, and stated that "nothing in the declaration of
invalidity … would compel physicians to provide assistance in dying,"56 and that "the Charter rights of
patients and physicians will need to be reconciled."57

Ultimately, the Court noted that "Parliament must be given the opportunity to craft an appropriate
remedy," and that "[c]omplex regulatory regimes are better created by Parliament than by the courts."58

3 Responses To And Developments Following The Supreme Court Of Canada Decision

The federal government responded to the judgment by indicating that it would hold consultations on the
issue.

On 24 February 2015, Justin Trudeau, leader of the Liberal Party of Canada, moved in the House of
Commons that a special committee be established

to consider the ruling of the Supreme Court; that the committee consult with experts and with Canadians,
and make recommendations for a legislative framework that will respect the Constitution, the Charter of
Rights and Freedoms, and the priorities of Canadians.59

That motion was defeated.

Twenty-four groups were granted intervener status when Carter was before the Supreme Court of
Canada, the majority of whom supported the existing Criminal Code provisions that prohibited assisted
suicide. Not surprisingly, many of those organizations were disappointed by the decision, in at least one
case stating that Parliament should invoke the constitutional notwithstanding clause60 set out in section
33 of the Canadian Charter of Rights and Freedoms.61 Other interveners were concerned that the decision
puts "persons with disabilities at serious risk"62 and is not limited to individuals who are suffering from a
terminal illness.63 There is debate as to whether the decision is restricted to authorizing physician-
assisted suicide, or whether it also applies to voluntary euthanasia.64

After Carter was released, many intervener organizations commented on what should be included in
future legislation relating to physician-assisted dying. Suggestions included ensuring that patients are
aware of all treatment and palliative options, the need for safeguards to ensure that patient consent to
physician-assisted dying is informed and free of coercion, and ensuring protection for physicians and other
health care professionals who did not want to participate in the process.

The need to focus on improving palliative care rather than physician-assisted death has also been raised
in the context of the Carter decision.66

In June 2015, the Canadian Medical Association (CMA) released a draft version of a document entitled
"Principles-Based Approach to Assisted Dying in Canada."67 The final version, “Principles-Based
Recommendations for a Canadian Approach to Assisted Dying,” sets out the following foundational
principles:

respect for persons;

equity;

respect for physician values;

consent and capacity;

43
clarity;

dignity;

protection of patients;

accountability;

solidarity; and

mutual respect.

The CMA document also contains a number of recommendations for the potential statutory framework,
including determining the steps involved for patients and physicians in relation to a request for medical
aid in dying,68 outlining documentation and oversight requirements, and establishing the duty of care
owed by “conscientiously objecting” physicians to patients who make a request for physician-assisted
death. On the last point, the CMA’s document states,

5.2 Conscientious objection by a physician

Physicians are not obligated to fulfill requests for assisted dying. This means that physicians who choose
not to provide or participate in assisted dying are not required to provide it or participate in it or to refer
the patient to a physician or a medical administrator who will provide assisted dying to the patient. There
should be no discrimination against a physician who chooses not to provide or participate in assisted
dying.

Physicians [are] obligated to respond to a patient’s request for assistance in dying. There are two equally
legitimate considerations: the protection of physicians’ freedom of conscience in a way that respects
differences of conscience and the assurance of effective patient access to a medical service. In order to
reconcile physicians’ conscientious objection with a patient’s request for access to assisted dying,
physicians are expected to provide the patient with complete information on all options available,
including assisted dying, and advise the patient on how they can access any separate central information,
counseling, and referral service. 69

Some provincial colleges of physicians and surgeons have either drafted or are in the process of drafting
guiding documents for their members with respect to physician-assisted death.70 In October 2015, the
College of Family Physicians of Canada released “A Guide for Reflection on Ethical Issues Concerning
Assisted Suicide and Voluntary Euthanasia.” 71 The Royal College of Physicians and Surgeons of Canada
has indicated that it is collaborating with the CMA “to support their current efforts to create a unified,
profession-wide response to the Supreme Court decision.” 72

In mid-July 2015, the federal Minister of Justice and the federal Minister of Health announced the creation
of a three-person external panel.73 That panel consulted directly with those who intervened in the
Supreme Court of Canada case as well as with medical authorities. An online consultation process also
took place. The panel provided its report to the federal Minister of Justice and the federal Minister of
Health on 15 December 2015.74

The panel composition has been criticized in the media for potential bias. Both the panel's chair (Dr.
Harvey Chochinov, professor of psychiatry who holds the Canada Research Chair in Palliative Care), and
panel member Catherine Frazee (former co-director of the Ryerson-RBC Foundation Institute for Disability

44
Studies Research and Education, and Chief Commissioner of the Ontario Human Rights Commission) were
interveners in the Carter case and supported the prohibition against physician-assisted dying.75 The third
member of the panel is law professor and former government of Quebec minister, Benoît Pelletier.

In mid-August 2015, a provincial–territorial expert advisory group on physician-assisted death was

announced.76 The advisory group's work was to "complement the work of the federal panel"77 and
"provide advice on the development of policies, practices and safeguards for provinces and territories to
consider when physician-assisted dying is legal within their respective jurisdictions." 78

The final report, dated 30 November 2015 and posted publicly on 14 December 2015, contained 43
recommendations.79 Key recommendations include:

establishing a pan-Canadian Strategy for Palliative and End-of-Life care, including physician-assisted dying;

establishing a program within the publicly funded system that will link patients with an appropriate
provider;

amending the Criminal Code to allow physician-assisted dying by regulated health professionals acting
under the direction of a physician or a nurse practitioner, and to protect health professionals who
participate in physician-assisted dying;

amending the Criminal Code to ensure that eligibility for physician-assisted dying is based on competence
rather than age;

having medical regulatory authorities develop guidance/tools for physicians;

not requiring a mandatory waiting period between a request and provision of assistance in dying;

requiring “conscientiously objecting” health care providers to inform patients of all end-of-life options,
including physician-assisted dying, and requiring providers to give a referral or direct transfer of care or
to contact a third party and transfer the patient’s records;

having provincial and territorial governments establish Review Committee systems to review compliance
in all cases of physician-assisted dying;

establishing a pan-Canadian Commission on End-of-Life Care (preferably in collaboration with the federal
government); and

providing public education about physician-assisted dying and engaging the public so that it can inform
future developments of related law, policies and practices.

On 11 December 2015, motions were passed in the House of Commons and the Senate to establish a
Special Joint Committee of the Senate and the House of Commons. Those motions stated that the
committee’s purpose is:

to review the report of the External Panel on Options for a Legislative Response to Carter v. Canada and
other recent relevant consultation activities and studies, to consult with Canadians, experts and
stakeholders, and make recommendations on the framework of a federal response on physician-assisted
dying that respects the Constitution, the Charter of Rights and Freedoms, and the priorities of Canadians.

45
The motions also stated that “the Committee be directed to consult broadly, take into consideration
consultations that have been undertaken on the issue, examine relevant research studies and literature
and review models being used or developed in other jurisdictions.” 80

On 3 December 2015, the Attorney General of Canada applied to the Supreme Court of Canada for an
order to extend the suspension of the declaration of the constitutional invalidity for an additional six
months.

Concerns have been expressed that the absence of federal physician-assisted death legislation could
result in a patchwork of laws that vary not only from province to province,81 but also from hospital to
hospital.82

46
EN BANC

G.R. No. 180906 October 7, 2008

THE SECRETARY OF NATIONAL DEFENSE, THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES,
petitioners,

vs.

RAYMOND MANALO and REYNALDO MANALO, respondents.

DECISION

PUNO, C.J.:

While victims of enforced disappearances are separated from the rest of the world behind secret walls,
they are not separated from the constitutional protection of their basic rights. The constitution is an
overarching sky that covers all in its protection. The case at bar involves the rights to life, liberty and
security in the first petition for a writ of Amparo filed before this Court.

This is an appeal via Petition for Review under Rule 45 of the Rules of Court in relation to Section 191 of
the Rule on the Writ of Amparo, seeking to reverse and set aside on both questions of fact and law, the
Decision promulgated by the Court of Appeals in C.A. G.R. AMPARO No. 00001, entitled "Raymond Manalo
and Reynaldo Manalo, petitioners, versus The Secretary of National Defense, the Chief of Staff, Armed
Forces of the Philippines, respondents."

This case was originally a Petition for Prohibition, Injunction, and Temporary Restraining Order (TRO)2
filed before this Court by herein respondents (therein petitioners) on August 23, 2007 to stop herein
petitioners (therein respondents) and/or their officers and agents from depriving them of their right to
liberty and other basic rights. Therein petitioners also sought ancillary remedies, Protective Custody
Orders, Appointment of Commissioner, Inspection and Access Orders, and all other legal and equitable
reliefs under Article VIII, Section 5(5)3 of the 1987 Constitution and Rule 135, Section 6 of the Rules of
Court. In our Resolution dated August 24, 2007, we (1) ordered the Secretary of the Department of
National Defense and the Chief of Staff of the AFP, their agents, representatives, or persons acting in their
stead, including but not limited to the Citizens Armed Forces Geographical Unit (CAFGU) to submit their
Comment; and (2) enjoined them from causing the arrest of therein petitioners, or otherwise restricting,
curtailing, abridging, or depriving them of their right to life, liberty, and other basic rights as guaranteed
under Article III, Section 14 of the 1987 Constitution.5

While the August 23, 2007 Petition was pending, the Rule on the Writ of Amparo took effect on October
24, 2007. Forthwith, therein petitioners filed a Manifestation and Omnibus Motion to Treat Existing
Petition as Amparo Petition, to Admit Supporting Affidavits, and to Grant Interim and Final Amparo
Reliefs. They prayed that: (1) the petition be considered a Petition for the Writ of Amparo under Sec. 266
of the Amparo Rule; (2) the Court issue the writ commanding therein respondents to make a verified
return within the period provided by law and containing the specific matter required by law; (3) they be
granted the interim reliefs allowed by the Amparo Rule and all other reliefs prayed for in the petition but

47
not covered by the Amparo Rule; (4) the Court, after hearing, render judgment as required in Sec. 187 of
the Amparo Rule; and (5) all other just and equitable reliefs.8

On October 25, 2007, the Court resolved to treat the August 23, 2007 Petition as a petition under the
Amparo Rule and further resolved, viz:

WHEREFORE, let a WRIT OF AMPARO be issued to respondents requiring them to file with the CA (Court
of Appeals) a verified written return within five (5) working days from service of the writ. We REMAND
the petition to the CA and designate the Division of Associate Justice Lucas P. Bersamin to conduct the
summary hearing on the petition on November 8, 2007 at 2:00 p.m. and decide the petition in accordance
with the Rule on the Writ of Amparo.9

On December 26, 2007, the Court of Appeals rendered a decision in favor of therein petitioners (herein
respondents), the dispositive portion of which reads, viz:

ACCORDINGLY, the PRIVILEGE OF THE WRIT OF AMPARO is GRANTED.

The respondents SECRETARY OF NATIONAL DEFENSE and AFP CHIEF OF STAFF are hereby REQUIRED:

1. To furnish to the petitioners and to this Court within five days from notice of this decision all official
and unofficial reports of the investigation undertaken in connection with their case, except those already
on file herein;

2. To confirm in writing the present places of official assignment of M/Sgt Hilario aka Rollie Castillo and
Donald Caigas within five days from notice of this decision.

3. To cause to be produced to this Court all medical reports, records and charts, reports of any treatment
given or recommended and medicines prescribed, if any, to the petitioners, to include a list of medical
and (sic) personnel (military and civilian) who attended to them from February 14, 2006 until August 12,
2007 within five days from notice of this decision.

The compliance with this decision shall be made under the signature and oath of respondent AFP Chief of
Staff or his duly authorized deputy, the latter's authority to be express and made apparent on the face of
the sworn compliance with this directive.

SO ORDERED.10

Hence, this appeal. In resolving this appeal, we first unfurl the facts as alleged by herein respondents:

Respondent Raymond Manalo recounted that about one or two weeks before February 14, 2006, several
uniformed and armed soldiers and members of the CAFGU summoned to a meeting all the residents of
their barangay in San Idelfonso, Bulacan. Respondents were not able to attend as they were not informed
of the gathering, but Raymond saw some of the soldiers when he passed by the barangay hall.11

On February 14, 2006, Raymond was sleeping in their house in Buhol na Mangga, San Ildefonso, Bulacan.
At past noon, several armed soldiers wearing white shirts, fatigue pants and army boots, entered their
house and roused him. They asked him if he was Bestre, but his mother, Ester Manalo, replied that he was
Raymond, not Bestre. The armed soldier slapped him on both cheeks and nudged him in the stomach. He
was then handcuffed, brought to the rear of his house, and forced to the ground face down. He was kicked

48
on the hip, ordered to stand and face up to the light, then forcibly brought near the road. He told his
mother to follow him, but three soldiers stopped her and told her to stay.12

Among the men who came to take him, Raymond recognized brothers Michael de la Cruz, Madning de la
Cruz, "Puti" de la Cruz, and "Pula" de la Cruz, who all acted as lookout. They were all members of the
CAFGU and residing in Manuzon, San Ildefonso, Bulacan. He also recognized brothers Randy Mendoza and
Rudy Mendoza, also members of the CAFGU. While he was being forcibly taken, he also saw outside of his
house two barangay councilors, Pablo Cunanan and Bernardo Lingasa, with some soldiers and armed
men.13

The men forced Raymond into a white L300 van. Once inside, he was blindfolded. Before being
blindfolded, he saw the faces of the soldiers who took him. Later, in his 18 months of captivity, he learned
their names. The one who drove the van was Rizal Hilario alias Rollie Castillo, whom he estimated was
about 40 years of age or older. The leader of the team who entered his house and abducted him was
"Ganata." He was tall, thin, curly-haired and a bit old. Another one of his abductors was "George" who
was tall, thin, white-skinned and about 30 years old.14

The van drove off, then came to a stop. A person was brought inside the van and made to sit beside
Raymond. Both of them were beaten up. On the road, he recognized the voice of the person beside him
as his brother Reynaldo's. The van stopped several times until they finally arrived at a house. Raymond
and Reynaldo were each brought to a different room. With the doors of their rooms left open, Raymond
saw several soldiers continuously hitting his brother Reynaldo on the head and other parts of his body
with the butt of their guns for about 15 minutes. After which, Reynaldo was brought to his (Raymond's)
room and it was his (Raymond's) turn to be beaten up in the other room. The soldiers asked him if he was
a member of the New People's Army. Each time he said he was not, he was hit with the butt of their guns.
He was questioned where his comrades were, how many soldiers he had killed, and how many NPA
members he had helped. Each time he answered none, they hit him.15

In the next days, Raymond's interrogators appeared to be high officials as the soldiers who beat him up
would salute them, call them "sir," and treat them with respect. He was in blindfolds when interrogated
by the high officials, but he saw their faces when they arrived and before the blindfold was put on. He
noticed that the uniform of the high officials was different from those of the other soldiers. One of those
officials was tall and thin, wore white pants, tie, and leather shoes, instead of combat boots. He spoke in
Tagalog and knew much about his parents and family, and a habeas corpus case filed in connection with
the respondents' abduction.16 While these officials interrogated him, Raymond was not manhandled. But
once they had left, the soldier guards beat him up. When the guards got drunk, they also manhandled
respondents. During this time, Raymond was fed only at night, usually with left-over and rotten food.17

On the third week of respondents' detention, two men arrived while Raymond was sleeping and beat him
up. They doused him with urine and hot water, hit his stomach with a piece of wood, slapped his forehead
twice with a .45 pistol, punched him on the mouth, and burnt some parts of his body with a burning wood.
When he could no longer endure the torture and could hardly breathe, they stopped. They then subjected
Reynaldo to the same ordeal in another room. Before their torturers left, they warned Raymond that they
would come back the next day and kill him.18

The following night, Raymond attempted to escape. He waited for the guards to get drunk, then made
noise with the chains put on him to see if they were still awake. When none of them came to check on

49
him, he managed to free his hand from the chains and jumped through the window. He passed through a
helipad and firing range and stopped near a fishpond where he used stones to break his chains. After
walking through a forested area, he came near a river and an Iglesia ni Kristo church. He talked to some
women who were doing the laundry, asked where he was and the road to Gapan. He was told that he was
in Fort Magsaysay.19 He reached the highway, but some soldiers spotted him, forcing him to run away.
The soldiers chased him and caught up with him. They brought him to another place near the entrance of
what he saw was Fort Magsaysay. He was boxed repeatedly, kicked, and hit with chains until his back bled.
They poured gasoline on him. Then a so-called "Mam" or "Madam" suddenly called, saying that she
wanted to see Raymond before he was killed. The soldiers ceased the torture and he was returned inside
Fort Magsaysay where Reynaldo was detained.20

For some weeks, the respondents had a respite from all the torture. Their wounds were treated. When
the wounds were almost healed, the torture resumed, particularly when respondents' guards got
drunk.21

Raymond recalled that sometime in April until May 2006, he was detained in a room enclosed by steel
bars. He stayed all the time in that small room measuring 1 x 2 meters, and did everything there, including
urinating, removing his bowels, bathing, eating and sleeping. He counted that eighteen people22 had
been detained in that bartolina, including his brother Reynaldo and himself.23

For about three and a half months, the respondents were detained in Fort Magsaysay. They were kept in
a small house with two rooms and a kitchen. One room was made into the bartolina. The house was near
the firing range, helipad and mango trees. At dawn, soldiers marched by their house. They were also
sometimes detained in what he only knew as the "DTU."24

At the DTU, a male doctor came to examine respondents. He checked their body and eyes, took their urine
samples and marked them. When asked how they were feeling, they replied that they had a hard time
urinating, their stomachs were aching, and they felt other pains in their body. The next day, two ladies in
white arrived. They also examined respondents and gave them medicines, including orasol, amoxicillin
and mefenamic acid. They brought with them the results of respondents' urine test and advised them to
drink plenty of water and take their medicine. The two ladies returned a few more times. Thereafter,
medicines were sent through the "master" of the DTU, "Master" Del Rosario alias Carinyoso at Puti.
Respondents were kept in the DTU for about two weeks. While there, he met a soldier named Efren who
said that Gen. Palparan ordered him to monitor and take care of them.25

One day, Rizal Hilario fetched respondents in a Revo vehicle. They, along with Efren and several other
armed men wearing fatigue suits, went to a detachment in Pinaud, San Ildefonso, Bulacan. Respondents
were detained for one or two weeks in a big two-storey house. Hilario and Efren stayed with them. While
there, Raymond was beaten up by Hilario's men.26

From Pinaud, Hilario and Efren brought respondents to Sapang, San Miguel, Bulacan on board the Revo.
They were detained in a big unfinished house inside the compound of "Kapitan" for about three months.
When they arrived in Sapang, Gen. Palparan talked to them. They were brought out of the house to a
basketball court in the center of the compound and made to sit. Gen. Palparan was already waiting,
seated. He was about two arms' length away from respondents. He began by asking if respondents felt
well already, to which Raymond replied in the affirmative. He asked Raymond if he knew him. Raymond
lied that he did not. He then asked Raymond if he would be scared if he were made to face Gen. Palparan.

50
Raymond responded that he would not be because he did not believe that Gen. Palparan was an evil
man.27

Raymond narrated his conversation with Gen. Palparan in his affidavit, viz:

Tinanong ako ni Gen. Palparan, "Ngayon na kaharap mo na ako, di ka ba natatakot sa akin?"

Sumagot akong, "Siyempre po, natatakot din..."

Sabi ni Gen. Palparan: "Sige, bibigyan ko kayo ng isang pagkakataon na mabuhay, basta't sundin n'yo ang
lahat ng sasabihin ko... sabihin mo sa magulang mo - huwag pumunta sa mga rali, sa hearing, sa Karapatan
at sa Human Right dahil niloloko lang kayo. Sabihin sa magulang at lahat sa bahay na huwag paloko doon.
Tulungan kami na kausapin si Bestre na sumuko na sa gobyerno."28

Respondents agreed to do as Gen. Palparan told them as they felt they could not do otherwise. At about
3:00 in the morning, Hilario, Efren and the former's men - the same group that abducted them - brought
them to their parents' house. Raymond was shown to his parents while Reynaldo stayed in the Revo
because he still could not walk. In the presence of Hilario and other soldiers, Raymond relayed to his
parents what Gen. Palparan told him. As they were afraid, Raymond's parents acceded. Hilario threatened
Raymond's parents that if they continued to join human rights rallies, they would never see their children
again. The respondents were then brought back to Sapang.29

When respondents arrived back in Sapang, Gen. Palparan was about to leave. He was talking with the four
"masters" who were there: Arman, Ganata, Hilario and Cabalse.30 When Gen. Palparan saw Raymond, he
called for him. He was in a big white vehicle. Raymond stood outside the vehicle as Gen. Palparan told
him to gain back his strength and be healthy and to take the medicine he left for him and Reynaldo. He
said the medicine was expensive at Php35.00 each, and would make them strong. He also said that they
should prove that they are on the side of the military and warned that they would not be given another
chance.31 During his testimony, Raymond identified Gen. Palparan by his picture.32

One of the soldiers named Arman made Raymond take the medicine left by Gen. Palparan. The medicine,
named "Alive," was green and yellow. Raymond and Reynaldo were each given a box of this medicine and
instructed to take one capsule a day. Arman checked if they were getting their dose of the medicine. The
"Alive" made them sleep each time they took it, and they felt heavy upon waking up.33

After a few days, Hilario arrived again. He took Reynaldo and left Raymond at Sapang. Arman instructed
Raymond that while in Sapang, he should introduce himself as "Oscar," a military trainee from Sariaya,
Quezon, assigned in Bulacan. While there, he saw again Ganata, one of the men who abducted him from
his house, and got acquainted with other military men and civilians.34

After about three months in Sapang, Raymond was brought to Camp Tecson under the 24th Infantry
Battalion. He was fetched by three unidentified men in a big white vehicle. Efren went with them.
Raymond was then blindfolded. After a 30-minute ride, his blindfold was removed. Chains were put on
him and he was kept in the barracks.35

The next day, Raymond's chains were removed and he was ordered to clean outside the barracks. It was
then he learned that he was in a detachment of the Rangers. There were many soldiers, hundreds of them
were training. He was also ordered to clean inside the barracks. In one of the rooms therein, he met
Sherlyn Cadapan from Laguna. She told him that she was a student of the University of the Philippines

51
and was abducted in Hagonoy, Bulacan. She confided that she had been subjected to severe torture and
raped. She was crying and longing to go home and be with her parents. During the day, her chains were
removed and she was made to do the laundry.36

After a week, Reynaldo was also brought to Camp Tecson. Two days from his arrival, two other captives,
Karen Empeño and Manuel Merino, arrived. Karen and Manuel were put in the room with "Allan" whose
name they later came to know as Donald Caigas, called "master" or "commander" by his men in the 24th
Infantry Battalion. Raymond and Reynaldo were put in the adjoining room. At times, Raymond and
Reynaldo were threatened, and Reynaldo was beaten up. In the daytime, their chains were removed, but
were put back on at night. They were threatened that if they escaped, their families would all be killed.37

On or about October 6, 2006, Hilario arrived in Camp Tecson. He told the detainees that they should be
thankful they were still alive and should continue along their "renewed life." Before the hearing of
November 6 or 8, 2006, respondents were brought to their parents to instruct them not to attend the
hearing. However, their parents had already left for Manila. Respondents were brought back to Camp
Tecson. They stayed in that camp from September 2006 to November 2006, and Raymond was instructed
to continue using the name "Oscar" and holding himself out as a military trainee. He got acquainted with
soldiers of the 24th Infantry Battalion whose names and descriptions he stated in his affidavit.38

On November 22, 2006, respondents, along with Sherlyn, Karen, and Manuel, were transferred to a camp
of the 24th Infantry Battalion in Limay, Bataan. There were many huts in the camp. They stayed in that
camp until May 8, 2007. Some soldiers of the battalion stayed with them. While there, battalion soldiers
whom Raymond knew as "Mar" and "Billy" beat him up and hit him in the stomach with their guns. Sherlyn
and Karen also suffered enormous torture in the camp. They were all made to clean, cook, and help in
raising livestock.39

Raymond recalled that when "Operation Lubog" was launched, Caigas and some other soldiers brought
him and Manuel with them to take and kill all sympathizers of the NPA. They were brought to Barangay
Bayan-bayanan, Bataan where he witnessed the killing of an old man doing kaingin. The soldiers said he
was killed because he had a son who was a member of the NPA and he coddled NPA members in his
house.40 Another time, in another "Operation Lubog," Raymond was brought to Barangay Orion in a
house where NPA men stayed. When they arrived, only the old man of the house who was sick was there.
They spared him and killed only his son right before Raymond's eyes.41

From Limay, Raymond, Reynaldo, Sherlyn, Karen, and Manuel were transferred to Zambales, in a
safehouse near the sea. Caigas and some of his men stayed with them. A retired army soldier was in charge
of the house. Like in Limay, the five detainees were made to do errands and chores. They stayed in
Zambales from May 8 or 9, 2007 until June 2007.42

In June 2007, Caigas brought the five back to the camp in Limay. Raymond, Reynaldo, and Manuel were
tasked to bring food to detainees brought to the camp. Raymond narrated what he witnessed and
experienced in the camp, viz:

Isang gabi, sinabihan kami ni Donald (Caigas) na matulog na kami. Nakita ko si Donald na inaayos ang
kanyang baril, at nilagyan ng silenser. Sabi ni Donald na kung mayroon man kaming makita o marinig,
walang nangyari. Kinaumagahan, nakita naming ang bangkay ng isa sa mga bihag na dinala sa kampo.
Mayroong binuhos sa kanyang katawan at ito'y sinunog. Masansang ang amoy.

52
Makaraan ang isang lingo, dalawang bangkay and ibinaba ng mga unipormadong sundalo mula sa 6 x 6 na
trak at dinala sa loob ng kampo. May naiwang mga bakas ng dugo habang hinihila nila ang mga bangkay.
Naamoy ko iyon nang nililinis ang bakas.

Makalipas ang isa o dalawang lingo, may dinukot sila na dalawang Ita. Itinali sila sa labas ng kubo,
piniringan, ikinadena at labis na binugbog. Nakita kong nakatakas ang isa sa kanila at binaril siya ng sundalo
ngunit hindi siya tinamaan. Iyong gabi nakita kong pinatay nila iyong isang Ita malapit sa Post 3; sinilaban
ang bangkay at ibinaon ito.

Pagkalipas ng halos 1 buwan, 2 pang bangkay ang dinala sa kampo. Ibinaba ang mga bangkay mula sa pick
up trak, dinala ang mga bangkay sa labas ng bakod. Kinaumagahan nakita kong mayroong sinilaban, at
napakamasangsang ang amoy.

May nakilala rin akong 1 retiradong koronel at 1 kasama niya. Pinakain ko sila. Sabi nila sa akin na dinukot
sila sa Bataan. Iyong gabi, inilabas sila at hindi ko na sila nakita.

xxx xxx xxx

Ikinadena kami ng 3 araw. Sa ikatlong araw, nilabas ni Lat si Manuel dahil kakausapin daw siya ni Gen.
Palparan. Nakapiring si Manuel, wala siyang suot pang-itaas, pinosasan. Nilakasan ng mga sundalo ang
tunog na galing sa istiryo ng sasakyan. Di nagtagal, narinig ko ang hiyaw o ungol ni Manuel. Sumilip ako sa
isang haligi ng kamalig at nakita kong sinisilaban si Manuel.

Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4 na araw pagkalipas. Sinabi sa
amin na kaya kami nakakadena ay dahil pinagdedesisyunan pa ng mga sundalo kung papatayin kami o
hindi.

Tinanggal ang aming kadena. Kinausap kami ni Donald. Tinanong kami kung ano ang sabi ni Manuel sa
amin. Sabi ni Donald huwag na raw naming hanapin ang dalawang babae at si Manuel, dahil magkakasama
na yung tatlo. Sabi pa ni Donald na kami ni Reynaldo ay magbagong buhay at ituloy namin ni Reynaldo
ang trabaho. Sa gabi, hindi na kami kinakadena.43

On or about June 13, 2007, Raymond and Reynaldo were brought to Pangasinan, ostensibly to raise
poultry for Donald (Caigas). Caigas told respondents to also farm his land, in exchange for which, he would
take care of the food of their family. They were also told that they could farm a small plot adjoining his
land and sell their produce. They were no longer put in chains and were instructed to use the names
Rommel (for Raymond) and Rod (for Reynaldo) and represent themselves as cousins from Rizal, Laguna.44

Respondents started to plan their escape. They could see the highway from where they stayed. They
helped farm adjoining lands for which they were paid Php200.00 or Php400.00 and they saved their
earnings. When they had saved Php1,000.00 each, Raymond asked a neighbor how he could get a cellular
phone as he wanted to exchange text messages with a girl who lived nearby. A phone was pawned to him,
but he kept it first and did not use it. They earned some more until they had saved Php1,400.00 between
them.

There were four houses in the compound. Raymond and Reynaldo were housed in one of them while their
guards lived in the other three. Caigas entrusted respondents to Nonong, the head of the guards.

53
Respondents' house did not have electricity. They used a lamp. There was no television, but they had a
radio. In the evening of August 13, 2007, Nonong and his cohorts had a drinking session. At about 1:00
a.m., Raymond turned up the volume of the radio. When none of the guards awoke and took notice,
Raymond and Reynaldo proceeded towards the highway, leaving behind their sleeping guards and barking
dogs. They boarded a bus bound for Manila and were thus freed from captivity.45

Reynaldo also executed an affidavit affirming the contents of Raymond's affidavit insofar as they related
to matters they witnessed together. Reynaldo added that when they were taken from their house on
February 14, 2006, he saw the faces of his abductors before he was blindfolded with his shirt. He also
named the soldiers he got acquainted with in the 18 months he was detained. When Raymond attempted
to escape from Fort Magsaysay, Reynaldo was severely beaten up and told that they were indeed
members of the NPA because Raymond escaped. With a .45 caliber pistol, Reynaldo was hit on the back
and punched in the face until he could no longer bear the pain.

At one point during their detention, when Raymond and Reynaldo were in Sapang, Reynaldo was
separated from Raymond and brought to Pinaud by Rizal Hilario. He was kept in the house of Kapitan, a
friend of Hilario, in a mountainous area. He was instructed to use the name "Rodel" and to represent
himself as a military trainee from Meycauayan, Bulacan. Sometimes, Hilario brought along Reynaldo in his
trips. One time, he was brought to a market in San Jose, del Monte, Bulacan and made to wait in the
vehicle while Hilario was buying. He was also brought to Tondo, Manila where Hilario delivered boxes of
"Alive" in different houses. In these trips, Hilario drove a black and red vehicle. Reynaldo was blindfolded
while still in Bulacan, but allowed to remove the blindfold once outside the province. In one of their trips,
they passed by Fort Magsaysay and Camp Tecson where Reynaldo saw the sign board, "Welcome to Camp
Tecson."46

Dr. Benito Molino, M.D., corroborated the accounts of respondents Raymond and Reynaldo Manalo. Dr.
Molino specialized in forensic medicine and was connected with the Medical Action Group, an
organization handling cases of human rights violations, particularly cases where torture was involved. He
was requested by an NGO to conduct medical examinations on the respondents after their escape. He
first asked them about their ordeal, then proceeded with the physical examination. His findings showed
that the scars borne by respondents were consistent with their account of physical injuries inflicted upon
them. The examination was conducted on August 15, 2007, two days after respondents' escape, and the
results thereof were reduced into writing. Dr. Molino took photographs of the scars. He testified that he
followed the Istanbul Protocol in conducting the examination.47

Petitioners dispute respondents' account of their alleged abduction and torture. In compliance with the
October 25, 2007 Resolution of the Court, they filed a Return of the Writ of Amparo admitting the
abduction but denying any involvement therein, viz:

13. Petitioners Raymond and Reynaldo Manalo were not at any time arrested, forcibly abducted,
detained, held incommunicado, disappeared or under the custody by the military. This is a settled issue
laid to rest in the habeas corpus case filed in their behalf by petitioners' parents before the Court of
Appeals in C.A.-G.R. SP No. 94431 against M/Sgt. Rizal Hilario aka Rollie Castillo, as head of the 24th
Infantry Battalion; Maj. Gen. Jovito Palparan, as Commander of the 7th Infantry Division in Luzon; Lt. Gen.
Hermogenes Esperon, in his capacity as the Commanding General of the Philippine Army, and members
of the Citizens Armed Forces Geographical Unit (CAFGU), namely: Michael dela Cruz, Puti dela Cruz,
Madning dela Cruz, Pula dela Cruz, Randy Mendoza and Rudy Mendoza. The respondents therein

54
submitted a return of the writ... On July 4, 2006, the Court of Appeals dropped as party respondents Lt.
Gen. Hermogenes C. Esperon, Jr., then Commanding General of the Philippine Army, and on September
19, 2006, Maj. (sic) Jovito S. Palparan, then Commanding General, 7th Infantry Division, Philippine Army,
stationed at Fort Magsaysay, Palayan City, Nueva Ecija, upon a finding that no evidence was introduced
to establish their personal involvement in the taking of the Manalo brothers. In a Decision dated June 27,
2007..., it exonerated M/Sgt. Rizal Hilario aka Rollie Castillo for lack of evidence establishing his
involvement in any capacity in the disappearance of the Manalo brothers, although it held that the
remaining respondents were illegally detaining the Manalo brothers and ordered them to release the
latter.48

Attached to the Return of the Writ was the affidavit of therein respondent (herein petitioner) Secretary
of National Defense, which attested that he assumed office only on August 8, 2007 and was thus unaware
of the Manalo brothers' alleged abduction. He also claimed that:

7. The Secretary of National Defense does not engage in actual military directional operations, neither
does he undertake command directions of the AFP units in the field, nor in any way micromanage the AFP
operations. The principal responsibility of the Secretary of National Defense is focused in providing
strategic policy direction to the Department (bureaus and agencies) including the Armed Forces of the
Philippines;

8. In connection with the Writ of Amparo issued by the Honorable Supreme Court in this case, I have
directed the Chief of Staff, AFP to institute immediate action in compliance with Section 9(d) of the
Amparo Rule and to submit report of such compliance... Likewise, in a Memorandum Directive also dated
October 31, 2007, I have issued a policy directive addressed to the Chief of Staff, AFP that the AFP should
adopt the following rules of action in the event the Writ of Amparo is issued by a competent court against
any members of the AFP:

(1) to verify the identity of the aggrieved party;

(2) to recover and preserve evidence related to the death or disappearance of the person identified in the
petition which may aid in the prosecution of the person or persons responsible;

(3) to identify witnesses and obtain statements from them concerning the death or disappearance;

(4) to determine the cause, manner, location and time of death or disappearance as well as any pattern
or practice that may have brought about the death or disappearance;

(5) to identify and apprehend the person or persons involved in the death or disappearance; and

(6) to bring the suspected offenders before a competent court.49

Therein respondent AFP Chief of Staff also submitted his own affidavit, attached to the Return of the Writ,
attesting that he received the above directive of therein respondent Secretary of National Defense and
that acting on this directive, he did the following:

3.1. As currently designated Chief of Staff, Armed Forces of the Philippines (AFP), I have caused to be
issued directive to the units of the AFP for the purpose of establishing the circumstances of the alleged
disappearance and the recent reappearance of the petitioners.

55
3.2. I have caused the immediate investigation and submission of the result thereof to Higher
headquarters and/or direct the immediate conduct of the investigation on the matter by the concerned
unit/s, dispatching Radio Message on November 05, 2007, addressed to the Commanding General,
Philippine Army (Info: COMNOLCOM, CG, 71D PA and CO 24 IB PA). A Copy of the Radio Message is
attached as ANNEX "3" of this Affidavit.

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

3.4. A parallel investigation has been directed to the same units relative to another Petition for the Writ
of Amparo (G.R. No. 179994) filed at the instance of relatives of a certain Cadapan and Empeño pending
before the Supreme Court.

3.5. On the part of the Armed Forces, this respondent will exert earnest efforts to establish the
surrounding circumstances of the disappearances of the petitioners and to bring those responsible,
including any military personnel if shown to have participated or had complicity in the commission of the
complained acts, to the bar of justice, when warranted by the findings and the competent evidence that
may be gathered in the process.50

Also attached to the Return of the Writ was the affidavit of Lt. Col. Felipe Anontado, INF (GSC) PA, earlier
filed in G.R. No. 179994, another Amparo case in this Court, involving Cadapan, Empeño and Merino,
which averred among others, viz:

10) Upon reading the allegations in the Petition implicating the 24th Infantry Batallion detachment as
detention area, I immediately went to the 24th IB detachment in Limay, Bataan and found no untoward
incidents in the area nor any detainees by the name of Sherlyn Cadapan, Karen Empeño and Manuel
Merino being held captive;

11) There was neither any reports of any death of Manuel Merino in the 24th IB in Limay, Bataan;

12) After going to the 24th IB in Limay, Bataan, we made further inquiries with the Philippine National
Police, Limay, Bataan regarding the alleged detentions or deaths and were informed that none was
reported to their good office;

13) I also directed Company Commander 1st Lt. Romeo Publico to inquire into the alleged beachhouse in
Iba, Zambales also alleged to be a detention place where Sherlyn Cadapan, Karen Empeño and Manuel
Merino were detained. As per the inquiry, however, no such beachhouse was used as a detention place
found to have been used by armed men to detain Cadapan, Empeño and Merino.51

It was explained in the Return of the Writ that for lack of sufficient time, the affidavits of Maj. Gen Jovito
S. Palparan (Ret.), M/Sgt. Rizal Hilario aka Rollie Castillo, and other persons implicated by therein
petitioners could not be secured in time for the submission of the Return and would be subsequently
submitted.52

Herein petitioners presented a lone witness in the summary hearings, Lt. Col. Ruben U. Jimenez, Provost
Marshall, 7th Infantry Division, Philippine Army, based in Fort Magsaysay, Palayan City, Nueva Ecija. The
territorial jurisdiction of this Division covers Nueva Ecija, Aurora, Bataan, Bulacan, Pampanga, Tarlac and
a portion of Pangasinan.53 The 24th Infantry Battalion is part of the 7th Infantry Division.54

56
On May 26, 2006, Lt. Col. Jimenez was directed by the Commanding General of the 7th Infantry Division,
Maj. Gen. Jovito Palaran,55 through his Assistant Chief of Staff,56 to investigate the alleged abduction of
the respondents by CAFGU auxiliaries under his unit, namely: CAA Michael de la Cruz; CAA Roman de la
Cruz, aka Puti; CAA Maximo de la Cruz, aka Pula; CAA Randy Mendoza; ex-CAA Marcelo de la Cruz aka
Madning; and a civilian named Rudy Mendoza. He was directed to determine: (1) the veracity of the
abduction of Raymond and Reynaldo Manalo by the alleged elements of the CAFGU auxiliaries; and (2)
the administrative liability of said auxiliaries, if any.57 Jimenez testified that this particular investigation
was initiated not by a complaint as was the usual procedure, but because the Commanding General saw
news about the abduction of the Manalo brothers on the television, and he was concerned about what
was happening within his territorial jurisdiction.58

Jimenez summoned all six implicated persons for the purpose of having them execute sworn statements
and conducting an investigation on May 29, 2006.59 The investigation started at 8:00 in the morning and
finished at 10:00 in the evening.60 The investigating officer, Technical Sgt. Eduardo Lingad, took the
individual sworn statements of all six persons on that day. There were no other sworn statements taken,
not even of the Manalo family, nor were there other witnesses summoned and investigated61 as
according to Jimenez, the directive to him was only to investigate the six persons.62

Jimenez was beside Lingad when the latter took the statements.63 The six persons were not known to
Jimenez as it was in fact his first time to meet them.64 During the entire time that he was beside Lingad,
a subordinate of his in the Office of the Provost Marshall, Jimenez did not propound a single question to
the six persons.65

Jimenez testified that all six statements were taken on May 29, 2006, but Marcelo Mendoza and Rudy
Mendoza had to come back the next day to sign their statements as the printing of their statements was
interrupted by a power failure. Jimenez testified that the two signed on May 30, 2006, but the jurats of
their statements indicated that they were signed on May 29, 2006.66 When the Sworn Statements were
turned over to Jimenez, he personally wrote his investigation report. He began writing it in the afternoon
of May 30, 2006 and finished it on June 1, 2006.67 He then gave his report to the Office of the Chief of
Personnel.68

As petitioners largely rely on Jimenez's Investigation Report dated June 1, 2006 for their evidence, the
report is herein substantially quoted:

III. BACKGROUND OF THE CASE

4. This pertains to the abduction of RAYMOND MANALO and REYNALDO MANALO who were forcibly taken
from their respective homes in Brgy. Buhol na Mangga, San Ildefonso, Bulacan on 14 February 2006 by
unidentified armed men and thereafter were forcibly disappeared. After the said incident, relatives of the
victims filed a case for Abduction in the civil court against the herein suspects: Michael dela Cruz, Madning
dela Cruz, Puti Dela Cruz, Pula Dela Cruz, Randy Mendoza and Rudy Mendoza as alleged members of the
Citizen Armed Forces Geographical Unit (CAFGU).

a) Sworn statement of CAA Maximo F. dela Cruz, aka Pula dated 29 May 2006 in (Exhibit "B") states that
he was at Sitio Mozon, Brgy. Bohol na Mangga, San Ildefonso, Bulacan doing the concrete building of a
church located nearby his residence, together with some neighbor thereat. He claims that on 15 February

57
2006, he was being informed by Brgy. Kagawad Pablo Umayan about the abduction of the brothers
Raymond and Reynaldo Manalo. As to the allegation that he was one of the suspects, he claims that they
only implicated him because he was a CAFGU and that they claimed that those who abducted the Manalo
brothers are members of the Military and CAFGU. Subject vehemently denied any participation or
involvement on the abduction of said victims.

b) Sworn statement of CAA Roman dela Cruz y Faustino Aka Puti dtd 29 May 2006 in (Exhibit "C") states
that he is a resident of Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan and a CAA member
based at Biak na Bato Detachment, San Miguel, Bulacan. He claims that Raymond and Reynaldo Manalo
being his neighbors are active members/sympathizers of the CPP/NPA and he also knows their elder
Rolando Manalo @ KA BESTRE of being an NPA Leader operating in their province. That at the time of the
alleged abduction of the two (2) brothers and for accusing him to be one of the suspects, he claims that
on February 14, 2006, he was one of those working at the concrete chapel being constructed nearby his
residence. He claims further that he just came only to know about the incident on other day (15 Feb 06)
when he was being informed by Kagawad Pablo Kunanan. That subject CAA vehemently denied any
participation about the incident and claimed that they only implicated him because he is a member of the
CAFGU.

c) Sworn Statement of CAA Randy Mendoza y Lingas dated 29 May 2006 in (Exhibit "O") states that he is
a resident of Brgy. Buhol na Mangga, San Ildefonso, Bulacan and a member of CAFGU based at Biak na
Bato Detachment. That being a neighbor, he was very much aware about the background of the two (2)
brothers Raymond and Reynaldo as active supporters of the CPP NPA in their Brgy. and he also knew their
elder brother "KUMANDER BESTRE" TN: Rolando Manalo. Being one of the accused, he claims that on 14
February 2006, he was at Brgy. Magmarate, San Miguel, Bulacan in the house of his aunt and he learned
only about the incident when he arrived home in their place. He claims further that the only reason why
they implicated him was due to the fact that his mother has filed a criminal charge against their brother
Rolando Manalo @ KA BESTRE who is an NPA Commander who killed his father and for that reason they
implicated him in support of their brother. Subject CAA vehemently denied any involvement on the
abduction of said Manalo brothers.

d) Sworn Statement of Rudy Mendoza y Lingasa dated May 29, 2006 in (Exhibit "E") states that he is a
resident of Brgy. Marungko, Angat, Bulacan. He claims that Raymond and Reynaldo Manalo are familiar
to him being his barriomate when he was still unmarried and he knew them since childhood. Being one
of the accused, he claims that on 14 February 2006, he was at his residence in Brgy. Marungko, Angat,
Bulacan. He claims that he was being informed only about the incident lately and he was not aware of any
reason why the two (2) brothers were being abducted by alleged members of the military and CAFGU.
The only reason he knows why they implicated him was because there are those people who are angry
with their family particularly victims of summary execution (killing) done by their brother @ KA Bestre
Rolando Manalo who is an NPA leader. He claims further that it was their brother @ KA BESTRE who killed
his father and he was living witness to that incident. Subject civilian vehemently denied any involvement
on the abduction of the Manalo brothers.

e) Sworn statement of Ex-CAA Marcelo dala Cruz dated 29 May 2006 in (Exhibit "F") states that he is a
resident of Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan, a farmer and a former CAA based
at Biak na Bato, San Miguel, Bulacan. He claims that Raymond and Reynaldo Manalo are familiar to him
being their barrio mate. He claims further that they are active supporters of CPP/NPA and that their

58
brother Rolando Manalo @ KA BESTRE is an NPA leader. Being one of the accused, he claims that on 14
February 2006, he was in his residence at Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan.
That he vehemently denied any participation of the alleged abduction of the two (2) brothers and learned
only about the incident when rumors reached him by his barrio mates. He claims that his implication is
merely fabricated because of his relationship to Roman and Maximo who are his brothers.

f) Sworn statement of Michael dela Cruz y Faustino dated 29 May 2006 in (Exhibit "G") states that he is a
resident of Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan, the Chief of Brgy. Tanod and a
CAFGU member based at Biak na Bato Detachment, San Miguel, Bulacan. He claims that he knew very
well the brothers Raymond and Reynaldo Manalo in their barangay for having been the Tanod Chief for
twenty (20) years. He alleged further that they are active supporters or sympathizers of the CPP/NPA and
whose elder brother Rolando Manalo @ KA BESTRE is an NPA leader operating within the area. Being one
of the accused, he claims that on 14 Feb 2006 he was helping in the construction of their concrete chapel
in their place and he learned only about the incident which is the abduction of Raymond and Reynaldo
Manalo when one of the Brgy. Kagawad in the person of Pablo Cunanan informed him about the matter.
He claims further that he is truly innocent of the allegation against him as being one of the abductors and
he considers everything fabricated in order to destroy his name that remains loyal to his service to the
government as a CAA member.

IV. DISCUSSION

5. Based on the foregoing statements of respondents in this particular case, the proof of linking them to
the alleged abduction and disappearance of Raymond and Reynaldo Manalo that transpired on 14
February 2006 at Sitio Muzon, Brgy. Buhol na Mangga, San Ildefonso, Bulacan, is unsubstantiated. Their
alleged involvement theretofore to that incident is considered doubtful, hence, no basis to indict them as
charged in this investigation.

Though there are previous grudges between each families (sic) in the past to quote: the killing of the
father of Randy and Rudy Mendoza by @ KA BESTRE TN: Rolando Manalo, this will not suffice to establish
a fact that they were the ones who did the abduction as a form of revenge. As it was also stated in the
testimony of other accused claiming that the Manalos are active sympathizers/supporters of the
CPP/NPA, this would not also mean, however, that in the first place, they were in connivance with the
abductors. Being their neighbors and as members of CAFGU's, they ought to be vigilant in protecting their
village from any intervention by the leftist group, hence inside their village, they were fully aware of the
activities of Raymond and Reynaldo Manalo in so far as their connection with the CPP/NPA is concerned.

V. CONCLUSION

6. Premises considered surrounding this case shows that the alleged charges of abduction committed by
the above named respondents has not been established in this investigation. Hence, it lacks merit to indict
them for any administrative punishment and/or criminal liability. It is therefore concluded that they are
innocent of the charge.

VI. RECOMMENDATIONS

7. That CAAs Michael F. dela Cruz, Maximo F. Dela Cruz, Roman dela Cruz, Randy Mendoza, and two (2)
civilians Maximo F. Dela Cruz and Rudy L. Mendoza be exonerated from the case.

59
8. Upon approval, this case can be dropped and closed.69

In this appeal under Rule 45, petitioners question the appellate court's assessment of the foregoing
evidence and assail the December 26, 2007 Decision on the following grounds, viz:

I.

THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED IN BELIEVING AND GIVING FULL FAITH AND
CREDIT TO THE INCREDIBLE, UNCORROBORATED, CONTRADICTED, AND OBVIOUSLY SCRIPTED,
REHEARSED AND SELF-SERVING AFFIDAVIT/TESTIMONY OF HEREIN RESPONDENT RAYMOND MANALO.

II.

THE COURT OF APPEALS SERIOUSLY AND GRIEVOUSLY ERRED IN REQUIRING RESPONDENTS (HEREIN
PETITIONERS) TO: (A) FURNISH TO THE MANALO BROTHER(S) AND TO THE COURT OF APPEALS ALL
OFFICIAL AND UNOFFICIAL REPORTS OF THE INVESTIGATION UNDERTAKEN IN CONNECTION WITH THEIR
CASE, EXCEPT THOSE ALREADY IN FILE WITH THE COURT; (B) CONFIRM IN WRITING THE PRESENT PLACES
OF OFFICIAL ASSIGNMENT OF M/SGT. HILARIO aka ROLLIE CASTILLO AND DONALD CAIGAS; AND (C) CAUSE
TO BE PRODUCED TO THE COURT OF APPEALS ALL MEDICAL REPORTS, RECORDS AND CHARTS, AND
REPORTS OF ANY TREATMENT GIVEN OR RECOMMENDED AND MEDICINES PRESCRIBED, IF ANY, TO THE
MANALO BROTHERS, TO INCLUDE A LIST OF MEDICAL PERSONNEL (MILITARY AND CIVILIAN) WHO
ATTENDED TO THEM FROM FEBRUARY 14, 2006 UNTIL AUGUST 12, 2007.70

The case at bar is the first decision on the application of the Rule on the Writ of Amparo (Amparo Rule).
Let us hearken to its beginning.

The adoption of the Amparo Rule surfaced as a recurring proposition in the recommendations that
resulted from a two-day National Consultative Summit on Extrajudicial Killings and Enforced
Disappearances sponsored by the Court on July 16-17, 2007. The Summit was "envisioned to provide a
broad and fact-based perspective on the issue of extrajudicial killings and enforced disappearances,"71
hence "representatives from all sides of the political and social spectrum, as well as all the stakeholders
in the justice system"72 participated in mapping out ways to resolve the crisis.

On October 24, 2007, the Court promulgated the Amparo Rule "in light of the prevalence of extralegal
killing and enforced disappearances."73 It was an exercise for the first time of the Court's expanded power
to promulgate rules to protect our people's constitutional rights, which made its maiden appearance in
the 1987 Constitution in response to the Filipino experience of the martial law regime.74 As the Amparo
Rule was intended to address the intractable problem of "extralegal killings" and "enforced
disappearances," its coverage, in its present form, is confined to these two instances or to threats thereof.
"Extralegal killings" are "killings committed without due process of law, i.e., without legal safeguards or
judicial proceedings."75 On the other hand, "enforced disappearances" are "attended by the following
characteristics: an arrest, detention or abduction of a person by a government official or organized groups
or private individuals acting with the direct or indirect acquiescence of the government; the refusal of the

60
State to disclose the fate or whereabouts of the person concerned or a refusal to acknowledge the
deprivation of liberty which places such persons outside the protection of law."76

The writ of Amparo originated in Mexico. "Amparo" literally means "protection" in Spanish.77 In 1837, de
Tocqueville's Democracy in America became available in Mexico and stirred great interest. Its description
of the practice of judicial review in the U.S. appealed to many Mexican jurists.78 One of them, Manuel
Crescencio Rejón, drafted a constitutional provision for his native state, Yucatan,79 which granted judges
the power to protect all persons in the enjoyment of their constitutional and legal rights. This idea was
incorporated into the national constitution in 1847, viz:

The federal courts shall protect any inhabitant of the Republic in the exercise and preservation of those
rights granted to him by this Constitution and by laws enacted pursuant hereto, against attacks by the
Legislative and Executive powers of the federal or state governments, limiting themselves to granting
protection in the specific case in litigation, making no general declaration concerning the statute or
regulation that motivated the violation.80

Since then, the protection has been an important part of Mexican constitutionalism.81 If, after hearing,
the judge determines that a constitutional right of the petitioner is being violated, he orders the official,
or the official's superiors, to cease the violation and to take the necessary measures to restore the
petitioner to the full enjoyment of the right in question. Amparo thus combines the principles of judicial
review derived from the U.S. with the limitations on judicial power characteristic of the civil law tradition
which prevails in Mexico. It enables courts to enforce the constitution by protecting individual rights in
particular cases, but prevents them from using this power to make law for the entire nation.82

The writ of Amparo then spread throughout the Western Hemisphere, gradually evolving into various
forms, in response to the particular needs of each country.83 It became, in the words of a justice of the
Mexican Federal Supreme Court, one piece of Mexico's self-attributed "task of conveying to the world's
legal heritage that institution which, as a shield of human dignity, her own painful history conceived."84
What began as a protection against acts or omissions of public authorities in violation of constitutional
rights later evolved for several purposes: (1) Amparo libertad for the protection of personal freedom,
equivalent to the habeas corpus writ; (2) Amparo contra leyes for the judicial review of the
constitutionality of statutes; (3) Amparo casacion for the judicial review of the constitutionality and
legality of a judicial decision; (4) Amparo administrativo for the judicial review of administrative actions;
and (5) Amparo agrario for the protection of peasants' rights derived from the agrarian reform process.85

In Latin American countries, except Cuba, the writ of Amparo has been constitutionally adopted to protect
against human rights abuses especially committed in countries under military juntas. In general, these
countries adopted an all-encompassing writ to protect the whole gamut of constitutional rights, including
socio-economic rights.86 Other countries like Colombia, Chile, Germany and Spain, however, have chosen
to limit the protection of the writ of Amparo only to some constitutional guarantees or fundamental
rights.87

In the Philippines, while the 1987 Constitution does not explicitly provide for the writ of Amparo, several
of the above Amparo protections are guaranteed by our charter. The second paragraph of Article VIII,
Section 1 of the 1987 Constitution, the Grave Abuse Clause, provides for the judicial power "to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the Government." The Clause accords a similar general

61
protection to human rights extended by the Amparo contra leyes, Amparo casacion, and Amparo
administrativo. Amparo libertad is comparable to the remedy of habeas corpus found in several provisions
of the 1987 Constitution.88 The Clause is an offspring of the U.S. common law tradition of judicial review,
which finds its roots in the 1803 case of Marbury v. Madison.89

While constitutional rights can be protected under the Grave Abuse Clause through remedies of
injunction or prohibition under Rule 65 of the Rules of Court and a petition for habeas corpus under
Rule 102,90 these remedies may not be adequate to address the pestering problem of extralegal killings
and enforced disappearances. However, with the swiftness required to resolve a petition for a writ of
Amparo through summary proceedings and the availability of appropriate interim and permanent reliefs
under the Amparo Rule, this hybrid writ of the common law and civil law traditions - borne out of the Latin
American and Philippine experience of human rights abuses - offers a better remedy to extralegal killings
and enforced disappearances and threats thereof. The remedy provides rapid judicial relief as it partakes
of a summary proceeding that requires only substantial evidence to make the appropriate reliefs
available to the petitioner; it is not an action to determine criminal guilt requiring proof beyond
reasonable doubt, or liability for damages requiring preponderance of evidence, or administrative
responsibility requiring substantial evidence that will require full and exhaustive proceedings.91

The writ of Amparo serves both preventive and curative roles in addressing the problem of extralegal
killings and enforced disappearances. It is preventive in that it breaks the expectation of impunity in the
commission of these offenses; it is curative in that it facilitates the subsequent punishment of perpetrators
as it will inevitably yield leads to subsequent investigation and action. In the long run, the goal of both the
preventive and curative roles is to deter the further commission of extralegal killings and enforced
disappearances.

In the case at bar, respondents initially filed an action for "Prohibition, Injunction, and Temporary
Restraining Order"92 to stop petitioners and/or their officers and agents from depriving the respondents
of their right to liberty and other basic rights on August 23, 2007,93 prior to the promulgation of the
Amparo Rule. They also sought ancillary remedies including Protective Custody Orders, Appointment of
Commissioner, Inspection and Access Orders and other legal and equitable remedies under Article VIII,
Section 5(5) of the 1987 Constitution and Rule 135, Section 6 of the Rules of Court. When the Amparo
Rule came into effect on October 24, 2007, they moved to have their petition treated as an Amparo
petition as it would be more effective and suitable to the circumstances of the Manalo brothers' enforced
disappearance. The Court granted their motion.

With this backdrop, we now come to the arguments of the petitioner. Petitioners' first argument in
disputing the Decision of the Court of Appeals states, viz:

The Court of Appeals seriously and grievously erred in believing and giving full faith and credit to the
incredible uncorroborated, contradicted, and obviously scripted, rehearsed and self-serving
affidavit/testimony of herein respondent Raymond Manalo.94

In delving into the veracity of the evidence, we need to mine and refine the ore of petitioners' cause of
action, to determine whether the evidence presented is metal-strong to satisfy the degree of proof
required.

Section 1 of the Rule on the Writ of Amparo provides for the following causes of action, viz:

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Section 1. Petition. - The petition for a writ of Amparo is a remedy available to any person whose right to
life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public
official or employee, or of a private individual or entity.

The writ shall cover extralegal killings and enforced disappearances or threats thereof. (emphasis
supplied)

Sections 17 and 18, on the other hand, provide for the degree of proof required, viz:

Sec. 17. Burden of Proof and Standard of Diligence Required. - The parties shall establish their claims by
substantial evidence.

xxx xxx xxx

Sec. 18. Judgment. - ... If the allegations in the petition are proven by substantial evidence, the court shall
grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege
shall be denied. (emphases supplied)

Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.95

After careful perusal of the evidence presented, we affirm the findings of the Court of Appeals that
respondents were abducted from their houses in Sito Muzon, Brgy. Buhol na Mangga, San Ildefonso,
Bulacan on February 14, 2006 and were continuously detained until they escaped on August 13, 2007. The
abduction, detention, torture, and escape of the respondents were narrated by respondent Raymond
Manalo in a clear and convincing manner. His account is dotted with countless candid details of
respondents' harrowing experience and tenacious will to escape, captured through his different senses
and etched in his memory. A few examples are the following: "Sumilip ako sa isang haligi ng kamalig at
nakita kong sinisilaban si Manuel."96 "(N)ilakasan ng mga sundalo ang tunog na galing sa istiryo ng
sasakyan. Di nagtagal, narinig ko ang hiyaw o ungol ni Manuel."97 "May naiwang mga bakas ng dugo
habang hinihila nila ang mga bangkay. Naamoy ko iyon nang nililinis ang bakas."98 "Tumigil ako sa may
palaisdaan kung saan ginamit ko ang bato para tanggalin ang mga kadena."99 "Tinanong ko sa isang kapit-
bahay kung paano ako makakakuha ng cell phone; sabi ko gusto kong i-text ang isang babae na nakatira
sa malapit na lugar."100

We affirm the factual findings of the appellate court, largely based on respondent Raymond Manalo's
affidavit and testimony, viz:

...the abduction was perpetrated by armed men who were sufficiently identified by the petitioners (herein
respondents) to be military personnel and CAFGU auxiliaries. Raymond recalled that the six armed men
who barged into his house through the rear door were military men based on their attire of fatigue pants
and army boots, and the CAFGU auxiliaries, namely: Michael de la Cruz, Madning de la Cruz, Puti de la
Cruz and Pula de la Cruz, all members of the CAFGU and residents of Muzon, San Ildefonso, Bulacan, and
the brothers Randy Mendoza and Rudy Mendoza, also CAFGU members, served as lookouts during the
abduction. Raymond was sure that three of the six military men were Ganata, who headed the abducting
team, Hilario, who drove the van, and George. Subsequent incidents of their long captivity, as narrated by
the petitioners, validated their assertion of the participation of the elements of the 7th Infantry Division,
Philippine Army, and their CAFGU auxiliaries.

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We are convinced, too, that the reason for the abduction was the suspicion that the petitioners were
either members or sympathizers of the NPA, considering that the abductors were looking for Ka Bestre,
who turned out to be Rolando, the brother of petitioners.

The efforts exerted by the Military Command to look into the abduction were, at best, merely superficial.
The investigation of the Provost Marshall of the 7th Infantry Division focused on the one-sided version of
the CAFGU auxiliaries involved. This one-sidedness might be due to the fact that the Provost Marshall
could delve only into the participation of military personnel, but even then the Provost Marshall should
have refrained from outrightly exculpating the CAFGU auxiliaries he perfunctorily investigated...

Gen. Palparan's participation in the abduction was also established. At the very least, he was aware of the
petitioners' captivity at the hands of men in uniform assigned to his command. In fact, he or any other
officer tendered no controversion to the firm claim of Raymond that he (Gen. Palparan) met them in
person in a safehouse in Bulacan and told them what he wanted them and their parents to do or not to
be doing. Gen. Palparan's direct and personal role in the abduction might not have been shown but his
knowledge of the dire situation of the petitioners during their long captivity at the hands of military
personnel under his command bespoke of his indubitable command policy that unavoidably encouraged
and not merely tolerated the abduction of civilians without due process of law and without probable
cause.

In the habeas proceedings, the Court, through the Former Special Sixth Division (Justices Buzon, chairman;
Santiago-Lagman, Sr., member; and Romilla-Lontok, Jr., member/ponente.) found no clear and convincing
evidence to establish that M/Sgt. Rizal Hilario had anything to do with the abduction or the detention.
Hilario's involvement could not, indeed, be then established after Evangeline Francisco, who allegedly saw
Hilario drive the van in which the petitioners were boarded and ferried following the abduction, did not
testify. (See the decision of the habeas proceedings at rollo, p. 52)

However, in this case, Raymond attested that Hilario drove the white L-300 van in which the petitioners
were brought away from their houses on February 14, 2006. Raymond also attested that Hilario
participated in subsequent incidents during the captivity of the petitioners, one of which was when Hilario
fetched them from Fort Magsaysay on board a Revo and conveyed them to a detachment in Pinaud, San
Ildefonso, Bulacan where they were detained for at least a week in a house of strong materials (Exhibit D,
rollo, p. 205) and then Hilario (along with Efren) brought them to Sapang, San Miguel, Bulacan on board
the Revo, to an unfinished house inside the compound of Kapitan where they were kept for more or less
three months. (Exhibit D, rollo, p. 205) It was there where the petitioners came face to face with Gen.
Palparan. Hilario and Efren also brought the petitioners one early morning to the house of the petitioners'
parents, where only Raymond was presented to the parents to relay the message from Gen. Palparan not
to join anymore rallies. On that occasion, Hilario warned the parents that they would not again see their
sons should they join any rallies to denounce human rights violations. (Exhibit D, rollo, pp. 205-206) Hilario
was also among four Master Sergeants (the others being Arman, Ganata and Cabalse) with whom Gen.
Palparan conversed on the occasion when Gen. Palparan required Raymond to take the medicines for his
health. (Exhibit D, rollo, p. 206) There were other occasions when the petitioners saw that Hilario had a
direct hand in their torture.

It is clear, therefore, that the participation of Hilario in the abduction and forced disappearance of the
petitioners was established. The participation of other military personnel like Arman, Ganata, Cabalse and
Caigas, among others, was similarly established.

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xxx xxx xxx

As to the CAFGU auxiliaries, the habeas Court found them personally involved in the abduction. We also
do, for, indeed, the evidence of their participation is overwhelming.101

We reject the claim of petitioners that respondent Raymond Manalo's statements were not corroborated
by other independent and credible pieces of evidence.102 Raymond's affidavit and testimony were
corroborated by the affidavit of respondent Reynaldo Manalo. The testimony and medical reports
prepared by forensic specialist Dr. Molino, and the pictures of the scars left by the physical injuries
inflicted on respondents,103 also corroborate respondents' accounts of the torture they endured while
in detention. Respondent Raymond Manalo's familiarity with the facilities in Fort Magsaysay such as the
"DTU," as shown in his testimony and confirmed by Lt. Col. Jimenez to be the "Division Training Unit,"104
firms up respondents' story that they were detained for some time in said military facility.

In Ortiz v. Guatemala,105 a case decided by the Inter-American Commission on Human Rights, the
Commission considered similar evidence, among others, in finding that complainant Sister Diana Ortiz was
abducted and tortured by agents of the Guatemalan government. In this case, Sister Ortiz was kidnapped
and tortured in early November 1989. The Commission's findings of fact were mostly based on the
consistent and credible statements, written and oral, made by Sister Ortiz regarding her ordeal.106 These
statements were supported by her recognition of portions of the route they took when she was being
driven out of the military installation where she was detained.107 She was also examined by a medical
doctor whose findings showed that the 111 circular second degree burns on her back and abrasions on
her cheek coincided with her account of cigarette burning and torture she suffered while in detention.108

With the secret nature of an enforced disappearance and the torture perpetrated on the victim during
detention, it logically holds that much of the information and evidence of the ordeal will come from the
victims themselves, and the veracity of their account will depend on their credibility and candidness in
their written and/or oral statements. Their statements can be corroborated by other evidence such as
physical evidence left by the torture they suffered or landmarks they can identify in the places where
they were detained. Where powerful military officers are implicated, the hesitation of witnesses to
surface and testify against them comes as no surprise.

We now come to the right of the respondents to the privilege of the writ of Amparo. There is no quarrel
that the enforced disappearance of both respondents Raymond and Reynaldo Manalo has now passed as
they have escaped from captivity and surfaced. But while respondents admit that they are no longer in
detention and are physically free, they assert that they are not "free in every sense of the word"109 as
their "movements continue to be restricted for fear that people they have named in their Judicial
Affidavits and testified against (in the case of Raymond) are still at large and have not been held
accountable in any way. These people are directly connected to the Armed Forces of the Philippines and
are, thus, in a position to threaten respondents' rights to life, liberty and security."110 (emphasis supplied)
Respondents claim that they are under threat of being once again abducted, kept captive or even killed,
which constitute a direct violation of their right to security of person.111

Elaborating on the "right to security, in general," respondents point out that this right is "often associated
with liberty;" it is also seen as an "expansion of rights based on the prohibition against torture and cruel
and unusual punishment." Conceding that there is no right to security expressly mentioned in Article III of
the 1987 Constitution, they submit that their rights "to be kept free from torture and from

65
incommunicado detention and solitary detention places112 fall under the general coverage of the right
to security of person under the writ of Amparo." They submit that the Court ought to give an expansive
recognition of the right to security of person in view of the State Policy under Article II of the 1987
Constitution which enunciates that, "The State values the dignity of every human person and guarantees
full respect for human rights." Finally, to justify a liberal interpretation of the right to security of person,
respondents cite the teaching in Moncupa v. Enrile113 that "the right to liberty may be made more
meaningful only if there is no undue restraint by the State on the exercise of that liberty"114 such as a
requirement to "report under unreasonable restrictions that amounted to a deprivation of liberty"115 or
being put under "monitoring and surveillance."116

In sum, respondents assert that their cause of action consists in the threat to their right to life and
liberty, and a violation of their right to security.

Let us put this right to security under the lens to determine if it has indeed been violated as respondents
assert. The right to security or the right to security of person finds a textual hook in Article III, Section 2
of the 1987 Constitution which provides, viz:

Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally
by the judge...

At the core of this guarantee is the immunity of one's person, including the extensions of his/her person
- houses, papers, and effects - against government intrusion. Section 2 not only limits the state's power
over a person's home and possessions, but more importantly, protects the privacy and sanctity of the
person himself.117 The purpose of this provision was enunciated by the Court in People v. CFI of Rizal,
Branch IX, Quezon City, viz: 118

The purpose of the constitutional guarantee against unreasonable searches and seizures is to prevent
violations of private security in person and property and unlawful invasion of the security of the home by
officers of the law acting under legislative or judicial sanction and to give remedy against such usurpation
when attempted. (Adams v. New York, 192 U.S. 858; Alvero v. Dizon, 76 Phil. 637 [1946]). The right to
privacy is an essential condition to the dignity and happiness and to the peace and security of every
individual, whether it be of home or of persons and correspondence. (Tañada and Carreon, Political Law
of the Philippines, Vol. 2, 139 [1962]). The constitutional inviolability of this great fundamental right
against unreasonable searches and seizures must be deemed absolute as nothing is closer to a man's soul
than the serenity of his privacy and the assurance of his personal security. Any interference allowable can
only be for the best causes and reasons.119 (emphases supplied)

While the right to life under Article III, Section 1120 guarantees essentially the right to be alive121 - upon
which the enjoyment of all other rights is preconditioned - the right to security of person is a guarantee
of the secure quality of this life, viz: "The life to which each person has a right is not a life lived in fear that
his person and property may be unreasonably violated by a powerful ruler. Rather, it is a life lived with
the assurance that the government he established and consented to, will protect the security of his person
and property. The ideal of security in life and property... pervades the whole history of man. It touches
every aspect of man's existence."122 In a broad sense, the right to security of person "emanates in a
person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.

66
It includes the right to exist, and the right to enjoyment of life while existing, and it is invaded not only
by a deprivation of life but also of those things which are necessary to the enjoyment of life according to
the nature, temperament, and lawful desires of the individual."123

A closer look at the right to security of person would yield various permutations of the exercise of this
right.

First, the right to security of person is "freedom from fear." In its "whereas" clauses, the Universal
Declaration of Human Rights (UDHR) enunciates that "a world in which human beings shall enjoy freedom
of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of
the common people." (emphasis supplied) Some scholars postulate that "freedom from fear" is not only
an aspirational principle, but essentially an individual international human right.124 It is the "right to
security of person" as the word "security" itself means "freedom from fear."125 Article 3 of the UDHR
provides, viz:

Everyone has the right to life, liberty and security of person.126 (emphasis supplied)

In furtherance of this right declared in the UDHR, Article 9(1) of the International Covenant on Civil and
Political Rights (ICCPR) also provides for the right to security of person, viz:

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or
detention. No one shall be deprived of his liberty except on such grounds and in accordance with such
procedure as are established by law. (emphasis supplied)

The Philippines is a signatory to both the UDHR and the ICCPR.

In the context of Section 1 of the Amparo Rule, "freedom from fear" is the right and any threat to the
rights to life, liberty or security is the actionable wrong. Fear is a state of mind, a reaction; threat is a
stimulus, a cause of action. Fear caused by the same stimulus can range from being baseless to well-
founded as people react differently. The degree of fear can vary from one person to another with the
variation of the prolificacy of their imagination, strength of character or past experience with the stimulus.
Thus, in the Amparo context, it is more correct to say that the "right to security" is actually the "freedom
from threat." Viewed in this light, the "threatened with violation" Clause in the latter part of Section 1 of
the Amparo Rule is a form of violation of the right to security mentioned in the earlier part of the
provision.127

Second, the right to security of person is a guarantee of bodily and psychological integrity or security.
Article III, Section II of the 1987 Constitution guarantees that, as a general rule, one's body cannot be
searched or invaded without a search warrant.128 Physical injuries inflicted in the context of extralegal
killings and enforced disappearances constitute more than a search or invasion of the body. It may
constitute dismemberment, physical disabilities, and painful physical intrusion. As the degree of physical
injury increases, the danger to life itself escalates. Notably, in criminal law, physical injuries constitute a
crime against persons because they are an affront to the bodily integrity or security of a person.129

Physical torture, force, and violence are a severe invasion of bodily integrity. When employed to vitiate
the free will such as to force the victim to admit, reveal or fabricate incriminating information, it
constitutes an invasion of both bodily and psychological integrity as the dignity of the human person

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includes the exercise of free will. Article III, Section 12 of the 1987 Constitution more specifically
proscribes bodily and psychological invasion, viz:

(2) No torture, force, violence, threat or intimidation, or any other means which vitiate the free will shall
be used against him (any person under investigation for the commission of an offense). Secret detention
places, solitary, incommunicado or other similar forms of detention are prohibited.

Parenthetically, under this provision, threat and intimidation that vitiate the free will - although not
involving invasion of bodily integrity - nevertheless constitute a violation of the right to security in the
sense of "freedom from threat" as afore-discussed.

Article III, Section 12 guarantees freedom from dehumanizing abuses of persons under investigation for
the commission of an offense. Victims of enforced disappearances who are not even under such
investigation should all the more be protected from these degradations.

An overture to an interpretation of the right to security of person as a right against torture was made by
the European Court of Human Rights (ECHR) in the recent case of Popov v. Russia.130 In this case, the
claimant, who was lawfully detained, alleged that the state authorities had physically abused him in
prison, thereby violating his right to security of person. Article 5(1) of the European Convention on Human
Rights provides, viz: "Everyone has the right to liberty and security of person. No one shall be deprived of
his liberty save in the following cases and in accordance with a procedure prescribed by law ..." (emphases
supplied) Article 3, on the other hand, provides that "(n)o one shall be subjected to torture or to inhuman
or degrading treatment or punishment." Although the application failed on the facts as the alleged ill-
treatment was found baseless, the ECHR relied heavily on the concept of security in holding, viz:

...the applicant did not bring his allegations to the attention of domestic authorities at the time when they
could reasonably have been expected to take measures in order to ensure his security and to investigate
the circumstances in question.

xxx xxx xxx

... the authorities failed to ensure his security in custody or to comply with the procedural obligation under
Art.3 to conduct an effective investigation into his allegations.131 (emphasis supplied)

The U.N. Committee on the Elimination of Discrimination against Women has also made a statement that
the protection of the bodily integrity of women may also be related to the right to security and liberty,
viz:

...gender-based violence which impairs or nullifies the enjoyment by women of human rights and
fundamental freedoms under general international law or under specific human rights conventions is
discrimination within the meaning of article 1 of the Convention (on the Elimination of All Forms of
Discrimination Against Women). These rights and freedoms include . . . the right to liberty and security of
person.132

Third, the right to security of person is a guarantee of protection of one's rights by the government. In
the context of the writ of Amparo, this right is built into the guarantees of the right to life and liberty
under Article III, Section 1 of the 1987 Constitution and the right to security of person (as freedom from
threat and guarantee of bodily and psychological integrity) under Article III, Section 2. The right to security
of person in this third sense is a corollary of the policy that the State "guarantees full respect for human

68
rights" under Article II, Section 11 of the 1987 Constitution.133 As the government is the chief guarantor
of order and security, the Constitutional guarantee of the rights to life, liberty and security of person is
rendered ineffective if government does not afford protection to these rights especially when they are
under threat. Protection includes conducting effective investigations, organization of the government
apparatus to extend protection to victims of extralegal killings or enforced disappearances (or threats
thereof) and/or their families, and bringing offenders to the bar of justice. The Inter-American Court of
Human Rights stressed the importance of investigation in the Velasquez Rodriguez Case,134 viz:

(The duty to investigate) must be undertaken in a serious manner and not as a mere formality preordained
to be ineffective. An investigation must have an objective and be assumed by the State as its own legal
duty, not as a step taken by private interests that depends upon the initiative of the victim or his family
or upon their offer of proof, without an effective search for the truth by the government.135

This third sense of the right to security of person as a guarantee of government protection has been
interpreted by the United Nations' Human Rights Committee136 in not a few cases involving Article 9137
of the ICCPR. While the right to security of person appears in conjunction with the right to liberty under
Article 9, the Committee has ruled that the right to security of person can exist independently of the right
to liberty. In other words, there need not necessarily be a deprivation of liberty for the right to security of
person to be invoked. In Delgado Paez v. Colombia,138 a case involving death threats to a religion teacher
at a secondary school in Leticia, Colombia, whose social views differed from those of the Apostolic Prefect
of Leticia, the Committee held, viz:

The first sentence of article 9 does not stand as a separate paragraph. Its location as a part of paragraph
one could lead to the view that the right to security arises only in the context of arrest and detention. The
travaux préparatoires indicate that the discussions of the first sentence did indeed focus on matters dealt
with in the other provisions of article 9. The Universal Declaration of Human Rights, in article 3, refers to
the right to life, the right to liberty and the right to security of the person. These elements have been dealt
with in separate clauses in the Covenant. Although in the Covenant the only reference to the right of
security of person is to be found in article 9, there is no evidence that it was intended to narrow the
concept of the right to security only to situations of formal deprivation of liberty. At the same time, States
parties have undertaken to guarantee the rights enshrined in the Covenant. It cannot be the case that, as
a matter of law, States can ignore known threats to the life of persons under their jurisdiction, just because
that he or she is not arrested or otherwise detained. States parties are under an obligation to take
reasonable and appropriate measures to protect them. An interpretation of article 9 which would allow a
State party to ignore threats to the personal security of non-detained persons within its jurisdiction would
render totally ineffective the guarantees of the Covenant.139 (emphasis supplied)

The Paez ruling was reiterated in Bwalya v. Zambia,140 which involved a political activist and prisoner of
conscience who continued to be intimidated, harassed, and restricted in his movements following his
release from detention. In a catena of cases, the ruling of the Committee was of a similar import:
Bahamonde v. Equatorial Guinea,141 involving discrimination, intimidation and persecution of opponents
of the ruling party in that state; Tshishimbi v. Zaire,142 involving the abduction of the complainant's
husband who was a supporter of democratic reform in Zaire; Dias v. Angola,143 involving the murder of
the complainant's partner and the harassment he (complainant) suffered because of his investigation of
the murder; and Chongwe v. Zambia,144 involving an assassination attempt on the chairman of an
opposition alliance.

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Similarly, the European Court of Human Rights (ECHR) has interpreted the "right to security" not only as
prohibiting the State from arbitrarily depriving liberty, but imposing a positive duty on the State to afford
protection of the right to liberty.145 The ECHR interpreted the "right to security of person" under Article
5(1) of the European Convention of Human Rights in the leading case on disappearance of persons, Kurt
v. Turkey.146 In this case, the claimant's son had been arrested by state authorities and had not been
seen since. The family's requests for information and investigation regarding his whereabouts proved
futile. The claimant suggested that this was a violation of her son's right to security of person. The ECHR
ruled, viz:

... any deprivation of liberty must not only have been effected in conformity with the substantive and
procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely
to protect the individual from arbitrariness... Having assumed control over that individual it is incumbent
on the authorities to account for his or her whereabouts. For this reason, Article 5 must be seen as
requiring the authorities to take effective measures to safeguard against the risk of disappearance and to
conduct a prompt effective investigation into an arguable claim that a person has been taken into custody
and has not been seen since.147 (emphasis supplied)

Applying the foregoing concept of the right to security of person to the case at bar, we now determine
whether there is a continuing violation of respondents' right to security.

First, the violation of the right to security as freedom from threat to respondents' life, liberty and security.

While respondents were detained, they were threatened that if they escaped, their families, including
them, would be killed. In Raymond's narration, he was tortured and poured with gasoline after he was
caught the first time he attempted to escape from Fort Magsaysay. A call from a certain "Mam," who
wanted to see him before he was killed, spared him.

This time, respondents have finally escaped. The condition of the threat to be killed has come to pass. It
should be stressed that they are now free from captivity not because they were released by virtue of a
lawful order or voluntarily freed by their abductors. It ought to be recalled that towards the end of their
ordeal, sometime in June 2007 when respondents were detained in a camp in Limay, Bataan, respondents'
captors even told them that they were still deciding whether they should be executed. Respondent
Raymond Manalo attested in his affidavit, viz:

Kinaumagahan, naka-kadena pa kami. Tinanggal ang mga kadena mga 3 o 4 na araw pagkalipas. Sinabi sa
amin na kaya kami nakakadena ay dahil pinagdedesisyunan pa ng mga sundalo kung papatayin kami o
hindi.148

The possibility of respondents being executed stared them in the eye while they were in detention. With
their escape, this continuing threat to their life is apparent, moreso now that they have surfaced and
implicated specific officers in the military not only in their own abduction and torture, but also in those of
other persons known to have disappeared such as Sherlyn Cadapan, Karen Empeño, and Manuel Merino,
among others.

Understandably, since their escape, respondents have been under concealment and protection by private
citizens because of the threat to their life, liberty and security. The threat vitiates their free will as they
are forced to limit their movements or activities.149 Precisely because respondents are being shielded
from the perpetrators of their abduction, they cannot be expected to show evidence of overt acts of threat

70
such as face-to-face intimidation or written threats to their life, liberty and security. Nonetheless, the
circumstances of respondents' abduction, detention, torture and escape reasonably support a conclusion
that there is an apparent threat that they will again be abducted, tortured, and this time, even executed.
These constitute threats to their liberty, security, and life, actionable through a petition for a writ of
Amparo.

Next, the violation of the right to security as protection by the government. Apart from the failure of
military elements to provide protection to respondents by themselves perpetrating the abduction,
detention, and torture, they also miserably failed in conducting an effective investigation of respondents'
abduction as revealed by the testimony and investigation report of petitioners' own witness, Lt. Col.
Ruben Jimenez, Provost Marshall of the 7th Infantry Division.

The one-day investigation conducted by Jimenez was very limited, superficial, and one-sided. He merely
relied on the Sworn Statements of the six implicated members of the CAFGU and civilians whom he met
in the investigation for the first time. He was present at the investigation when his subordinate Lingad
was taking the sworn statements, but he did not propound a single question to ascertain the veracity of
their statements or their credibility. He did not call for other witnesses to test the alibis given by the six
implicated persons nor for the family or neighbors of the respondents.

In his affidavit, petitioner Secretary of National Defense attested that in a Memorandum Directive dated
October 31, 2007, he issued a policy directive addressed to the AFP Chief of Staff, that the AFP should
adopt rules of action in the event the writ of Amparo is issued by a competent court against any members
of the AFP, which should essentially include verification of the identity of the aggrieved party; recovery
and preservation of relevant evidence; identification of witnesses and securing statements from them;
determination of the cause, manner, location and time of death or disappearance; identification and
apprehension of the person or persons involved in the death or disappearance; and bringing of the
suspected offenders before a competent court.150 Petitioner AFP Chief of Staff also submitted his own
affidavit attesting that he received the above directive of respondent Secretary of National Defense and
that acting on this directive, he immediately caused to be issued a directive to the units of the AFP for the
purpose of establishing the circumstances of the alleged disappearance and the recent reappearance of
the respondents, and undertook to provide results of the investigations to respondents.151 To this day,
however, almost a year after the policy directive was issued by petitioner Secretary of National Defense
on October 31, 2007, respondents have not been furnished the results of the investigation which they
now seek through the instant petition for a writ of Amparo.

Under these circumstances, there is substantial evidence to warrant the conclusion that there is a
violation of respondents' right to security as a guarantee of protection by the government.

In sum, we conclude that respondents' right to security as "freedom from threat" is violated by the
apparent threat to their life, liberty and security of person. Their right to security as a guarantee of
protection by the government is likewise violated by the ineffective investigation and protection on the
part of the military.

Finally, we come to the reliefs granted by the Court of Appeals, which petitioners question.

First, that petitioners furnish respondents all official and unofficial reports of the investigation undertaken
in connection with their case, except those already in file with the court.

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Second, that petitioners confirm in writing the present places of official assignment of M/Sgt. Hilario aka
Rollie Castillo and Donald Caigas.

Third, that petitioners cause to be produced to the Court of Appeals all medical reports, records and
charts, and reports of any treatment given or recommended and medicines prescribed, if any, to the
Manalo brothers, to include a list of medical personnel (military and civilian) who attended to them from
February 14, 2006 until August 12, 2007.

With respect to the first and second reliefs, petitioners argue that the production order sought by
respondents partakes of the characteristics of a search warrant. Thus, they claim that the requisites for
the issuance of a search warrant must be complied with prior to the grant of the production order, namely:
(1) the application must be under oath or affirmation; (2) the search warrant must particularly describe
the place to be searched and the things to be seized; (3) there exists probable cause with one specific
offense; and (4) the probable cause must be personally determined by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce.152 In the case at bar, however,
petitioners point out that other than the bare, self-serving and vague allegations made by respondent
Raymond Manalo in his unverified declaration and affidavit, the documents respondents seek to be
produced are only mentioned generally by name, with no other supporting details. They also argue that
the relevancy of the documents to be produced must be apparent, but this is not true in the present case
as the involvement of petitioners in the abduction has not been shown.

Petitioners' arguments do not hold water. The production order under the Amparo Rule should not be
confused with a search warrant for law enforcement under Article III, Section 2 of the 1987 Constitution.
This Constitutional provision is a protection of the people from the unreasonable intrusion of the
government, not a protection of the government from the demand of the people such as respondents.

Instead, the Amparo production order may be likened to the production of documents or things under
Section 1, Rule 27 of the Rules of Civil Procedure which provides in relevant part, viz:

Section 1. Motion for production or inspection order.

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

In Material Distributors (Phil.) Inc. v. Judge Natividad,153 the respondent judge, under authority of Rule
27, issued a subpoena duces tecum for the production and inspection of among others, the books and
papers of Material Distributors (Phil.) Inc. The company questioned the issuance of the subpoena on the
ground that it violated the search and seizure clause. The Court struck down the argument and held that
the subpoena pertained to a civil procedure that "cannot be identified or confused with unreasonable
searches prohibited by the Constitution..."

Moreover, in his affidavit, petitioner AFP Chief of Staff himself undertook "to provide results of the
investigations conducted or to be conducted by the concerned unit relative to the circumstances of the
alleged disappearance of the persons in whose favor the Writ of Amparo has been sought for as soon as
the same has been furnished Higher headquarters."

72
With respect to the second and third reliefs, petitioners assert that the disclosure of the present places of
assignment of M/Sgt. Hilario aka Rollie Castillo and Donald Caigas, as well as the submission of a list of
medical personnel, is irrelevant, improper, immaterial, and unnecessary in the resolution of the petition
for a writ of Amparo. They add that it will unnecessarily compromise and jeopardize the exercise of official
functions and duties of military officers and even unwittingly and unnecessarily expose them to threat of
personal injury or even death.

On the contrary, the disclosure of the present places of assignment of M/Sgt. Hilario aka Rollie Castillo
and Donald Caigas, whom respondents both directly implicated as perpetrators behind their abduction
and detention, is relevant in ensuring the safety of respondents by avoiding their areas of territorial
jurisdiction. Such disclosure would also help ensure that these military officers can be served with notices
and court processes in relation to any investigation and action for violation of the respondents' rights. The
list of medical personnel is also relevant in securing information to create the medical history of
respondents and make appropriate medical interventions, when applicable and necessary.

In blatant violation of our hard-won guarantees to life, liberty and security, these rights are snuffed out
from victims of extralegal killings and enforced disappearances. The writ of Amparo is a tool that gives
voice to preys of silent guns and prisoners behind secret walls.

WHEREFORE, premises considered, the petition is DISMISSED. The Decision of the Court of Appeals dated
December 26, 2007 is affirmed.

SO ORDERED.

REYNATO S. PUNO

Chief Justice

WE CONCUR:

LEONARDO A. QUISUMBING

Associate Justice

CONSUELO YNARES-SANTIAGO

Associate Justice

ANTONIO T. CARPIO

Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

RENATO C. CORONA

Associate Justice

CONCHITA CARPIO MORALES

Associate Justice

73
ADOLFO S. AZCUNA

Associate Justice

DANTE O. TINGA

Associate Justice

MINITA V. CHICO-NAZARIO

Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

RUBEN T. REYES

Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

ARTURO D. BRION

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the
above Decision were reached in consultation before the case was assigned to the writer of the opinion of
the Court.

REYNATO S. PUNO

Chief Justice

Footnotes

1 Sec. 19 of the Rule on the Writ of Amparo provides for appeal, viz:

Sec. 19. Appeal - Any party may appeal from the final judgment or order to the Supreme Court under Rule
45. The appeal may raise questions of fact or law or both.

The period of appeal shall be five (5) working days from the date of notice of the adverse judgment.

The appeal shall be given the same priority as in habeas corpus cases.

2 G.R. No. 179095 filed on August 23, 2007.

74
3 1987 Phil. Const. Art. VIII, § 5(5) provides for the rule-making power of the Supreme Court, viz:

Sec. 5. The Supreme Court shall have the following powers:

(5) Promulgate rules concerning the protection and enforcement of constitutional rights...

4 1987 Phil. Const. Art. III, § 1 provides in relevant part, viz:

Sec. 1. No person shall be deprived of life, liberty...without due process of law...

5 CA rollo, pp. 26-27.

6 Section 26 of the Rule on the Writ of Amparo provides, viz:

Sec. 26. Applicability to Pending Cases. - This Rule shall govern cases involving extralegal killings and
enforced disappearances or threats thereof pending in the trial and appellate courts.

7 Section 18 of the Rule on the Writ of Amparo provides, viz:

Sec. 18. Judgment. - The court shall render judgment within ten (10) days from the time the petition is
submitted for decision. If the allegations in the petition are proven by substantial evidence, the court shall
grant the privilege of the writ and such reliefs as may be proper and appropriate; otherwise, the privilege
shall be denied.

8 CA rollo, pp. 86-87.

9Id. at 1-6.

10 Id. at 82-83.

11 Exhibit D (Sinumpaang Salaysay para sa Hukuman ni Raymond Manalo), CA rollo, pp. 200-201; TSN,
November 13, 2007, p. 47.

12 Exhibit D, CA rollo, pp. 200-201.

13 Id. at 201-202.

14 Id.

15 Id. at 202.

16 A Petition for Habeas corpus was filed on May 12, 2006 in the Court of Appeals by the relatives of
herein respondents. (CA-G.R. SP. No. 94431). The petition alleged that military personnel and CAFGU
auxiliaries forcibly took petitioners from their homes in Bulacan on February 14, 2006.

Impleaded as respondents were Lt. Gen. Hermogenes C. Esperon, then the Commanding General of the
Philippine Army; Maj. Gen. Jovito Palparan, then the Commanding Officer, 7th Infantry Division, stationed
in Luzon; M/Sgt. Rizal Hilario alias Rollie Castillo; and civilians Michael dela Cruz, Madning dela Cruz, Puti
dela Cruz, Pula dela Cruz, Randy Mendoza and Rudy Mendoza, all CAFGU members.

Respondents denied any involvement in the petitioners' abduction and disappearance.

After hearing, the Court of Appeals rendered a decision on June 27, 2007, viz:

75
WHEREFORE, in view of the foregoing, this Court holds that respondents Madning de la Cruz, Puti de la
Cruz, Pula de la Cruz, Rudy Mendoza and CAFGU members Michael de la Cruz and Randy Mendoza are
illegally detaining Raymond and Reynaldo Manalo, and are hereby ordered to RELEASE said victims
Raymond Manalo and Reynaldo Manalo within ten (10) days from receipt hereof; otherwise, they will be
held in contempt of court. This is without prejudice to any penalty that may be imposed should they be
found later by any other court of justice to be criminally, administratively, or civilly liable for any other
act/s against the persons of aforenamed victims. (CA rollo, pp. 60-61)

On July 18, 2007, the relatives of the petitioners appealed the decision to the Supreme Court. (G.R. No.
178614). Respondents filed a motion for reconsideration in the Court of Appeals.

On August 13, 2007, the petitioners escaped from captivity. Consequently, they filed motions to withdraw
the petition for habeas corpus in the CA and this Court as it had become moot and academic. (CA rollo, p.
101; rollo, pp. 54-55)

17 Exhibit D, CA rollo, pp. 200-201.

18 Id. at 203.

19 TSN, November 13, 2007, p. 29.

20 Exhibit D, CA rollo, p. 203.

21 Id.

22"Daniel Mendiola; Oscar Leuterio; mag-asawang Teresa at Vergel; isang nagngangalang Mang Ipo at
Ferdinand mula sa Nueva Ecija; isang taga-Bicol na ikinulong doon ng isa o dalawang araw lamang (siya'y
inilabas at hindi ko na nakitang muli); isang taga-Visayas (na ikinulong doon ng isa o dalawang araw; siya'y
inilabas at hindi ko na siya nakita); mga nagngangalang Abel, Jojo at isa pa mula sa Nueva Ecija (na tumagal
doon ng isang araw at isang gabi, pagkatapos ay inilabas din); isang nagngangalang Bernard mula sa
Hagonoy, Bulacan; ang apelyido ni Bernard ay tila Majas ngunit hindi ako sigurado sa apelyido niya. Nang
dinala doon si Bernard, inilabas sina Mang Ipo at Ferdinand; dalawang lalaking may edad na, taga-Pinaud
at dinukot sa poultry (tumagal lang sila ng mga isang araw at tapos inilabas at hindi ko na nakita uli)." (CA
rollo, pp. 203-204)

23 Exhibit D, CA rollo, pp. 203-204.

24 Id. at 204.

25 Id. at 204-205.

26 Id. at 205.

27 Id.; TSN, November 13, 2007, pp. 36-38.

28 Exhibit D, CA rollo, p. 205.

29 Id.

30 Id.

31 Id. at 206.

76
32 TSN, November 13, 2007, p. 44; Exhibit F shows eights pictures of highest ranking officers of the AFP
and PNP in their uniforms; Exhibit F-1 is the picture of Gen. Palparan identified by respondent Raymond
Manalo, CA rollo, p. 214.

33 Exhibit D, CA rollo, p. 206.

34 Id. at 207.

35 Id.

36 Id. at 207-208.

37 Id. at 208.

38 Id.

39 Id. at 209.

40 Id.

41 Id.

42 Id.

43 Id. at 210-211.

44 Id. at 211.

45 Id.

46 Exhibit C (Sinumpaang Salaysay ni Reynaldo Manalo para sa Hukuman), CA rollo, pp. 196-197.

47 TSN, November 13, 2007, pp. 85-90; Exhibit G is the background of the case of Raymond and Reynaldo
Manalo, CA rollo, p. 216; Exhibits G-1 to G-2 are the report proper for Reynaldo Manalo containing a
narration of his ordeal and complaints, and Dr. Molino's physical findings, analysis and recommendations,
CA rollo, pp. 217-218; Exhibit G-3 are the pictures taken of Reynaldo Manalo's scars, CA rollo, p. 219;
Exhibits G-4 to G-5 are the report proper for Raymond Manalo with similar contents as Reynaldo's report,
CA rollo, pp. 220-221; Exhibits G-6 to G-7 are the pictures of Raymond Manalo's scars, CA rollo, pp. 222-
223.

48 CA rollo, pp. 112-113; rollo, pp. 94-95.

49 CA rollo, pp. 122 and 171; rollo, pp. 28-29.

50 CA rollo, pp. 124-125; 177-178; rollo, pp. 29-31.

51 CA rollo, pp. 191-192; rollo, 106-107.

52 Id. at 107.

53 TSN, November 14, 2007, p. 25.

54 Id. at 84.

55 Id. at 36.

77
56 Id. at 40.

57 Id. at 41.

58 Id. at 92.

59 Id. at 46.

60 Id. at 44.

61 Id. at 46.

62 Id. at 80.

63 Id. at 28.

64 Id. at 50.

65 Id. at 55-56.

66 Id. at 57-61.

67 Id. at 61-63.

68 Id. at 63.

69 Exhibit 3-C, CA rollo, pp. 238-240.

70 Rollo, pp. 35-36.

71 Rule on the Writ of Amparo: The Rationale for the Writ of Amparo, p. 43.

72 Id.

73 Rule on the Writ of Amparo: Annotation, p. 47.

74 Id. Article VIII, § 5(5) of the 1987 Constitution provides for this rule-making power, viz:

Sec. 5. The Supreme Court shall have the following powers:

(5) Promulgate rules concerning the protection and enforcement of constitutional rights...

75 Rule on the Writ of Amparo: Annotation, p. 48. This is the manner the term is used in United Nations
instruments.

76 Rule on the Writ of Amparo: Annotation, p. 48. This is the definition used in the Declaration on the
Protection of All Persons from Enforced Disappearances.

77 Barker, R., "Constitutionalism in the Americas: A Bicentennial Perspective," 49 University of Pittsburgh

Law Review (Spring, 1988) 891, 906.

78 Id., citing Zamudio, F., "A Brief Introduction to the Mexican Writ of Amparo," 9 California Western
International Law Journal (1979) 306, 309.

78
79 "At the time it adopted Rejón's Amparo, Yucatan had separated itself from Mexico. After a few months,
the secession ended and the state resumed its place in the union." (Barker, R., supra at 906.)

80 Acta de Reformas, art. 25 (1847) (amending Constitution of 1824).

81 Acta de Reformas, art. 25 (1847) (amending Constitution of 1824); Const. of 1857, arts. 101, 102 (Mex.);
Const. art. 107 (Mex.).

82 Barker, R., supra at 906-907. See also Provost, R. "Emergency Judicial Relief for Human Rights Violations
in Canada and Argentina," University of Miami Inter-American Law Review (Spring/Summer, 1992) 693,
701-702.

83 Rule on the Writ of Amparo: Annotation, p. 45. See Article 107 of the Constitution of Mexico; Article
28(15) of the Constitution of Ecuador; Article 77 of the Constitution of Paraguay; Article 43 of the
Constitution of Argentina; Article 49 of the Constitution of Venezuela; Article 48 (3) of the Constitution of
Costa Rica; and Article 19 of the Constitution of Bolivia.

84 Provost, R., supra at 698, citing Ramirez, F., "The International Expansion of the Mexican Amparo," 1
Inter-American Law Review (1959) 163, 166.

85 Rule on the Writ of Amparo: Annotation, p. 45; see also Zagaris, B., "The Amparo Process in Mexico,"
6 Mexico Law Journal (Spring 1998) 61, 66 and Provost, R., supra at 708-709.

86 Rule on the Writ of Amparo: Annotation, p. 45.

87 Brewer-Carias, A., "The Latin American Amparo Proceeding and the Writ of Amparo in the Philippines,"
Second Distinguished Lecture, Series of 2007, Supreme Court, Philippine Judicial Academy in coordination
with the Philippine Association of Law Schools, March 7, 2008.

88 See 1987 Phil. Const. Art. III, §§ 13 & 15; Art. VII, § 18; Art. VIII, § 5(1).

89 5 U.S. 137 (1803). See Gormley, K. "Judicial Review in the Americas: Comments on the United States
and Mexico," 45 Duquesne Law Review (Spring, 2007) 393.

90 Rule on the Writ of Amparo: Annotation, p. 47.

91 Deliberations of the Committee on the Revision of the Rules of Court, August 10, 2007; August 24,
2007; August 31, 2007; and September 20, 2008.

92 G.R. No. 179095.

93 CA rollo, p. 3.

94 Rollo, p. 35.

95 Ferancullo v. Ferancullo, Jr., A.C. No. 7214, November 30, 2006, 509 SCRA 1.

96 CA rollo, p. 210.

97 Id.

98 Id.

79
99 Id. at 203.

100 Id. at 211.

101 Rollo, pp. 74-76.

102 Id. at 40.

103 CA rollo, pp. 219, 222-224.

104 TSN, November 14, 2007, p. 66.

105 Case 10.526, Report No. 31/96, Inter-Am.C.H.R.,OEA/Ser.L/V/II.95 Doc. 7 rev. at 332 (1997).

106 Id. at par. 49.

107 Id.

108 Id. at par. 50.

109 Rollo, p. 182.

110 Id.

111 Id. at 183.

112 Respondents cite 1987 Phil. Const. Art. III, § 12(2) which provides, viz:

(2) No torture, force, violence threat, intimidation, or any other means which vitiate the free will shall be
used against him (any person under investigation for the commission of an offense). Secret detention
places, solitary, incommunicado, or other similar forms of detention are prohibited.

113 225 Phil. 191 (1986).

114 Rollo, pp. 182-183.

115 Id. at 183.

116 Id.

117 Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary (2003) 162.

118 No. L-41686, November 17, 1980, 101 SCRA 86.

119 Id. at 100-101.

120 1987 Phil. Const. Art. III, § 1 provides, viz:

Sec. 1. No person shall be deprived of life, liberty, or property without due process of law..

121 But see Bernas, supra at 110. "The constitutional protection of the right to life is not just a protection
of the right to be alive or to the security of one's limb against physical harm."

122 Separate Opinion of Chief Justice Reynato S. Puno in Republic v. Sandiganbayan, 454 Phil. 504 (2003).

123 Sandifer, D. and L. Scheman, The Foundation of Freedom (1966), pp. 44-45.

80
124 Schmidt, C., "An International Human Right to Keep and Bear Arms," 15 William and Mary Bill of Rights
Journal (February, 2007) 983, 1004.

125 Id., citing Webster's Seventh New Collegiate Dictionary 780 (1971).

126 The U.N. Declaration on the Protection of All Persons from Enforced Disappearance also provides for
the right to security under Article 2, viz:

2. Any act of enforced disappearance places the persons subjected thereto outside the protection of the
law and inflicts severe suffering on them and their families. It constitutes a violation of the rules of
international law guaranteeing, inter alia, the right to recognition as a person before the law, the right to
liberty and security of the person and the right not to be subjected to torture and other cruel, inhuman
or degrading treatment or punishment. It also violates or constitutes a grave threat to the right to life.
(emphasis supplied)

Various international human rights conventions and declarations affirm the "right to security of person",
including the American Convention on Human Rights; European Convention on Human Rights; African
Charter; Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against
Women; American Declaration of the Rights and Duties of Man, African Women's Protocol, and the U.N.
Declaration on the Elimination of Violence against Women.

127 Section 1 of the Rule on the Writ of Amparo provides, viz:

Section 1. Petition. - The petition for a writ of Amparo is a remedy available to any person whose right to
life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public
official or employee, or of a private individual or entity. (emphasis supplied)

128 People v. Aruta, 351 Phil. 868 (1998).

129 Book Two, Title Eight, Crimes against Persons, of the Revised Penal Code consists of two chapters:
Chapter One - Destruction of Life, and Chapter Two - Physical Injuries.

130 (App. No.26853/04), ECtHR Judgment of July 13, 2006.

131 Id. at pars.196-197.

132 General Recommendation No. 19 on Violence against Women of the Committee on the Elimination
of Discrimination Against Women. Adoption of the Report, U.N. Committee on the Elimination of
Discrimination against Women, 11th Sess., Agenda Item 7, at para. 8, U.N. Doc.
CEDAW/C/1992/L.1/Add.15 (1992); see also Lai, S. and Ralph, R., "Female Sexual Autonomy and Human
Rights," 8 Harvard Human Rights Journal (Spring, 1995) 201, 207-208.

133 1987 Phil. Const. Art. II, § 11, provides, viz:

Sec. 11. The State values the dignity of every human person and guarantees full respect for human rights.

134I/A Court H.R. Velásquez Rodríguez Case, Judgment of July 29, 1988, Series C No. 4.

135 Id. at par. 177.

81
136 Created under Article 28 of the ICCPR as the treaty-based body charged with the authoritative
interpretation of the ICCPR. See Russell-Brown, S., "Out of the Crooked Timber of Humanity: The Conflict
Between South Africa's Truth and Reconciliation Commission and International Human Rights Norms
Regarding ‘Effective Remedies'," 26 Hastings International and Comparative Law Review (Winter 2003)
227.

137 The ICCPR provides in Article 9(1), viz:

"1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest
or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such
procedure as are established by law." (emphasis supplied)

138 Communication No. 195/1985, U. N. Doc. CCPR/C/39/D/195/1985 (1990).

139 Id. at , par. 5.5.

140 Communication No. 314/1988, U.N. Doc. CCPR/C/48/D/314/1988 (1993).

141 Communication No. 468/1991, U.N. Doc. CCPR/C/49/D/468/1991 (1993).

142 Communication No. 542/1993, U.N. Doc. CCPR/C/53/D/542/1993 (1996).

143 Communication No. 711/1996, U.N. Doc. CCPR/C/68/D/711/1996 (2000).

144 Communication No. 821/1998, U.N. Doc. CCPR/C/70/D/821/1998 (2000).

145 Powell, R., "The Right to Security of Person in European Court of Human Rights Jurisprudence," 6
European Human Rights Law Review (2007) 649, 652-653.

146 Kurt v. Turkey (1999) 27 E.H.R.R. 373.

147 Id. at pars. 122 and 123.

148 CA rollo, p. 210.

149 Rollo, p. 182

150 Rollo, pp. 28-29.

151 Rollo, pp. 29-31. The directives issued by the petitioners are in line with Article 13 of the 1992 U.N.
Declaration on Enforced Disappearances which states that, "any person having knowledge or legitimate
interest who alleges that a person has been subjected to enforced disappearance has the right to complain
to a competent and independent state authority and to have that complaint promptly, thoroughly and
impartially investigated by the authority."

152 Rollo, pp. 44-45.

153 84 Phil. 127 (1949).

82
EN BANC

G.R. No. 147387 December 10, 2003

RODOLFO C. FARIÑAS, MANUEL M. GARCIA, FRANCIS G. ESCUDERO, and AGAPITO A. AQUINO, AS

MEMBERS OF THE HOUSE OF REPRESENTATIVES AND ALSO AS TAXPAYERS, IN THEIR OWN BEHALF AND
IN REPRESENTATION OF THE MEMBERS OF THE MINORITY IN THE HOUSE OF REPRESENTATIVES,
petitioners,

vs.

THE EXECUTIVE SECRETARY, COMMISSION ON ELECTIONS, HON. FELICIANO R. BELMONTE, JR.,

SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, SECRETARY OF THE SENATE, AND SECRETARY
GENERAL OF THE HOUSE OF REPRESENTATIVES, respondents.

x-----------------------x

G.R. No. 152161

CONG. GERRY A. SALAPUDDIN, petitioner,

vs.

COMMISSION ON ELECTIONS, respondent.

DECISION

CALLEJO, SR., J.:

Before the Court are two Petitions under Rule 65 of the Rules of Court, as amended, seeking to declare as
unconstitutional Section 14 of Republic Act No. 9006 (The Fair Election Act), insofar as it expressly repeals
Section 67 of Batas Pambansa Blg. 881 (The Omnibus Election Code) which provides:

SEC. 67. Candidates holding elective office. – Any elective official, whether national or local, running for
any office other than the one which he is holding in a permanent capacity, except for President and Vice-
President, shall be considered ipso facto resigned from his office upon the filing of his certificate of
candidacy.

The petition for certiorari and prohibition in G.R. No. 147387 was filed by Rodolfo C. Fariñas, Manuel M.
Garcia, Francis G. Escudero and Agapito A. Aquino. At the time of filing of the petition, the petitioners
were members of the minority bloc in the House of Representatives. Impleaded as respondents are: the
Executive Secretary, then Speaker of the House of Representatives Feliciano R. Belmonte, Jr., the
Commission on Elections, the Secretary of the Department of the Interior and Local Government (DILG),
the Secretary of the Senate and the Secretary General of the House of Representatives.

The petition for prohibition in G.R. No. 152161 was filed by Gerry A. Salapuddin, then also a member of
the House of Representatives. Impleaded as respondent is the COMELEC.

Legislative History of Republic Act No. 9006

83
Rep. Act No. 9006, entitled "An Act to Enhance the Holding of Free, Orderly, Honest, Peaceful and Credible
Elections through Fair Election Practices," is a consolidation of the following bills originating from the
House of Representatives and the Senate, respectively:

House Bill (HB) No. 9000 entitled "AN ACT ALLOWING THE USE OF MASS MEDIA FOR ELECTION
PROPAGANDA, AMENDING FOR THE PURPOSE BATAS PAMBANSA BILANG 881, OTHERWISE KNOWN AS
THE ‘OMNIBUS ELECTION CODE,’ AS AMENDED, AND FOR OTHER PURPOSES;"1

Senate Bill (SB) No. 1742 entitled "AN ACT TO ENHANCE THE HOLDING OF FREE, ORDERLY, HONEST,
PEACEFUL, AND CREDIBLE ELECTIONS THROUGH FAIR ELECTION PRACTICES."2

A Bicameral Conference Committee, composed of eight members of the Senate3 and sixteen (16)
members of the House of Representatives,4 was formed to reconcile the conflicting provisions of the
House and Senate versions of the bill.

On November 29, 2000, the Bicameral Conference Committee submitted its Report,5 signed by its
members, recommending the approval of the bill as reconciled and approved by the conferees.

During the plenary session of the House of Representatives on February 5, 2001, Rep. Jacinto V. Paras
proposed an amendment to the Bicameral Conference Committee Report. Rep. Didagen P. Dilangalen
raised a point of order commenting that the House could no longer submit an amendment thereto. Rep.
Sergio A.F. Apostol thereupon moved that the House return the report to the Bicameral Conference
Committee in view of the proposed amendment thereto. Rep. Dilangalen expressed his objection to the
proposal. However, upon viva voce voting, the majority of the House approved the return of the report
to the Bicameral Conference Committee for proper action.6

In view of the proposed amendment, the House of Representatives elected anew its conferees7 to the
Bicameral Conference Committee.8 Then again, for unclear reasons, upon the motion of Rep. Ignacio R.
Bunye, the House elected another set of conferees9 to the Bicameral Conference Committee.10

On February 7, 2001, during the plenary session of the House of Representatives, Rep. Bunye moved that
the House consider the Bicameral Conference Committee Report on the contrasting provisions of HB No.
9000 and SB No. 1742. Rep. Dilangalen observed that the report had been recommitted to the Bicameral
Conference Committee. The Chair responded that the Bicameral Conference Report was a new one, and
was a result of the reconvening of a new Bicameral Conference Committee. Rep. Dilangalen then asked
that he be given time to examine the new report. Upon motion of Rep. Apostol, the House deferred the
approval of the report until the other members were given a copy thereof.11

After taking up other pending matters, the House proceeded to vote on the Bicameral Conference
Committee Report on the disagreeing provisions of HB No. 9000 and SB No. 1742. The House approved
the report with 125 affirmative votes, 3 negative votes and no abstention. In explaining their negative
votes, Reps. Fariñas and Garcia expressed their belief that Section 14 thereof was a rider. Even Rep.
Escudero, who voted in the affirmative, expressed his doubts on the constitutionality of Section 14. Prior
to casting his vote, Rep. Dilangalen observed that no senator signed the Bicameral Conference Committee
Report and asked if this procedure was regular.12

84
On the same day, the Senate likewise approved the Bicameral Conference Committee Report on the
contrasting provisions of SB No. 1742 and HB No. 9000.

Thereafter, Rep. Act No. 9006 was duly signed by then Senate President Aquilino Pimentel, Jr. and then
Speaker of the House of Representatives Feliciano R. Belmonte, Jr. and was duly certified by the Secretary
of the Senate Lutgardo B. Barbo and the Secretary General of the House of Representatives Robert P.
Nazareno as "the consolidation of House Bill No. 9000 and Senate Bill No. 1742," and "finally passed by
both Houses on February 7, 2001."

President Gloria Macapagal-Arroyo signed Rep. Act No. 9006 into law on February 12, 2001.

The Petitioners’ Case

The petitioners now come to the Court alleging in the main that Section 14 of Rep. Act No. 9006, insofar
as it repeals Section 67 of the Omnibus Election Code, is unconstitutional for being in violation of Section
26(1), Article VI of the Constitution, requiring every law to have only one subject which should be
expressed in its title.

According to the petitioners, the inclusion of Section 14 repealing Section 67 of the Omnibus Election
Code in Rep. Act No. 9006 constitutes a proscribed rider. They point out the dissimilarity in the subject
matter of Rep. Act No. 9006, on the one hand, and Section 67 of the Omnibus Election Code, on the other.
Rep. Act No. 9006 primarily deals with the lifting of the ban on the use of media for election propaganda
and the elimination of unfair election practices, while Section 67 of the Omnibus Election Code imposes a
limitation on elective officials who run for an office other than the one they are holding in a permanent
capacity by considering them as ipso facto resigned therefrom upon filing of the certificate of candidacy.
The repeal of Section 67 of the Omnibus Election Code is thus not embraced in the title, nor germane to
the subject matter of Rep. Act No. 9006.

The petitioners also assert that Section 14 of Rep. Act No. 9006 violates the equal protection clause of the
Constitution because it repeals Section 67 only of the Omnibus Election Code, leaving intact Section 66
thereof which imposes a similar limitation to appointive officials, thus:

SEC. 66. Candidates holding appointive office or position. – Any person holding a public appointive office
or position, including active members of the Armed Forces of the Philippines, and officers and employees
in government-owned or controlled corporations, shall be considered ipso facto resigned from his office
upon the filing of his certificate of candidacy.

They contend that Section 14 of Rep. Act No. 9006 discriminates against appointive officials. By the repeal
of Section 67, an elective official who runs for office other than the one which he is holding is no longer
considered ipso facto resigned therefrom upon filing his certificate of candidacy. Elective officials continue
in public office even as they campaign for reelection or election for another elective position. On the other
hand, Section 66 has been retained; thus, the limitation on appointive officials remains - they are still
considered ipso facto resigned from their offices upon the filing of their certificates of candidacy.

The petitioners assert that Rep. Act No. 9006 is null and void in its entirety as irregularities attended its
enactment into law. The law, not only Section 14 thereof, should be declared null and void. Even Section
16 of the law which provides that "[t]his Act shall take effect upon its approval" is a violation of the due

85
process clause of the Constitution, as well as jurisprudence, which require publication of the law before it
becomes effective.

Finally, the petitioners maintain that Section 67 of the Omnibus Election Code is a good law; hence, should
not have been repealed. The petitioners cited the ruling of the Court in Dimaporo v. Mitra, Jr.,13 that
Section 67 of the Omnibus Election Code is based on the constitutional mandate on the "Accountability
of Public Officers:"14

Sec. 1. Public office is a public trust. Public officers and employees must at all times be accountable to the
people, serve them with utmost responsibility, integrity, loyalty and efficiency, act with patriotism and
justice, and lead modest lives.

Consequently, the respondents Speaker and Secretary General of the House of Representatives acted with
grave abuse of discretion amounting to excess or lack of jurisdiction for not considering those members
of the House who ran for a seat in the Senate during the May 14, 2001 elections as ipso facto resigned
therefrom, upon the filing of their respective certificates of candidacy.

The Respondents’ Arguments

For their part, the respondents, through the Office of the Solicitor General, urge this Court to dismiss the
petitions contending, preliminarily, that the petitioners have no legal standing to institute the present
suit. Except for the fact that their negative votes were overruled by the majority of the members of the
House of Representatives, the petitioners have not shown that they have suffered harm as a result of the
passage of Rep. Act No. 9006. Neither do petitioners have any interest as taxpayers since the assailed
statute does not involve the exercise by Congress of its taxing or spending power.

Invoking the "enrolled bill" doctrine, the respondents refute the petitioners’ allegations that
"irregularities" attended the enactment of Rep. Act No. 9006. The signatures of the Senate President and
the Speaker of the House, appearing on the bill and the certification signed by the respective Secretaries
of both houses of Congress, constitute proof beyond cavil that the bill was duly enacted into law.

The respondents contend that Section 14 of Rep. Act No. 9006, as it repeals Section 67 of the Omnibus
Election Code, is not a proscribed rider nor does it violate Section 26(1) of Article VI of the Constitution.
The title of Rep. Act No. 9006, "An Act to Enhance the Holding of Free, Orderly, Honest, Peaceful and
Credible Elections through Fair Election Practices," is so broad that it encompasses all the processes
involved in an election exercise, including the filing of certificates of candidacy by elective officials.

They argue that the repeal of Section 67 is germane to the general subject of Rep. Act No. 9006 as
expressed in its title as it eliminates the effect of prematurely terminating the term of an elective official
by his filing of a certificate of candidacy for an office other than the one which he is permanently holding,
such that he is no longer considered ipso facto resigned therefrom. The legislature, by including the repeal
of Section 67 of the Omnibus Election Code in Rep. Act No. 9006, has deemed it fit to remove the
"unfairness" of considering an elective official ipso facto resigned from his office upon the filing of his
certificate of candidacy for another elective office. With the repeal of Section 67, all elective officials are
now placed on equal footing as they are allowed to finish their respective terms even if they run for any

86
office, whether the presidency, vice-presidency or other elective positions, other than the one they are
holding in a permanent capacity.

The respondents assert that the repeal of Section 67 of the Omnibus Election Code need not be expressly
stated in the title of Rep. Act No. 9006 as the legislature is not required to make the title of the act a
complete index of its contents. It must be deemed sufficient that the title be comprehensive enough
reasonably to include the general subject which the statute seeks to effect without expressing each and
every means necessary for its accomplishment. Section 26(1) of Article VI of the Constitution merely calls
for all the parts of an act relating to its subject to find expression in its title. Mere details need not be set
forth.

According to the respondents, Section 14 of Rep. Act No. 9006, insofar as it repeals Section 67, leaving
Section 66 of the Omnibus Election Code intact and effective, does not violate the equal protection clause
of the Constitution. Section 67 pertains to elective officials while Section 66 pertains to appointive
officials. A substantial distinction exists between these two sets of officials; elective officials occupy their
office by virtue of their mandate based upon the popular will, while the appointive officials are not elected
by popular will. The latter cannot, therefore, be similarly treated as the former. Equal protection simply
requires that all persons or things similarly situated are treated alike, both as to rights conferred and
responsibilities imposed.

Further, Section 16, or the "Effectivity" clause, of Rep. Act No. 9006 does not run afoul of the due process
clause of the Constitution as it does not entail any arbitrary deprivation of life, liberty and property.
Specifically, the section providing for penalties in cases of violations thereof presume that the formalities
of the law would be observed, i.e., charges would first be filed, and the accused would be entitled to a
hearing before judgment is rendered by a court having jurisdiction. In any case, the issue about lack of
due process is premature as no one has, as yet, been charged with violation of Rep. Act No. 9006.

Finally, the respondents submit that the respondents Speaker and Secretary General of the House of
Representatives did not commit grave abuse of discretion in not excluding from the Rolls those members
thereof who ran for the Senate during the May 14, 2001 elections. These respondents merely complied
with Rep. Act No. 9006, which enjoys the presumption of validity until declared otherwise by the Court.

The Court’s Ruling

Before resolving the petitions on their merits, the Court shall first rule on the procedural issue raised by
the respondents, i.e., whether the petitioners have the legal standing or locus standi to file the petitions
at bar.

The petitions were filed by the petitioners in their capacities as members of the House of Representatives,
and as taxpayers and registered voters.

Generally, a party who impugns the validity of a statute must have a personal and substantial interest in
the case such that he has sustained, or will sustain, direct injury as a result of its enforcement.15 The
rationale for requiring a party who challenges the constitutionality of a statute to allege such a personal
stake in the outcome of the controversy is "to assure that concrete adverseness which sharpens the

87
presentation of issues upon which the court so largely depends for illumination of difficult constitutional
questions."16

However, being merely a matter of procedure, this Court, in several cases involving issues of "overarching
significance to our society,"17 had adopted a liberal stance on standing. Thus, in Tatad v. Secretary of the
Department of Energy,18 this Court brushed aside the procedural requirement of standing, took
cognizance of, and subsequently granted, the petitions separately filed by then Senator Francisco Tatad
and several members of the House of Representatives assailing the constitutionality of Rep. Act No. 8180
(An Act Deregulating the Downstream Oil Industry and For Other Purposes).

The Court likewise took cognizance of the petition filed by then members of the House of Representatives
which impugned as unconstitutional the validity of a provision of Rep. Act No. 6734 (Organic Act for the
Autonomous Region in Muslim Mindanao) in Chiongbian v. Orbos.19 Similarly, the Court took cognizance
of the petition filed by then members of the Senate, joined by other petitioners, which challenged the
validity of Rep. Act No. 7716 (Expanded Value Added Tax Law) in Tolentino v. Secretary of Finance.20

Members of Congress, such as the petitioners, were likewise allowed by this Court to challenge the validity
of acts, decisions, rulings, or orders of various government agencies or instrumentalities in Del Mar v.
Philippine Amusement and Gaming Corporation,21 Kilosbayan, Inc. v. Guingona, Jr.,22 Philippine
Constitution Association v. Enriquez,23 Albano v. Reyes,24 and Bagatsing v. Committee on Privatization.25

Certainly, the principal issue posed by the petitions, i.e., whether Section 67 of the Omnibus Election Code,
which this Court had declared in Dimaporo26 as deriving its existence from the constitutional provision
on accountability of public officers, has been validly repealed by Section 14 of Rep. Act No. 9006, is one
of "overarching significance" that justifies this Court’s adoption of a liberal stance vis-à-vis the procedural
matter on standing. Moreover, with the national elections barely seven months away, it behooves the
Court to confront the issue now and resolve the same forthrightly. The following pronouncement of the
Court is quite apropos:

... All await the decision of this Court on the constitutional question. Considering, therefore, the
importance which the instant case has assumed and to prevent multiplicity of suits, strong reasons of
public policy demand that [its] constitutionality . . . be now resolved. It may likewise be added that the
exceptional character of the situation that confronts us, the paramount public interest, and the
undeniable necessity for a ruling, the national elections beings barely six months away, reinforce our
stand.27

Every statute is presumed valid.28 The presumption is that the legislature intended to enact a valid,
sensible and just law and one which operates no further than may be necessary to effectuate the specific
purpose of the law.29

It is equally well-established, however, that the courts, as guardians of the Constitution, have the inherent
authority to determine whether a statute enacted by the legislature transcends the limit imposed by the
fundamental law.30 And where the acts of the other branches of government run afoul of the
Constitution, it is the judiciary’s solemn and sacred duty to nullify the same.31

Proceeding from these guideposts, the Court shall now resolve the substantial issues raised by the
petitions.

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Section 14 of Rep. Act No. 9006 Is Not a Rider32

At the core of the controversy is Section 14, the repealing clause of Rep. Act No. 9006, which provides:

Sec. 14. Sections 67 and 85 of the Omnibus Election Code (Batas Pambansa Blg. 881) and Sections 10 and
11 of Republic Act No. 6646 are hereby repealed. As a consequence, the first proviso in the third paragraph
of Section 11 of Republic Act No. 8436 is rendered ineffective. All laws, presidential decrees, executive
orders, rules and regulations, or any part thereof inconsistent with the provisions of this Act are hereby
repealed or modified or amended accordingly.

The repealed provision, Section 67 of the Omnibus Election Code, quoted earlier, reads:

SEC. 67. Candidates holding elective office. – Any elective official, whether national or local, running for
any office other than the one which he is holding in a permanent capacity, except for President and Vice-
President, shall be considered ipso facto resigned from his office upon the filing of his certificate of
candidacy.

Section 26(1), Article VI of the Constitution provides:

SEC. 26 (1). Every bill passed by the Congress shall embrace only one subject which shall be expressed in
the title thereof.

The proscription is aimed against the evils of the so-called omnibus bills and log-rolling legislation as well
as surreptitious and/or unconsidered encroaches. The provision merely calls for all parts of an act relating
to its subject finding expression in its title.33

To determine whether there has been compliance with the constitutional requirement that the subject of
an act shall be expressed in its title, the Court laid down the rule that –

Constitutional provisions relating to the subject matter and titles of statutes should not be so narrowly
construed as to cripple or impede the power of legislation. The requirement that the subject of an act
shall be expressed in its title should receive a reasonable and not a technical construction. It is sufficient
if the title be comprehensive enough reasonably to include the general object which a statute seeks to
effect, without expressing each and every end and means necessary or convenient for the accomplishing
of that object. Mere details need not be set forth. The title need not be an abstract or index of the Act.34

The title of Rep. Act No. 9006 reads: "An Act to Enhance the Holding of Free, Orderly, Honest, Peaceful
and Credible Elections through Fair Election Practices." Section 2 of the law provides not only the
declaration of principles but also the objectives thereof:

Sec. 2. Declaration of Principles. – The State shall, during the election period, supervise or regulate the
enjoyment or utilization of all franchises or permits for the operation of media of communication or
information to guarantee or ensure equal opportunity for public service, including access to media time
and space, and the equitable right to reply, for public information campaigns and fora among candidates
and assure free, orderly, honest, peaceful and credible elections.

The State shall ensure that bona fide candidates for any public office shall be free from any form of
harassment and discrimination.35

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The Court is convinced that the title and the objectives of Rep. Act No. 9006 are comprehensive enough
to include the repeal of Section 67 of the Omnibus Election Code within its contemplation. To require that
the said repeal of Section 67 of the Code be expressed in the title is to insist that the title be a complete
index of its content.36

The purported dissimilarity of Section 67 of the Omnibus Election Code, which imposes a limitation on
elective officials who run for an office other than the one they are holding, to the other provisions of Rep.
Act No. 9006, which deal with the lifting of the ban on the use of media for election propaganda, does not
violate the "one subject-one title" rule. This Court has held that an act having a single general subject,
indicated in the title, may contain any number of provisions, no matter how diverse they may be, so long
as they are not inconsistent with or foreign to the general subject, and may be considered in furtherance
of such subject by providing for the method and means of carrying out the general subject.37

The deliberations of the Bicameral Conference Committee on the particular matter are particularly
instructive:

SEN. LEGARDA-LEVISTE:

Yes, Mr. Chairman, I just wanted to clarify.

So all we’re looking for now is an appropriate title to make it broader so that it would cover this provision
[referring to the repeal of Section 67 of the Omnibus Election Code], is that correct? That’s all. Because I
believe ...

THE CHAIRMAN (REP. SYJUCO):

We are looking for an appropriate coverage which will result in the nomenclature or title.

SEN. LEGARDA-LEVISTE:

Because I really do not believe that it is out of place. I think that even with the term "fair election practice,"
it really covers it, because as expressed by Senator Roco, those conditions inserted earlier seemed unfair
and it is an election practice and, therefore, I think, I’m very comfortable with the title "Fair Election
Practice" so that we can get over with these things so that we don’t come back again until we find the
title. I mean, it’s one provision which I think is fair for everybody. It may seem like a limitation but this
limitation actually provides for fairness in election practices as the title implies.

THE CHAIRMAN (REP. SYJUCO):

Yes.

SEN. LEGARDA-LEVISTE:

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So I would want to beg the House contingent, let’s get it over with. To me, ha, it’s not a very touchy issue.
For me, it’s even a very correct provision. I feel very comfortable with it and it was voted in the Senate, at
least, so I would like to appeal to the ... para matapos na, then we come back as a Bicam just for the title
Is that what you’re ...?

THE CHAIRMAN (REP. SYJUCO):

It’s not the title per se, it’s the coverage. So if you will just kindly bear with us. I’m happy that there is
already one comfortable senator there among ... several of us were also comfortable with it. But it would
be well that when we rise from this Bicam that we’re all comfortable with it.

THE CHAIRMAN (SEN. ROCO):

Yes. Anyway, let’s listen to Congressman Marcos.

REP. MARCOS:

Mr. Chairman, may I just make the observation that although it is true that the bulk of provisions deals
with the area of propaganda and political advertising, the complete title is actually one that indulge full
coverage. It says "An Act to enhance the holding of free, orderly, honest ... elections through fair election
practices." But as you said, we will put that aside to discuss later one.

Secondly, I think the Declaration of Principles contained in Section 2, paragraph 2 is perfectly adequate in
that it says that it shall ensure candidates for public office that may be free from any form of harassment
and discrimination.

Surely this provision in Section 67 of the old Election Code of the existing Omnibus Election Code is a form
of harassment or discrimination. And so I think that in the effort at leveling the playing field, we can cover
this and it should not be considered a rider.

SEN. LEGARDA-LEVISTE:

I agree, Mr. Chairman. I think the Congresswoman from Ilocos had very clearly put it, that it is covered in
the Declaration of Principles and in the objective of this bill. And therefore, I hope that the House
contingent would agree to this so that we can finish it now. And it expressly provides for fair election
practices because ...

THE CHAIRMAN (SEN. ROCO):

Yeah, I think what is on the table is that we are not disputing this, but we are looking for a title that is
more generic so that then we have less of an objection on constitutionality. I think that’s the theory. So,
there is acceptance of this.

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Maybe we should not call it na limitation on elected officials. Maybe we should say the special provision
on elected officials. So how is that? Alam mo ito ...

REP. MARCOS: I think we just change the Section 1, the short title.

THE CHAIRMAN (SEN. ROCO): Also, Then we say - - on the short title of the Act, we say ...

REP. MARCOS: What if we say fair election practices? Maybe that should be changed...

THE CHAIRMAN (SEN. ROCO): O, sige, fine, fine. Let’s a brainstorm. Equal...

REP. PADILLA:

Mr. Chairman, why don’t we use "An Act rationalizing the holding of free, orderly, honest, peaceful and
credible elections, amending for the purpose Batasang Pambansa known as the Omnibus Election Code?"

THE CHAIRMAN (SEN. ROCO): Why don’t we remove "fair" and then this shall be cited as Election Practices
Act?"

REP. PICHAY: That’s not an election practice. That’s a limitation.

THE CHAIRMAN (SEN. ROCO): Ah - - - ayaw mo iyong practice. O, give me another noun.

REP. MARCOS: The Fair Election.

THE CHAIRMAN (SEN. ROCO): O, Fair Election Act.

REP. MACARAMBON:

Nagbi-brainstorm tayo dito, eh. How about if we change the title to enhance the holding of free, orderly,
honest, peaceful and ensure equal opportunity for public service through fair election practices?

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REP. PICHAY: Fair election practices?

REP. MACARAMBON: Yeah. To ensure equal opportunity for public service through fair ...

THE CHAIRMAN (SEN. ROCO): Wala nang practices nga.

REP. PICHAY: Wala nang practices.

THE CHAIRMAN (SEN. ROCO): It shall be cited as Fair Election Act.

(Informal discussions)

REP. PICHAY: Approve na iyan.

THE CHAIRMAN (SEN. ROCO): Done. So, okay na iyon. The title will be "Fair Election Act." The rest wala
nang problema ano?

VOICES: Wala na.

REP. MACARAMBON: Wala na iyong practices?

THE CHAIRMAN (SEN. ROCO): Wala na, wala na. Mahina tayo sa practice, eh. O, wala na? We will clean
up.

REP. MARCOS: Title?

THE CHAIRMAN (SEN. ROCO): The short title, "This Act ..."

THE CHAIRMAN (REP. SYJUCO): You’re back to your No. 21 already.

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REP. MARCOS: The full title, the same?

THE CHAIRMAN (SEN. ROCO): Iyon na nga. The full title is "An Act to enhance the holding ..." That’s the
House version, eh, dahil pareho, hindi ba? Then the short title "This Act shall be known as the Fair Election
Act."38

The legislators considered Section 67 of the Omnibus Election Code as a form of harassment or
discrimination that had to be done away with and repealed. The executive department found cause with
Congress when the President of the Philippines signed the measure into law. For sure, some sectors of
society and in government may believe that the repeal of Section 67 is bad policy as it would encourage
political adventurism. But policy matters are not the concern of the Court. Government policy is within
the exclusive dominion of the political branches of the government.39 It is not for this Court to look into
the wisdom or propriety of legislative determination. Indeed, whether an enactment is wise or unwise,
whether it is based on sound economic theory, whether it is the best means to achieve the desired results,
whether, in short, the legislative discretion within its prescribed limits should be exercised in a particular
manner are matters for the judgment of the legislature, and the serious conflict of opinions does not
suffice to bring them within the range of judicial cognizance.40 Congress is not precluded from repealing
Section 67 by the ruling of the Court in Dimaporo v. Mitra41 upholding the validity of the provision and
by its pronouncement in the same case that the provision has a laudable purpose. Over time, Congress
may find it imperative to repeal the law on its belief that the election process is thereby enhanced and
the paramount objective of election laws – the fair, honest and orderly election of truly deserving
members of Congress – is achieved.

Moreover, the avowed purpose of the constitutional directive that the subject of a bill should be
embraced in its title is to apprise the legislators of the purposes, the nature and scope of its provisions,
and prevent the enactment into law of matters which have not received the notice, action and study of
the legislators and the public.42 In this case, it cannot be claimed that the legislators were not apprised
of the repeal of Section 67 of the Omnibus Election Code as the same was amply and comprehensively
deliberated upon by the members of the House. In fact, the petitioners, as members of the House of
Representatives, expressed their reservations regarding its validity prior to casting their votes.
Undoubtedly, the legislators were aware of the existence of the provision repealing Section 67 of the
Omnibus Election Code.

Section 14 of Rep. Act No. 9006 Is Not Violative of the Equal Protection Clause of the Constitution43

The petitioners’ contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to
elective officials gives undue benefit to such officials as against the appointive ones and violates the equal
protection clause of the constitution, is tenuous.

The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable
classification. If the groupings are characterized by substantial distinctions that make real differences, one

94
class may be treated and regulated differently from the other.44 The Court has explained the nature of
the equal protection guarantee in this manner:

The equal protection of the law clause is against undue favor and individual or class privilege, as well as
hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is
limited either in the object to which it is directed or by territory within which it is to operate. It does not
demand absolute equality among residents; it merely requires that all persons shall be treated alike, under
like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal
protection clause is not infringed by legislation which applies only to those persons falling within a
specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making
a distinction between those who fall within such class and those who do not.45

Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy
their office by virtue of the mandate of the electorate. They are elected to an office for a definite term
and may be removed therefrom only upon stringent conditions.46 On the other hand, appointive officials
hold their office by virtue of their designation thereto by an appointing authority. Some appointive
officials hold their office in a permanent capacity and are entitled to security of tenure47 while others
serve at the pleasure of the appointing authority.48

Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title
I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No.
292), appointive officials, as officers and employees in the civil service, are strictly prohibited from
engaging in any partisan political activity or take part in any election except to vote. Under the same
provision, elective officials, or officers or employees holding political offices, are obviously expressly
allowed to take part in political and electoral activities.49

By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it
proper to treat these two classes of officials differently with respect to the effect on their tenure in the
office of the filing of the certificates of candidacy for any position other than those occupied by them.
Again, it is not within the power of the Court to pass upon or look into the wisdom of this classification.

Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-a-vis appointive
officials, is anchored upon material and significant distinctions and all the persons belonging under the
same classification are similarly treated, the equal protection clause of the Constitution is, thus, not
infringed.

The Enrolled Bill Doctrine Is Applicable In this Case

Not content with their plea for the nullification of Section 14 of Rep. Act No. 9006, the petitioners insist
that the entire law should be nullified. They contend that irregularities attended the passage of the said
law particularly in the House of Representatives catalogued thus:

a. Creation of two (2) sets of BCC (Bicameral Conference Committee) members by the House during its
session on February 5, 2001;

b. No communication from the Senate for a conference on the compromise bill submitted by the BCC on
November 29, 2000;

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c. The new Report submitted by the 2nd/3rd BCC was presented for approval on the floor without copies
thereof being furnished the members;

d. The 2nd/3rd BCC has no record of its proceedings, and the Report submitted by it was not signed by
the Chairman (Sen. Roco) thereof as well as its senator-members at the time it was presented to and
rammed for approval by the House;

e. There was no meeting actually conducted by the 2nd/3rd BCC and that its alleged Report was instantly
made and passed around for the signature of the BCC members;

f. The Senate has no record of the creation of a 2nd BCC but only of the first one that convened on
November 23, 2000;

g. The "Effectivity" clauses of SB No. 1741 and HB No. 9000, as well as that of the compromise bill
submitted by the BCC that convened on November 20, 2000, were couched in terms that comply with the
publication required by the Civil Code and jurisprudence, to wit:

...

However, it was surreptitiously replaced in its final form as it appears in § 16, R.A. No. 9006, with the
provision that "This Act shall take effect immediately upon its approval;"

h. The copy of the compromise bill submitted by the 2nd/3rd BCC that was furnished the members during
its consideration on February 7, 2001, did not have the same § 16 as it now appears in RA No. 9006, but §
16 of the compromise bill, HB 9000 and SB 1742, reasons for which no objection thereto was made;

i. The alleged BCC Report presented to the House on February 7, 2001, did not "contain a detailed,
sufficiently explicit statement of the changes in or amendments to the subject measure;" and

j. The disappearance of the "Cayetano amendment," which is Section 12 of the compromise bill submitted
by the BCC. In fact, this was the subject of the purported proposed amendment to the compromise bill of
Member Paras as stated in paragraph 7 hereof. The said provision states, thusly:

Sec. 12. Limitation on Elected Officials. – Any elected official who runs for president and vice-president
shall be considered ipso facto resigned from his office upon the filing of the certificate of candidacy.50

The petitioners, thus, urge the Court to go behind the enrolled copy of the bill. The Court is not persuaded.
Under the "enrolled bill doctrine," the signing of a bill by the Speaker of the House and the Senate
President and the certification of the Secretaries of both Houses of Congress that it was passed are
conclusive of its due enactment. A review of cases51 reveals the Court’s consistent adherence to the rule.
The Court finds no reason to deviate from the salutary rule in this case where the irregularities alleged by
the petitioners mostly involved the internal rules of Congress, e.g., creation of the 2nd or 3rd Bicameral
Conference Committee by the House. This Court is not the proper forum for the enforcement of these
internal rules of Congress, whether House or Senate. Parliamentary rules are merely procedural and with
their observance the courts have no concern.52 Whatever doubts there may be as to the formal validity
of Rep. Act No. 9006 must be resolved in its favor. The Court reiterates its ruling in Arroyo v. De Venecia,53
viz.:

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But the cases, both here and abroad, in varying forms of expression, all deny to the courts the power to
inquire into allegations that, in enacting a law, a House of Congress failed to comply with its own rules, in
the absence of showing that there was a violation of a constitutional provision or the rights of private
individuals. In Osmeña v. Pendatun, it was held: "At any rate, courts have declared that ‘the rules adopted
by deliberative bodies are subject to revocation, modification or waiver at the pleasure of the body
adopting them.’ And it has been said that ‘Parliamentary rules are merely procedural, and with their
observance, the courts have no concern. They may be waived or disregarded by the legislative body.’
Consequently, ‘mere failure to conform to parliamentary usage will not invalidate the action (taken by a
deliberative body) when the requisite number of members have agreed to a particular measure.’"

The Effectivity Clause Is Defective

Finally, the "Effectivity" clause (Section 16) of Rep. Act No. 9006 which provides that it "shall take effect
immediately upon its approval," is defective. However, the same does not render the entire law invalid.
In Tañada v. Tuvera,54 this Court laid down the rule:

... 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 legislator
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-period shall be shortened or extended….55

Following Article 2 of the Civil Code56 and the doctrine enunciated in Tañada, Rep. Act No. 9006,
notwithstanding its express statement, took effect fifteen days after its publication in the Official Gazette
or a newspaper of general circulation.

In conclusion, it bears reiterating that one of the firmly entrenched principles in constitutional law is that
the courts do not involve themselves with nor delve into the policy or wisdom of a statute. That is the
exclusive concern of the legislative branch of the government. When the validity of a statute is challenged
on constitutional grounds, the sole function of the court is to determine whether it transcends
constitutional limitations or the limits of legislative power.57 No such transgression has been shown in
this case.

WHEREFORE, the petitions are DISMISSED. No pronouncement as to costs.

SO ORDERED.

Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Corona, Carpio-Morales, Azcuna, and Tinga, JJ., concur.

Footnotes

1 Annex "A," Petition.

2 Annex "B," id.

97
3 Senators Raul S. Roco, Francisco S. Tatad, Vicente C. Sotto III, Gregorio B. Honasan, Robert S. Jaworski,
Teresa Aquino-Oreta, Loren Legarda-Leviste and Sergio Osmeña III.

4 Representatives Augusto L. Syjuco, Jr., Imee R. Marcos, Benasing O. Macarambon, Jr., Rodolfo C. Fariñas,
Roseller L. Barinaga, Hussin U. Amin, Edmundo O. Reyes, Jr., Constantino G. Jaraula, Alipio Cirilo V.
Badelles, Francis Joseph G. Escudero, Eleandro Jesus F. Madrona, Ernesto A Nieva, Aniceto G. Saludo,
Eduardo R. Gullas, Feliciano R. Belmonte, Jr., Sergio Antonio F. Apostol, Prospero A. Pichay, Jr. and Roy
Padilla, Jr.

5 Annex "C," Petition.

6 Journal of the House of Representatives, Vol. 62, February 5, 2001, pp. 12-13.

7 Representatives Edmundo O. Reyes, Jr., Jacinto V. Paras, Augusto "Boboy" Syjuco, Prospero A. Pichay,
Jr., Carlos M. Padilla, Aniceto G. Saludo, Jr., Gerardo S. Espina, Ricardo V. Quintos and Isidro S. Rodriguez,
Jr.

8 See note 6.

9 Representatives Carlos M. Padilla, Salvio B. Fortuno, Dante V. Liban, Roan I. Libarios, Nestor C. Ponce,
Jr., Loretta Ann P. Rosales, Magtanggol T. Gunigundo and Edmundo O. Reyes, Jr.

10 See note 6 at 20.

11 Journal of the House of Representatives, Vol. 64, February 7, 2001, p. 29.

12 Id. at 32-35.

13 202 SCRA 779 (1991).

14 SECTION 1, ARTICLE XI, CONSTITUTION.

15 People v. Vera, 65 Phil. 56 (1937).

16 Baker v. Carr, 369 U.S. 186, 7 L.Ed.2d 633 (1962).

17 Del Mar v. Philippine Amusement and Gaming Corporation, 346 SCRA 485 (2000); Carpio v. Executive
Secretary, 206 SCRA 290 (1992); Osmeña v. Comelec, 199 SCRA 750 (1991); Basco v. PAGCOR, 197 SCRA
52 (1991); Guingona v. Carague, 196 SCRA 221 (1991); Civil Liberties Union v. Executive Secretary, 194
SCRA 317 (1991); Philconsa v. Gimenez, 15 SCRA 479 (1965).

18 281 SCRA 330 (1997).

19 245 SCRA 253 (1995).

20 235 SCRA 630 (1994).

21 Supra.

22 232 SCRA 110 (1994).

23 235 SCRA 506 (1994).

24 175 SCRA 264 (1989).

98
25 246 SCRA 334 (1995).

26 Supra.

27 Gonzales v. Commission on Elections, 27 SCRA 835 (1969).

28 Samson v. Aguirre, 315 SCRA 53 (1999).

29 In re Guarina, 24 Phil. 37 (1913).

30 Tatad v. Secretary of Department of Energy, supra.

31 SECTION 1, ARTICLE VIII, CONSTITUTION reads:

Sec. 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.

32 A rider is a provision not germane to the subject matter of the bill. (Alalayan v. NPC, 24 SCRA 172
[1968]).

33 Alalayan v. NPC, supra.

34 Cordero v. Cabatuando, 6 SCRA 418 (1962).

35 Underscoring ours.

36 Tolentino v. Secretary of Finance, supra.

37 Tio v. Videogram Regulatory Board, 151 SCRA 208 (1987).

38 Records of the Bicameral Conference Committee on the Disagreeing Provisions of Senate Bill No. 1742
and House Bill No. 9000 (Committee on Electoral Reforms), November 23, 2000, pp. 95-99.

39 Valmonte v. Belmonte, Jr., 170 SCRA 256 (1989).

40 Bayside Fish Flour Co. v. Gentry, 297 US 422, 80 L Ed 772 (1935). See also Garcia v. Corona, 321 SCRA
218 (1999); Samson v. Aguirre, 315 SCRA 54 (1999); Victoriano v. Elizalde Rope Workers Union, 59 SCRA
54 (1974); Morfe v. Mutuc, 22 SCRA 424 (1968).

41 Supra.

42 Ichong v. Hernandez, 101 Phil. 1155 (1957).

43 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 (SECTION 1, ARTICLE III, CONSTITUTION).

44 Tiu v. Court of Appeals, 301 SCRA 278 (1999).

45 Ichong v. Hernandez, supra, citing 2 Cooley, Constitutional Limitations, pp. 824-825.

99
46 For example, under the Constitution, the grounds by which the tenure of the members of the House
of Representatives and the Senate may be shortened may be summarized as follows:

a) Sec. 16, Art. VI: Forfeiture of his seat by holding any other office or employment in the government or
any subdivision, agency or instrumentality thereof, including government-owned or controlled
corporations or subsidiaries;

b) Sec. 16 (3), Art. VI: Expulsion as a disciplinary action for disorderly behavior;

c) Sec. 17, Art. VI: Disqualification as determined by resolution of the appropriate Electoral Tribunal in an
election contest; and

d) Sec. 7, par. 2, Art. VI: Voluntary renunciation of office.

Further, under Sec. 2, Art. XI of the Constitution, the President and the Vice-President, along with other
impeachable officers, may be removed from office "on impeachment for, and conviction of, culpable
violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public
trust."

47 Section 46, Chapter 7, Title I, Subtitle A. Civil Service Commission, Book V of the 1987 Administrative
Code provides, in part, that "No officer or employee in the Civil Service shall be suspended or dismissed
except for cause as provided by law and after due process." Further, Section 23, Rule XIV of the Omnibus
Rules Implementing Book V of the 1987 Administrative Code enumerates the "grave offenses" which are
grounds for dismissal upon the commission of first offense as follows: dishonesty, gross neglect of duty,
gross misconduct, being notoriously undesirable, conviction of a crime involving moral turpitude,
falsification of official document, physical or mental incapacity or disability due to vicious habits, among
others.

48 Officers and employees holding primarily confidential positions have terms of office which expire upon
loss of confidence in them by the appointing authority. (Hernandez v. Villegas, 14 SCRA 544 [1965]).

49 Section 55, Chapter 8, Title I Subsection A. Civil Service Commission, Book V of the Administrative Code
of 1987 (Executive Order No. 292) reads in full:

Sec. 55. Political Activity. – No officer or employee in the Civil Service including members of the Armed
Forces, shall engage, directly or indirectly, in any partisan political activity or take part in any election
except to vote nor shall he use his official authority or influence to coerce the political activity of any other
person or body. Nothing herein provided shall be understood to prevent any officer or employee from
expressing his views on current political problems or issues, or from mentioning the names of his
candidates for public office whom he supports: Provided, That public officers and employees holding
political offices may take part in political and electoral activities but it shall be unlawful for them to solicit
contributions from their subordinates or subject them to any of the acts involving subordinates prohibited
in the Election Code.

50 MEMORANDUM of the Petitioners in G.R. No. 147387, pp. 19-20.

51 Tolentino v. Secretary of Finance, supra; Morales v. Subido, 27 SCRA 131 (1969); Casco (Phil.) Inc. v.
Gimenez, 7 SCRA 347 (1963); Mabanag v. Lopez Vito, 78 Phil. 1 (1947).

100
52 Osmeña, Jr. v. Pendatun, 109 Phil. 863 (1960).

53 277 SCRA 268 (1997).

54 146 SCRA 446 (1986).

55 Id. at 452.

56 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 publication.

57 See Tatad v. Secretary of the Department of Energy, supra; Tañada v. Angara, 272 SCRA 18 (1997);
Bondoc v. Pineda, 201 SCRA 792 (1991); Osmeña v. COMELEC, 199 SCRA 750 (1991); Luz Farms v. Secretary
of the Department of Agrarian Reform, 192 SCRA 51 (1990); Gonzales v. COMELEC, 21 SCRA 774 (1967).

101
G.R. No. 1272 January 11, 1904

THE UNITED STATES, complainant-appellee,

vs.

BALDOMERO NAVARRO, ET AL., defendants-appellants.

Felix Ferrer for appellants.

Office of the Solicitor-General Araneta for appellee.

MCDONOUGH, J.:

The defendants, Baldomero Navarro, Marcelo de Leon, and Fidel Feliciano (alias Bulag) are charged with
the crime of illegal detention, committed, according to the information, as follows:

The said defendants, together with other persons unknown armed with revolvers and daggers, went one
night about the middle of November, 1902, to the house of one Felix Punsalan, situated in Matang-tubig,
barrio of Malinta, town of Polo, Province of Bulacan, and by force and violence kidnapped the said Felix
Punsalan, without, up to the date of this information, having given any information as to his whereabouts
or having proven that they set him at liberty.

The defendants on being arraigned pleaded not guilty.

In the course of the trial Teodoro Pangan, Gregorio Mendoza, and Flaviano Punsalan testified as witnesses
for the prosecution. The witness Pangan said that one night about the middle of November, 1902, while
he was asleep in the house of Felix Punsalan, situated in the barrio of Malinta, in front of Maysilo, he,
being at that time a servant of the said Punsalan, was aroused by the barking of the dogs; that his master,
Felix Punsalan, arose and opened the window, and, upon seeing some people there, asked them who they
were; they answered him by asking who was with him in the house, to which he replied that his servant
was there; they asked him if he had a gun, and he replied that he had no gun, and they asked him to come
down and talk with them, and the said Felix Punsalan, having gone down accordingly, did not return, and
the witness added that he had not seen again since that time. This witness says that he did not see the
men who called to his master from below but only heard them.

102
Gregorio Mendoza, the second witness, testifies that he was taken from his house one night in the month
of November, 1902, by seven men, among who were these defendants; that in addition to himself, the
same party on that night kidnapped Felix Punsalan and that the latter, with the witness, were taken by
their captors to Pudag-babuy where the defendant Marcelo de Leon hung them to a tree, demanding of
them that they hand over their guns; that on that same night they set the witness at liberty, but kept Felix
Punsalan; that the witness did not see Punsalan again since that time, and that before the kidnapping he
frequently saw him because he lived next door.

Flaviano Punsalan, brother of Felix Punsalan, testified that the latter was kidnapped on the night of
November 17, 1902, and that he had not seen since that time; that subsequently, in January, 1903, on
occasion of the witness having been called to the barracks of the Constabulary by the officers of that
corps, he heard a statement made there by the defendant Baldomero Navarro in the presence of the
superintendent of secret information, Captain Crame, Inspector Brown, and Interpreter Austin, in the
course of which statement Baldomero Navarro stated that he was the leader of the band that kidnapped
Felix Punsalan and Gregorio Mendoza, and that his companions were Marcelo de Leon, Fidel Feliciano,
Remigio Delupio, and one Luis; that the said Felix Punsalan died within a week from the time he was
kidnapped, in consequence of the ill treatment received. The witness testified that Navarro made the
statement freely and spontaneously, without threats or compulsion. The witness also testified that in the
court of the justice of the peace in Malabon he heard one Florencia Francisco testify that when his brother,
Felix Punsalan, died he was covered with bruises and was passing blood, and that his body was buried at
a place called Ogong, in the village known as Cay-grande.

The defendant Marcelo de Leon, who testified as a witness in the case, stated that Felix Punsalan and
Gregorio Mendoza were kidnapped by Baldomero Navarro and Mariano Jacinto, one night in November,
1902, and that the witness knew this because he also was on of the men kidnapped by these defendants.

The court below rendered judgment condemning each one of the defendants, Baldomero Navarro,
Marcelo de Leon, and Feliciano Felix (alias Bulag), to life imprisonment and payment of the costs of
prosecution. Against this judgment the defendants appealed.

Article 481 of the Penal Code provides that a private person who shall lock up or detain another, or in any
way deprive him of his liberty shall be punished with the penalty of prision mayor.

The second paragraph of article 483 provides that one who illegally detains another and fails to give
information concerning his whereabouts, or does not prove that he set him at liberty, shall be punished
with cadena temporal in its maximum degree to life imprisonment.

103
The punishment for the crime mentioned in article 483 of the Penal Code is the penalty of cadena
temporal in its maximum degree to cadena perpetua, or in other words one convicted of simply depriving
a person of his liberty may be imprisoned for a term of from six to twelve years and one convicted of
depriving a person of his liberty and who shall not state his whereabouts or prove that he had set said
person at liberty may be punished by imprisonment for a term of seventeen years four months and one
day, to life, as in this case. In other words, for failure on the part of the defendant to testify regarding the
whereabouts of the person deprived of his liberty, or to prove that he was set at liberty, the punishment
may be increased from imprisonment for a term of six years to life imprisonment.

This provisions of the law has the effect of forcing a defendant to become a witness in his own behalf or
to take a much severer punishment. The burden is put upon him of giving evidence if he desires to lessen
the penalty, or, in other words, of criminating himself, for the very statement of the whereabouts of the
victim or the proof that the defendant set him at liberty amounts to a confession that the defendant
unlawfully detained the person.

So the evidence necessary to clear the defendant, under article 483 of the Penal Code, would have the
effect of convincing him under article 481.

The counsel for the defendants claims that such practice is illegal, since the passage by Congress of the
act of July 1, 1902, relating too the Philippines, section 5 of which provides that ". . . no person shall be
compelled in any criminal case to be a witness against himself." Section 57 of General Orders, No. 58,
provides that a defendant in a criminal case shall be presumed to be innocent until the contrary is proved;
and section 59 provides that the burden of proof of guilt shall be upon the prosecution.

In fact he contends that as these provisions are in conflict with those of article 483 they have the effect
of repealing that section.

Under the system of criminal procedure existing here under the Spanish Government it was doubtless
lawfull to require a suspected or accused person to give evidence touching the crime of which he was
charged or suspected.

And so in order to arrive at a true interpretation of article 483 it is necessary to examine that system of
procedure.

In Escriche's Dictionary of Legislation and Jurisprudence, volume 3, page 577, we find the following
description of the distinctive features of the inquisitorial system of criminal procedure, which constitutes

104
the machinery by which the legislator proposed to enforce the penalty prescribed in the article under
consideration. He say:

A criminal prosecution is divided into two principal parts or sections which are, first, the summary, and
second, the penalty stages. The principal purpose of the summary trial is to inquire whether a criminal act
has been committed and to determine by whom the act has been committed — that is to say, the object
is to get together all the date possible for the purpose of proving that an act falling within the sanction of
the penal law has been committed by such and such persons. In the plenary stage the purpose is a
contradictory discussion of the question of the guilt or innocence of the defendant, and the rendition of
a judgment of conviction or acquittal. It may well be that although it appear in the summary stage of the
proceeding that the act has been performed by the accused, still in the plenary stage it may be shown
that the act was not really criminal or that there was a lawful excuse for its commission.

The record of the summary proceeding should contain evidence of the commission of a punishable act,
all possible data tending to point out the delinquent, a record of all proceedings connected with his arrest
and imprisonment, the answers of the accused to the interrogatories put to him as to any other witness
to obtain from him a statement of all he knows concerning the crime and those guilty of it.

The record of the proceedings described above was then sent to the prosecuting attorney, or to the
private accuser and in view of the facts which appeared from the record the prosecution made out the
formal charge, the facts elicited by the proceeding enabling the prosecuting attorney to determine within
what article of the Penal Code the criminal act fell. After the filing of such a charge further proceedings
were had in which more evidence might be taken by either party and in which the accused had his
opportunity to make a defense.

The summary proceeding was secret, but the plenary stage was conducted publicly.

Article 544 of the royal decree of May 6, 1880, which provided the procedural law applicable in criminal
cases in the Islands, reads as follows: "The defendant can not decline to answer by questions addressed
him by the judge, or by the prosecuting attorney, with the consent of the judge, or by the private
prosecutor, even though he may believe the judge to be without jurisdiction, in which case he may record
a protest against the authority of the court."

The author above cited, Escriche, commenting upon this obligation on the part of the defendant to testify,
says that in case he stands mute the court can not put him to the torture as formerly, but can only inform
the prisoner that his silence is unfavorable to him, that it is an indication of his guilt, that in consequence
thereof he will be regarded as guilt for all the purposes of the summary, and that his silence will be taken

105
into account with all the other evidence against him when the time comes for the rendition of judgment
upon him.

Now let us apply the rules of law above indicated to the case in question, supposing that the crime had
been committed prior to the passage of the Philippine bill or General Orders, No. 58. The judicial
authorities having reason to believe that some one has been illegally detained or kidnapped proceed to
make a secret investigation of the case, arrest the suspected culprit, and demand of him that he give any
information he may have concerning the act under investigation and to state whatever may have been
his own participation therein. The evidence shows that some one has been taken away from home and
has not been heard of again, and the facts point to the prisoner as the presumptive criminal. He is told to
state what he knows of the matter. If he does so, and proves that the person detained was liberated by
him, or that such person is living in such and such a place, then the prosecuting attorney will know that
he must draw a charge under the first or following sections of article 481, according to whether the facts
elicited by the preliminary or summary investigation show only a detention in general, or for the specific
periods of time indicated in the latter part of the section. But if the prisoner fails to prove the whereabouts
of the person whom he is accused of making away with, or that he liberated him, then the prosecuting
attorney has a case falling within the last paragraph of article 483.

It follows, therefore, from an examination of the old law that no prosecution under this article would have
ever been possible without a concomitant provision of the procedural law which made it the duty of the
accused to testify and permitted the prosecution to draw an unfavorable deduction from his refusal to do
so. The crime defined by article 483 was composed of three elements:

(a) The illegal detention of a person by the accused.

(b) Lack of evidence up to the time of the summary investigation that this person had recovered his liberty.

(c) A failure on the part of the accused in the course of the summary proceeding to prove that he had
liberated the person detained, or to give information at that time of his whereabouts, or a refusal to give
any evidence at all which left him in the same position as would an unsuccessful attempt to prove the
facts above mentioned, and which were necessary to overcome the prima facie case made out by the
proof of the first two elements.

Now every one of these ingredients of the offense must exists before an information can be filed for a
prosecution under this article. The real trial was the plenary and was very similar to out regular trial after
arraignment. But the summary, with its secret and inquisitorial methods, was vastly different from our
preliminary investigation. If the right had been taken away to question the accused and compel him to
testify, then element (c) above indicated, would have always been lacking. And that right has been taken

106
from the prosecution by both General Orders, No. 58, and by the guaranty embodied in the Philippine bill.
That being the case the crime defined in article 483 can not now be committed, because the possibility of
adding to the element (a) arising from the act of the accused the other two elements equally essential to
the offense has been forever swept away by the extension to these Islands of the constitutional barrier
against an inquisitorial investigation of crime.

Under the present system the information must charge the accused with acts committed by him prior to
the filing of the information and which of themselves constitute an offense against the law. The
Government can not charge a man with one of the necessary elements of an offense and trust to his
making out the rest by availing himself of his right to leave the entire burden of prosecuting on the
prosecution from beginning to end.

In this case the prosecuting attorney charges the accused with kidnapping some person and with not
having given any information of the whereabouts of that person, of having proved that he — the accused
— has set him at liberty. To make out a case the Government must show that the prisoner has been guilty
of every act or omission necessary to constitute the crime of which he is charged, and it will not be
disputed that the exercise of an absolute right can not form part of a crime. In this case the Government
has proved that the defendant was guilty of a breach of his duty to respect the rights of others by showing
that he, with others, carried a certain individual away from his house against his will, the accused not
being vested with authority to restrain his fellow-citizens of liberty. It is impossible for the Government to
prove the other elements of the crime, because the acts necessary to constitute them must be anterior
in point of time to the trial, and must constitute some breach of duty under an existing law. It has been
demonstrated that the omission which, under the former law constituted the two remaining elements, is
no longer penalized but is nothing more than the exercise of one of the most essential rights pertaining
to an accused person.

The provision that no one is bound to criminate himself is older than the Government of the United States.
At an early day it became a part of the common law of England.

It was established on the grounds of public policy and humanity — of policy, because if the party were
required to testify, it would place the witness under the strongest temptation to commit the crime of
perjury, and of humanity, because it would prevent the extorting of confessions by duress.

It had its origin in a protest against the inquisitorial methods of interrogating the accused person, which
had long obtained in the continental system. (Jones's Law of Evidence, sec. 887; Black's Constitutional
Law, 575.)

107
In other words, the very object of adopting this provision of law was to wipe out such practices as formerly
prevailed in these Islands of requiring accused persons to submit to judicial examinations, and to get
testimony regarding the offense with which they were charged.

In Emery's case (107 Mass., 172) it was said that the principle applies equally to any compulsory disclosure
of the guilt of the offender himself, whether sought directly as the object of the inquiry, or indirectly and
incidentally for the purpose of establishing facts involved in an issue between the parties.

If the disclosure thus made would be capable of being used against him as a confession of crime, or an
admission of facts tending to prove the commission of an offense, such disclosure would be an accusation
against himself.

In the present case, if the defendant, as said before disclosed the whereabouts of the person taken, or
shows that he was given his liberty, this disclosure may be used to obtain a conviction under article 481
of the Penal Code.

The decision of the case of Boyd vs. The United States (116 U. S., 616) is authority for the contention in
the present case. There the question raised was one of a violation of the revenue laws, it being claimed
that false entry of merchandise had been made, the punishment for which was fixed by law at a fine not
exceeding $5,000 nor less than $50, or by imprisonment.

It became important on the part of the prosecution to show the quality of the goods imported. Section 5
of the Revenue Law, passed in June, 1874, authorized the district attorney to obtain an order of court
requiring the defendants to produce their invoices, books, papers, etc., to be examined by the district
attorney in order to obtain such evidence as he desired. Such an order was served on the defendant. The
invoices were produced under protest, the objection being that their introduction in evidence could not
be compelled and that the statute was unconstitutional as it compelled the defendant to testify against
himself.

The law provided that for a failure or refusal to produce the invoices the allegations stated by the district
attorney as to what he expected to prove by them should be taken as confessed, unless the failure of
refusal of the defendant to produce the same shall be explained to the satisfaction of the court.

The court stated that a compulsory production of a man's private papers to establish a criminal charge
against himself, or to forfeit his property is unconstitutional.

108
The law, it is true, only required the defendant to produce the invoices, but it declared that if he did not
do so then the allegations which it is affirmed the district attorney will prove shall be taken as confessed.
"This," said the court, "is tantamount to compelling their production for the prosecution will always be
sure to state the evidence expected to be derived from them as strongly as the case will admit of."

Precisely the same of law applies to the case at bar. If the defendant does not do certain things, if he does
not make certain statements or proofs, he is severely punished.

It may be said that the defendant is only required to speak on one point in the case, that the prosecution
must prove the illegal detention, and that the burden of showing the whereabouts only is put upon the
defendant.

Chief Justice Marshall, in the trial of Aaron Burr, expressed his views on this question as follows:

Many links frequently compose the chain of testimony which is necessary to convict an individual of a
crime. It appears to the court to be the true sense of the rule that not witness is compelled to furnish any
one of them against himself. It is certainly not only a possible but a probable case that a witness by
declaring a single fact may complete the testimony against himself as entirely as he would by stating every
circumstance which would be required for his conviction. The fact of itself would be unavailing, but all the
other facts without it would be insufficient. While that remains concealed in his own bosom he is safe,
but draw it from thence and he is exposed to a prosecution.1

If it be urged that the defendant is not compelled to testify, that he remain mute, the answer is that, the
illegal detention only being proved by the prosecution, if he does not make certain proof, if he remains
mute, then not only the presumption but the fact of guilt follows as a consequence of his silence, and such
a conclusion is not permitted under American law.

In the case of the People vs. Courtney (94 N. Y., 490), decided by the court of appeals of the State of New
York, the question to be determined was whether or not a law permitting a person charged with crime to
testify in his own behalf was constitutional or not. The law in question provided also that his omission or
refusal to testify "should create no presumption against him." Judge Andrews, in rendering the decision
of the court, stated: "A law which, while permitting a person accused of a crime to be a witness in his own
behalf, should at the same time authorize a presumption of guilt from his omission to testify, would be a
law adjudging guilt without evidence, and while it might not be obnoxious to the constitutional provision
against compelling a party in a criminal case to give evidence against himself, would be a law reversing
the presumption of innocence, and would violate the fundamental principles binding alike upon the
legislature and the courts."

109
It is the duty of the prosecution, in order to convict one of a crime, to produce evidence showing guilt
beyond a reasonable doubt; and the accused can not be called upon either by express words or acts to
assist in the production of such evidence; nor should his silence be taken as proof against him. He has a
right to rely on the presumption of innocence until the prosecution proves him guilty of every element of
the crime with which he is charged.

In the language of Mr. Justice Bradley, in the Boyd case, "any compulsory discovery by extorting the party's
oath . . . to convict him of a crime . . . is contrary to the principles of free government; it is abhorrent to
the instincts of an Englishman; it is abhorrent to the instincts of an American. It may suit the purposes to
despotic power but it can not abide the pure atmosphere of political liberty and personal freedom."

The judgment of the Court of First Instance is reversed and the defendants are found guilty of the crime
defined and punished by article 482 of the Penal Code; applying the aggravating circumstance of
nocturnity each and every one of them is condemned to eighteen years of reclusion temporal, with the
legal accessory penalties, and to the payment of the costs of both instances.

Arellano, C. J., Cooper and Johnson, JJ., concur.

Separate Opinions

MAPA, J., with whom concur WILLARD and TORRES, JJ., dissenting:

When a person is illegally detained he may recover his liberty or he may not be seen or heard of again. In
the first case the crime would fall within the provisions of articles 481, 482, and 483, paragraph 1 of the
Penal Code, according to the circumstances of the case. The maximum penalty which could be imposed
upon this hypothesis would be that of reclusion temporal, fixed by article 482.

If the person detained is not seen or heard again, the crime is unquestionably a more serious one, and the
code, in order to be consistent with the system adopted by it of making the penalty attached to crimes
correspond to the extent and degree of the harm occasioned thereby, necessarily had to fix a heavier
penalty upon the illegal detention of a person followed by his complete disappearance, than in any of the
cases in which the person detained recovers his liberty. "The disappearance of a person who has been
illegally detained by another," says Groizard, in his Commentaries on the Penal Code, volume 5, page 633,

110
"is certainly sufficient to cause alarm to society. It constitutes a natural increase of the mediate harm
caused by the crime of illegal detention, and gives rise to a well-founded presumption of an increased
extent or immediate harm."

The greater the harm caused by the crime, the greater and more severe the penalty attached to it. This is
the system invariably followed by our code.

It appearing, then, that the code fixes the penalty of reclusion temporal when the person detained
recovers his liberty if his detention has lasted more than twenty days, or any other of the aggravating
circumstances expressed in article 482 concur, it was logical and unavoidably necessary, in order not to
destroy the unity of the system referred to, that the code should fix a heavier penalty than reclusion
temporal for a case in which the person detained has disappeared, owing to the greater gravity with which
the circumstance invests the crime. This would be so if only on account of the fact while the illegal
detention continues, while the person detained remains in the power of his captors, he continues to be
expressed to the danger of being a helpless and defenseless victim of violence and ill treatment of every
kind, including the loss of his life. Hence the code has fixed the penalty of cadena temporal in its maximum
degree to life imprisonment (cadena perpetua) when the person detained disappears.

"One who illegally detains another," says paragraph 2 of article 483, "and fails to give information
concerning his whereabouts, or does not prove that he has set him at liberty, shall be punished with
cadena temporal in its maximum degree to life imprisonment (cadena perpetua)."

The fact that Felix Punsalan was kidnapped by the accused in November, 1901, having been fully proven,
and the fact that he has disappeared and that nothing has been heard of him up to the present time
having been also proven, we think that the case should be determined in accordance with the provisions
of article 483 above transcribed, and that the defendants should be sentenced to the penalty of life
imprisonment (cadena perpetua), taking into consideration the aggravating circumstance of nocturnity,
inasmuch as they have not given information as to the whereabouts of Punsalan, and have not proven
that they set him at liberty.

In the opinion of the majority of the court this article "has the effect of forcing the defendant to become
a witness in his own behalf or to take a much severer punishment. The burden is put upon him of giving
evidence if he desires to lessen the penalty, or in other words of incriminating himself, for the very
statement of the whereabouts of the victim or the proof that the defendant set him at liberty, amounts
to a confession that the defendant unlawfully detained the person." As a consequence of this
interpretation, the majority are of the opinion that this article has been repealed by section 5 of the
Philippine bill, enacted July 1, 1902, which provides that no person shall be compelled in any criminal case
to be a witness against himself, and by the provisions of section 57 and 59 of General Orders, No. 58,
which provide that the defendant in a criminal case shall be presumed to be innocent until the contrary

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is proved, and that the burden of the proof of guilt shall be upon the prosecution. "It follows, therefore,
from an examination of the old law," say the majority, "that no prosecution under this section would ever
have been possible (par. 2, art. 483) without a concomitant provision of the procedural law, which made
it the duty of the accused to testify and permitted the prosecution to draw an unfavorable inference from
his refusal to do so." If the right had been taken away to question the accused and compel him to testify,
the majority of the court are of the opinion that one of the essential elements of the crime defined and
punished by article 483 would always have been lacking, and that right they say has been taken from the
prosecution by both General Orders, No. 58, and the guaranty embodied in the Philippine bill.

Article 554 of the compilation of rules concerning criminal procedure, approved by the royal decree of
May 6, defendant can not decline to answer the questions addressed him by the judge or by the
prosecuting attorney with the consent of the judge, or by the private prosecutor, even though he may
believe the judge to be without jurisdiction, in which case he may record a protest against the authority
of the court," does in fact appear to support the opinion of the majority with respect to the obligation
which it is assumed rested upon the accused under the old system of procedure to appear as a witness.
This provision of law, however, carefully considered, lacks a great deal of having the meaning and scope
attributed to it in the majority opinion, for neither the article in question nor any other article in the royal
decree cited, or any other provision of law of which we are aware, provides for any penalty in case the
accused should refuse to testify. Far from it, paragraph 2 of article 545 of the royal decree in question
provides that "in no case shall the defendant be questioned or cross-examined," and article 541 in its last
paragraph provides: "Nor shall the defendant be in any way threatened or coerced." Article 543 provides
that a judge who disregards this precept shall be subject to a disciplinary correction unless the offense is
such as to require still heavier punishment.

The use of threats or coercion against the accused being prohibited in absolute and precise terms, how
could it be lawful to threaten him, as Escriche states in his Dictionary of Legislation and Jurisprudence,
cited by the majority in support of their opinion (a work which, by the way, was written long before the
enactment of the procedural law in force in the Philippines at the time General Orders, No. 58, was
published) — how could it be lawful, we say, to coerce the accused by informing him that "his silence is
prejudicial to him, that it is an indication of his guilt, that he will be thereby considered guilty, and that his
refusal to testify will be taken into consideration, together with all other evidence against him when the
time arrives for rendering judgment?" Would this not be an actual coercion, and a coercion of the worst
kind, inasmuch as it implies a threat, also prohibited by the law, of a certain and sure conviction, for the
purpose of constraining and compelling the accused to testify? Would not the judge making such a threat
become subject to the punishment prescribed by article 543 above cited?

Escriche himself, in his article on criminal procedure in the work above mentioned, in speaking of the
testimony of defendants says that "all coercion is prohibited by law." "This," he adds, "has done away with
all physical or moral compulsion to obtain testimony." And in paragraph 70 of the same article he also
says as follows: "If the defendant remains silent when called upon to plead, and refuses to answer the
charges made against him by the judge, he can not be compelled to answer . . .; nor does it appear that

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this can be regarded as a plea of guilt, or that the accused can be considered as the author of the crime
on that account.

Providing for the case of the accused refusing to testify, article 392 of the Law of Criminal Procedure of
1882 provides that "when the accused refuses to answer or pretends to be insane, or dumb, the judge
shall warn him that notwithstanding his silence the prosecution will continue." This is the only thing which
can be done in such a case — the only thing the law permits — and anything which may be done beyond
that for the purpose of bringing pressure to bear, no matter how light, upon the accused to constrain him
to testify would be unjust and illegal.

If, therefore, the law prescribes no penalty for the refusal of the accused to testify, and if an accused
person who does so refuse can not be compelled to do so in any way, if the only procedure which the law
authorizes, if the only action which the judge can take in that case is to continue the prosecution
notwithstanding this denial, how can it be successfully contended that the accused was obliged to testify?
If the law had assumed to impose upon him such an obligation it would have prescribed some adequate
means of enforcing it, for there can not be an obligation in the true legal sense of the word without the
coexistence of some penalty by which to enforce its performance.

Thus, for example, the law in imposing upon witnesses the obligation to testify, at the same time
prescribes a penalty for one who refuses to perform this duty. Article 560 of the compilation says that "all
persons residing in Spanish territory, whether natives or foreigners, who are not under disability, shall be
obliged to respond to a judicial citation to testify as to all matters within their knowledge concerning
which they may be questioned." And article 567 providing that "he who, not being under disability, shall
fail to respond to the first judicial citation . . ., or shall refuse to testify as to the facts concerning which he
may be interrogated . . . shall be subject to a fine of not less than 25 nor more than 250 pesetas; and if he
should persist in his resistance he shall in the first case be taken before the court by the officers of the law
and prosecuted for the crime defined and punished in paragraph 2 of article 383 of the Penal Code (art.
252 of the Code of these Islands), and in the second case shall also be prosecuted for the crime defined
and punished in article 265 of the same Code." (Art. 368 of the Philippine Code.)

This provision of law certainly constitutes a significant contrast to the absence of any other similar
coercive provision which might produce the effect of compelling accused persons to testify against their
will, and this demonstrates that the law did not propose to impose upon them such an obligation.

To such a degree has the law carried its respect for the conscience of accused persons and for their natural
desire to refrain from incriminating statements that is absolutely prohibits the administration of an oath
even in cases in which such persons voluntarily offer to testify. (Art. 593 of the Compilation, par. 17 of the
royal order (auto acordado) of 1860, and art. 9 of the royal cedula of 1855), thus leaving them entirely at
liberty to testify as they may see fit, whether false or true, without the fear, which necessarily produces a

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certain moral pressure, of thereby incurring the guilt of perjury. On this account, and of the fact of the
absolute prohibition of using any threats or coercion against them, the practical result was that not only
might accused persons testify with impunity as to whatever they might see fit, even if false, when
voluntarily offering themselves as witnesses, but that they could never be compelled against their will to
testify at all. This is equivalent to saying that accused persons were not under any obligation to testify.

We have stated that the law did not authorize the drawing of any inference as to the guilt of the accused
from his silence, and we insist that such is the case. We believe that no provision of law can be cited in
support of the contrary proposition. To what has been said above upon this point we may add that among
the means of proof of the guilt of the accused expressly mentioned in article 52 of the provisional law for
the application of the Penal Code in the Philippines, the silence of the accused or his refusal to testify is
not included.

In corroboration of the assertions heretofore made we refer to a work published in 1883 by the editorial
staff of the Review of Legislation and Jurisprudence, under the title of "Law of criminal procedure," in
which, in the chapter in which the subject of the testimony of the accused is dealt with (vol. 1, p. 257), the
following statement is made:

Is the accused under any obligation to testify? This is the first doubt which arises in examining the subject
with which this chapter deals. The law does not solve the question expressly, and consequently we must
endeavor to discover whether this obligation is imposed indirectly. We are of the opinion that it is not,
inasmuch as obligations, and more especially with respect to the penal law, are not to be presumed. Nor
do we attribute the lack of the provision to which we refer to carelessness or oversight on the part of the
legislator, both because it is such a serious matter and because it is expressly provided that the accused
is under no obligation to testify, and because our former laws and the law of Aragon, before the laws of
other European countries, relieved accused persons from the obligation of taking an oath in order not to
place them in the predicament of either telling a falsehood and thereby committing perjury, or of
declaring themselves to be guilt of a crime of which they are charged. That is to say, our ancient laws of
Aragon and the other laws of Europe which copied the provisions of the laws of Aragon when providing
that accused persons should not be required to take an oath, or permitted to do so, were based upon the
principle which is at the present time recognized by all criminologists of Europe, that the accused should
not be required under penalty to aid in the prosecution of the crime of which he is charged. Upon these
principles, which at the present time are beyond question, it can not be inferred that the accused is under
obligation to testify.

For the purpose of supporting this contention we have still many other reasons. Upon the supposition
that the law imposes upon the defendant the obligation to testify what penalty exists for the failure to
perform this obligation? None, absolutely none; so that assuming the obligation to exist, if the accused
should refuse to testify, he might do so with absolute immunity, for in such case there is no coercion
measure which can be used since the abolition of torture. Consequently if our law had imposed the

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obligation of testifying upon accused persons, they would have provided some adequate penalty. And not
only is this conclusion to be reached from an examination of all modern systems of law, without any
exception, but it is based upon the express provisions of the law we are commenting upon in article 392
and the last paragraph of article 689 [should be 389], which provides that no coercion or threats can be
used against the accused, and to endeavor to compel him to testify would certainly be a coercion. If the
accused refuses to testify, notwithstanding his silence, the prosecution will continue without any
prejudice whatever to the defendant. It is true that article 693 provides that the presiding judge shall
demand a categorical answer from the accused, but in case the accused refuses to give such answer there
is no penalty other than that of article 798, to wit, that the prosecution shall continue, even although the
accused shall refuse to answer the questions addressed to him by the presiding judge. Consequently this
appears to decide the question in favor of our contention. If the accused refuses to testify, that is his
privilege, but the trial will continue down to final judgment.

With respect to the legal presumption of the innocence of the accused in the absence of proof to the
contrary, this is not a new principle in the law of criminal procedure of the Philippine, nor was it introduced
here by General Orders, No. 58, as might be inferred from the majority opinion. Centuries ago the Code
of the Partidas, which for a long time constituted an integral part of the laws of this Archipelago, solemnly
recognized this principle by establishing in a number of its provisions that no person should be considered
as guilty of a crime except upon proof of his guilt, and that proof to such degree as to exclude all doubt,
proof "as clear as light." "A criminal charge," says Law 12, title 14, third partida, "brought against anyone
. . . must be proved openly by witnesses or by writing, or by the confession of the accused, and not upon
suspicion alone. For it is but just that a charge brought against the person of an man, or against his
reputation, should be proved and established by evidence as clear as light, evidence not leaving room for
any doubt. Wherefore the ancient sages held and decided that it was more righteous to acquit a guilty
man, as to whom the judge could not find clear and manifest evidence, than to convict an innocent man
even though suspicion point his way."

Again, the provincial law for the application of the Penal Code which was in force here at the time of the
publication of General Orders, No. 58, also required, in order to authorize the conviction of the defendant,
that his guilt be established by some of the means of proof enumerated in article 52 of that law. In default
of this proof the presumption prevailed that the accused was innocent and the law required his acquittal.

In Escriche's Dictionary of Legislation of Jurisprudence, above cited, in the article on Criminal Evidence,
paragraph 5, the author says: "Until it appears to a certainty that the accused is guilty, it would be a crime
to condemn him to suffer any penalty whatever; because he may be innocent, and every man has a right
to be so considered until the contrary is established by proof."

It follows then that if the accused could under no circumstance be compelled to testify against his will
under the procedural law prior to General Orders, No. 58, and of that procedure the principle of the
presumption of the innocence of the accused until the contrary is proven formed part, and that

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notwithstanding this the provisions of paragraph 2 of article 483 existed, it is logical to conclude, against
the opinion of the majority, that in establishing that precept the legislator in no wise took into
consideration the supposed obligation of the accused to testify as to the charge against him, and did not
consider it incompatible with that presumption of innocence, for then as now the accused was under no
obligation to testify, and then as now the presumption referred to constituted a fundamental right of the
accused under the law of procedure.

Passing from this aspect of the question, we will now consider the provisions of paragraph 2 of article 483
of the Penal Code in connection with section 5 of the Philippine bill enacted July 1, 1902.

Pacheco, in commenting upon article 413 of the penal code of Spain, which is the equivalent of article 483
of the Code of the Philippines, in his work entitled "The Penal Code" (fifth edition, vol. 3, p. 258), says that
this article is based upon "the hypothesis that the person detained has completely disappeared." Then
the author adds: "The law considers the person guilty of this detention to be guilt by presumption of killing
the person detained, unless he proves that he set that person at liberty." Such is the essence of the crime
punished under the provisions of article 483. It does not consist solely in the detention, but in the
detention followed by the disappearance of the person detained. It is indispensable to prove these two
facts, for neither of them alone are sufficient to authorize the application of the article. But, these facts
having been proven, upon that proof alone, and without the necessity of any further evidence, then as
stated by the author cited, we have the crime punished by the article in question, and as a consequence
a case calling for the application of the penalty prescribed by that article. This being so, if for the purpose
of convicting the accused the prosecution has only to prove the two facts above mentioned, this is
doubtless because these facts and these facts alone are sufficient to constitute the crime under
consideration.

Hence it is not true, as stated in the majority opinion, that one of the constituent and essential elements
of the crime is the fact that the accused has failed to give information as to the whereabouts of the person
detained, or failed to prove that he has set him at liberty. This fact, that is to say, the fact of having given
or failed to give information as to the whereabouts or liberty of the person detained, is entirely foreign to
the essence of the crime. Not only is it not a necessary element for the existence of the crime, but is, on
the contrary, a defense, or, as Groizard says in his Commentaries to the Penal Code (vol. 5, p. 632), an
exception which the law grants the defendant as a means by which, if he avails himself of it and establishes
it by proof, he may avoid the penalty prescribed in that article. "In order that this exception be available,"
says that author, "it must be shown by competent evidence that the act alleged in defense was actually
performed." It is unnecessary to add that a defense available to the accused is not and can not be an
integral element of the crime, its direct and immediate effect being, as it is, to overcome the criminal
action arising from the crime.

It having been demonstrated that the wording of article 483 of the Code, the effect that if the person
guilty of illegal detention "does not give information as to the whereabouts of the person detained, or

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proof that he set him at liberty," had for their purpose the establishment of a defense of which the accused
may take the benefit, and that they do not constitute an essential element of the crime in question, it is
not possible in our opinion to interpret these words in the sense of imposing upon the defendant an
obligation of testifying as to those facts — an obligation which did not exist under the old system of
procedures, as we have demonstrated — because the use of a defense allowed by the law would lose its
character as such if its use were obligatory.

But it said that if the accused does not give information of the whereabouts of the person detained, or
does not prove that he set him at liberty, he becomes subject to the penalty of paragraph 2 of article 483,
which is much heavier than that prescribed by articles 481 and 482, to which he would be subject in the
contrary case. True. But what is intended to be inferred from this? Is it contended that upon this
supposition the accused is convicted by reason of the fact that he does not give information as to the
whereabouts of the person detained, or proof that he set him at liberty? Is it meant that the prosecution
has only to prove this fact in order to obtain a conviction? Is it meant that the law punishes as a crime the
silence of the accused, as the majority opinion would lead us to infer? Far from it. Nothing could be further
from the true meaning of article 483 under consideration. What is therein punished is the disappearance
of the person detained. This it is which constitutes the crime defined in that article, and this it is which
must be proven by the prosecution. If the prosecution does not prove the detention of the supposed
victim, and does not moreover prove his disappearance, no matter how complete the silence of the
accused or how obstinate his refusal to give information as to the whereabouts or liberty of the person
detained, there can be no possibility of his conviction under the article in question. This conclusively shows
that the ground of the conviction would not be the silence of the accused, but the proof offered by the
prosecution upon the two facts above mentioned, which are, as we have stated, essential elements of the
crime we are now considering.

For this reason it was that in the case of the United States vs. Eulogio de Sosa, for illegal detention, decided
February 6, 1903, the court acquitted the defendant, declaring that there was no ground upon which he
could be convicted under the provisions of paragraph 2 of article 483, giving among others the reason
that "there was not sufficient evidence that the whereabouts of Nicasio Rafael are unknown," Rafael being
the person detained. Mr. Justice Willard, who wrote the opinion of the court, in that opinion said: "The
mere fact that the accused has not given information as to the whereabouts of the person sequestered is
not sufficient to authorize a conviction." He also expressly laid down the rule that in order to justify a
conviction it is necessary that it "appear to the satisfaction of the court that the person has disappeared."
It is not necessary to add, for it is self-evident, that this decision implies the proposition that paragraph 2
of article 483 of the Penal Code has not been repealed by the Philippine bill of July 1, 1902. The sense of
the decision is that if the disappearance of Nicasio Rafael had been proven, it would have been proper to
convict the accused in accordance with the provisions of the article of the code under consideration.

It is clear that the accused can overcome the evidence of the prosecution in whole or in part, either by
proving that he had not committed the alleged detention, in which case his innocence would be
completely established, or else by limiting his proof to showing that it is not true that the person detained

117
has disappeared, as, for instance, proving the whereabouts of the latter, in which case the gravity of the
crime would naturally be reduced. Whatever the evidence may be, total or partial, demonstrative of the
complete innocence of the accused, or only of a lesser degree of guilt, the law admits this defense either
as a total defense or attenuate the penalty, as the case may be. In the latter case, which is the one to
which article 483 expressly refers, the accused may prove the whereabouts of the person detained, or
show that the placed him at liberty. And because the law makes provisions for this case, which is certainly
favorable to the accused, who under such a hypothesis would be responsible solely for the fact of the
detention and not for the disappearance of the person detained, because the law expressly grants and
authorizes this exception or defense on behalf of the accused, we do not believe that the law can be
accused of injustice, or that it can not be considered as incompatible in the slightest degree with section
5 of the Philippine bill cited in the decision.

It would be, on the contrary, highly unreasonable and unjust if such a means of defense were denied to
the accused — if solely upon proof by the prosecution of the disappearance of the person detained, the
accused should be held under all circumstances responsible for this crime, even though he might show by
competent evidence the whereabouts of the person or proof that he had set him at liberty.

It is said that this exculpatory evidence required by article 483 would be accusatory for the purpose of
article 481, because the mere statement as to the whereabouts of the victim or proof that the accused
had set him at liberty implies the confession that the accused did kidnap that person.

This argument would be weighty if the introduction of this testimony were not wholly voluntary or
optional on the part of the accused. The law gives him this means of defense. It is for him to determine
whether it is for his benefit to avail himself of it or not. In the course of the trial the accused has an
opportunity to inform himself of the evidence for the prosecution, and in view of that evidence to adopt
such a plan of defense as may best suit him. If the evidence of his guilt is insufficient, if the prosecution
does not prove the detention, and furthermore the disappearance of the supposed victim, the accused
even if guilty, may remain silent, and certainty will do so as to the whereabouts or liberation of the person
detained, and may do so with the complete assurance that his silence will not in the slightest degree be
prejudicial to him, and that he can not by virtue of that silence be sentenced to any penalty whatever.

If on the contrary he sees that the evidence of the prosecution is conclusive, if he sees that it clearly
establishes his guilt, if he feels that it is absolutely convincing, if in fine he feels that he is helpless to
overcome that evidence completely, would he not instinctively realize, no matter how obtuse he may be,
that inasmuch as it is no longer possible for him to avoid conviction, it would be better for him to elect to
suffer the lesser penalty by giving information as to the whereabouts of his victim? If he does so he does
so freely and for his own convenience, and not because he is presumed by the law without evidence to
be guilty, for it has been demonstrated that then as now the presumption of the innocence of the accused
was a principle deeply rooted in the former system of procedure. Upon this supposition, even if the
accused does by implication admit the fact of the illegal detention he would be benefited thereby, because

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he would thus avoid the heavier penalty imposed for the disappearance of the person detained, and which
we assume has been established by the prosecution by sufficient evidence.

And what, we ask, but this very thing, occurs with respect to the allegation and proof of mitigating
circumstances? A defendant who alleges mitigating circumstances by implication admits the commission
of the crime with which he is charged, and seeks solely by means of that allegation to obtain a reduction
of the penalty. Can it be said on that account that the law which establishes mitigating circumstances is
unconstitutional and unjust? Can it be said with reason that such a law compels the accused to incriminate
himself because it puts before him the alternative of suffering the entire penalty prescribed for the crime,
or alleging some mitigating circumstance, confessing the commission of the offense in order to obtain a
reduction of the penalty? We can not in truth see any difference whatever between the confession of
guilt implied by allegation of a mitigating circumstance and that involved in the fact of giving information
of the whereabouts of the person detained, in crimes if illegal detention.

Apart from this, it is not true that such a statement always implies the confession of illegal detention. On
the contrary, it would be in many cases a complete denial of it. In the present case, for example, the
accused, without testifying at all, might have proved that Felix Punsalan is living at such and such a place
in the Province of Bulacan, without this statement necessarily carrying with it the conclusion that they
admit even by implication that they had sequestered him, for they might very well have knowledge of his
present whereabouts without having been guilty of sequestering or detaining him. And if the proof should
be sufficient to show that Punsalan was in that place during all the month of November, 1901, the date
on which the crime in question is alleged to have been committed, and that he remained there, entirely
at liberty from that time down to the present, this fact would show furthermore the falsity if the alleged
illegal detention of that individual.

The natural tendency of an accused person is to evade, if possible, the penalty. If the evidence for the
prosecution is such as to make it impossible to evade the penalty, then his tendency is to elect to suffer
the lightest penalty which the law authorizes. In case of paragraph 2 of article 483 of the Penal Code, the
law does not condemn the accused because of his remaining silent during the trial or because he fails to
give information of the whereabouts of the person detained. If the law convicts him it is upon the
supposition that the prosecution has fully established the fact of the illegal detention and the fact of the
disappearance of the person detained. It does not convict the accused without evidence or by reason of
his silence. It convicts him when those two facts which constitute the crime defined in that article have
been proven.

But the law, while demanding that proof from the prosecution, at the same time takes into consideration
that it may be overcome by the accused, if not with respect to the fact of the detention itself, which may
be absolutely proven, at least with respect to the disappearance of the victim, and therefore the law
commands that the accused be heard and that the evidence which he may offer on the point be
considered, when he — admitting his guilt of illegal detention in view of the evidence for the prosecution

119
— voluntarily determines to give information as to the whereabouts or liberation of the person detained.
The law grants him this exception or defense, but does not impose it upon him. It constitutes a right but
not an obligation. For the reasons stated we find no incompatibility between the provisions of paragraph
2 of article 483 of the Penal Code and section 5 of the Philippine bill of July 1, 1902. And taking into
consideration the legal doctrine that "posteriores leges ad priores pertinent, nisi contrario sint," we are
of the opinion that it has not repealed by implication — and it certainly has not done so expressly — the
provision in question of the Penal Code.

If this article had so been repealed and its principles could not therefore be applied to these accused,
neither could they be punished, strictly speaking, under article 482 of the code, cited in the decision of
the majority, because that article is based upon the fundamental supposition that the person detained
has recovered his liberty, which is not the fact in the case at bar.

Footnotes

1 25 Fed. Cases, 40.

G.R. No. 94284 April 8, 1991

RICARDO C. SILVERIO, petitioner,

vs.

THE COURT OF APPEALS, HON. BENIGNO G. GAVIOLA, as Judge of the Regional Trial Court of Cebu City,
Branch IX, and PEOPLE OF THE PHILIPPINES, respondents.

Quisumbing, Torres & Evangelista for petitioner.

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MELENCIO-HERRERA, J.:

This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court praying that the Decision of
respondent Court of Appeals in CA-G.R. SP No. 15827, entitled "Ricardo C. Silverio vs. Hon. Benigno C.
Gaviola, etc., et al.," dated 31 January 1990, as well as the Resolution of 29 June 1990 denying
reconsideration, be set aside.

On 14 October 1985, Petitioner was charged with violation of Section 20 (4) of the Revised Securities Act
in Criminal Case No. CBU-6304 of the Regional Trial Court of Cebu. In due time, he posted bail for his
provisional liberty.

On 26 January 1988, or more than two (2) years after the filing of the Information, respondent People of
the Philippines filed an Urgent ex parte Motion to cancel the passport of and to issue a hold-departure
Order against accused-petitioner on the ground that he had gone abroad several times without the
necessary Court approval resulting in postponements of the arraignment and scheduled hearings.

Overruling opposition, the Regional Trial Court, on 4 April 1988, issued an Order directing the Department
of Foreign Affairs to cancel Petitioner's passport or to deny his application therefor, and the Commission
on Immigration to prevent Petitioner from leaving the country. This order was based primarily on the Trial
Court's finding that since the filing of the Information on 14 October 1985, "the accused has not yet been
arraigned because he has never appeared in Court on the dates scheduled for his arraignment and there
is evidence to show that accused Ricardo C. Silverio, Sr. has left the country and has gone abroad without
the knowledge and permission of this Court" (Rollo, p. 45). Petitioner's Motion for Reconsideration was
denied on 28 July 1988.

Petitioner's Certiorari Petition before the Court of Appeals met a similar fate on 31 January 1990. Hence,
this Petition for Review filed on 30 July 1990.

After the respective pleadings required by the Court were filed, we resolved to give due course and to
decide the case.

Petitioner contends that respondent Court of Appeals erred in not finding that the Trial Court committed
grave abuse of discretion amounting to lack of jurisdiction in issuing its Orders, dated 4 April and 28 July
1988, (1) on the basis of facts allegedly patently erroneous, claiming that the scheduled arraignments
could not be held because there was a pending Motion to Quash the Information; and (2) finding that the
right to travel can be impaired upon lawful order of the Court, even on grounds other than the "interest
of national security, public safety or public health."

121
We perceive no reversible error.

1) Although the date of the filing of the Motion to Quash has been omitted by Petitioner, it is
apparent that it was filed long after the filing of the Information in 1985 and only after several
arraignments had already been scheduled and cancelled due to Petitioner's non-appearance. In fact, said
Motion to Quash was set for hearing only on 19 February 1988. Convincingly shown by the Trial Court and
conformed to by respondent Appellate Court is the concurrence of the following circumstances:

1. The records will show that the information was filed on October 14, 1985. Until this date (28 July
1988), the case had yet to be arraigned. Several scheduled arraignments were cancelled and reset, mostly
due to the failure of accused Silverio to appear. The reason for accused Silverio's failure to appear had
invariably been because he is abroad in the United States of America;

2. Since the information was filed, until this date, accused Silverio had never appeared in person
before the Court;

3. The bond posted by accused Silverio had been cancelled twice and warrants of arrest had been
issued against him all for the same reason –– failure to appear at scheduled arraignments.

In all candidness, the Court makes the observation that it has given accused Silverio more than enough
consideration. The limit had long been reached (Order, 28 July 1988, Crim. Case No. CBU-6304, RTC, Cebu,
p. 5; Rollo, p. 73).

Patently, therefore, the questioned RTC Orders, dated 4 April 1988 and 28 July 1988, were not based on
erroneous facts, as Petitioner would want this Court to believe. To all appearances, the pendency of a
Motion to Quash came about only after several settings for arraignment had been scheduled and
cancelled by reason of Petitioner's non-appearance.

2) Petitioner's further submission is that respondent Appellate Court "glaringly erred" in finding that
the right to travel can be impaired upon lawful order of the Court, even on grounds other than the
"interest of national security, public safety or public health."

To start with, and this has not been controverted by Petitioner, the bail bond he had posted had been
cancelled and Warrants of Arrest had been issued against him by reason, in both instances, of his failure

122
to appear at scheduled arraignments. Warrants of Arrest having been issued against him for violation of
the conditions of his bail bond, he should be taken into custody. "Bail is the security given for the release
of a person in custody of the law, furnished by him or a bondsman, conditioned upon his appearance
before any court when so required by the Court or the Rules (1985 Rules on Criminal Procedure, as
amended, Rule 114, Secs. 1 and 2).

The foregoing condition imposed upon an accused to make himself available at all times whenever the
Court requires his presence operates as a valid restriction of his right to travel (Manotoc, Jr. vs. Court of
Appeals, et al. No. 62100, 30 May 1986, 142 SCRA 149). A person facing criminal charges may be restrained
by the Court from leaving the country or, if abroad, compelled to return (Constitutional Law, Cruz, Isagani
A., 1987 Edition, p. 138). So it is also that "An accused released on bail may be re-arrested without the
necessity of a warrant if he attempts to depart from the Philippines without prior permission of the Court
where the case is pending (ibid., Sec. 20 [2nd

par. ]).

Petitioner takes the posture, however, that while the 1987 Constitution recognizes the power of the
Courts to curtail the liberty of abode within the limits prescribed by law, it restricts the allowable
impairment of the right to travel only on grounds of interest of national security, public safety or public
health, as compared to the provisions on freedom of movement in the 1935 and 1973 Constitutions.

Under the 1935 Constitution, the liberty of abode and of travel were treated under one provision.1âwphi1
Article III, Section 1(4) thereof reads:

The liberty of abode and of changing the same within the limits prescribed by law shall not be impaired.

The 1973 Constitution altered the 1935 text by explicitly including the liberty of travel, thus:

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

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

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Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be provided by law.

Petitioner thus theorizes that under the 1987 Constitution, Courts can impair the right to travel only on
the grounds of "national security, public safety, or public health."

The submission is not well taken.

Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the liberty of travel
may be impaired even without Court Order, the appropriate executive officers or administrative
authorities are not armed with arbitrary discretion to impose limitations. They can impose limits only on
the basis of "national security, public safety, or public health" and "as may be provided by law," a limitive
phrase which did not appear in the 1973 text (The Constitution, Bernas, Joaquin G.,S.J., Vol. I, First Edition,
1987, p. 263). Apparently, the phraseology in the 1987 Constitution was a reaction to the ban on
international travel imposed under the previous regime when there was a Travel Processing Center, which
issued certificates of eligibility to travel upon application of an interested party (See Salonga vs. Hermoso
& Travel Processing Center, No. 53622, 25 April 1980, 97 SCRA 121).

Article III, Section 6 of the 1987 Constitution should by no means be construed as delimiting the inherent
power of the Courts to use all means necessary to carry their orders into effect in criminal cases pending
before them. When by law jurisdiction is conferred on a Court or judicial officer, all auxillary writs, process
and other means necessary to carry it into effect may be employed by such Court or officer (Rule 135,
Section 6, Rules of Court).

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

Petitioner is facing a criminal charge. He has posted bail but has violated the conditions thereof by failing
to appear before the Court when required. Warrants for his arrest have been issued. Those orders and
processes would be rendered nugatory if an accused were to be allowed to leave or to remain, at his
pleasure, outside the territorial confines of the country. Holding an accused in a criminal case within the
reach of the Courts by preventing his departure from the Philippines must be considered as a valid
restriction on his right to travel so that he may be dealt with in accordance with law. The offended party

124
in any criminal proceeding is the People of the Philippines. It is to their best interest that criminal
prosecutions should run their course and proceed to finality without undue delay, with an accused holding
himself amenable at all times to Court Orders and processes.

WHEREFORE, the judgment under review is hereby AFFIRMED. Costs against petitioner, Ricardo C. Silverio.

SO ORDERED.

Paras, Padilla, Sarmiento and Regalado, JJ., concur.

125
G.R. No. 179736 June 26, 2013

SPOUSES BILL AND VICTORIA HING, vs. ALEXANDER CHOACHUY, SR. and ALLAN CHOACHUY

DECISION

DEL CASTILLO, J.:

"The concept of liberty would be emasculated if it does not likewise compel respect for one's personality
as a unique individual whose claim to privacy and non-interference demands respect."1

This Petition for Review on Certiorari2 under Rule 45 of the Rules of Court assails the July 10, 2007
Decision3 and the September 11, 2007 Resolution4 of the Court of Appeals (CA) in CA-G.R. CEB-SP No.
01473.

Factual Antecedents

On August 23, 2005, petitioner-spouses Bill and Victoria Hing filed with the Regional Trial Court (RTC) of
Mandaue City a Complaint5 for Injunction and Damages with prayer for issuance of a Writ of Preliminary
Mandatory Injunction/Temporary Restraining Order (TRO), docketed as Civil Case MAN-5223 and raffled
to Branch 28, against respondents Alexander Choachuy, Sr. and Allan Choachuy.

Petitioners alleged that they are the registered owners of a parcel of land (Lot 1900-B) covered by Transfer
Certificate of Title (TCT) No. 42817 situated in Barangay Basak, City of Mandaue, Cebu;6 that respondents
are the owners of Aldo Development & Resources, Inc. (Aldo) located at Lots 1901 and 1900-C, adjacent
to the property of petitioners;7 that respondents constructed an auto-repair shop building (Aldo
Goodyear Servitec) on Lot 1900-C; that in April 2005, Aldo filed a case against petitioners for Injunction
and Damages with Writ of Preliminary Injunction/TRO, docketed as Civil Case No. MAN-5125;8 that in that
case, Aldo claimed that petitioners were constructing a fence without a valid permit and that the said
construction would destroy the wall of its building, which is adjacent to petitioners’ property;9 that the
court, in that case, denied Aldo’s application for preliminary injunction for failure to substantiate its
allegations;10 that, in order to get evidence to support the said case, respondents on June 13, 2005
illegally set-up and installed on the building of Aldo Goodyear Servitec two video surveillance cameras
facing petitioners’ property;11 that respondents, through their employees and without the consent of
petitioners, also took pictures of petitioners’ on-going construction;12 and that the acts of respondents

126
violate petitioners’ right to privacy.13 Thus, petitioners prayed that respondents be ordered to remove
the video surveillance cameras and enjoined from conducting illegal surveillance.14

In their Answer with Counterclaim,15 respondents claimed that they did not install the video surveillance
cameras,16 nor did they order their employees to take pictures of petitioners’ construction.17 They also
clarified that they are not the owners of Aldo but are mere stockholders.18

Ruling of the Regional Trial Court

On October 18, 2005, the RTC issued an Order19 granting the application for a TRO. The dispositive portion
of the said Order reads:

WHEREFORE, the application for a Temporary Restraining Order or a Writ of Preliminary Injunction is
granted. Upon the filing and approval of a bond by petitioners, which the Court sets at ₱50,000.00, let a
Writ of Preliminary Injunction issue against the respondents Alexander Choachuy, Sr. and Allan Choachuy.
They are hereby directed to immediately remove the revolving camera that they installed at the left side
of their building overlooking the side of petitioners’ lot and to transfer and operate it elsewhere at the
back where petitioners’ property can no longer be viewed within a distance of about 2-3 meters from the
left corner of Aldo Servitec, facing the road.

IT IS SO ORDERED.20

Respondents moved for a reconsideration21 but the RTC denied the same in its Order22 dated February
6, 2006.23 Thus:

WHEREFORE, the Motion for Reconsideration is hereby DENIED for lack of merit. Issue a Writ of
Preliminary Injunction in consonance with the Order dated 18 October 2005.

IT IS SO ORDERED.24

Aggrieved, respondents filed with the CA a Petition for Certiorari25 under Rule 65 of the Rules of Court
with application for a TRO and/or Writ of Preliminary Injunction.

127
Ruling of the Court of Appeals

On July 10, 2007, the CA issued its Decision26 granting the Petition for Certiorari. The CA ruled that the
Writ of Preliminary Injunction was issued with grave abuse of discretion because petitioners failed to show
a clear and unmistakable right to an injunctive writ.27 The CA explained that the right to privacy of
residence under Article 26(1) of the Civil Code was not violated since the property subject of the
controversy is not used as a residence.28 The CA alsosaid that since respondents are not the owners of
the building, they could not have installed video surveillance cameras.29 They are mere stockholders of
Aldo, which has a separate juridical personality.30 Thus, they are not the proper parties.31 The fallo reads:

WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us GRANTING the
petition filed in this case. The assailed orders dated October 18, 2005 and February 6, 2006 issued by the
respondent judge are hereby ANNULLED and SET ASIDE.

SO ORDERED.32

Issues

Hence, this recourse by petitioners arguing that:

I.

THE X X X CA COMMITTED A REVERSIBLE ERROR WHEN IT ANNULLED AND SET ASIDE THE ORDERS OF THE
RTC DATED 18 OCTOBER 2005 AND 6 FEBRUARY 2006 HOLDING THAT THEY WERE ISSUED WITH GRAVE
ABUSE OF DISCRETION.

II.

THE X X X CA COMMITTED A REVERSIBLE ERROR WHEN IT RULED THAT PETITIONER SPOUSES HING ARE
NOT ENTITLED TO THE WRIT OF PRELIMINARY INJUNCTION ON THE GROUND THAT THERE IS NO
VIOLATION OF THEIR CONSTITUTIONAL AND CIVIL RIGHT TO PRIVACY DESPITE THE FACTUAL FINDINGS OF
THE RTC, WHICH RESPONDENTS CHOACHUY FAILED TO REFUTE, THAT THE ILLEGALLY INSTALLED
SURVEILLANCE CAMERAS OF RESPONDENTS CHOACH[U]Y WOULD CAPTURE THE PRIVATE ACTIVITIES OF
PETITIONER SPOUSES HING, THEIR CHILDREN AND EMPLOYEES.

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III.

THE X X X CA COMMITTED A REVERSIBLE ERROR WHEN IT RULED THAT SINCE THE OWNER OF THE
BUILDING IS ALDO DEVELOPMENT AND RESOURCES, INC. THEN TO SUE RESPONDENTS CHOACHUY
CONSTITUTES A PURPORTEDLY UNWARRANTED PIERCING OF THE CORPORATE VEIL.

IV.

THE X X X CA COMMITTED A REVERSIBLE ERROR WHEN IT IGNORED THE SERIOUS FORMAL DEFICIENCIES
OF BOTH THE PETITION AND THE MOTION FOR RECONSIDERATION DATED 15 MARCH 2006 OF
RESPONDENTS CHOACHUY AND GAVE X X X THEM DUE COURSE AND CONSIDERATION.33

Essentially, the issues boil down to (1) whether there is a violation of petitioners’ right to privacy, and (2)
whether respondents are the proper parties to this suit.

Petitioners’ Arguments

Petitioners insist that they are entitled to the issuance of a Writ of Preliminary Injunction because
respondents’ installation of a stationary camera directly facing petitioners’ property and a revolving
camera covering a significant portion of the same property constitutes a violation of petitioners’ right to
privacy.34 Petitioners cite Article 26(1) of the Civil Code, which enjoins persons from prying into the
private lives of others.35 Although the said provision pertains to the privacy of another’s residence,
petitioners opine that it includes business offices, citing Professor Arturo M. Tolentino.36 Thus, even
assuming arguendo that petitioners’ property is used for business, it is still covered by the said
provision.37

As to whether respondents are the proper parties to implead in this case, petitioners claim that
respondents and Aldo are one and the same, and that respondents only want to hide behind Aldo’s
corporate fiction.38 They point out that if respondents are not the real owners of the building, where the
video surveillance cameras were installed, then they had no business consenting to the ocular inspection
conducted by the court.39

Respondents’ Arguments

129
Respondents, on the other hand, echo the ruling of the CA that petitioners cannot invoke their right to
privacy since the property involved is not used as a residence.40 Respondents maintain that they had
nothing to do with the installation of the video surveillance cameras as these were installed by Aldo, the
registered owner of the building,41 as additional security for its building.42 Hence, they were wrongfully
impleaded in this case.43

Our Ruling

The Petition is meritorious.

The right to privacy is the right to be let alone.

The right to privacy is enshrined in our Constitution44 and in our laws. It is defined as "the right to be free
from unwarranted exploitation of one’s person or from intrusion into one’s private activities in such a way
as to cause humiliation to a person’s ordinary sensibilities."45 It is the right of an individual "to be free
from unwarranted publicity, or to live without unwarranted interference by the public in matters in which
the public is not necessarily concerned."46 Simply put, the right to privacy is "the right to be let alone."47

The Bill of Rights guarantees the people’s right to privacy and protects them against the State’s abuse of
power. In this regard, the State recognizes the right of the people to be secure in their houses. No one,
not even the State, except "in case of overriding social need and then only under the stringent procedural
safeguards," can disturb them in the privacy of their homes.48

The right to privacy under Article 26(1)

of the Civil Code covers business offices

where the public are excluded

therefrom and only certain individuals

are allowed to enter.

130
Article 26(1) of the Civil Code, on the other hand, protects an individual’s right to privacy and provides a
legal remedy against abuses that may be committed against him by other individuals. It states:

Art. 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and
other persons. The following and similar acts, though they may not constitute a criminal offense, shall
produce a cause of action for damages, prevention and other relief:

(1) Prying into the privacy of another’s residence;

xxxx

This provision recognizes that a man’s house is his castle, where his right to privacy cannot be denied or
even restricted by others. It includes "any act of intrusion into, peeping or peering inquisitively into the
residence of another without the consent of the latter."49 The phrase "prying into the privacy of another’s
residence," however, does not mean that only the residence is entitled to privacy. As elucidated by Civil
law expert Arturo M. Tolentino:

Our Code specifically mentions "prying into the privacy of another’s residence." This does not mean,
however, that only the residence is entitled to privacy, because the law covers also "similar acts." A
business office is entitled to the same privacy when the public is excluded therefrom and only such
individuals as are allowed to enter may come in. x x x50 (Emphasis supplied)

Thus, an individual’s right to privacy under Article 26(1) of the Civil Code should not be confined to his
house or residence as it may extend to places where he has the right to exclude the public or deny them
access. The phrase "prying into the privacy of another’s residence," therefore, covers places, locations, or
even situations which an individual considers as private. And as long as his right is recognized by society,
other individuals may not infringe on his right to privacy. The CA, therefore, erred in limiting the
application of Article 26(1) of the Civil Code only to residences.

The "reasonable expectation of

privacy" test is used to determine

whether there is a violation of the right

to privacy.

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In ascertaining whether there is a violation of the right to privacy, courts use the "reasonable expectation
of privacy" test. This test determines whether a person has a reasonable expectation of privacy and
whether the expectation has been violated.51 In Ople v. Torres,52 we enunciated that "the
reasonableness of a person’s expectation of privacy depends on a two-part test: (1) whether, by his
conduct, the individual has exhibited an expectation of privacy; and (2) this expectation is one that society
recognizes as reasonable." Customs, community norms, and practices may, therefore, limit or extend an
individual’s "reasonable expectation of privacy."53 Hence, the reasonableness of a person’s expectation
of privacy must be determined on a case-to-case basis since it depends on the factual circumstances
surrounding the case.54

In this day and age, video surveillance cameras are installed practically everywhere for the protection and
safety of everyone. The installation of these cameras, however, should not cover places where there is
reasonable expectation of privacy, unless the consent of the individual, whose right to privacy would be
affected, was obtained. Nor should these cameras be used to pry into the privacy of another’s residence
or business office as it would be no different from eavesdropping, which is a crime under Republic Act No.
4200 or the Anti-Wiretapping Law.

In this case, the RTC, in granting the application for Preliminary Injunction, ruled that:

After careful consideration, there is basis to grant the application for a temporary restraining order. The
operation by respondents of a revolving camera, even if it were mounted on their building, violated the
right of privacy of petitioners, who are the owners of the adjacent lot. The camera does not only focus on
respondents’ property or the roof of the factory at the back (Aldo Development and Resources, Inc.) but
it actually spans through a good portion of the land of petitioners.

Based on the ocular inspection, the Court understands why petitioner Hing was so unyielding in asserting
that the revolving camera was set up deliberately to monitor the on[-]going construction in his property.
The monitor showed only a portion of the roof of the factory of Aldo. If the purpose of respondents in
setting up a camera at the back is to secure the building and factory premises, then the camera should
revolve only towards their properties at the back. Respondents’ camera cannot be made to extend the
view to petitioners’ lot. To allow the respondents to do that over the objection of the petitioners would
violate the right of petitioners as property owners. "The owner of a thing cannot make use thereof in such
a manner as to injure the rights of a third person."55

The RTC, thus, considered that petitioners have a "reasonable expectation of privacy" in their property,
whether they use it as a business office or as a residence and that the installation of video surveillance
cameras directly facing petitioners’ property or covering a significant portion thereof, without their

132
consent, is a clear violation of their right to privacy. As we see then, the issuance of a preliminary
injunction was justified. We need not belabor that the issuance of a preliminary injunction is discretionary
on the part of the court taking cognizance of the case and should not be interfered with, unless there is
grave abuse of discretion committed by the court.56 Here, there is no indication of any grave abuse of
discretion. Hence, the CA erred in finding that petitioners are not entitled to an injunctive writ.

This brings us to the next question: whether respondents are the proper parties to this suit.

A real party defendant is one who has a

correlative legal obligation to redress a

wrong done to the plaintiff by reason of

the defendant's act or omission which

had violated the legal right of the

former.

Section 2, Rule 3 of the Rules of Court provides:

SEC. 2. Parties-in-interest. — A real party-in-interest is the party who stands to be benefited or injured by
the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized by law
or these Rules, every action must be prosecuted or defended in the name of the real party-in-interest.

A real party defendant is "one who has a correlative legal obligation to redress a wrong done to the
plaintiff by reason of the defendant’s act or omission which had violated the legal right of the former."57

In ruling that respondents are not the proper parties, the CA reasoned that since they do not own the
building, they could not have installed the video surveillance cameras.58 Such reasoning, however, is
erroneous. The fact that respondents are not the registered owners of the building does not automatically
mean that they did not cause the installation of the video surveillance cameras.

In their Complaint, petitioners claimed that respondents installed the video surveillance cameras in order
to fish for evidence, which could be used against petitioners in another case.59 During the hearing of the
application for Preliminary Injunction, petitioner Bill testified that when respondents installed the video
surveillance cameras, he immediately broached his concerns but they did not seem to care,60 and thus,
he reported the matter to the barangay for mediation, and eventually, filed a Complaint against

133
respondents before the RTC.61 He also admitted that as early as 1998 there has already been a dispute
between his family and the Choachuy family concerning the boundaries of their respective properties.62
With these factual circumstances in mind, we believe that respondents are the proper parties to be
impleaded.

Moreover, although Aldo has a juridical personality separate and distinct from its stockholders, records
show that it is a family-owned corporation managed by the Choachuy family.63

Also quite telling is the fact that respondents, notwithstanding their claim that they are not owners of the
building, allowed the court to enter the compound of Aldo and conduct an ocular inspection. The counsel
for respondents even toured Judge Marilyn Lagura-Yap inside the building and answered all her questions
regarding the set-up and installation of the video surveillance cameras.64 And when respondents moved
for reconsideration of the Order dated October 18, 2005 of the RTC, one of the arguments they raised is
that Aldo would suffer damages if the video surveillance cameras are removed and transferred.65
Noticeably, in these instances, the personalities of respondents and Aldo seem to merge.

All these taken together lead us to the inevitable conclusion that respondents are merely using the
corporate fiction of Aldo as a shield to protect themselves from this suit. In view of the foregoing, we find
that respondents are the proper parties to this suit.

WHEREFORE, the Petition is hereby GRANTED. The Decision dated July 10, 2007 and the Resolution dated
September 11, 2007 of the Court of Appeals in CA-G.R. CEB-SP No. 01473 are hereby REVERSED and SET
ASIDE. The Orders dated October 18,2005 and February 6, 200[6] of Branch 28 of the Regional Trial Court
of Mandaue City in Civil Case No. MAN-5223 are hereby REINSTATED and AFFIRMED.

SO ORDERED.

MARIANO C. DEL CASTILLO

Associate Justice

WE CONCUR:

ANTONIO T. CARPIO

Associate Justice

134
Chairperson

ARTURO D. BRION

Associate Justice JOSE PORTUGAL PEREZ

Associate Justice

ESTELA M. PERLAS-BERNABE

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.

ANTONIO T. CARPIO

Associate Justice

Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify
that the conclusions in the above Decision had been reached in consultation before the case was assigned
to the writer of the opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice

Footnotes

1 Morfe v. Mutuc, 130 Phil. 415,434 (1968).

135
2 Rollo, pp. 10-33.

3 CA rollo, pp. 111-116; penned by Associate Justice Isaias P. Dicdican and concurred in by Associate
Justices Antonio L. Villamor and Stephen C. Cruz.

4 Id. at 128-129.

5 Records, pp. 1-8.

6 Id. at 2.

7 Id. at 3.

8 Id.

9 Id.

10 Id.

11 Id.

12 Id. at 4.

13 Id. at 5.

14 Id. at 8.

15 Id. at 23-26.

136
16 Id. at 24.

17 Id. at 25.

18 Id. at 24.

19 Id. at 51-56; penned by Judge Marilyn Lagura-Yap.

20 Id. at 55-56.

21 Id. at 75-79.

22 Id. at 98-99.

23 Erroneously dated as February 6, 2005.

24 Records, p. 99.

25 CA rollo, pp. 2-12.

26 Id. at 111-116.

27 Id. at 113-114.

28 Id. at 114.

29 Id.

137
30 Id. at 115.

31 Id.

32 Id. at 116. Emphases in the original.

33 Rollo, pp. 20-21.

34 Id. at 173-176.

35 Id. at 172.

36 Id. at 174-175.

37 Id.

38 Id. at 27.

39 Id.

40 Id. at 153-154.

41 Id. at 152.

42 Id. at 154.

43 Id. at 152.

44 Section 2, Article III of the Constitution provides:

138
Section 2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or things to be seized.

45 Social Justice Society (SJS) v. Dangerous Drugs Board, G.R. Nos. 157870, 158633 & 161658, November
3, 2008, 570 SCRA 410, 431.

46 Tolentino, Arturo M., Commentaries and Jurisprudence on the Civil Code of the Philippines, 1990
Edition, Volume I, p. 108.

47 Ople v. Torres, 354 Phil. 948, 970 (1998).

48 Sony Music Entertainment (Phils.), Inc. v. Judge Español, 493 Phil. 507, 516 (2005), citing Villanueva v.
Querubin, 150-C Phil. 519, 525 (1972).

49 Pineda, Ernesto L., Torts and Damages (Annotated), 2004 Edition, p. 279.

50 Supra note 46 at 110.

51 In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon, 535
Phil. 687, 715 (2006).

52 Supra note 47 at 980.

53 Id. at 981.

54 Id. at 980.

55 Records, p. 55.

139
56 Overseas Workers Welfare Administration v. Chavez, G.R. No. 169802, June 8, 2007, 524 SCRA 451,
471.

57 Reyes v. Enriquez, G.R. No. 162956, April 10, 2008, 551 SCRA 86, 92.

58 CA rollo, pp. 114-115.

59 Records, p. 3

60 Id. at 54.

61 Id. at 52.

62 Id. at 53-55.

63 Id. at 80-91.

64 Id. at 58-71.

65 Id. at 71.

140
G.R. No. 181881 October 18, 2011

BRICCIO "Ricky" A. POLLO, Petitioner,

vs.

CHAIRPERSON KARINA CONSTANTINO-DAVID, DIRECTOR IV RACQUEL DE GUZMAN BUENSALIDA,

DIRECTOR IV LYDIA A. CASTILLO, DIRECTOR III ENGELBERT ANTHONY D. UNITE AND THE CIVIL SERVICE
COMMISSION, Respondents.

DECISION

VILLARAMA, JR., J.:

This case involves a search of office computer assigned to a government employee who was charged
administratively and eventually dismissed from the service. The employee’s personal files stored in the
computer were used by the government employer as evidence of misconduct.

Before us is a petition for review on certiorari under Rule 45 which seeks to reverse and set aside the
Decision1 dated October 11, 2007 and Resolution2 dated February 29, 2008 of the Court of Appeals (CA).
The CA dismissed the petition for certiorari (CA-G.R. SP No. 98224) filed by petitioner Briccio "Ricky" A.
Pollo to nullify the proceedings conducted by the Civil Service Commission (CSC) which found him guilty
of dishonesty, grave misconduct, conduct prejudicial to the best interest of the service, and violation of
Republic Act (R.A.) No. 6713 and penalized him with dismissal.

The factual antecedents:

Petitioner is a former Supervising Personnel Specialist of the CSC Regional Office No. IV and also the
Officer-in-Charge of the Public Assistance and Liaison Division (PALD) under the "Mamamayan Muna Hindi
Mamaya Na" program of the CSC.

On January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint addressed to respondent CSC
Chairperson Karina Constantino-David which was marked "Confidential" and sent through a courier
service (LBC) from a certain "Alan San Pascual" of Bagong Silang, Caloocan City, was received by the
Integrated Records Management Office (IRMO) at the CSC Central Office. Following office practice in

141
which documents marked "Confidential" are left unopened and instead sent to the addressee, the
aforesaid letter was given directly to Chairperson David.

The letter-complaint reads:

The Chairwoman

Civil Service Commission

Batasan Hills, Quezon City

Dear Madam Chairwoman,

Belated Merry Christmas and Advance Happy New Year!

As a concerned citizen of my beloved country, I would like to ask from you personally if it is just alright for
an employee of your agency to be a lawyer of an accused gov’t employee having a pending case in the
csc. I honestly think this is a violation of law and unfair to others and your office.

I have known that a person have been lawyered by one of your attorny in the region 4 office. He is the
chief of the Mamamayan muna hindi mamaya na division. He have been helping many who have pending
cases in the Csc. The justice in our govt system will not be served if this will continue. Please investigate
this anomaly because our perception of your clean and good office is being tainted.

Concerned Govt employee3

Chairperson David immediately formed a team of four personnel with background in information
technology (IT), and issued a memo directing them to conduct an investigation and specifically "to back
up all the files in the computers found in the Mamamayan Muna (PALD) and Legal divisions."4 After some
briefing, the team proceeded at once to the CSC-ROIV office at Panay Avenue, Quezon City. Upon their
arrival thereat around 5:30 p.m., the team informed the officials of the CSC-ROIV, respondents Director
IV Lydia Castillo (Director Castillo) and Director III Engelbert Unite (Director Unite) of Chairperson David’s
directive.

The backing-up of all files in the hard disk of computers at the PALD and Legal Services Division (LSD) was
witnessed by several employees, together with Directors Castillo and Unite who closely monitored said
activity. At around 6:00 p.m., Director Unite sent text messages to petitioner and the head of LSD, who

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were both out of the office at the time, informing them of the ongoing copying of computer files in their
divisions upon orders of the CSC Chair. The text messages received by petitioner read:

"Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs of PALD and LSD per instruction of the
Chairman. If you can make it here now it would be better."

"All PCs Of PALD and LSD are being backed up per memo of the chair."

"CO IT people arrived just now for this purpose. We were not also informed about this.

"We can’t do anything about … it … it’s a directive from chair."

"Memo of the chair was referring to an anonymous complaint"; "ill send a copy of the memo via mms"5

Petitioner replied also thru text message that he was leaving the matter to Director Unite and that he will
just get a lawyer. Another text message received by petitioner from PALD staff also reported the presence
of the team from CSC main office: "Sir may mga taga C.O. daw sa kuarto natin."6 At around 10:00 p.m. of
the same day, the investigating team finished their task. The next day, all the computers in the PALD were
sealed and secured for the purpose of preserving all the files stored therein. Several diskettes containing
the back-up files sourced from the hard disk of PALD and LSD computers were turned over to Chairperson
David. The contents of the diskettes were examined by the CSC’s Office for Legal Affairs (OLA). It was
found that most of the files in the 17 diskettes containing files copied from the computer assigned to and
being used by the petitioner, numbering about 40 to 42 documents, were draft pleadings or letters7 in
connection with administrative cases in the CSC and other tribunals. On the basis of this finding,
Chairperson David issued the Show-Cause Order8 dated January 11, 2007, requiring the petitioner, who
had gone on extended leave, to submit his explanation or counter-affidavit within five days from notice.

Evaluating the subject documents obtained from petitioner’s personal files, Chairperson David made the
following observations:

Most of the foregoing files are drafts of legal pleadings or documents that are related to or connected
with administrative cases that may broadly be lumped as pending either in the CSCRO No. IV, the CSC-
NCR, the CSC-Central Office or other tribunals. It is also of note that most of these draft pleadings are for
and on behalves of parties, who are facing charges as respondents in administrative cases. This gives rise
to the inference that the one who prepared them was knowingly, deliberately and willfully aiding and

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advancing interests adverse and inimical to the interest of the CSC as the central personnel agency of the
government tasked to discipline misfeasance and malfeasance in the government service. The number of
pleadings so prepared further demonstrates that such person is not merely engaged in an isolated practice
but pursues it with seeming regularity. It would also be the height of naivete or credulity, and certainly
against common human experience, to believe that the person concerned had engaged in this customary
practice without any consideration, and in fact, one of the retrieved files (item 13 above) appears to
insinuate the collection of fees. That these draft pleadings were obtained from the computer assigned to
Pollo invariably raises the presumption that he was the one responsible or had a hand in their drafting or
preparation since the computer of origin was within his direct control and disposition.9

Petitioner filed his Comment, denying that he is the person referred to in the anonymous letter-complaint
which had no attachments to it, because he is not a lawyer and neither is he "lawyering" for people with
cases in the CSC. He accused CSC officials of conducting a "fishing expedition" when they unlawfully copied
and printed personal files in his computer, and subsequently asking him to submit his comment which
violated his right against self-incrimination. He asserted that he had protested the unlawful taking of his
computer done while he was on leave, citing the letter dated January 8, 2007 in which he informed
Director Castillo that the files in his computer were his personal files and those of his sister, relatives,
friends and some associates and that he is not authorizing their sealing, copying, duplicating and printing
as these would violate his constitutional right to privacy and protection against self-incrimination and
warrantless search and seizure. He pointed out that though government property, the temporary use and
ownership of the computer issued under a Memorandum of Receipt (MR) is ceded to the employee who
may exercise all attributes of ownership, including its use for personal purposes. As to the anonymous
letter, petitioner argued that it is not actionable as it failed to comply with the requirements of a formal
complaint under the Uniform Rules on Administrative Cases in the Civil Service (URACC). In view of the
illegal search, the files/documents copied from his computer without his consent is thus inadmissible as
evidence, being "fruits of a poisonous tree."10

On February 26, 2007, the CSC issued Resolution No. 07038211 finding prima facie case against the
petitioner and charging him with Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest
of the Service and Violation of R.A. No. 6713 (Code of Conduct and Ethical Standards for Public Officials
and Employees). Petitioner was directed to submit his answer under oath within five days from notice and
indicate whether he elects a formal investigation. Since the charges fall under Section 19 of the URACC,
petitioner was likewise placed under 90 days preventive suspension effective immediately upon receipt
of the resolution. Petitioner received a copy of Resolution No. 070382 on March 1, 2007.

Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss and/or to Defer) assailing the formal
charge as without basis having proceeded from an illegal search which is beyond the authority of the CSC
Chairman, such power pertaining solely to the court. Petitioner reiterated that he never aided any people
with pending cases at the CSC and alleged that those files found in his computer were prepared not by
him but by certain persons whom he permitted, at one time or another, to make use of his computer out
of close association or friendship. Attached to the motion were the affidavit of Atty. Ponciano R. Solosa

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who entrusted his own files to be kept at petitioner’s CPU and Atty. Eric N. Estrellado, the latter being
Atty. Solosa’s client who attested that petitioner had nothing to do with the pleadings or bill for legal fees
because in truth he owed legal fees to Atty. Solosa and not to petitioner. Petitioner contended that the
case should be deferred in view of the prejudicial question raised in the criminal complaint he filed before
the Ombudsman against Director Buensalida, whom petitioner believes had instigated this administrative
case. He also prayed for the lifting of the preventive suspension imposed on him. In its Resolution No.
07051912 dated March 19, 2007, the CSC denied the omnibus motion. The CSC resolved to treat the said
motion as petitioner’s answer.

On March 14, 2007, petitioner filed an Urgent Petition13 under Rule 65 of the Rules of Court, docketed as
CA-G.R. SP No. 98224, assailing both the January 11, 2007 Show-Cause Order and Resolution No. 070382
dated February 26, 2007 as having been issued with grave abuse of discretion amounting to excess or
total absence of jurisdiction. Prior to this, however, petitioner lodged an administrative/criminal
complaint against respondents Directors Racquel D.G. Buensalida (Chief of Staff, Office of the CSC
Chairman) and Lydia A. Castillo (CSC-RO IV) before the Office of the Ombudsman, and a separate
complaint for disbarment against Director Buensalida.14

On April 17, 2007, petitioner received a notice of hearing from the CSC setting the formal investigation of
the case on April 30, 2007. On April 25, 2007, he filed in the CA an Urgent Motion for the issuance of TRO
and preliminary injunction.15 Since he failed to attend the pre-hearing conference scheduled on April 30,
2007, the CSC reset the same to May 17, 2007 with warning that the failure of petitioner and/or his
counsel to appear in the said pre-hearing conference shall entitle the prosecution to proceed with the
formal investigation ex-parte.16 Petitioner moved to defer or to reset the pre-hearing conference,
claiming that the investigation proceedings should be held in abeyance pending the resolution of his
petition by the CA. The CSC denied his request and again scheduled the pre-hearing conference on May
18, 2007 with similar warning on the consequences of petitioner and/or his counsel’s non-appearance.17
This prompted petitioner to file another motion in the CA, to cite the respondents, including the hearing
officer, in indirect contempt.18

On June 12, 2007, the CSC issued Resolution No. 07113419 denying petitioner’s motion to set aside the
denial of his motion to defer the proceedings and to inhibit the designated hearing officer, Atty. Bernard
G. Jimenez. The hearing officer was directed to proceed with the investigation proper with dispatch.

In view of the absence of petitioner and his counsel, and upon the motion of the prosecution, petitioner
was deemed to have waived his right to the formal investigation which then proceeded ex parte.

On July 24, 2007, the CSC issued Resolution No. 071420,20 the dispositive part of which reads:

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WHEREFORE, foregoing premises considered, the Commission hereby finds Briccio A. Pollo, a.k.a. Ricky A.
Pollo GUILTY of Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the Service and
Violation of Republic Act 6713. He is meted the penalty of DISMISSAL FROM THE SERVICE with all its
accessory penalties, namely, disqualification to hold public office, forfeiture of retirement benefits,
cancellation of civil service eligibilities and bar from taking future civil service examinations.21

On the paramount issue of the legality of the search conducted on petitioner’s computer, the CSC noted
the dearth of jurisprudence relevant to the factual milieu of this case where the government as employer
invades the private files of an employee stored in the computer assigned to him for his official use, in the
course of initial investigation of possible misconduct committed by said employee and without the latter’s
consent or participation. The CSC thus turned to relevant rulings of the United States Supreme Court, and
cited the leading case of O’Connor v. Ortega22 as authority for the view that government agencies, in
their capacity as employers, rather than law enforcers, could validly conduct search and seizure in the
governmental workplace without meeting the "probable cause" or warrant requirement for search and
seizure. Another ruling cited by the CSC is the more recent case of United States v. Mark L. Simons23
which declared that the federal agency’s computer use policy foreclosed any inference of reasonable
expectation of privacy on the part of its employees. Though the Court therein recognized that such policy
did not, at the same time, erode the respondent’s legitimate expectation of privacy in the office in which
the computer was installed, still, the warrantless search of the employee’s office was upheld as valid
because a government employer is entitled to conduct a warrantless search pursuant to an investigation
of work-related misconduct provided the search is reasonable in its inception and scope.

With the foregoing American jurisprudence as benchmark, the CSC held that petitioner has no reasonable
expectation of privacy with regard to the computer he was using in the regional office in view of the CSC
computer use policy which unequivocally declared that a CSC employee cannot assert any privacy right to
a computer assigned to him. Even assuming that there was no such administrative policy, the CSC was of
the view that the search of petitioner’s computer successfully passed the test of reasonableness for
warrantless searches in the workplace as enunciated in the aforecited authorities. The CSC stressed that
it pursued the search in its capacity as government employer and that it was undertaken in connection
with an investigation involving work-related misconduct, which exempts it from the warrant requirement
under the Constitution. With the matter of admissibility of the evidence having been resolved, the CSC
then ruled that the totality of evidence adequately supports the charges of grave misconduct, dishonesty,
conduct prejudicial to the best interest of the service and violation of R.A. No. 6713 against the petitioner.
These grave infractions justified petitioner’s dismissal from the service with all its accessory penalties.

In his Memorandum24 filed in the CA, petitioner moved to incorporate the above resolution dismissing
him from the service in his main petition, in lieu of the filing of an appeal via a Rule 43 petition. In a
subsequent motion, he likewise prayed for the inclusion of Resolution No. 07180025 which denied his
motion for reconsideration.

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By Decision dated October 11, 2007, the CA dismissed the petition for certiorari after finding no grave
abuse of discretion committed by respondents CSC officials. The CA held that: (1) petitioner was not
charged on the basis of the anonymous letter but from the initiative of the CSC after a fact-finding
investigation was conducted and the results thereof yielded a prima facie case against him; (2) it could
not be said that in ordering the back-up of files in petitioner’s computer and later confiscating the same,
Chairperson David had encroached on the authority of a judge in view of the CSC computer policy
declaring the computers as government property and that employee-users thereof have no reasonable
expectation of privacy in anything they create, store, send, or receive on the computer system; and (3)
there is nothing contemptuous in CSC’s act of proceeding with the formal investigation as there was no
restraining order or injunction issued by the CA.

His motion for reconsideration having been denied by the CA, petitioner brought this appeal arguing that
–

THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED AND COMMITTED SERIOUS IRREGULARITY AND
BLATANT ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT
ANONYMOUS COMPLAINT IS ACTIONABLE UNDER E.O. 292 WHEN IN TRUTH AND IN FACT THE CONTRARY
IS EXPLICITLY PROVIDED UNDER 2nd PARAGRAPH OF SECTION 8 OF CSC RESOLUTION NO. 99-1936, WHICH
IS AN [AMENDMENT] TO THE ORIGINAL RULES PER CSC RESOLUTION NO. 94-0521;

II

THE HONORABLE COURT GRIEVOUSLY ERRED AND COMMITTED PALPABLE ERRORS IN LAW AMOUNTING
TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT PETITIONER CANNOT INVOKE HIS RIGHT TO
PRIVACY, TO UNREASONABLE SEARCH AND SEIZURE, AGAINST SELF-INCRIMINATION, BY VIRTUE OF
OFFICE MEMORANDUM NO. 10 S. 2002, A MERE INTERNAL MEMORANDUM SIGNED SOLELY AND
EXCLUSIVELY BY RESPONDENT DAVID AND NOT BY THE COLLEGIAL COMMISSION CONSIDERING THAT
POLICY MATTERS INVOLVING SUB[S]TANTIAL RIGHTS CANNOT BE COVERED BY AN OFFICE
MEMORANDUM WHICH IS LIMITED TO PROCEDURAL AND ROUTINARY INSTRUCTION;

III

THE HONORABLE COURT GRAVELY ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT
RULED THAT MEMO SEARCH DATED JANUARY 3, 2007 AND THE TAKING OF DOCUMENTS IN THE EVENING
THEREOF FROM 7:00 TO 10:00 P.M. IS NOT GRAVE ABUSE OF DISCRETION LIMITING THE DEFINITION [OF]

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GRAVE ABUSE OF DISCRETION TO ONE INVOLVING AND TAINTED WITH PERSONAL HOSTILITY. IT LIKEWISE
ERRED IN HOLDING THAT DATA STORED IN THE GOVERNMENT COMPUTERS ARE GOVERNMENT
PROPERTIES INCLUDING THE PERSONAL FILES WHEN THE CONTRARY IS PROVIDED UNDER SECTION 14 OF
OM. 10 s. 2002. AND GRIEVOUSLY ERRED STILL WHEN IT RULED THAT RESPONDENT DAVID BY VIRTUE OF
O.M. 10 DID NOT ENCROACH ON THE DUTIES AND FUNCTIONS OF A JUDGE PURSUANT TO ARTICLE III,
SECTION 2 OF THE 1987 PHILIPPINE CONSTITUTION;

IV

THE HONORABLE COURT ERRED WHEN IT FAILED TO CONSIDER ALL OTHER NEW ARGUMENTS,
ADDITIONAL EVIDENCE HEREUNTO SUBMITTED AS WELL AS ITS FAILURE TO EVALUATE AND TAKE ACTION
ON THE 2 MOTIONS TO ADMIT AND INCORPORATE CSC RESOLUTION NOS. 07-1420 DATED JULY 24, 2007
AND CSC RESOLUTION 07-1800 DATED SEPTEMBER 10, 2007. IT DID NOT RULE LIKEWISE ON THE FOUR
URGENT MOTION TO RESOLVE ANCILLARY PRAYER FOR TRO.26

Squarely raised by the petitioner is the legality of the search conducted on his office computer and the
copying of his personal files without his knowledge and consent, alleged as a transgression on his
constitutional right to privacy.

The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by
the guarantee against unreasonable search and seizure under Section 2, Article III of the 1987
Constitution,27 which provides:

Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or things to be seized.

The constitutional guarantee is not a prohibition of all searches and seizures but only of "unreasonable"
searches and seizures.28 But to fully understand this concept and application for the purpose of resolving
the issue at hand, it is essential that we examine the doctrine in the light of pronouncements in another
jurisdiction. As the Court declared in People v. Marti29 :

Our present constitutional provision on the guarantee against unreasonable search and seizure had its
origin in the 1935 Charter which, worded as follows:

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"The right of the people to be secure in their persons, houses, papers and effects against unreasonable
searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be
determined by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched, and the persons or things
to be seized." (Sec. 1[3], Article III)

was in turn derived almost verbatim from the Fourth Amendment to the United States Constitution. As
such, the Court may turn to the pronouncements of the United States Federal Supreme Court and State
Appellate Courts which are considered doctrinal in this jurisdiction.30

In the 1967 case of Katz v. United States,31 the US Supreme Court held that the act of FBI agents in
electronically recording a conversation made by petitioner in an enclosed public telephone booth violated
his right to privacy and constituted a "search and seizure". Because the petitioner had a reasonable
expectation of privacy in using the enclosed booth to make a personal telephone call, the protection of
the Fourth Amendment extends to such area. In the concurring opinion of Mr. Justice Harlan, it was
further noted that the existence of privacy right under prior decisions involved a two-fold requirement:
first, that a person has exhibited an actual (subjective) expectation of privacy; and second, that the
expectation be one that society is prepared to recognize as reasonable (objective).32

In Mancusi v. DeForte33 which addressed the reasonable expectations of private employees in the
workplace, the US Supreme Court held that a union employee had Fourth Amendment rights with regard
to an office at union headquarters that he shared with other union officials, even as the latter or their
guests could enter the office. The Court thus "recognized that employees may have a reasonable
expectation of privacy against intrusions by police."

That the Fourth Amendment equally applies to a government workplace was addressed in the 1987 case
of O’Connor v. Ortega34 where a physician, Dr. Magno Ortega, who was employed by a state hospital,
claimed a violation of his Fourth Amendment rights when hospital officials investigating charges of
mismanagement of the psychiatric residency program, sexual harassment of female hospital employees
and other irregularities involving his private patients under the state medical aid program, searched his
office and seized personal items from his desk and filing cabinets. In that case, the Court categorically
declared that "[i]ndividuals do not lose Fourth Amendment rights merely because they work for the
government instead of a private employer."35 A plurality of four Justices concurred that the correct
analysis has two steps: first, because "some government offices may be so open to fellow employees or
the public that no expectation of privacy is reasonable", a court must consider "[t]he operational realities
of the workplace" in order to determine whether an employee’s Fourth Amendment rights are implicated;
and next, where an employee has a legitimate privacy expectation, an employer’s intrusion on that

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expectation "for noninvestigatory, work-related purposes, as well as for investigations of work-related
misconduct, should be judged by the standard of reasonableness under all the circumstances."36

On the matter of government employees’ reasonable expectations of privacy in their workplace, O’Connor
teaches:

x x x Public employees’ expectations of privacy in their offices, desks, and file cabinets, like similar
expectations of employees in the private sector, may be reduced by virtue of actual office practices and
procedures, or by legitimate regulation. x x x The employee’s expectation of privacy must be assessed in
the context of the employment relation. An office is seldom a private enclave free from entry by
supervisors, other employees, and business and personal invitees. Instead, in many cases offices are
continually entered by fellow employees and other visitors during the workday for conferences,
consultations, and other work-related visits. Simply put, it is the nature of government offices that others
– such as fellow employees, supervisors, consensual visitors, and the general public – may have frequent
access to an individual’s office. We agree with JUSTICE SCALIA that "[c]onstitutional protection against
unreasonable searches by the government does not disappear merely because the government has the
right to make reasonable intrusions in its capacity as employer," x x x but some government offices may
be so open to fellow employees or the public that no expectation of privacy is reasonable. x x x Given the
great variety of work environments in the public sector, the question of whether an employee has a
reasonable expectation of privacy must be addressed on a case-by-case basis.37 (Citations omitted;
emphasis supplied.)

On the basis of the established rule in previous cases, the US Supreme Court declared that Dr. Ortega’s
Fourth Amendment rights are implicated only if the conduct of the hospital officials infringed "an
expectation of privacy that society is prepared to consider as reasonable." Given the undisputed evidence
that respondent Dr. Ortega did not share his desk or file cabinets with any other employees, kept personal
correspondence and other private items in his own office while those work-related files (on physicians in
residency training) were stored outside his office, and there being no evidence that the hospital had
established any reasonable regulation or policy discouraging employees from storing personal papers and
effects in their desks or file cabinets (although the absence of such a policy does not create any
expectation of privacy where it would not otherwise exist), the Court concluded that Dr. Ortega has a
reasonable expectation of privacy at least in his desk and file cabinets.38

Proceeding to the next inquiry as to whether the search conducted by hospital officials was reasonable,
the O’Connor plurality decision discussed the following principles:

Having determined that Dr. Ortega had a reasonable expectation of privacy in his office, the Court of
Appeals simply concluded without discussion that the "search…was not a reasonable search under the
fourth amendment." x x x "[t]o hold that the Fourth Amendment applies to searches conducted by [public

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employers] is only to begin the inquiry into the standards governing such searches…[W]hat is reasonable
depends on the context within which a search takes place. x x x Thus, we must determine the appropriate
standard of reasonableness applicable to the search. A determination of the standard of reasonableness
applicable to a particular class of searches requires "balanc[ing] the nature and quality of the intrusion on
the individual’s Fourth Amendment interests against the importance of the governmental interests
alleged to justify the intrusion." x x x In the case of searches conducted by a public employer, we must
balance the invasion of the employees’ legitimate expectations of privacy against the government’s need
for supervision, control, and the efficient operation of the workplace.

xxxx

In our view, requiring an employer to obtain a warrant whenever the employer wished to enter an
employee’s office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine
conduct of business and would be unduly burdensome. Imposing unwieldy warrant procedures in such
cases upon supervisors, who would otherwise have no reason to be familiar with such procedures, is
simply unreasonable. In contrast to other circumstances in which we have required warrants, supervisors
in offices such as at the Hospital are hardly in the business of investigating the violation of criminal laws.
Rather, work-related searches are merely incident to the primary business of the agency. Under these
circumstances, the imposition of a warrant requirement would conflict with the "common-sense
realization that government offices could not function if every employment decision became a
constitutional matter." x x x

xxxx

The governmental interest justifying work-related intrusions by public employers is the efficient and
proper operation of the workplace. Government agencies provide myriad services to the public, and the
work of these agencies would suffer if employers were required to have probable cause before they
entered an employee’s desk for the purpose of finding a file or piece of office correspondence. Indeed, it
is difficult to give the concept of probable cause, rooted as it is in the criminal investigatory context, much
meaning when the purpose of a search is to retrieve a file for work-related reasons. Similarly, the concept
of probable cause has little meaning for a routine inventory conducted by public employers for the
purpose of securing state property. x x x To ensure the efficient and proper operation of the agency,
therefore, public employers must be given wide latitude to enter employee offices for work-related,
noninvestigatory reasons.

We come to a similar conclusion for searches conducted pursuant to an investigation of work-related

employee misconduct. Even when employers conduct an investigation, they have an interest substantially
different from "the normal need for law enforcement." x x x Public employers have an interest in ensuring
that their agencies operate in an effective and efficient manner, and the work of these agencies inevitably

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suffers from the inefficiency, incompetence, mismanagement, or other work-related misfeasance of its
employees. Indeed, in many cases, public employees are entrusted with tremendous responsibility, and
the consequences of their misconduct or incompetence to both the agency and the public interest can be
severe. In contrast to law enforcement officials, therefore, public employers are not enforcers of the
criminal law; instead, public employers have a direct and overriding interest in ensuring that the work of
the agency is conducted in a proper and efficient manner. In our view, therefore, a probable cause
requirement for searches of the type at issue here would impose intolerable burdens on public employers.
The delay in correcting the employee misconduct caused by the need for probable cause rather than
reasonable suspicion will be translated into tangible and often irreparable damage to the agency’s work,
and ultimately to the public interest. x x x

xxxx

In sum, we conclude that the "special needs, beyond the normal need for law enforcement make
the…probable-cause requirement impracticable," x x x for legitimate, work-related noninvestigatory
intrusions as well as investigations of work-related misconduct. A standard of reasonableness will neither
unduly burden the efforts of government employers to ensure the efficient and proper operation of the
workplace, nor authorize arbitrary intrusions upon the privacy of public employees. We hold, therefore,
that public employer intrusions on the constitutionally protected privacy interests of government
employees for noninvestigatory, work-related purposes, as well as for investigations of work-related
misconduct, should be judged by the standard of reasonableness under all the circumstances. Under this
reasonableness standard, both the inception and the scope of the intrusion must be reasonable:

"Determining the reasonableness of any search involves a twofold inquiry: first, one must consider
‘whether the…action was justified at its inception,’ x x x ; second, one must determine whether the search
as actually conducted ‘was reasonably related in scope to the circumstances which justified the
interference in the first place,’" x x x

Ordinarily, a search of an employee’s office by a supervisor will be "justified at its inception" when there
are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of
work-related misconduct, or that the search is necessary for a noninvestigatory work-related purpose
such as to retrieve a needed file. x x x The search will be permissible in its scope when "the measures
adopted are reasonably related to the objectives of the search and not excessively intrusive in light of
…the nature of the [misconduct]." x x x39 (Citations omitted; emphasis supplied.)

Since the District Court granted summary judgment without a hearing on the factual dispute as to the
character of the search and neither was there any finding made as to the scope of the search that was
undertaken, the case was remanded to said court for the determination of the justification for the search
and seizure, and evaluation of the reasonableness of both the inception of the search and its scope.

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In O’Connor the Court recognized that "special needs" authorize warrantless searches involving public
employees for work-related reasons. The Court thus laid down a balancing test under which government
interests are weighed against the employee’s reasonable expectation of privacy. This reasonableness test
implicates neither probable cause nor the warrant requirement, which are related to law enforcement.40

O’Connor was applied in subsequent cases raising issues on employees’ privacy rights in the workplace.
One of these cases involved a government employer’s search of an office computer, United States v. Mark
L. Simons41 where the defendant Simons, an employee of a division of the Central Intelligence Agency
(CIA), was convicted of receiving and possessing materials containing child pornography. Simons was
provided with an office which he did not share with anyone, and a computer with Internet access. The
agency had instituted a policy on computer use stating that employees were to use the Internet for official
government business only and that accessing unlawful material was specifically prohibited. The policy also
stated that users shall understand that the agency will periodically audit, inspect, and/or monitor the
user’s Internet access as deemed appropriate. CIA agents instructed its contractor for the management
of the agency’s computer network, upon initial discovery of prohibited internet activity originating from
Simons’ computer, to conduct a remote monitoring and examination of Simons’ computer. After
confirming that Simons had indeed downloaded pictures that were pornographic in nature, all the files on
the hard drive of Simon’s computer were copied from a remote work station. Days later, the contractor’s
representative finally entered Simon’s office, removed the original hard drive on Simon’s computer,
replaced it with a copy, and gave the original to the agency security officer. Thereafter, the agency secured
warrants and searched Simons’ office in the evening when Simons was not around. The search team
copied the contents of Simons’ computer; computer diskettes found in Simons’ desk drawer; computer
files stored on the zip drive or on zip drive diskettes; videotapes; and various documents, including
personal correspondence. At his trial, Simons moved to suppress these evidence, arguing that the
searches of his office and computer violated his Fourth Amendment rights. After a hearing, the district
court denied the motion and Simons was found guilty as charged.

Simons appealed his convictions. The US Supreme Court ruled that the searches of Simons’ computer and
office did not violate his Fourth Amendment rights and the first search warrant was valid. It held that the
search remains valid under the O’Connor exception to the warrant requirement because evidence of the
crime was discovered in the course of an otherwise proper administrative inspection. Simons’ violation of
the agency’s Internet policy happened also to be a violation of criminal law; this does not mean that said
employer lost the capacity and interests of an employer. The warrantless entry into Simons’ office was
reasonable under the Fourth Amendment standard announced in O’Connor because at the inception of
the search, the employer had "reasonable grounds for suspecting" that the hard drive would yield
evidence of misconduct, as the employer was already aware that Simons had misused his Internet access
to download over a thousand pornographic images. The retrieval of the hard drive was reasonably related
to the objective of the search, and the search was not excessively intrusive. Thus, while Simons had a
reasonable expectation of privacy in his office, he did not have such legitimate expectation of privacy with
regard to the files in his computer.

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x x x To establish a violation of his rights under the Fourth Amendment, Simons must first prove that he
had a legitimate expectation of privacy in the place searched or the item seized. x x x And, in order to
prove a legitimate expectation of privacy, Simons must show that his subjective expectation of privacy is
one that society is prepared to accept as objectively reasonable. x x x

xxxx

x x x We conclude that the remote searches of Simons’ computer did not violate his Fourth Amendment
rights because, in light of the Internet policy, Simons lacked a legitimate expectation of privacy in the files
downloaded from the Internet. Additionally, we conclude that Simons’ Fourth Amendment rights were
not violated by FBIS’ retrieval of Simons’ hard drive from his office.

Simons did not have a legitimate expectation of privacy with regard to the record or fruits of his Internet
use in light of the FBIS Internet policy. The policy clearly stated that FBIS would "audit, inspect, and/or
monitor" employees’ use of the Internet, including all file transfers, all websites visited, and all e-mail
messages, "as deemed appropriate." x x x This policy placed employees on notice that they could not
reasonably expect that their Internet activity would be private. Therefore, regardless of whether Simons
subjectively believed that the files he transferred from the Internet were private, such a belief was not
objectively reasonable after FBIS notified him that it would be overseeing his Internet use. x x x
Accordingly, FBIS’ actions in remotely searching and seizing the computer files Simons downloaded from
the Internet did not violate the Fourth Amendment.

xxxx

The burden is on Simons to prove that he had a legitimate expectation of privacy in his office. x x x Here,
Simons has shown that he had an office that he did not share. As noted above, the operational realities
of Simons’ workplace may have diminished his legitimate privacy expectations. However, there is no
evidence in the record of any workplace practices, procedures, or regulations that had such an effect. We
therefore conclude that, on this record, Simons possessed a legitimate expectation of privacy in his office.

xxxx

In the final analysis, this case involves an employee’s supervisor entering the employee’s government
office and retrieving a piece of government equipment in which the employee had absolutely no
expectation of privacy – equipment that the employer knew contained evidence of crimes committed by

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the employee in the employee’s office. This situation may be contrasted with one in which the criminal
acts of a government employee were unrelated to his employment. Here, there was a conjunction of the
conduct that violated the employer’s policy and the conduct that violated the criminal law. We consider
that FBIS’ intrusion into Simons’ office to retrieve the hard drive is one in which a reasonable employer
might engage. x x x42 (Citations omitted; emphasis supplied.)

This Court, in Social Justice Society (SJS) v. Dangerous Drugs Board43 which involved the constitutionality
of a provision in R.A. No. 9165 requiring mandatory drug testing of candidates for public office, students
of secondary and tertiary schools, officers and employees of public and private offices, and persons
charged before the prosecutor’s office with certain offenses, have also recognized the fact that there may
be such legitimate intrusion of privacy in the workplace.

The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which
the drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes.
In this case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of
the employees and the reasonableness of drug testing requirement. The employees’ privacy interest in
an office is to a large extent circumscribed by the company’s work policies, the collective bargaining
agreement, if any, entered into by management and the bargaining unit, and the inherent right of the
employer to maintain discipline and efficiency in the workplace. Their privacy expectation in a regulated
office environment is, in fine, reduced; and a degree of impingement upon such privacy has been upheld.
(Emphasis supplied.)

Applying the analysis and principles announced in O’Connor and Simons to the case at bar, we now
address the following questions: (1) Did petitioner have a reasonable expectation of privacy in his office
and computer files?; and (2) Was the search authorized by the CSC Chair, the copying of the contents of
the hard drive on petitioner’s computer reasonable in its inception and scope?

In this inquiry, the relevant surrounding circumstances to consider include "(1) the employee’s
relationship to the item seized; (2) whether the item was in the immediate control of the employee when
it was seized; and (3) whether the employee took actions to maintain his privacy in the item." These
factors are relevant to both the subjective and objective prongs of the reasonableness inquiry, and we
consider the two questions together.44 Thus, where the employee used a password on his computer, did
not share his office with co-workers and kept the same locked, he had a legitimate expectation of privacy
and any search of that space and items located therein must comply with the Fourth Amendment.45

We answer the first in the negative. Petitioner failed to prove that he had an actual (subjective)
expectation of privacy either in his office or government-issued computer which contained his personal
files. Petitioner did not allege that he had a separate enclosed office which he did not share with anyone,
or that his office was always locked and not open to other employees or visitors. Neither did he allege

155
that he used passwords or adopted any means to prevent other employees from accessing his computer
files. On the contrary, he submits that being in the public assistance office of the CSC-ROIV, he normally
would have visitors in his office like friends, associates and even unknown people, whom he even allowed
to use his computer which to him seemed a trivial request. He described his office as "full of people, his
friends, unknown people" and that in the past 22 years he had been discharging his functions at the PALD,
he is "personally assisting incoming clients, receiving documents, drafting cases on appeals, in charge of
accomplishment report, Mamamayan Muna Program, Public Sector Unionism, Correction of name,
accreditation of service, and hardly had anytime for himself alone, that in fact he stays in the office as a
paying customer."46 Under this scenario, it can hardly be deduced that petitioner had such expectation
of privacy that society would recognize as reasonable.

Moreover, even assuming arguendo, in the absence of allegation or proof of the aforementioned factual
circumstances, that petitioner had at least a subjective expectation of privacy in his computer as he claims,
such is negated by the presence of policy regulating the use of office computers, as in Simons.

Office Memorandum No. 10, S. 2002 "Computer Use Policy (CUP)" explicitly provides:

POLICY

1. The Computer Resources are the property of the Civil Service Commission and may be used only for
legitimate business purposes.

2. Users shall be permitted access to Computer Resources to assist them in the performance of their
respective jobs.

3. Use of the Computer Resources is a privilege that may be revoked at any given time.

xxxx

No Expectation of Privacy

4. No expectation of privacy. Users except the Members of the Commission shall not have an expectation
of privacy in anything they create, store, send, or receive on the computer system.

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The Head of the Office for Recruitment, Examination and Placement shall select and assign Users to handle
the confidential examination data and processes.

5. Waiver of privacy rights. Users expressly waive any right to privacy in anything they create, store, send,
or receive on the computer through the Internet or any other computer network. Users understand that
the CSC may use human or automated means to monitor the use of its Computer Resources.

6. Non-exclusivity of Computer Resources. A computer resource is not a personal property or for the
exclusive use of a User to whom a memorandum of receipt (MR) has been issued. It can be shared or
operated by other users. However, he is accountable therefor and must insure its care and maintenance.

xxxx

Passwords

12. Responsibility for passwords. Users shall be responsible for safeguarding their passwords for access
to the computer system. Individual passwords shall not be printed, stored online, or given to others. Users
shall be responsible for all transactions made using their passwords. No User may access the computer
system with another User’s password or account.

13. Passwords do not imply privacy. Use of passwords to gain access to the computer system or to encode
particular files or messages does not imply that Users have an expectation of privacy in the material they
create or receive on the computer system. The Civil Service Commission has global passwords that permit
access to all materials stored on its networked computer system regardless of whether those materials
have been encoded with a particular User’s password. Only members of the Commission shall authorize
the application of the said global passwords.

x x x x47 (Emphasis supplied.)

The CSC in this case had implemented a policy that put its employees on notice that they have no
expectation of privacy in anything they create, store, send or receive on the office computers, and that
the CSC may monitor the use of the computer resources using both automated or human means. This
implies that on-the-spot inspections may be done to ensure that the computer resources were used only
for such legitimate business purposes.

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One of the factors stated in O’Connor which are relevant in determining whether an employee’s
expectation of privacy in the workplace is reasonable is the existence of a workplace privacy policy.48 In
one case, the US Court of Appeals Eighth Circuit held that a state university employee has not shown that
he had a reasonable expectation of privacy in his computer files where the university’s computer policy,
the computer user is informed not to expect privacy if the university has a legitimate reason to conduct a
search. The user is specifically told that computer files, including e-mail, can be searched when the
university is responding to a discovery request in the course of litigation. Petitioner employee thus cannot
claim a violation of Fourth Amendment rights when university officials conducted a warrantless search of
his computer for work-related materials.49

As to the second point of inquiry on the reasonableness of the search conducted on petitioner’s computer,
we answer in the affirmative.

The search of petitioner’s computer files was conducted in connection with investigation of work-related
misconduct prompted by an anonymous letter-complaint addressed to Chairperson David regarding
anomalies in the CSC-ROIV where the head of the Mamamayan Muna Hindi Mamaya Na division is
supposedly "lawyering" for individuals with pending cases in the CSC. Chairperson David stated in her
sworn affidavit:

8. That prior to this, as early as 2006, the undersigned has received several text messages from unknown
sources adverting to certain anomalies in Civil Service Commission Regional Office IV (CSCRO IV) such as,
staff working in another government agency, "selling" cases and aiding parties with pending cases, all
done during office hours and involved the use of government properties;

9. That said text messages were not investigated for lack of any verifiable leads and details sufficient to
warrant an investigation;

10. That the anonymous letter provided the lead and details as it pinpointed the persons and divisions
involved in the alleged irregularities happening in CSCRO IV;

11. That in view of the seriousness of the allegations of irregularities happening in CSCRO IV and its effect
on the integrity of the Commission, I decided to form a team of Central Office staff to back up the files in
the computers of the Public Assistance and Liaison Division (PALD) and Legal Division;

x x x x50

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A search by a government employer of an employee’s office is justified at inception when there are
reasonable grounds for suspecting that it will turn up evidence that the employee is guilty of work-related
misconduct.51 Thus, in the 2004 case decided by the US Court of Appeals Eighth Circuit, it was held that
where a government agency’s computer use policy prohibited electronic messages with pornographic
content and in addition expressly provided that employees do not have any personal privacy rights
regarding their use of the agency information systems and technology, the government employee had no
legitimate expectation of privacy as to the use and contents of his office computer, and therefore evidence
found during warrantless search of the computer was admissible in prosecution for child pornography. In
that case, the defendant employee’s computer hard drive was first remotely examined by a computer
information technician after his supervisor received complaints that he was inaccessible and had copied
and distributed non-work-related e-mail messages throughout the office. When the supervisor confirmed
that defendant had used his computer to access the prohibited websites, in contravention of the express
policy of the agency, his computer tower and floppy disks were taken and examined. A formal
administrative investigation ensued and later search warrants were secured by the police department.
The initial remote search of the hard drive of petitioner’s computer, as well as the subsequent warrantless
searches was held as valid under the O’Connor ruling that a public employer can investigate work-related
misconduct so long as any search is justified at inception and is reasonably related in scope to the
circumstances that justified it in the first place.52

Under the facts obtaining, the search conducted on petitioner’s computer was justified at its inception
and scope. We quote with approval the CSC’s discussion on the reasonableness of its actions, consistent
as it were with the guidelines established by O’Connor:

Even conceding for a moment that there is no such administrative policy, there is no doubt in the mind of
the Commission that the search of Pollo’s computer has successfully passed the test of reasonableness
for warrantless searches in the workplace as enunciated in the above-discussed American authorities. It
bears emphasis that the Commission pursued the search in its capacity as a government employer and
that it was undertaken in connection with an investigation involving a work-related misconduct, one of
the circumstances exempted from the warrant requirement. At the inception of the search, a complaint
was received recounting that a certain division chief in the CSCRO No. IV was "lawyering" for parties having
pending cases with the said regional office or in the Commission. The nature of the imputation was
serious, as it was grievously disturbing. If, indeed, a CSC employee was found to be furtively engaged in
the practice of "lawyering" for parties with pending cases before the Commission would be a highly
repugnant scenario, then such a case would have shattering repercussions. It would undeniably cast
clouds of doubt upon the institutional integrity of the Commission as a quasi-judicial agency, and in the
process, render it less effective in fulfilling its mandate as an impartial and objective dispenser of
administrative justice. It is settled that a court or an administrative tribunal must not only be actually
impartial but must be seen to be so, otherwise the general public would not have any trust and confidence
in it.

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Considering the damaging nature of the accusation, the Commission had to act fast, if only to arrest or
limit any possible adverse consequence or fall-out. Thus, on the same date that the complaint was
received, a search was forthwith conducted involving the computer resources in the concerned regional
office. That it was the computers that were subjected to the search was justified since these furnished the
easiest means for an employee to encode and store documents. Indeed, the computers would be a likely
starting point in ferreting out incriminating evidence. Concomitantly, the ephemeral nature of computer
files, that is, they could easily be destroyed at a click of a button, necessitated drastic and immediate
action. Pointedly, to impose the need to comply with the probable cause requirement would invariably
defeat the purpose of the wok-related investigation.

Worthy to mention, too, is the fact that the Commission effected the warrantless search in an open and
transparent manner. Officials and some employees of the regional office, who happened to be in the
vicinity, were on hand to observe the process until its completion. In addition, the respondent himself was
duly notified, through text messaging, of the search and the concomitant retrieval of files from his
computer.

All in all, the Commission is convinced that the warrantless search done on computer assigned to Pollo
was not, in any way, vitiated with unconstitutionality. It was a reasonable exercise of the managerial
prerogative of the Commission as an employer aimed at ensuring its operational effectiveness and
efficiency by going after the work-related misfeasance of its employees. Consequently, the evidence
derived from the questioned search are deemed admissible.53

Petitioner’s claim of violation of his constitutional right to privacy must necessarily fail. His other argument
invoking the privacy of communication and correspondence under Section 3(1), Article III of the 1987
Constitution is also untenable considering the recognition accorded to certain legitimate intrusions into
the privacy of employees in the government workplace under the aforecited authorities. We likewise find
no merit in his contention that O’Connor and Simons are not relevant because the present case does not
involve a criminal offense like child pornography. As already mentioned, the search of petitioner’s
computer was justified there being reasonable ground for suspecting that the files stored therein would
yield incriminating evidence relevant to the investigation being conducted by CSC as government
employer of such misconduct subject of the anonymous complaint. This situation clearly falls under the
exception to the warrantless requirement in administrative searches defined in O’Connor.

The Court is not unaware of our decision in Anonymous Letter-Complaint against Atty. Miguel Morales,
Clerk of Court, Metropolitan Trial Court of Manila54 involving a branch clerk (Atty. Morales) who was
investigated on the basis of an anonymous letter alleging that he was consuming his working hours filing
and attending to personal cases, using office supplies, equipment and utilities. The OCA conducted a spot
investigation aided by NBI agents. The team was able to access Atty. Morales’ personal computer and
print two documents stored in its hard drive, which turned out to be two pleadings, one filed in the CA
and another in the RTC of Manila, both in the name of another lawyer. Atty. Morales’ computer was seized

160
and taken in custody of the OCA but was later ordered released on his motion, but with order to the MISO
to first retrieve the files stored therein. The OCA disagreed with the report of the Investigating Judge that
there was no evidence to support the charge against Atty. Morales as no one from the OCC personnel
who were interviewed would give a categorical and positive statement affirming the charges against Atty.
Morales, along with other court personnel also charged in the same case. The OCA recommended that
Atty. Morales should be found guilty of gross misconduct. The Court En Banc held that while Atty. Morales
may have fallen short of the exacting standards required of every court employee, the Court cannot use
the evidence obtained from his personal computer against him for it violated his constitutional right
against unreasonable searches and seizures. The Court found no evidence to support the claim of OCA
that they were able to obtain the subject pleadings with the consent of Atty. Morales, as in fact the latter
immediately filed an administrative case against the persons who conducted the spot investigation,
questioning the validity of the investigation and specifically invoking his constitutional right against
unreasonable search and seizure. And as there is no other evidence, apart from the pleadings, retrieved
from the unduly confiscated personal computer of Atty. Morales, to hold him administratively liable, the
Court had no choice but to dismiss the charges against him for insufficiency of evidence.

The above case is to be distinguished from the case at bar because, unlike the former which involved a
personal computer of a court employee, the computer from which the personal files of herein petitioner
were retrieved is a government-issued computer, hence government property the use of which the CSC
has absolute right to regulate and monitor. Such relationship of the petitioner with the item seized (office
computer) and other relevant factors and circumstances under American Fourth Amendment
jurisprudence, notably the existence of CSC MO 10, S. 2007 on Computer Use Policy, failed to establish
that petitioner had a reasonable expectation of privacy in the office computer assigned to him.

Having determined that the personal files copied from the office computer of petitioner are admissible in
the administrative case against him, we now proceed to the issue of whether the CSC was correct in
finding the petitioner guilty of the charges and dismissing him from the service.

Well-settled is the rule that the findings of fact of quasi-judicial agencies, like the CSC, are accorded not
only respect but even finality if such findings are supported by substantial evidence. Substantial evidence
is such amount of relevant evidence which a reasonable mind might accept as adequate to support a
conclusion, even if other equally reasonable minds might conceivably opine otherwise.55

The CSC based its findings on evidence consisting of a substantial number of drafts of legal pleadings and
documents stored in his office computer, as well as the sworn affidavits and testimonies of the witnesses
it presented during the formal investigation. According to the CSC, these documents were confirmed to
be similar or exactly the same content-wise with those on the case records of some cases pending either
with CSCRO No. IV, CSC-NCR or the Commission Proper. There were also substantially similar copies of
those pleadings filed with the CA and duly furnished the Commission. Further, the CSC found the
explanation given by petitioner, to the effect that those files retrieved from his computer hard drive

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actually belonged to his lawyer friends Estrellado and Solosa whom he allowed the use of his computer
for drafting their pleadings in the cases they handle, as implausible and doubtful under the circumstances.
We hold that the CSC’s factual finding regarding the authorship of the subject pleadings and misuse of the
office computer is well-supported by the evidence on record, thus:

It is also striking to note that some of these documents were in the nature of pleadings responding to the
orders, decisions or resolutions of these offices or directly in opposition to them such as a petition for
certiorari or a motion for reconsideration of CSC Resolution. This indicates that the author thereof
knowingly and willingly participated in the promotion or advancement of the interests of parties contrary
or antagonistic to the Commission. Worse, the appearance in one of the retrieved documents the phrase,
"Eric N. Estr[e]llado, Epal kulang ang bayad mo," lends plausibility to an inference that the preparation or
drafting of the legal pleadings was pursued with less than a laudable motivation. Whoever was responsible
for these documents was simply doing the same for the money – a "legal mercenary" selling or purveying
his expertise to the highest bidder, so to speak.

Inevitably, the fact that these documents were retrieved from the computer of Pollo raises the
presumption that he was the author thereof. This is because he had a control of the said computer. More
significantly, one of the witnesses, Margarita Reyes, categorically testified seeing a written copy of one of
the pleadings found in the case records lying on the table of the respondent. This was the Petition for
Review in the case of Estrellado addressed to the Court of Appeals. The said circumstances indubitably
demonstrate that Pollo was secretly undermining the interest of the Commission, his very own employer.

To deflect any culpability, Pollo would, however, want the Commission to believe that the documents
were the personal files of some of his friends, including one Attorney Ponciano Solosa, who incidentally
served as his counsel of record during the formal investigation of this case. In fact, Atty. Solosa himself
executed a sworn affidavit to this effect. Unfortunately, this contention of the respondent was directly
rebutted by the prosecution witness, Reyes, who testified that during her entire stay in the PALD, she
never saw Atty. Solosa using the computer assigned to the respondent. Reyes more particularly stated
that she worked in close proximity with Pollo and would have known if Atty. Solosa, whom she personally
knows, was using the computer in question. Further, Atty. Solosa himself was never presented during the
formal investigation to confirm his sworn statement such that the same constitutes self-serving evidence
unworthy of weight and credence. The same is true with the other supporting affidavits, which Pollo
submitted.

At any rate, even admitting for a moment the said contention of the respondent, it evinces the fact that
he was unlawfully authorizing private persons to use the computer assigned to him for official purpose,
not only once but several times gauging by the number of pleadings, for ends not in conformity with the
interests of the Commission. He was, in effect, acting as a principal by indispensable cooperation…Or at
the very least, he should be responsible for serious misconduct for repeatedly allowing CSC resources,

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that is, the computer and the electricity, to be utilized for purposes other than what they were officially
intended.

Further, the Commission cannot lend credence to the posturing of the appellant that the line appearing
in one of the documents, "Eric N. Estrellado, Epal kulang ang bayad mo," was a private joke between the
person alluded to therein, Eric N. Estrellado, and his counsel, Atty. Solosa, and not indicative of anything
more sinister. The same is too preposterous to be believed. Why would such a statement appear in a legal
pleading stored in the computer assigned to the respondent, unless he had something to do with it?56

Petitioner assails the CA in not ruling that the CSC should not have entertained an anonymous complaint
since Section 8 of CSC Resolution No. 99-1936 (URACC) requires a verified complaint:

Rule II – Disciplinary Cases

SEC. 8. Complaint. - A complaint against a civil service official or employee shall not be given due course
unless it is in writing and subscribed and sworn to by the complainant. However, in cases initiated by the
proper disciplining authority, the complaint need not be under oath.

No anonymous complaint shall be entertained unless there is obvious truth or merit to the allegation
therein or supported by documentary or direct evidence, in which case the person complained of may be
required to comment.

xxxx

We need not belabor this point raised by petitioner. The administrative complaint is deemed to have been
initiated by the CSC itself when Chairperson David, after a spot inspection and search of the files stored
in the hard drive of computers in the two divisions adverted to in the anonymous letter -- as part of the
disciplining authority’s own fact-finding investigation and information-gathering -- found a prima facie
case against the petitioner who was then directed to file his comment. As this Court held in Civil Service
Commission v. Court of Appeals57 --

Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O. No. 292 and Section 8, Rule II of Uniform
Rules on Administrative Cases in the Civil Service, a complaint may be initiated against a civil service officer
or employee by the appropriate disciplining authority, even without being subscribed and sworn to.

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Considering that the CSC, as the disciplining authority for Dumlao, filed the complaint, jurisdiction over
Dumlao was validly acquired. (Emphasis supplied.)

As to petitioner’s challenge on the validity of CSC OM 10, S. 2002 (CUP), the same deserves scant
consideration. The alleged infirmity due to the said memorandum order having been issued solely by the
CSC Chair and not the Commission as a collegial body, upon which the dissent of Commissioner Buenaflor
is partly anchored, was already explained by Chairperson David in her Reply to the Addendum to
Commissioner Buenaflor’s previous memo expressing his dissent to the actions and disposition of the
Commission in this case. According to Chairperson David, said memorandum order was in fact
exhaustively discussed, provision by provision in the January 23, 2002 Commission Meeting, attended by
her and former Commissioners Erestain, Jr. and Valmores. Hence, the Commission En Banc at the time
saw no need to issue a Resolution for the purpose and further because the CUP being for internal use of
the Commission, the practice had been to issue a memorandum order.58 Moreover, being an
administrative rule that is merely internal in nature, or which regulates only the personnel of the CSC and
not the public, the CUP need not be published prior to its effectivity.59

In fine, no error or grave abuse of discretion was committed by the CA in affirming the CSC’s ruling that
petitioner is guilty of grave misconduct, dishonesty, conduct prejudicial to the best interest of the service,
and violation of R.A. No. 6713. The gravity of these offenses justified the imposition on petitioner of the
ultimate penalty of dismissal with all its accessory penalties, pursuant to existing rules and regulations.

WHEREFORE, the petition for review on certiorari is DENIED. The Decision dated October 11, 2007 and
Resolution dated February 29, 2008 of the Court of Appeals in CA-G.R. SP No. 98224 are AFFIRMED.

With costs against the petitioner.

SO ORDERED.

MARTIN S. VILLARAMA, JR.

Associate Justice

WE CONCUR:

RENATO C. CORONA

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Chief Justice

See Separate Concurring Opinion

ANTONIO T. CARPIO

Associate Justice I join opinion of J. Bersamin

PRESBITERO J. VELASCO, JR.

Associate Justice

I join the concurring and dissenting opinion of Justice Bersamin

TERESITA J. LEONARDO-DE CASTRO

Associate Justice ARTURO D. BRION

Associate Justice

DIOSDADO M. PERALTA

Associate Justice LUCAS P. BERSAMIN

Associate Justice

(No Part)

MARIANO C. DEL CASTILLO*

Associate Justice I join Justice L. Bersamin's concurring and dissenting opinion

ROBERTO A. ABAD

Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice JOSE CATRAL MENDOZA

Associate Justice

I concur but share J. Carpio's concerns

MARIA LOURDES P. A. SERENO

Associate Justice BIENVENIDO L. REYES

Associate Justice

ESTELA M. PERLAS-BERNABE

Associate Justice

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CERTIFICATION

Pursuant to Section 13, Article VIII of the 1987 Constitution, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned to the writer of the opinion of
the Court.

RENATO C. CORONA

Chief Justice

Footnotes

* No part.

1 Rollo, pp. 63-83. Penned by Associate Justice Romeo F. Barza, with Associate Justices Mariano C. Del
Castillo (now a Member of this Court) and Arcangelita M. Romilla-Lontok concurring.

2 Id. at 85.

3 Id. at 306.

4 Id. at 305.

5 CA rollo, p. 56.

6 Id.

7 Id. at 21-24.

8 Id. at 20-25.

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9 Id. at 25.

10 Id. at 55-62.

11 Id. at 26-33. Chairperson Karina Constantino-David and Commissioner Mary Ann Z. Fernandez-
Mendoza concurred in ruling that a prima facie case existed against petitioner while Commissioner Cesar
D. Buenaflor dissented [see Memorandum (OCOM-C Memo No. 14, s. 2007, CA rollo, pp. 431-434).

12 CSC records, pp. 71-l to 71-n. Chairperson Karina Constantino-David and Commissioner Mary Ann Z.
Fernandez-Mendoza concurred in the denial of the omnibus motion while Commissioner Cesar D.
Buenaflor reiterated his dissent.

13 CA rollo, pp. 2-19.

14 Id. at 288-294, 321-325.

15 Id. at 336-340.

16 Id. at 373.

17 Id. at 376-378.

18 Id. at 388-392.

19 Id. at 457-463. Chairperson Karina Constantino-David and Commissioner Mary Ann Z. Fernandez-
Mendoza concurred in denying the motion while Commissioner Cesar D. Buenaflor dissented stating that
based on his dissenting position, any subsequent proceedings in this case is of no moment since the
initiatory proceedings was in violation of a person’s fundamental rights enshrined in the Bill of Rights of
the Constitution. (Id. at 465.)

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20 Id. at 586-618. Chairperson Karina Constantino-David and Commissioner Mary Ann Z. Fernandez-
Mendoza concurred in ruling that petitioner is guilty as charged while Commissioner Cesar D. Buenaflor
maintained his dissent.

21 Id. at 618.

22 480 U.S. 709 (1987).

23 206 F.3d 392 (4th Cir. 2000).

24 Id. at 560-585.

25 Id. at 707-719. Chairperson Karina Constantino-David and Commissioner Mary Ann Z. Fernandez-
Mendoza concurred in the denial of the motion for reconsideration while Commissioner Cesar D.
Buenaflor reiterated his dissent under his "Addendum to the Dissenting Position Under OCOM-C Memo
No. 14, S. 2007". (Id. at 720.)

26 Rollo, p. 19.

27 Social Justice Society (SJS) v. Dangerous Drugs Board, G.R. Nos. 157870, 158633 and 161658, November
3, 2008, 570 SCRA 410, 427, citing Ople v. Torres, G.R. No. 127685, July 23, 1998, 293 SCRA 141, 169.

28 Joaquin Bernas, S.J., The Constitution of the Republic of the Philippines: A Commentary, 2003 ed., p.
162.

29 G.R. No. 81561, January 18, 1991, 193 SCRA 57.

30 Id. at 63.

31 389 U.S. 437 (1967).

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32 Id.

33 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed2d 1154 (1968).

34 Supra note 22.

35 Id. at 717.

36 City of Ontario, Cal. v. Quon, 130 S.Ct. 2619, U.S. 2010, June 17, 2010.

37 Supra note 22 at 717-718.

38 Id. at 718-719.

39 Id. at 719, 722-725.

40 Francis v. Giacomelli, 588 F.3d 186, C.A. (Md), December 2, 2009.

41 Supra note 23.

42 Id.

43 Supra note 27 at 432-433.

44 U.S. v. Barrows, 481 F.3d 1246, C.A.10 (Okla.), April 3, 2007, citing United States v. Anderson, 154 F.3d
1225, 1229 (10th Cir. 1998).

45 U.S. v. Ziegler, 474 F.3d 1184 C.A.9 (Mont.), January 30, 2007.

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46 CA rollo, pp. 42, 61.

47 Id. at 440-443.

48 Biby v. Board of Regents, of the University of Nebraska at Lincoln, 419 F.3d 845 C.A.8 (Neb), August 22,
2005.

49 Id.

50 CA rollo, p. 639.

51 U.S. v. Thorn, 375 F.3d 679, C.A.8 (Mo.), July 13, 2004.

52 Id.

53 CA rollo, pp. 611-612.

54 A.M. Nos. P-08-2519 and P-08-2520, November 19, 2008, 571 SCRA 361.

55 Vertudes v. Buenaflor, G.R. No. 153166, December 16, 2005, 478 SCRA 210, 230, citing Rosario v.
Victory Ricemill, G.R. No. 147572, February 19, 2003, 397 SCRA 760, 766 and Bagong Bayan Corp., Realty
Investors and Developers v. NLRC, G.R. No. 61272, September 29, 1989, 178 SCRA 107.

56 CA rollo, pp. 616-617.

57 G.R. No. 147009, March 11, 2004, 425 SCRA 394, 401.

58 Rollo, p. 299.

59 See Tañada v. Hon. Tuvera, 230 Phil. 528, 535 (1986).

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SEPARATE CONCURRING OPINION

CARPIO, J.:

I concur with the Court’s denial of the petition. However, I file this separate opinion to (1) assert a
statutory basis for the disposition of the case, and (2) articulate the exception to the Civil Service
Commission (CSC) office regulation denying expectation of privacy in the use of government computers.

First. The CSC’s computer use regulation, which opens to access for internal scrutiny anything CSC
employees "create, store, send, or receive in the computer system," has a statutory basis under the
Government Auditing Code of the Philippines. Section 4(2) of the Code mandates that "[g]overnment x x
x property shall be x x x used solely for public purposes."1 In short, any private use of a government
property, like a government-owned computer, is prohibited by law. Consequently, a government
employee cannot expect any privacy when he uses a government-owned computer because he knows he
cannot use the computer for any private purpose. The CSC regulation declaring a no-privacy expectation
on the use of government-owned computers logically follows from the statutory rule that government-
owned property shall be used "solely" for a public purpose.

Moreover, the statutory rule and the CSC regulation are consistent with the constitutional treatment of a
public office as a public trust.2 The statutory rule and the CSC regulation also implement the State policies,
as expressly provided in the Constitution, of ensuring full disclosure of all government transactions
involving public interest,3 maintaining honesty and integrity in the public service, and preventing graft
and corruption.4

Thus, in this jurisdiction, the constitutional guarantees of privacy and reasonable search are unavailing
against audit inspections or internal investigations for misconduct, as here, of electronic data stored in
government-owned property such as computing, telecommunication, and other devices issued to civil
servants. These constitutional guarantees apply only to searches of devices privately owned by
government employees.

Second. The CSC office regulation denying CSC employees privacy expectation in "anything they create,
store, send, or receive in the computer system,"5 although valid as to petitioner Briccio Pollo, is
constitutionally infirm insofar as the regulation excludes from its ambit the three CSC commissioners
solely by reason of their rank, and not by reason of the confidential nature of the electronic data they
generate.

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Office regulations mandating no-privacy expectation such as the CSC regulation in question cannot justify
access to sensitive government information traditionally recognized as confidential. Thus, insulated from
the reach of such regulations are Presidential conversations, correspondences, or discussions during
closed-door Cabinet meetings, internal deliberations of the Supreme Court and other collegiate courts,
draft decisions of judges and justices, executive sessions of either house of Congress, military and
diplomatic secrets, national security matters, documents relating to pre-prosecution investigations by law
enforcement agencies and similar confidential matters.6 The privilege of confidentiality covering these
classes of information, barring free access to them, is grounded on the nature of the constitutional
function of the public officials involved, coupled with considerations of efficiency, safety and comity
interests since disclosure of confidential information jeopardizes decision-making, endangers lives and
undermines diplomatic dealings, as the case may be.

The CSC, as the government’s "central personnel agency,"7 exercises quasi-judicial functions in
"[r]ender[ing] opinion and rulings on all personnel and other Civil Service matters."8 The CSC’s internal
deliberations on administrative cases are comparable to the internal deliberations of collegial courts. Such
internal deliberations enjoy confidentiality and cannot be accessed on the ground that an audio of the
deliberations is stored in a government-owned device. Likewise, draft decisions of CSC commissioners
that are stored in government-issued computers are confidential information.

By providing that "[u]sers except the Members of the Commission shall not have an expectation of privacy
in anything they create, store, send, or receive in the [government-owned] computer system," the CSC
regulation creates a new, constitutionally suspect category of confidential information based, not on the
sensitivity of content, but on the salary grade of its author. Thus, a glaring exemption from the CSC’s own
transparency regulation is "anything x x x create[d], store[d], sen[t], or receive[d]" in the commission’s
computer system by the three CSC members. As the new category is content-neutral and draws its
confidentiality solely from the rank held by the government official creating, storing, sending and receiving
the data, the exemption stands on its head the traditional grounding of confidentiality – the sensitivity of
content.

The constitutional infirmity of the exemption is worsened by the arbitrariness of its rank-based
classification. The three CSC commissioners, unlike the rest of the lower ranked CSC employees, are
excluded from the operation of the CSC’s data transparency regulation solely because they are the CSC’s
highest ranking officers.9 This classification fails even the most lenient equal protection analysis. It bears
no reasonable connection with the CSC regulation’s avowed purposes of "[1] [p]rotect[ing] confidential,
proprietary information of the CSC from theft or unauthorized disclosure to third parties; [2] [o]ptimiz[ing]
the use of the CSC’s [c]omputer [r]esources as what they are officially intended for; and [3] [r]educ[ing]
and possibly eliminat[ing] potential legal liability to employees and third parties."10 The assumption upon
which the classification rests – that the CSC commissioners, unlike the rest of the CSC’s thousands of
employees, are incapable of violating these objectives – is plainly unfounded.

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The only way by which the CSC commissioners, or for that matter, any of its employees, can
constitutionally take themselves out of the ambit of the CSC’s no-privacy regulation is if they (1) invoke
the doctrine of confidentiality of information, and (2) prove that the information sought to be exempted
indeed falls under any of the classes of confidential information adverted to above (or those comparable
to them). Sensitivity of content, not rank, justifies enjoyment of this very narrow constitutional privilege.

Accordingly, I vote to DENY the petition.

ANTONIO T. CARPIO

Associate Justice

Footnotes

1 Presidential Decree No. 1445. Section 4(2) provides in full: "Government funds or property shall be spent
or used solely for public purposes."

2 Section 1, Article XI of the Constitution provides: "Public office is a public trust. Public officers and
employees must, at all times, be accountable to the people, serve them with utmost responsibility,
integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives."

3 Section 28, Article II of the Constitution provides: "Subject to reasonable conditions prescribed by law,
the State adopts and implements a policy of full public disclosure of all its transactions involving public
interest."

4 Section 27, Article II of the Constitution provides: "The State shall maintain honesty and integrity in the
public service and take positive and effective measures against graft and corruption."

5 The rule under CSC Memorandum No. 10, series of 2002, provides:

No expectation of privacy. Users except the Members of the Commission shall not have expectation of
privacy in anything they create, store, send or receive in the computer system.

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The Head of the Office for Recruitment, Examination and Placement shall select and assign Users to handle
the confidential examination of data and processes.

6 Under Chavez v. Public Estates Authority (G.R. No. 133250, 9 July 2002, 384 SCRA 152, 188), these are
also beyond the reach of the constitutional right to information.

7 Constitution, Article IX(B), Section 3.

8 Executive Order No. 292, Book V, Title I, Chapter 3, Section 12(5).

9 Aside from its three commissioners, the CSC has two assistant commissioners and twelve divisions in its
central office, including an office for legal affairs. The CSC also maintains 16 regional offices.

10 CSC Memorandum No. 10, series of 2002, enumerates these as its objectives.

CONCURRING AND DISSENTING OPINION

BERSAMIN, J.:

I render this concurring and dissenting opinion only to express my thoughts on the constitutional right to
privacy of communication and correspondence vis-à-vis an office memorandum that apparently removed
an employee’s expectation of privacy in the workplace.

Indispensable to the position I take herein is an appreciation of the development and different attributes
of the right to privacy that has come to be generally regarded today as among the valuable rights of the
individual that must be given Constitutional protection.

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The 1890 publication in the Harvard Law Review of The Right to Privacy,1 an article of 28 pages co-written
by former law classmates Samuel Warren and Louis Brandeis, is often cited to have given birth to the
recognition of the constitutional right to privacy. The article was spawned by the emerging growth of
media and technology, with the co-authors particularly being concerned by the production in 1884 by the
Eastman Kodak Company of a "snap camera" that enabled people to take candid pictures. Prior to 1884,
cameras had been expensive and heavy; they had to be set up and people would have to pose to have
their pictures taken. The snap camera expectedly ignited the enthusiasm for amateur photography in
thousands of people who had previously not been able to afford a camera. This technological
development moved Warren and Brandeis to search for a legal right to protect individual privacy.2 One
of the significant assertions they made in their article was the declaration that "the common law secures
to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and
emotions shall be communicated to others,"3 said right being merely part of an individual’s right to be let
alone.4

While some quarters do not easily concede that Warren and Brandeis "invented" the right to privacy,
mainly because a robust body of confidentiality law protecting private information from disclosure existed
throughout Anglo-American common law by 1890, critics have acknowledged that The Right to Privacy
charted a new path for American privacy law.5

In 1928, Brandeis, already a Supreme Court Justice, incorporated the right to be let alone in his dissent in
Olmstead v. United States,6 viz:

"The protection guaranteed by the Amendments is much broader in scope. The makers of our Constitution
undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of
man’s spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure
and satisfactions of life are to be found in material things. They sought to protect Americans in their
beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government,
the right to be let alone ̶ the most comprehensive of rights, and the right most valued by civilized men. To
protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual,
whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as
evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of
the Fifth." [emphasis supplied]

In 1960, torts scholar William Prosser published in the California Law Review7 his article Privacy based on
his thorough review of the various decisions of the United States courts and of the privacy laws. He
observed then that the "law of privacy comprises four distinct kinds of invasion of four different interests
of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in
common except that each represents an interference with the right of the plaintiff, in the phrase coined

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by Judge Cooley, ‘to be let alone.’"8 He identified the four torts as: (a) the intrusion upon the plaintiff’s
seclusion or solitude, or into his private affairs; (b) the public disclosure of embarrassing private facts
about the plaintiff; (c) the publicity that places the plaintiff in a false light in the public eye; and (d) the
appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.9

With regard to the first tort of intrusion upon seclusion or solitude, or into private affairs, Prosser posited
that there was a remedy when a person "intentionally intrudes, physically or otherwise, upon the solitude
or seclusion of another or his private affairs or concerns" in a manner that was "highly offensive to a
reasonable person."10 The second and third torts established liability when the publicized matter was
highly offensive to a reasonable person and was not a legitimate concern of the public – if it involved
disclosure of embarrassing private facts – or placed another before the public in a false light.11 Lastly, the
tort of appropriation afforded a relief when a person adopted "to his own use or benefit the name or
likeness of another."12

In the 1977 landmark ruling of Whalen v. Roe,13 the US Supreme Court expanded the right to privacy by
categorizing privacy claims into two, namely: informational privacy, to refer to the interest in avoiding
disclosure of personal matters; and decisional privacy, to refer to the interest in independence in making
certain kinds of important decisions.

All US Circuit Courts recognizing informational privacy have held that this right is not absolute and,
therefore, they have balanced individuals’ informational privacy interests against the State’s interest in
acquiring or disclosing the information.14 The majority of the US Circuit Courts have adopted some form
of scrutiny that has required the Government to show a "substantial" interest for invading individuals’
right to confidentiality in their personal information, and then to balance the State’s substantial interest
in the disclosure as against the individual’s interest in confidentiality.15 This balancing test was developed
in United States v. Westinghouse16 by using the following factors, to wit: (a) the type of record requested;
(b) the information it did or might contain; (c) the potential for harm in any subsequent nonconsensual
disclosure; (d) the injury from disclosure to the relationship in which the record was generated; (e) the
adequacy of safeguards to prevent unauthorized disclosure; (f) the degree of need for access; and (g) the
presence of an express statutory mandate, articulated public policy, or other recognizable public interest
militating toward access.17

Decisional privacy, on the other hand, evolved from decisions touching on matters concerning speech,
religion, personal relations, education and sexual preferences. As early as 1923, the US Supreme Court
recognized decisional privacy in its majority opinion in Meyer v. Nebraska.18 The petitioner therein was
tried and convicted by a district court, and his conviction was affirmed by the Supreme Court of the
Nebraska, for teaching the subject of reading in the German language to a ten-year old boy who had not
attained and successfully passed eighth grade.19 In reversing the judgment, Justice McReynolds of the US
Supreme Court pronounced that the liberty guaranteed by the Fourteenth Amendment "denotes not
merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of

176
the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up
children, to worship God according to the dictates of his own conscience, and generally to enjoy those
privileges long recognized at common law as essential to the orderly pursuit of happiness by free men."
Justice McReynolds elaborated thusly:

"Practically, education of the young is only possible in schools conducted by especially qualified persons
who devote themselves thereto. The calling always has been regarded as useful and honorable, essential,
indeed, to the public welfare. Mere knowledge of the German language cannot reasonably be regarded
as harmful. Heretofore it has been commonly looked upon as helpful and desirable. Plaintiff in error
taught this language in school as part of his occupation. His right thus to teach and the right of parents to
engage him so to instruct their children, we think, are within the liberty of the Amendment."

In Griswold v. Connecticut,20 the US Supreme Court resolved another decisional privacy claim by striking
down a statute that prohibited the use of contraceptives by married couples. Justice Douglas, delivering
the opinion, declared:

"By Pierce v. Society of Sisters, supra, the right to educate one’s children as one chooses is made applicable
to the States by the force of the First and Fourteenth Amendments. By Meyer v. Nebraska, supra, the
same dignity is given the right to study the German language in a private school. In other words, the State
may not, consistently with the spirit of the First Amendment, contract the spectrum of available
knowledge. The right of freedom of speech and press includes not only the right to utter or to print, but
the right to distribute, the right to receive, the right to read (Martin v. Struthers, 319 U.S. 141, 143) and
freedom of inquiry, freedom of thought, and freedom to teach (see Wiemann v. Updegraff, 344 U.S. 183,
195) -- indeed, the freedom of the entire university community. (Sweezy v. New Hampshire, 354 U.S. 234,
249-250, 261-263; Barenblatt v. United States, 360 U.S. 109, 112; Baggett v. Bullitt, 377 U.S. 360, 369).
Without those peripheral rights, the specific rights would be less secure. And so we reaffirm the principle
of the Pierce and the Meyer cases.

xxxx

"The present case, then, concerns a relationship lying within the zone of privacy created by several
fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of
contraceptives, rather than regulating their manufacture or sale, seeks to achieve its goals by means
having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the
familiar principle, so often applied by this Court, that a governmental purpose to control or prevent
activities constitutionally subject to state regulation may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms. (NAACP v. Alabama, 377 U.S.
288, 307). Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs

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of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage
relationship."

One of the most controversial decisional privacy claims was dealt with in Roe v. Wade,21 by which the US
Supreme Court justified abortion in the United States on the premise that:

"This right of privacy xxx is broad enough to encompass a woman’s decision whether or not to terminate
her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this
choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may
be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future.
Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is
also the distress, for all concerned, associated with the unwanted child, and there is the problem of
bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases,
as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All
these are factors the woman and her responsible physician necessarily will consider in consultation.

xxxx

"Although the results are divided, most of these courts have agreed that the right of privacy, however
based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is
subject to some limitations; and that at some point the state interests as to protection of health, medical
standards, and prenatal life, become dominant."

In the Philippines, we have upheld decisional privacy claims. For instance, in the 2003 case of Estrada v.
Escritor,22 although the majority opinion dealt extensively with the claim of religious freedom, a right
explicitly provided by the Constitution, Justice Bellosillo’s separate opinion was informative with regard
to the privacy aspect of the issue involved and, hence, stated:

"More than religious freedom, I look with partiality to the rights of due process and privacy. Law in general
reflects a particular morality or ideology, and so I would rather not foist upon the populace such criteria
as "compelling state interest," but more, the reasonably foreseeable specific connection between an
employee’s potentially embarrassing conduct and the efficiency of the service. This is a fairly objective
standard than the compelling interest standard involved in religious freedom.

"Verily, if we are to remand the instant case to the Office of the Court Administrator, we must also
configure the rights of due process and privacy into the equation. By doing so, we can make a difference
not only for those who object out of religious scruples but also for those who choose to live a meaningful

178
life even if it means sometimes breaking "oppressive" and "antiquated" application of laws but are
otherwise efficient and effective workers. As is often said, when we have learned to reverence each
individual’s liberty as we do our tangible wealth, we then shall have our renaissance."

Relevantly, Article III, Section 3 of the 1987 Constitution embodies the protection of the privacy of
communication and correspondence, to wit:

Section 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful
order of the court, or when public safety or order requires otherwise as prescribed by law.

xxxx

Yet, the guarantee in favor of the privacy of communication and correspondence is not absolute, for it
expressly allows intrusion either upon lawful order of a court or when public safety and order so demands
(even without a court order).23

In its 1965 ruling in Griswold v. Connecticut,24 the US Supreme Court declared that the right to privacy
was a fundamental personal right; and that the enumeration in the Constitution of certain rights should
not be construed as a denial or disparagement of others that have been retained by the people,25
considering that the "specific guarantees in the Bill of Rights had penumbras, formed by emanations from
those guarantees that helped give them life and substance." Accordingly, an individual’s right to privacy
of communication and correspondence cannot, as a general rule, be denied without violating the basic
principles of liberty and justice.

The constitutional right to privacy in its Philippine context was first recognized in the 1968 ruling of Morfe
v. Mutuc,26 where the Court affirmed that:

"The right to privacy as such is accorded recognition independently of its identification with liberty; in
itself, it is fully deserving of constitutional protection. The language of Prof. Emerson is particularly apt:
"The concept of limited government has always included the idea that governmental powers stop short
of certain intrusions into the personal life of the citizen. This is indeed one of the basic distinctions
between absolute and limited government. Ultimate and pervasive control of the individual, in all aspects
of his life, is the hallmark of the absolute state. In contrast, a system of limited government, safeguards a
private sector, which belongs to the individual, firmly distinguishing it from the public sector, which the
state can control. Protection of this private sector — protection, in other words, of the dignity and
integrity of the individual — has become increasingly important as modern society has developed. All the
forces of a technological age — industrialization, urbanization, and organization — operate to narrow the

179
area of privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and support this
enclave of private life marks the difference between a democratic and a totalitarian society."

Morfe v. Mutuc emphasized the significance of privacy by declaring that "[t]he right to be let alone is
indeed the beginning of all freedom."27 The description hewed very closely to that earlier made by Justice
Brandeis in Olmstead v. United States that the right to be let alone was "the most comprehensive of rights
and the right most valued by civilized men."28

It is elementary that before this constitutional right may be invoked a reasonable or objective expectation
of privacy should exist, a concept that was introduced in the concurring opinion of Justice Harlan in the
1967 case Katz v. United States,29 no doubt inspired by the oral argument30 of Judge Harvey Schneider,
then co-counsel for petitioner Charles Katz. Since the idea was never discussed in the briefs, Judge
Schneider boldly articulated during his oral argument that "expectations of privacy should be based on an
objective standard, one that could be formulated using the reasonable man standard from tort law."31
Realizing the significance of this new standard in its Fourth Amendment jurisprudence, Justice Harlan, in
his own way, characterized the reasonable expectation of privacy test as "the rule that has emerged from
prior decisions."32

Justice Harlan expanded the test into its subjective and objective component, however, by stressing that
the protection of the Fourth Amendment has a two-fold requirement: "first, that a person have exhibited
an actual (subjective) expectation of privacy and, second, that the expectation be one that society is
prepared to recognize as ‘reasonable’."33 Although the majority opinion in Katz v. United States made no
reference to this reasonable expectation of privacy test, it instituted the doctrine that "the Fourth
Amendment protects people, not places. What a person knowingly exposes to the public, even in his own
home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private,
even in an area accessible to the public, may be constitutionally protected."34

In the 1968 case Mancusi v. DeForte,35 the US Supreme Court started to apply the reasonable expectation
of privacy test pioneered by Katz v. United States and declared that the "capacity to claim the protection
of the Amendment depends not upon a property right in the invaded place, but upon whether the area
was one in which there was a reasonable expectation of freedom from governmental intrusion."36

II

Bearing in mind the history and evolution of the right to privacy as a Constitutionally-protected right, I
now dwell on whether the petitioner, a public employee, enjoyed an objective or reasonable expectation
of privacy in his workplace, i.e. within the premises of respondent Civil Service Commission, his employer.

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At the outset, I state that the right to privacy involved herein is the petitioner’s right to informational
privacy in his workplace, specifically his right to work freely without surveillance or intrusion.37

I find relevant the doctrine laid down in O’Connor v. Ortega,38 where the US Supreme Court held that a
person was deemed to have a lower expectation of privacy in his workplace. The decrease in expectation
of privacy was not similar to a non-existent expectation, however, for the US Supreme Court clarified:

"Given the societal expectations of privacy in one’s place of work expressed in both Oliver and Mancusi,
we reject the contention made by the Solicitor General and petitioners that public employees can never
have a reasonable expectation of privacy in their place of work. Individuals do not lose Fourth Amendment
rights merely because they work for the government, instead of a private employer. The operational
realities of the workplace, however, may make some employees' expectations of privacy unreasonable
when an intrusion is by a supervisor, rather than a law enforcement official. Public employees’
expectations of privacy in their offices, desks, and file cabinets, like similar expectations of employees in
the private sector, may be reduced by virtue of actual office practices and procedures, or by legitimate
regulation. xxx An office is seldom a private enclave free from entry by supervisors, other employees, and
business and personal invitees. Instead, in many cases offices are continually entered by fellow employees
and other visitors during the workday for conferences, consultations, and other work-related visits. Simply
put, it is the nature of government offices that others – such as fellow employees, supervisors, consensual
visitors, and the general public – may have frequent access to an individual's office. We agree with JUSTICE
SCALIA that

‘[c]onstitutional protection against unreasonable searches by the government does not disappear merely
because the government has the right to make reasonable intrusions in its capacity as employer,’

but some government offices may be so open to fellow employees or the public that no expectation of
privacy is reasonable.

xxxx

"Balanced against the substantial government interests in the efficient and proper operation of the
workplace are the privacy interests of government employees in their place of work, which, while not
insubstantial, are far less than those found at home or in some other contexts. As with the building
inspections in Camara, the employer intrusions at issue here "involve a relatively limited invasion" of
employee privacy. Government offices are provided to employees for the sole purpose of facilitating the

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work of an agency. The employee may avoid exposing personal belongings at work by simply leaving them
at home. [emphasis supplied]

For sure, there are specific reasons why employees in general have a decreased expectation of privacy
with respect to work-email accounts,39 including the following:

(a) Employers have legitimate interests in monitoring the workplace;40

(b) Employers own the facilities;

(c) Monitoring computer or internet use is a lesser evil compared to other liabilities, such as having
copyright infringing material enter the company computers, or having employees send proprietary
material to outside parties;

(d)An employer also has an interest in detecting legally incriminating material that may later be subject
to electronic discovery;

(e) An employer simply needs to monitor the use of computer resources, from viruses to clogging due to
large image or pornography files.41

In view of these reasons, the fact that employees may be given individual accounts and password
protection is not deemed to create any expectation of privacy.42

Similarly, monitoring an employee’s computer usage may also be impelled by the following legitimate
reasons:

(a) To maintain the company’s professional reputation and image;

(b) To maintain employee productivity;

(c) To prevent and discourage sexual or other illegal workplace harassment;

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(d) To prevent "cyberstalking" by employees;

(e) To prevent possible defamation liability;

(f) To prevent employee disclosure of trade secrets and other confidential information; and

(g)To avoid copyright and other intellectual property infringement from employees illegally downloading
software, etc.43

Even without Office Memorandum (OM) No. 10, Series of 2002 being issued by respondent Karina
Constantino-David as Chairman of the Civil Service Commission, the employees of the Commission,
including the petitioner, have a reduced expectation of privacy in the workplace. The objective of the
issuance of OM No. 10 has been only to formally inform and make aware the employees of the
Commission about the limitations on their privacy while they are in the workplace and to advise them that
the Commission has legitimate reasons to monitor communications made by them, electronically or not.
The objectives of OM No. 10 are, needless to state, clear in this regard.44

III

Unlike the Majority, I find that the petitioner did not absolutely waive his right to privacy.45 OM No. 10
contains the following exception, to wit:

Waste of Computer Resources. x x x

xxxx

However, Users are given privileged access to the Internet for knowledge search, information exchange
and others. They shall be allowed to use the computer resources for personal purpose after office hours
provided that no unlawful materials mentioned in item number 7 and 8 are involved, and no other
facilities such as air conditioning unit, video/audio system etc., shall be used except sufficient lights.
[emphasis supplied]

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Thereby, OM No. 10 has actually given the petitioner privileged access to the Internet for knowledge
search, information exchange, and others; and has explicitly allowed him to use the computer resources
for personal purposes after office hours. Implicit in such privileged access and permitted personal use
was, therefore, that he still had a reasonable expectation of privacy vis-à-vis whatever communications
he created, stored, sent, or received after office hours through using the Commission’s computer
resources, such that he could rightfully invoke the Constitutional protection to the privacy of his
communication and correspondence.

In view of the petitioner’s expectation of privacy, albeit diminished, I differ from the Majority’s holding
that he should be barred from claiming any violation of his right to privacy and right against unreasonable
searches and seizures with respect to all the files, official or private, stored in his computer. Although I
concede that respondent David had legal authority and good reasons to issue her order to back up the
petitioner’s files as an exercise of her power of supervision, I am not in full accord with the Majority’s
holding for the confiscation of all the files stored in the computer. The need to control or prevent activities
constitutionally subject to the State’s regulation may not be filled by means that unnecessarily and
broadly sweep and thereby invade the area of protected freedoms.46

I hold, instead, that the petitioner is entitled to a reasonable expectation of privacy in respect of the
communications created, stored, sent, or received after office hours through the office computer, as to
which he must be protected. For that reason, respondent David’s order to back up files should only cover
the files corresponding to communications created, stored, sent, or received during office hours. There
will be no difficulty in identifying and segregating the files created, stored, sent, or received during and
after office hours with the constant advancement and improvement of technology and the presumed
expertise of the Commission’s information systems analysts.

Nonetheless, my concurrence with the Majority remains as regards the petitioner’s administrative liability
and the seizure of the remainder of the files. I am reiterating, for emphasis, that the diminution of his
expectation of privacy in the workplace derived from the nature and purpose of a government office,
actual office practice and procedures observed therein, and legitimate regulation.47 Thus, I vote to uphold
the legality of OM No. 10. I hasten to add, to be very clear, that the validity of the seizure of the files
should be limited to the need for determining whether or not the petitioner unjustly utilized official
resources of the Commission for personal purposes, and should not extend to the reading of the files’
contents, which would be violative of his right to privacy.

I adhere to the principle that every man is believed to be free. Freedom gears a man to move about
unhampered and to speak out from conviction. That is why the right to privacy has earned its worthy place
in the Bill of Rights. However, although the right to privacy is referred to as a right to be enjoyed by the
people, the State cannot just sit back and stand aside when, in the exercise of his right to privacy, the
individual perilously tilts the scales to the detriment of the national interest.

184
In upholding the validity of OM No. 10, I also suppose that it is not the intention of the Majority to render
the Bill of Rights inferior to an administrative rule. Rather, adoption of the balancing of interests test, a
concept analogous to the form of scrutiny employed by courts of the United States, has turned out to be
applicable especially in the face of the conflict between the individual interest of the petitioner (who
asserts his right to privacy) and the Commission’s legitimate concern as an arm of the Government tasked
to perform official functions. The balancing of interest test has been explained by Professor Kauper,48 viz:

"The theory of balance of interests represents a wholly pragmatic approach to the problem of First
Amendment freedom, indeed, to the whole problem of constitutional interpretation. It rests on the theory
that is the Court’s function in the case before it when it finds public interests served by legislation on the
one hand and First Amendment freedoms affected by it on the other, to balance the one against the other
and to arrive at a judgment where the greater weight shall be placed. If on balance it appears that the
public interest served by restrictive legislation is of such a character that it outweighs the abridgment of
freedom, then the Court will find the legislation valid. In short, the balance-of-interests theory rests on
the basis that constitutional freedoms are not absolute, not even those stated in the First Amendment,
and that they may be abridged to some extent to serve appropriate and important interest." (emphasis
supplied.)

The Court has applied the balancing of interest test in Alejano v. Cabuay,49 where it ruled that the
substantial government interest in security and discipline outweighed a detainee’s right to privacy of
communication. The Court has elucidated:

"In Hudson v. Palmer, the U.S. Supreme Court ruled that an inmate has no reasonable expectation of
privacy inside his cell. The U.S. Supreme Court explained that prisoners necessarily lose many protections
of the Constitution, thus:

‘However, while persons imprisoned for crime enjoy many protections of the Constitution, it is also clear
that imprisonment carries with it the circumscription or loss of many significant rights. These constraints
on inmates, and in some cases the complete withdrawal of certain rights, are "justified by the
considerations underlying our penal system." The curtailment of certain rights is necessary, as a practical
matter, to accommodate a myriad of "institutional needs and objectives" of prison facilities, chief among
which is internal security. Of course, these restrictions or retractions also serve, incidentally, as reminders
that, under our system of justice, deterrence and retribution are factors in addition to correction.’

"The later case of State v. Dunn, citing Hudson v. Palmer, abandoned Palmigiano v. Travisono and made
no distinction as to the detainees’ limited right to privacy. State v. Dunn noted the considerable
jurisprudence in the United States holding that inmate mail may be censored for the furtherance of a

185
substantial government interest such as security or discipline. State v. Dunn declared that if complete
censorship is permissible, then the lesser act of opening the mail and reading it is also permissible. We
quote State v. Dunn:

‘[A] right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close
and continual surveillance of inmates and their cells required to ensure institutional security and internal
order. We are satisfied that society would insist that the prisoner’s expectation of privacy always yield to
what must be considered a paramount interest in institutional security. We believe that it is accepted by
our society that "[l]oss of freedom of choice and privacy are inherent incidents of confinement."’

xxxx

"Thus, we do not agree with the Court of Appeals that the opening and reading of the detainees’ letters
in the present case violated the detainees’ right to privacy of communication. The letters were not in a
sealed envelope. The inspection of the folded letters is a valid measure as it serves the same purpose as
the opening of sealed letters for the inspection of contraband.

xxxx

"In assessing the regulations imposed in detention and prison facilities that are alleged to infringe on the
constitutional rights of the detainees and convicted prisoners, U.S. courts "balance the guarantees of the
Constitution with the legitimate concerns of prison administrators." The deferential review of such
regulations stems from the principle that:

[s]ubjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would
seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the
intractable problems of prison administration." [emphasis supplied]

Much like any other government office, the Commission was established primarily for the purpose of
advancing and accomplishing the functions that were the object of its creation.50 It is imperative,
therefore, that its resources be maximized to achieve utmost efficiency in order to ensure the delivery of
quality output and services to the public. This commitment to efficiency existed not solely in the interest
of good government but also in the interest of letting government agencies control their own information-
processing systems.51 With the State and the people being the Commission’s ultimate beneficiaries, it is
incumbent upon the Commission to maintain integrity both in fact and in appearance at all times. OM No.
10 was issued to serve as a necessary instrument to safeguard the efficiency and integrity of the
Commission, a matter that was of a compelling State interest, and consequently to lay a sound basis for

186
the limited encroachment in the petitioner’s right to privacy. But, nonetheless, Justice Goldberg’s
concurring opinion in Griswold v. Connecticut52 might be instructive:

"In a long series of cases this Court has held that where fundamental personal liberties are involved, they
may not be abridged by the States simply on a showing that a regulatory statute has some rational
relationship to the effectuation of a proper state purpose. Where there is a significant encroachment
upon personal liberty, the State may prevail only upon showing a subordinating interest which is
compelling (Bates v. Little Rock, 361 U.S. 516, 524). The law must be shown ‘necessary, and not merely
rationally related, to the accomplishment of a permissible state policy.’" (McLaughlin v. Florida, 379 U.S.
184, 186)

Even assuming that the anonymous tip about the petitioner’s misuse of the computer proved to be false,
i.e., the petitioner did not really engage in lawyering for or assisting parties with interests adverse to that
of the Commission, his permitting former colleagues and close friends not officially connected with the
Commission to use and store files in his computer,53 which he admitted, still seriously breached, or, at
least, threatened to breach the integrity and efficiency of the Commission as a government office.
Compounding his breach was that he was well informed of the limited computer use and privacy policies
in OM No. 10, in effect since 2002, prior to the seizure of his files in January of 2007. The Court should not
disregard or ignore the breach he was guilty of, for doing so could amount to abetting his misconduct to
the detriment of the public who always deserved quality service from the Commission.

IV

As early as in Olmstead v. United States,54 Justice Brandeis anticipated the impact of technological
changes to the right to privacy and significantly observed that -

"xxx time works changes, brings into existence new conditions and purposes." Subtler and more far-
reaching means of invading privacy have become available to the Government. Discovery and invention
have made it possible for the government, by means far more effective than stretching upon the rack, to
obtain disclosure in court of what is whispered in the closet. Moreover, "in the application of a
Constitution, our contemplation cannot be only of what has been but of what may be." The progress of
science in furnishing the Government with means of espionage is not likely to stop with wiretapping. Ways
may someday be developed by which the Government, without removing papers from secret drawers,
can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate
occurrences of the home. Advances in the psychic and related sciences may bring means of exploring
unexpressed beliefs, thoughts and emotions. xxx"

187
In this era when technological advancement and the emergence of sophisticated methodologies in terms
of the science of communication are already inexorable and commonplace, I cannot help but recognize
the potential impact of the Majority’s ruling on future policies to govern situations in the public and
private workplaces. I apprehend that the ruling about the decreased expectation of privacy in the
workplace may generate an unwanted implication for employers in general to henceforth consider
themselves authorized, without risking a collision with the Constitutionally-protected right to privacy, to
probe and pry into communications made during work hours by their employees through the use of their
computers and other digital instruments of communication. Thus, the employers may possibly begin to
monitor their employees’ phone calls, to screen incoming and out-going e-mails, to capture queries made
through any of the Internet’s efficient search engines (like Google), or to censor visited websites (like
Yahoo!, Facebook or Twitter) in the avowed interest of ensuring productivity and supervising use of
business resources. That will be unfortunate.

The apprehension may ripen into a real concern about the possibility of abuse on the part of the
employers. I propose, therefore, that the ruling herein be made pro hac vice, for there may be situations
not presently envisioned that may be held, wrongly or rightly, as covered by the ruling, like when the
instrument of communication used is property not owned by the employer although used during work
hours.

As a final note, let me express the sentiment that an employee, regardless of his position and of the sector
he works for, is not a slave of trade expected to devote his full time and attention to the job. Although the
interests of capital or public service do merit protection, a recognition of the limitations of man as a being
needful of some extent of rest, and of some degree of personal space even during work hours, is most
essential in order to fully maximize the potential by which his services was obtained in the first place. The
job should not own him the whole time he is in the workplace. Even while he remains in the workplace,
he must be allowed to preserve his own identity, to maintain an inner self, to safeguard his beliefs, and
to keep certain thoughts, judgments and desires hidden. Otherwise put, he does not surrender his entire
expectation of privacy totally upon entering the gates of the workplace. Unreasonable intrusion into his
right to be let alone should still be zealously guarded against, albeit he may have waived at some point a
greater part of that expectation. At any rate, whenever the interest of the employer and the employee
should clash, the assistance of the courts may be sought to define the limits of intrusion or to balance
interests.

ACCORDINGLY, I vote to deny the petition, subject to the qualification that the petitioner’s right to privacy
should be respected as to the files created, stored, sent or received after office hours; and to the further
qualification that the decision be held to apply pro hac vice.

LUCAS P. BERSAMIN

Associate Justice

188
Footnotes

1 4 Harvard Law Review 193.

2 Richards, Neil M. and Daniel J. Solove, Privacy’s Other Path: Recovering the Law of Confidentiality, The
Georgetown Law Journal, Vol. 96 (2007), pp. 128-129.

3 Supra, note 1, p. 198.

4 Id., p. 195; Warren and Brandeis adopted the "right to be let alone" language from Judge Thomas M.
Cooley’s 1888 treatise The Law of Torts 29 (2d ed. 1888).

5 Richards and Solove, op. cit., p. 125.

6 277 U.S. 438 (1928).

7 48 California Law Review, No. 3 (August 1960), p. 383.

8 Id., p. 389.

9 Id.; see also Richards and Solove, op. cit., pp. 148-149.

10 Restatement of Torts 2d §652B (1977) (Prosser was also a reporter of the Second Restatement of
Torts).

11 Id., §652D-§652E (1977).

12 Id., §652C (1977.)

189
13 429 U.S. 589 (1977).

14 Gilbert, Helen L., Minors’ Constitutional Right to Informational Privacy, The University of Chicago Law
Journal (2007), pp. 1385-1386.

15 Id., p. 1386.

16 638 F2d 570 (3d Cir 1980).

17 Id., p. 578.

18 262 U.S. 390 (1923).

19 The criminal information was based upon "An act relating to the teaching of foreign languages in the
State of Nebraska," approved April 9, 1919, pertinent portions of which provide:

Section 1. No person, individually or as a teacher, shall, in any private, denominational, parochial or public
school, teach any subject to any person in any language other than the English language.

Sec. 2. Languages, other than the English language, may be taught as languages only after a pupil shall
have attained and successfully passed the eighth grade as evidenced by a certificate of graduation issued
by the county superintendent of the county in which the child resides.

Sec. 3. Any person who violates any of the provisions of this act shall be deemed guilty of a misdemeanor
and upon conviction, shall be subject to a fine of not less than twenty-five dollars ($25), nor more than
one hundred dollars ($100) or be confined in the county jail for any period not exceeding thirty days for
each offense.

Sec. 4. Whereas, an emergency exists, this act shall be in force from and after its passage and approval.

20 381 U.S. 479 (1965).

190
21 410 U.S. 113 (1973)

22 A.M. No, P-02-1651, August 4, 2003, 408 SCRA 1.

23 Bernas, Joaquin G., The 1987 Constitution of the Philippines, 1986 Ed., p. 191.

24 410 U.S. 113 (1973).

25 Ninth Amendment of the United States Constitution.

26 G.R. No. L-20387, 22 SCRA 424, January 31, 1968.

27 Id., citing Public Utilities Commission v. Pollak, 343 U. S. 451, 467 (1952).

28 277 U.S. 438 (1928).

29 389 U.S, 347, 350-351 (1967).

30 The transcript of Judge Schneider’s oral argument in part provides:

Mr. Schneider: x x x We think and respectfully submit to the Court that whether or not, a telephone booth
or any area is constitutionally protected, is the wrong initial inquiry.

We do not believe that the question should be determined as to whether or not, let's say you have an
invasion of a constitutionally protected area, that shouldn't be the initial inquiry, but rather that probably
should be the conclusion that is reached after the application of a test such as that we propose are similar
test.

Now, we have proposed in our brief and there's nothing magical or ingenious about our test.

191
It's an objective test which stresses the rule of reason, we think.

The test really asks or opposes the question, "Would a reasonable person objectively looking at the
communication setting, the situation and location of a communicator and communicatee -- would he
reasonably believe that that communication was intended to be confidential?"

We think that in applying this test there are several criteria that can be used.

Justice William J. Brennan: So that parabolic mic on the two people conversing in the field a mile away
might --

Mr. Schneider: Absolutely.

xxx

We think that if a confidential communication was intended and all the other aspects of confidentiality
are present, then it makes no difference whether you're in an open field or in the privacy of your own
home.

We would submit to the Court that there are factors present which would tend to give the Courts, the
trial courts, and ultimately this Court, some guidelines as to whether or not objectively speaking, the
communication was intended to be private.

xxx

Mr. Schneider: x x x

I believe the following factors at least should be included in an analysis of this problem.

One, what is the physical location?

192
In other words, where did the conversation take place?

Was it in a situation where numerous persons were present or whether just a few people present?

I think that bears on the issue.

I think the tone of voice bears on the issue.

I think that you can have a communication for example in your house which almost everyone would see
all things being equal would be confidential.

However, if you use a loud enough voice, I think you destroy your own confidentiality.

xxx

Mr. Schneider: x x x

We feel that the Fourth Amendment and at the Court's decisions recently for a long time, I believe, have
indicated that the right to privacy is what's protected by the Fourth Amendment.

We feel that the right to privacy follows the individual.

And that whether or not, he's in a space when closed by four walls, and a ceiling, and a roof, or an auto-
mobile, or any other physical location, is not determined of the issue of whether or not the
communication can ultimately be declared confidential.

xxx

Justice John M. Harlan: Could you state this Court tested this as you propose?

193
Mr. Schneider: Yes, we propose a test using in a way it's not too dissimilar from a tort, that tort reasonable
man test.

We're suggesting that what should be used is the communication setting should be observed and those
items that should be considered are the tone of voice, the actual physical location where the conversation
took place, the activities on the part of the officer.

When all those things are considered, we would ask that the test be applied as to whether or not a third
person objectively looking at the entire scene could reasonably interpret and could reasonably say that
the communicator intended his communication to be confidential. x x x (emphasis supplied.)

31 Winn, Peter, Katz and the Origins of the "Reasonable Expectation of Privacy" Test, 2008.

32 Id.; see the concurring opinion of Justice Harlan in Katz v. United States, 389 U.S, 347, 350-351 (1967).

33 Concurring opinion of Justice Harlan in Katz v. United States, supra.

34 Katz v. United States, supra; writing for the majority, Justice Stewart made the following
pronouncement:

xxx. In the first place, the correct solution of Fourth Amendment problems is not necessarily promoted by
incantation of the phrase "constitutionally protected area." Secondly, the Fourth Amendment cannot be
translated into a general constitutional "right to privacy." That Amendment protects individual privacy
against certain kinds of governmental intrusion, but its protections go further, and often have nothing to
do with privacy at all. Other provisions of the Constitution protect personal privacy from other forms of
governmental invasion. But the protection of a person’s general right to privacy — his right to be let alone
by other people — is, like the protection of his property and of his very life, left largely to the law of the
individual States.

35 392 U.S. 364 (1968).

36 Justice Harlan delivered the opinion of the Court.

194
37 In Whalen v. Roe, supra, note 13, p. 599, the Court advanced the principle that the right to information
privacy has two aspects: (1) the right of an individual not to have private information about himself
disclosed; and (2) the right of an individual to live freely without surveillance and intrusion.

38 480 U.S. 709, 715-17 (1987).

39 Tan, Oscar Franklin B., Articulating the Complete Philippine Right to Privacy in Constitutional and Civil
Law: A Tribute to Chief Justice Fernando and Justice Carpio, Philippine Law Journal, Vol. 82, No. 4 (2008),
pp. 228-229.

40 Id., citing Michael Rustad and Thomas Koenig, Cybertorts and Legal Lag: An Empirical Analysis, 13 S.
Cal. Interdisc. L.J. 77, 95 (2003).

41 Id., citing Matthew Finkin, Information Technology and Worker’s Privacy: The United States Law, 23
COMP. LAB. L. & POL’Y J. 471, 474 (2002).

42 Supra Note 6, p. 228.

43 Ciocchetti, Corey A., Monitoring Employee Email: Efficient Workplaces vs. Employee Privacy,
<http://www.law.duke.edu/journals/dltr/articles/2001dltr0026.html#8.> Last visited on June 14, 2011;
citing Terrence Lewis, Pittsburgh Business Times, Monitoring Employee E-Mail: Avoid stalking and Illegal
Internet Conduct) <http://www.pittsburgh.bcentral.com/pittsburgh/stories/2000/05/22/focus6.html>.

44 Rollo, p. 98.

O.M. No. 10 provides:

OBJECTIVES

Specifically, the guidelines aim to:

195
· Protect confidential, proprietary information of the CSC from theft or unauthorized disclosure to third
parties;

· Optimize the use of the CSC’s Computer Resources as what they are officially intended for; and

· Reduce, and possibly eliminate potential legal liability to employees and third parties.

45 Id., p. 99; O.M. No. 10 states:

Waiver of privacy rights. Users expressly waive any right to privacy in anything they create, store, send,
or receive on the computer through the Internet or any other computer network. Users understand that
the CSC may use human or automated means to monitor the use of its Computer Resources.

46 Griswold v. Connecticut, supra, note 20, citing NAACP v. Alabama, 377 U.S. 288 (1964).

47 O’Connor v. Ortega, 25 480 U.S. 709, 715-17 (1987).

48 Cited in Gonzales v. COMELEC, G.R. No. L-27833, April 18, 1969, 27 SCRA 835, 899.

49 G.R. No. 160792, August 25, 2005, 468 SCRA 188, 211-214.

50 The Civil Service Commission was conferred the status of a department by Republic Act No. 2260 as
amended and elevated to a constitutional body by the 1973 Constitution. It was reorganized under PD
No. 181 dated September 24, 1972, and again reorganized under Executive Order no. 181 dated
November 21, 1986. With the new Administrative Code of 1987 (EO 292), the Commission is
constitutionally mandated to promote morale, efficiency, integrity, responsiveness, progressiveness, and
courtesy in the Civil Service. Also, as the central human resource institution and as adviser to the President
on personnel management of the Philippine Government, the Civil Service Commission exists to be the
forerunner in (1) upholding merit, justice and fairness; (2) building competence, expertise and character;
(3) ensuring delivery of quality public services and products; (4) institutionalizing workplace harmony and
wellness; and (5) fostering partnership and collaboration. www.csc.gov.ph/mandate and mission. Last
visited on July 13, 2011.

196
51 Regan, Priscilla M., Legislating Privacy (Technology, Social Values, and Public Policy), The University of
North Carolina Press, 1995, p. 186.

52 381 U.S. 479 (1965).

53 Rollo, p. 96-97; Paragraphs 4 and 5 of the Affidavit executed by Ponciano R. Solosa narrated the
following:

4. That I have also requested Ricky who is like a son to me having known him since he was eighteen (18)
years old, to keep my personal files for safekeeping in his computer which I understand was issued thru
Memorandum Receipt and therefore for his personal use;

5. That this affidavit is issued to attest to the fact that Mr. Pollo has nothing to do with my files which I
have entrusted to him for safekeeping including my personal pleadings with the LTO and PUP, of which I
have been the counsel on record and caused the preparation and signed thereof accordingly.

Also, paragraph 5 of the Affidavit executed by Eric N. Estrellado mentioned the following:

8. That I deny what was indicated in CSC Resolution No. 07-0382 under item 13 and 14 that Ricky Pollo is
earning out of practicing or aiding people undersigned included, the truth of the matter the statement
made "Epal, kulang ang bayad mo.", was a private joke between me and my counsel and friend Atty.
Solosa. That item 14 was my billing statement with the law firm of solosa [sic] and de Guzman. Ricky has
nothing to do with it. These private files but was intruded and confiscated for unknown reasons by people
who are not privy to our private affairs with my counsel. That these are in the CPU of Ricky, as he would
request as in fact Atty. Solosa himself requested Ricky to keep files thereof thru flash drive or disk drive;

54 Dissenting Opinion of Justice Brandeis, Olmstead v. United States, supra Note 6.

197
G.R. No. 203335 February 11, 2014

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL and ERNESTO
SONIDO, JR., Petitioners,

vs.

THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE INFORMATION AND COMMUNICATIONS
TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE and THE DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, Respondents.

x-----------------------x

G.R. No. 203299

LOUIS "BAROK" C. BIRAOGO, Petitioner,

vs.

NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL POLICE, Respondents.

x-----------------------x

G.R. No. 203306

ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN MOVEMENT, INC., JERRY S. YAP,

BERTENI "TOTO" CAUSING, HERNANI Q. CUARE, PERCY LAPID, TRACY CABRERA, RONALDO E. RENTA,
CIRILO P. SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners,

vs.

OFFICE OF THE PRESIDENT, represented by President Benigno Simeon Aquino III, SENATE OF THE
PHILIPPINES, and HOUSE OF REPRESENTATIVES, Respondents.

x-----------------------x

198
G.R. No. 203359

SENATOR TEOFISTO DL GUINGONA III, Petitioner,

vs.

EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF INTERIOR
AND LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, and DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, Respondents.

x-----------------------x

G.R. No. 203378

ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H. HARRY L. ROQUE, JR.,
ROMEL R. BAGARES, and GILBERT T. ANDRES, Petitioners,

vs.

THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE DEPARTMENT OF
JUSTICE, THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT, THE NATIONAL BUREAU OF
INVESTIGATION, THE PHILIPPINE NATIONAL POLICE, AND THE INFORMATION AND COMMUNICATIONS
TECHNOLOGY OFFICE-DEPARTMENT OF SCIENCE AND TECHNOLOGY, Respondents.

x-----------------------x

G.R. No. 203391

HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO OF ANAKBAYAN, MA.
KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN, ISABELLE THERESE BAGUISI OF THE NATIONAL UNION
OF STUDENTS OF THE PHILIPPINES, ET AL., Petitioners,

vs.

PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and alter-ego of President Benigno Simeon
Aquino III, LEILA DE LIMA in her capacity as Secretary of Justice, Respondents.

x-----------------------x

199
G.R. No. 203407

BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES, JR., National Artist
BIENVENIDO L. LUMBERA, Chairperson of Concerned Artists of the Philippines, ELMER C. LABOG,
Chairperson of Kilusang Mayo Uno, CRISTINA E. PALABAY, Secretary General of Karapatan, FERDINAND R.
GAITE, Chairperson of COURAGE, JOEL B. MAGLUNSOD, Vice President of Anakpawis Party-List, LANA R.
LINABAN, Secretary General Gabriela Women's Party, ADOLFO ARES P. GUTIERREZ, and JULIUS GARCIA
MATIBAG, Petitioners,

vs.

BENIGNO SIMEON C. AQUINO III, President of the Republic of the Philippines, PAQUITO N. OCHOA, JR.,
Executive Secretary, SENATE OF THE PHILIPPINES, represented by SENATE PRESIDENT JUAN PONCE
ENRILE, HOUSE OF REPRESENTATIVES, represented by SPEAKER FELICIANO BELMONTE, JR., LEILA DE LIMA,
Secretary of the Department of Justice, LOUIS NAPOLEON C. CASAMBRE, Executive Director of the
Information and Communications Technology Office, NONNATUS CAESAR R. ROJAS, Director of the
National Bureau of Investigation, D/GEN. NICANOR A. BARTOLOME, Chief of the Philippine National Police,
MANUEL A. ROXAS II, Secretary of the Department of the Interior and Local Government, Respondents.

x-----------------------x

G.R. No. 203440

MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA. MARIA, RAY PAOLO J. SANTIAGO,
GILBERT V. SEMBRANO, and RYAN JEREMIAH D. QUAN (all of the Ateneo Human Rights Center),
Petitioners,

vs.

HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary, HONORABLE LEILA DE LIMA in her
capacity as Secretary of Justice, HONORABLE MANUEL ROXAS in his capacity as Secretary of the
Department of Interior and Local Government, The CHIEF of the Philippine National Police, The DIRECTOR
of the National Bureau of Investigation (all of the Executive Department of Government), Respondents.

x-----------------------x

G.R. No. 203453

200
NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE PRESS INSTITUTE (PPI),
CENTER FOR MEDIA FREEDOM AND RESPONSIBILITY, ROWENA CARRANZA PARAAN, MELINDA QUINTOS-
DE JESUS, JOSEPH ALWYN ALBURO, ARIEL SEBELLINO AND THE PETITIONERS IN THE e-PETITION
http://www.nujp.org/no-to-ra10175/, Petitioners,

vs.

THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE INTERIOR AND LOCAL
GOVERNMENT, THE SECRETARY OF BUDGET AND MANAGEMENT, THE DIRECTOR GENERAL OF THE
PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, THE
CYBERCRIME INVESTIGATION AND COORDINATING CENTER, AND ALL AGENCIES AND
INSTRUMENTALITIES OF GOVERNMENT AND ALL PERSONS ACTING UNDER THEIR INSTRUCTIONS,
ORDERS, DIRECTION IN RELATION TO THE IMPLEMENTATION OF REPUBLIC ACT NO. 10175, Respondents.

x-----------------------x

G.R. No. 203454

PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners,

vs.

THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF INTERIOR AND LOCAL GOVERNMENT,
Respondents.

x-----------------------x

G.R. No. 203469

ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A. ESPINA; MARCK RONALD C.
RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V. ROBILLO; AARON ERICK A. LOZADA; GERARD ADRIAN P.
MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T. JUAN; BRENDALYN P. RAMIREZ; MAUREEN A.
HERMITANIO; KRISTINE JOY S. REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F. CABIGON; BENRALPH S.
YU; CEBU BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B. LICERA, JR; and PINOY EXPAT/OFW BLOG
AWARDS, INC. COORDINATOR PEDRO E. RAHON; Petitioners,

vs.

201
HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President of the Republic of the Philippines;
SENATE OF THE PHILIPPINES, represented by HON. JUAN PONCE ENRILE, in his capacity as Senate
President; HOUSE OF REPRESENTATIVES, represented by FELICIANO R. BELMONTE, JR., in his capacity as
Speaker of the House of Representatives; HON. PAQUITO N. OCHOA, JR., in his capacity as Executive
Secretary; HON. LEILA M. DE LIMA, in her capacity as Secretary of Justice; HON. LOUIS NAPOLEON C.
CASAMBRE, in his capacity as Executive Director, Information and Communications Technology Office;
HON. NONNATUS CAESAR R. ROJAS, in his capacity as Director, National Bureau of Investigation; and
P/DGEN. NICANOR A. BARTOLOME, in his capacity as Chief, Philippine National Police, Respondents.

x-----------------------x

G.R. No. 203501

PHILIPPINE BAR ASSOCIATION, INC., Petitioner,

vs.

HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as President of the Republic of the
Philippines; HON. PAQUITO N. OCHOA, JR., in his official capacity as Executive Secretary; HON. LEILA M.
DE LIMA, in her official capacity as Secretary of Justice; LOUIS NAPOLEON C. CASAMBRE, in his official
capacity as Executive Director, Information and Communications Technology Office; NONNATUS CAESAR
R. ROJAS, in his official capacity as Director of the National Bureau of Investigation; and DIRECTOR
GENERAL NICANOR A. BARTOLOME, in his official capacity as Chief of the Philippine National Police,
Respondents.

x-----------------------x

G.R. No. 203509

BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner,

vs.

THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.

x-----------------------x

202
G.R. No. 203515

NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by BENNY D. ANTIPORDA in his capacity as
President and in his personal capacity, Petitioner,

vs.

OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III, DEPARTMENT OF JUSTICE, DEPARTMENT
OF INTERIOR AND LOCAL GOVERNMENT, PHILIPPINE NATIONAL POLICE, NATIONAL BUREAU OF
INVESTIGATION, DEPARTMENT OF BUDGET AND MANAGEMENT AND ALL OTHER GOVERNMENT
INSTRUMENTALITIES WHO HAVE HANDS IN THE PASSAGE AND/OR IMPLEMENTATION OF REPUBLIC ACT
10175, Respondents.

x-----------------------x

G.R. No. 203518

PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-PHILIPPINE COLLECTIVE FOR MODERN

HEROISM, represented by Leni Velasco, PARTIDO LAKAS NG MASA, represented by Cesar S. Melencio,
FRANCIS EUSTON R. ACERO, MARLON ANTHONY ROMASANTA TONSON, TEODORO A. CASIÑO, NOEMI
LARDIZABAL-DADO, IMELDA ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M. RAGRAGIO, MARIA
FATIMA A. VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN DADO, MARCO VITTORIA TOBIAS SUMAYAO,
IRENE CHIA, ERASTUS NOEL T. DELIZO, CRISTINA SARAH E. OSORIO, ROMEO FACTOLERIN, NAOMI L.
TUPAS, KENNETH KENG, ANA ALEXANDRA C. CASTRO, Petitioners,

vs.

THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT, THE SECRETARY OF SCIENCE AND TECHNOLOGY, THE EXECUTIVE DIRECTOR OF THE
INFORMATION TECHNOLOGY OFFICE, THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, THE
CHIEF, PHILIPPINE NATIONAL POLICE, THE HEAD OF THE DOJ OFFICE OF CYBERCRIME, and THE OTHER
MEMBERS OF THE CYBERCRIME INVESTIGATION AND COORDINATING CENTER, Respondents.

DECISION

ABAD, J.:

203
These consolidated petitions seek to declare several provisions of Republic Act (R.A.) 10175, the
Cybercrime Prevention Act of 2012, unconstitutional and void.

The Facts and the Case

The cybercrime law aims to regulate access to and use of the cyberspace. Using his laptop or computer, a
person can connect to the internet, a system that links him to other computers and enable him, among
other things, to:

1. Access virtual libraries and encyclopedias for all kinds of information that he needs for research, study,
amusement, upliftment, or pure curiosity;

2. Post billboard-like notices or messages, including pictures and videos, for the general public or for
special audiences like associates, classmates, or friends and read postings from them;

3. Advertise and promote goods or services and make purchases and payments;

4. Inquire and do business with institutional entities like government agencies, banks, stock exchanges,
trade houses, credit card companies, public utilities, hospitals, and schools; and

5. Communicate in writing or by voice with any person through his e-mail address or telephone.

This is cyberspace, a system that accommodates millions and billions of simultaneous and ongoing
individual accesses to and uses of the internet. The cyberspace is a boon to the need of the current
generation for greater information and facility of communication. But all is not well with the system since
it could not filter out a number of persons of ill will who would want to use cyberspace technology for
mischiefs and crimes. One of them can, for instance, avail himself of the system to unjustly ruin the
reputation of another or bully the latter by posting defamatory statements against him that people can
read.

And because linking with the internet opens up a user to communications from others, the ill-motivated
can use the cyberspace for committing theft by hacking into or surreptitiously accessing his bank account
or credit card or defrauding him through false representations. The wicked can use the cyberspace, too,
for illicit trafficking in sex or for exposing to pornography guileless children who have access to the

204
internet. For this reason, the government has a legitimate right to regulate the use of cyberspace and
contain and punish wrongdoings.

Notably, there are also those who would want, like vandals, to wreak or cause havoc to the computer
systems and networks of indispensable or highly useful institutions as well as to the laptop or computer
programs and memories of innocent individuals. They accomplish this by sending electronic viruses or
virtual dynamites that destroy those computer systems, networks, programs, and memories. The
government certainly has the duty and the right to prevent these tomfooleries from happening and punish
their perpetrators, hence the Cybercrime Prevention Act.

But petitioners claim that the means adopted by the cybercrime law for regulating undesirable cyberspace
activities violate certain of their constitutional rights. The government of course asserts that the law
merely seeks to reasonably put order into cyberspace activities, punish wrongdoings, and prevent hurtful
attacks on the system.

Pending hearing and adjudication of the issues presented in these cases, on February 5, 2013 the Court
extended the original 120-day temporary restraining order (TRO) that it earlier issued on October 9, 2012,
enjoining respondent government agencies from implementing the cybercrime law until further orders.

The Issues Presented

Petitioners challenge the constitutionality of the following provisions of the cybercrime law that regard
certain acts as crimes and impose penalties for their commission as well as provisions that would enable
the government to track down and penalize violators. These provisions are:

a. Section 4(a)(1) on Illegal Access;

b. Section 4(a)(3) on Data Interference;

c. Section 4(a)(6) on Cyber-squatting;

d. Section 4(b)(3) on Identity Theft;

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e. Section 4(c)(1) on Cybersex;

f. Section 4(c)(2) on Child Pornography;

g. Section 4(c)(3) on Unsolicited Commercial Communications;

h. Section 4(c)(4) on Libel;

i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;

j. Section 6 on the Penalty of One Degree Higher;

k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A. 10175;

l. Section 8 on Penalties;

m. Section 12 on Real-Time Collection of Traffic Data;

n. Section 13 on Preservation of Computer Data;

o. Section 14 on Disclosure of Computer Data;

p. Section 15 on Search, Seizure and Examination of Computer Data;

q. Section 17 on Destruction of Computer Data;

r. Section 19 on Restricting or Blocking Access to Computer Data;

s. Section 20 on Obstruction of Justice;

206
t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and

u. Section 26(a) on CICC’s Powers and Functions.

Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and 362 of the RPC on
the crime of libel.

The Rulings of the Court

Section 4(a)(1)

Section 4(a)(1) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable
under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

(1) Illegal Access. – The access to the whole or any part of a computer system without right.

Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard required of laws that
interfere with the fundamental rights of the people and should thus be struck down.

The Court has in a way found the strict scrutiny standard, an American constitutional construct,1 useful
in determining the constitutionality of laws that tend to target a class of things or persons. According to
this standard, a legislative classification that impermissibly interferes with the exercise of fundamental
right or operates to the peculiar class disadvantage of a suspect class is presumed unconstitutional. The
burden is on the government to prove that the classification is necessary to achieve a compelling state
interest and that it is the least restrictive means to protect such interest.2 Later, the strict scrutiny
standard was used to assess the validity of laws dealing with the regulation of speech, gender, or race as
well as other fundamental rights, as expansion from its earlier applications to equal protection.3

207
In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the application of the strict
scrutiny standard since no fundamental freedom, like speech, is involved in punishing what is essentially
a condemnable act – accessing the computer system of another without right. It is a universally
condemned conduct.4

Petitioners of course fear that this section will jeopardize the work of ethical hackers, professionals who
employ tools and techniques used by criminal hackers but would neither damage the target systems nor
steal information. Ethical hackers evaluate the target system’s security and report back to the owners the
vulnerabilities they found in it and give instructions for how these can be remedied. Ethical hackers are
the equivalent of independent auditors who come into an organization to verify its bookkeeping records.5

Besides, a client’s engagement of an ethical hacker requires an agreement between them as to the extent
of the search, the methods to be used, and the systems to be tested. This is referred to as the "get out of
jail free card."6 Since the ethical hacker does his job with prior permission from the client, such permission
would insulate him from the coverage of Section 4(a)(1).

Section 4(a)(3) of the Cybercrime Law

Section 4(a)(3) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable
under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

xxxx

(3) Data Interference. – The intentional or reckless alteration, damaging, deletion or deterioration of
computer data, electronic document, or electronic data message, without right, including the introduction
or transmission of viruses.

208
Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks to discourage data
interference, it intrudes into the area of protected speech and expression, creating a chilling and deterrent
effect on these guaranteed freedoms.

Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state
regulation, may not be achieved by means that unnecessarily sweep its subject broadly, thereby invading
the area of protected freedoms.7 But Section 4(a)(3) does not encroach on these freedoms at all. It simply
punishes what essentially is a form of vandalism,8 the act of willfully destroying without right the things
that belong to others, in this case their computer data, electronic document, or electronic data message.
Such act has no connection to guaranteed freedoms. There is no freedom to destroy other people’s
computer systems and private documents.

All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem effect9
or the fear of possible prosecution that hangs on the heads of citizens who are minded to step beyond
the boundaries of what is proper. But to prevent the State from legislating criminal laws because they
instill such kind of fear is to render the state powerless in addressing and penalizing socially harmful
conduct.10 Here, the chilling effect that results in paralysis is an illusion since Section 4(a)(3) clearly
describes the evil that it seeks to punish and creates no tendency to intimidate the free exercise of one’s
constitutional rights.

Besides, the overbreadth challenge places on petitioners the heavy burden of proving that under no set
of circumstances will Section 4(a)(3) be valid.11 Petitioner has failed to discharge this burden.

Section 4(a)(6) of the Cybercrime Law

Section 4(a)(6) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable
under this Act:

(a) Offenses against the confidentiality, integrity and availability of computer data and systems:

xxxx

209
(6) Cyber-squatting. – The acquisition of domain name over the internet in bad faith to profit, mislead,
destroy the reputation, and deprive others from registering the same, if such a domain name is:

(i) Similar, identical, or confusingly similar to an existing trademark registered with the appropriate
government agency at the time of the domain name registration;

(ii) Identical or in any way similar with the name of a person other than the registrant, in case of a personal
name; and

(iii) Acquired without right or with intellectual property interests in it.

Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection clause12 in that, not
being narrowly tailored, it will cause a user using his real name to suffer the same fate as those who use
aliases or take the name of another in satire, parody, or any other literary device. For example, supposing
there exists a well known billionaire-philanthropist named "Julio Gandolfo," the law would punish for
cyber-squatting both the person who registers such name because he claims it to be his pseudo-name and
another who registers the name because it happens to be his real name. Petitioners claim that,
considering the substantial distinction between the two, the law should recognize the difference.

But there is no real difference whether he uses "Julio Gandolfo" which happens to be his real name or use
it as a pseudo-name for it is the evil purpose for which he uses the name that the law condemns. The law
is reasonable in penalizing him for acquiring the domain name in bad faith to profit, mislead, destroy
reputation, or deprive others who are not ill-motivated of the rightful opportunity of registering the same.
The challenge to the constitutionality of Section 4(a)(6) on ground of denial of equal protection is baseless.

Section 4(b)(3) of the Cybercrime Law

Section 4(b)(3) provides:

Section 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable
under this Act:

xxxx

210
b) Computer-related Offenses:

xxxx

(3) Computer-related Identity Theft. – The intentional acquisition, use, misuse, transfer, possession,
alteration, or deletion of identifying information belonging to another, whether natural or juridical,
without right: Provided: that if no damage has yet been caused, the penalty imposable shall be one (1)
degree lower.

Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process and to privacy and
correspondence, and transgresses the freedom of the press.

The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a facet
of the right protected by the guarantee against unreasonable searches and seizures.13 But the Court
acknowledged its existence as early as 1968 in Morfe v. Mutuc,14 it ruled that the right to privacy exists
independently of its identification with liberty; it is in itself fully deserving of constitutional protection.

Relevant to any discussion of the right to privacy is the concept known as the "Zones of Privacy." The Court
explained in "In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v. Senator
Gordon"15 the relevance of these zones to the right to privacy:

Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion is
impermissible unless excused by law and in accordance with customary legal process. The meticulous
regard we accord to these zones arises not only from our conviction that the right to privacy is a
"constitutional right" and "the right most valued by civilized men," but also from our adherence to the
Universal Declaration of Human Rights which mandates that, "no one shall be subjected to arbitrary
interference with his privacy" and "everyone has the right to the protection of the law against such
interference or attacks."

Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable
searches16 and seizures, which is the basis of the right to be let alone, and (b) the right to privacy of
communication and correspondence.17 In assessing the challenge that the State has impermissibly
intruded into these zones of privacy, a court must determine whether a person has exhibited a reasonable
expectation of privacy and, if so, whether that expectation has been violated by unreasonable
government intrusion.18

211
The usual identifying information regarding a person includes his name, his citizenship, his residence
address, his contact number, his place and date of birth, the name of his spouse if any, his occupation,
and similar data.19 The law punishes those who acquire or use such identifying information without right,
implicitly to cause damage. Petitioners simply fail to show how government effort to curb computer-
related identity theft violates the right to privacy and correspondence as well as the right to due process
of law.

Also, the charge of invalidity of this section based on the overbreadth doctrine will not hold water since
the specific conducts proscribed do not intrude into guaranteed freedoms like speech. Clearly, what this
section regulates are specific actions: the acquisition, use, misuse or deletion of personal identifying data
of another. There is no fundamental right to acquire another’s personal data.

Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that journalists would be
hindered from accessing the unrestricted user account of a person in the news to secure information
about him that could be published. But this is not the essence of identity theft that the law seeks to
prohibit and punish. Evidently, the theft of identity information must be intended for an illegitimate
purpose. Moreover, acquiring and disseminating information made public by the user himself cannot be
regarded as a form of theft.

The Court has defined intent to gain as an internal act which can be established through the overt acts of
the offender, and it may be presumed from the furtive taking of useful property pertaining to another,
unless special circumstances reveal a different intent on the part of the perpetrator.20 As such, the press,
whether in quest of news reporting or social investigation, has nothing to fear since a special circumstance
is present to negate intent to gain which is required by this Section.

Section 4(c)(1) of the Cybercrime Law

Section 4(c)(1) provides:

Sec. 4. Cybercrime Offenses.– The following acts constitute the offense of cybercrime punishable under
this Act:

xxxx

(c) Content-related Offenses:

212
(1) Cybersex.– The willful engagement, maintenance, control, or operation, directly or indirectly, of any
lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or
consideration.

Petitioners claim that the above violates the freedom of expression clause of the Constitution.21 They
express fear that private communications of sexual character between husband and wife or consenting
adults, which are not regarded as crimes under the penal code, would now be regarded as crimes when
done "for favor" in cyberspace. In common usage, the term "favor" includes "gracious kindness," "a special
privilege or right granted or conceded," or "a token of love (as a ribbon) usually worn conspicuously."22
This meaning given to the term "favor" embraces socially tolerated trysts. The law as written would invite
law enforcement agencies into the bedrooms of married couples or consenting individuals.

But the deliberations of the Bicameral Committee of Congress on this section of the Cybercrime
Prevention Act give a proper perspective on the issue. These deliberations show a lack of intent to penalize
a "private showing x x x between and among two private persons x x x although that may be a form of
obscenity to some."23 The understanding of those who drew up the cybercrime law is that the element
of "engaging in a business" is necessary to constitute the illegal cybersex.24 The Act actually seeks to
punish cyber prostitution, white slave trade, and pornography for favor and consideration. This includes
interactive prostitution and pornography, i.e., by webcam.25

The subject of Section 4(c)(1)—lascivious exhibition of sexual organs or sexual activity—is not novel.
Article 201 of the RPC punishes "obscene publications and exhibitions and indecent shows." The Anti-
Trafficking in Persons Act of 2003 penalizes those who "maintain or hire a person to engage in prostitution
or pornography."26 The law defines prostitution as any act, transaction, scheme, or design involving the
use of a person by another, for sexual intercourse or lascivious conduct in exchange for money, profit, or
any other consideration.27

The case of Nogales v. People28 shows the extent to which the State can regulate materials that serve no
other purpose than satisfy the market for violence, lust, or pornography.29 The Court weighed the
property rights of individuals against the public welfare. Private property, if containing pornographic
materials, may be forfeited and destroyed. Likewise, engaging in sexual acts privately through internet
connection, perceived by some as a right, has to be balanced with the mandate of the State to eradicate
white slavery and the exploitation of women.

In any event, consenting adults are protected by the wealth of jurisprudence delineating the bounds of
obscenity.30 The Court will not declare Section 4(c)(1) unconstitutional where it stands a construction
that makes it apply only to persons engaged in the business of maintaining, controlling, or operating,

213
directly or indirectly, the lascivious exhibition of sexual organs or sexual activity with the aid of a computer
system as Congress has intended.

Section 4(c)(2) of the Cybercrime Law

Section 4(c)(2) provides:

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under
this Act:

xxxx

(c) Content-related Offenses:

xxxx

(2) Child Pornography. — The unlawful or prohibited acts defined and punishable by Republic Act No.
9775 or the Anti-Child Pornography Act of 2009, committed through a computer system: Provided, That
the penalty to be imposed shall be (1) one degree higher than that provided for in Republic Act No. 9775.

It seems that the above merely expands the scope of the Anti-Child Pornography Act of 200931 (ACPA) to
cover identical activities in cyberspace. In theory, nothing prevents the government from invoking the
ACPA when prosecuting persons who commit child pornography using a computer system. Actually,
ACPA’s definition of child pornography already embraces the use of "electronic, mechanical, digital,
optical, magnetic or any other means." Notably, no one has questioned this ACPA provision.

Of course, the law makes the penalty higher by one degree when the crime is committed in cyberspace.
But no one can complain since the intensity or duration of penalty is a legislative prerogative and there is
rational basis for such higher penalty.32 The potential for uncontrolled proliferation of a particular piece
of child pornography when uploaded in the cyberspace is incalculable.

Petitioners point out that the provision of ACPA that makes it unlawful for any person to "produce, direct,
manufacture or create any form of child pornography"33 clearly relates to the prosecution of persons

214
who aid and abet the core offenses that ACPA seeks to punish.34 Petitioners are wary that a person who
merely doodles on paper and imagines a sexual abuse of a 16-year-old is not criminally liable for producing
child pornography but one who formulates the idea on his laptop would be. Further, if the author bounces
off his ideas on Twitter, anyone who replies to the tweet could be considered aiding and abetting a
cybercrime.

The question of aiding and abetting the offense by simply commenting on it will be discussed elsewhere
below. For now the Court must hold that the constitutionality of Section 4(c)(2) is not successfully
challenged.

Section 4(c)(3) of the Cybercrime Law

Section 4(c)(3) provides:

Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of cybercrime punishable under
this Act:

xxxx

(c) Content-related Offenses:

xxxx

(3) Unsolicited Commercial Communications. – The transmission of commercial electronic communication

with the use of computer system which seeks to advertise, sell, or offer for sale products and services are
prohibited unless:

(i) There is prior affirmative consent from the recipient; or

(ii) The primary intent of the communication is for service and/or administrative announcements from
the sender to its existing users, subscribers or customers; or

215
(iii) The following conditions are present:

(aa) The commercial electronic communication contains a simple, valid, and reliable way for the recipient
to reject receipt of further commercial electronic messages (opt-out) from the same source;

(bb) The commercial electronic communication does not purposely disguise the source of the electronic
message; and

(cc) The commercial electronic communication does not purposely include misleading information in any
part of the message in order to induce the recipients to read the message.

The above penalizes the transmission of unsolicited commercial communications, also known as "spam."
The term "spam" surfaced in early internet chat rooms and interactive fantasy games. One who repeats
the same sentence or comment was said to be making a "spam." The term referred to a Monty Python’s
Flying Circus scene in which actors would keep saying "Spam, Spam, Spam, and Spam" when reading
options from a menu.35

The Government, represented by the Solicitor General, points out that unsolicited commercial
communications or spams are a nuisance that wastes the storage and network capacities of internet
service providers, reduces the efficiency of commerce and technology, and interferes with the owner’s
peaceful enjoyment of his property. Transmitting spams amounts to trespass to one’s privacy since the
person sending out spams enters the recipient’s domain without prior permission. The OSG contends that
commercial speech enjoys less protection in law.

But, firstly, the government presents no basis for holding that unsolicited electronic ads reduce the
"efficiency of computers." Secondly, people, before the arrival of the age of computers, have already been
receiving such unsolicited ads by mail. These have never been outlawed as nuisance since people might
have interest in such ads. What matters is that the recipient has the option of not opening or reading
these mail ads. That is true with spams. Their recipients always have the option to delete or not to read
them.

To prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even
unsolicited commercial ads addressed to him. Commercial speech is a separate category of speech which
is not accorded the same level of protection as that given to other constitutionally guaranteed forms of
expression but is nonetheless entitled to protection.36 The State cannot rob him of this right without
violating the constitutionally guaranteed freedom of expression. Unsolicited advertisements are
legitimate forms of expression.

216
Articles 353, 354, and 355 of the Penal Code

Section 4(c)(4) of the Cyber Crime Law

Petitioners dispute the constitutionality of both the penal code provisions on libel as well as Section 4(c)(4)
of the Cybercrime Prevention Act on cyberlibel.

The RPC provisions on libel read:

Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or defect,
real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor,
discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.

Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be malicious, even if
it be true, if no good intention and justifiable motive for making it is shown, except in the following cases:

1. A private communication made by any person to another in the performance of any legal, moral or
social duty; and

2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative
or other official proceedings which are not of confidential nature, or of any statement, report or speech
delivered in said proceedings, or of any other act performed by public officers in the exercise of their
functions.

Art. 355. Libel means by writings or similar means. — A libel committed by means of writing, printing,
lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or
any similar means, shall be punished by prision correccional in its minimum and medium periods or a fine
ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the
offended party.

The libel provision of the cybercrime law, on the other hand, merely incorporates to form part of it the
provisions of the RPC on libel. Thus Section 4(c)(4) reads:

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Sec. 4. Cybercrime Offenses. — The following acts constitute the offense of cybercrime punishable under
this Act:

xxxx

(c) Content-related Offenses:

xxxx

(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code, as
amended, committed through a computer system or any other similar means which may be devised in
the future.

Petitioners lament that libel provisions of the penal code37 and, in effect, the libel provisions of the
cybercrime law carry with them the requirement of "presumed malice" even when the latest
jurisprudence already replaces it with the higher standard of "actual malice" as a basis for conviction.38
Petitioners argue that inferring "presumed malice" from the accused’s defamatory statement by virtue of
Article 354 of the penal code infringes on his constitutionally guaranteed freedom of expression.

Petitioners would go further. They contend that the laws on libel should be stricken down as
unconstitutional for otherwise good jurisprudence requiring "actual malice" could easily be overturned as
the Court has done in Fermin v. People39 even where the offended parties happened to be public figures.

The elements of libel are: (a) the allegation of a discreditable act or condition concerning another; (b)
publication of the charge; (c) identity of the person defamed; and (d) existence of malice.40

There is "actual malice" or malice in fact41 when the offender makes the defamatory statement with the
knowledge that it is false or with reckless disregard of whether it was false or not.42 The reckless disregard
standard used here requires a high degree of awareness of probable falsity. There must be sufficient
evidence to permit the conclusion that the accused in fact entertained serious doubts as to the truth of
the statement he published. Gross or even extreme negligence is not sufficient to establish actual
malice.43

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The prosecution bears the burden of proving the presence of actual malice in instances where such
element is required to establish guilt. The defense of absence of actual malice, even when the statement
turns out to be false, is available where the offended party is a public official or a public figure, as in the
cases of Vasquez (a barangay official) and Borjal (the Executive Director, First National Conference on Land
Transportation). Since the penal code and implicitly, the cybercrime law, mainly target libel against private
persons, the Court recognizes that these laws imply a stricter standard of "malice" to convict the author
of a defamatory statement where the offended party is a public figure. Society’s interest and the
maintenance of good government demand a full discussion of public affairs.44

Parenthetically, the Court cannot accept the proposition that its ruling in Fermin disregarded the higher
standard of actual malice or malice in fact when it found Cristinelli Fermin guilty of committing libel against
complainants who were public figures. Actually, the Court found the presence of malice in fact in that
case. Thus:

It can be gleaned from her testimony that petitioner had the motive to make defamatory imputations
against complainants. Thus, petitioner cannot, by simply making a general denial, convince us that there
was no malice on her part. Verily, not only was there malice in law, the article being malicious in itself,
but there was also malice in fact, as there was motive to talk ill against complainants during the electoral
campaign. (Emphasis ours)

Indeed, the Court took into account the relatively wide leeway given to utterances against public figures
in the above case, cinema and television personalities, when it modified the penalty of imprisonment to
just a fine of ₱6,000.00.

But, where the offended party is a private individual, the prosecution need not prove the presence of
malice. The law explicitly presumes its existence (malice in law) from the defamatory character of the
assailed statement.45 For his defense, the accused must show that he has a justifiable reason for the
defamatory statement even if it was in fact true.46

Petitioners peddle the view that both the penal code and the Cybercrime Prevention Act violate the
country’s obligations under the International Covenant of Civil and Political Rights (ICCPR). They point out
that in Adonis v. Republic of the Philippines,47 the United Nations Human Rights Committee (UNHRC)
cited its General Comment 34 to the effect that penal defamation laws should include the defense of
truth.

But General Comment 34 does not say that the truth of the defamatory statement should constitute an
all-encompassing defense. As it happens, Article 361 recognizes truth as a defense but under the condition

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that the accused has been prompted in making the statement by good motives and for justifiable ends.
Thus:

Art. 361. Proof of the truth. — In every criminal prosecution for libel, the truth may be given in evidence
to the court and if it appears that the matter charged as libelous is true, and, moreover, that it was
published with good motives and for justifiable ends, the defendants shall be acquitted.

Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted,
unless the imputation shall have been made against Government employees with respect to facts related
to the discharge of their official duties.

In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.

Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to decriminalize libel. It
simply suggested that defamation laws be crafted with care to ensure that they do not stifle freedom of
expression.48 Indeed, the ICCPR states that although everyone should enjoy freedom of expression, its
exercise carries with it special duties and responsibilities. Free speech is not absolute. It is subject to
certain restrictions, as may be necessary and as may be provided by law.49

The Court agrees with the Solicitor General that libel is not a constitutionally protected speech and that
the government has an obligation to protect private individuals from defamation. Indeed, cyberlibel is
actually not a new crime since Article 353, in relation to Article 355 of the penal code, already punishes it.
In effect, Section 4(c)(4) above merely affirms that online defamation constitutes "similar means" for
committing libel.

But the Court’s acquiescence goes only insofar as the cybercrime law penalizes the author of the libelous
statement or article. Cyberlibel brings with it certain intricacies, unheard of when the penal code
provisions on libel were enacted. The culture associated with internet media is distinct from that of print.

The internet is characterized as encouraging a freewheeling, anything-goes writing style.50 In a sense,

they are a world apart in terms of quickness of the reader’s reaction to defamatory statements posted in
cyberspace, facilitated by one-click reply options offered by the networking site as well as by the speed
with which such reactions are disseminated down the line to other internet users. Whether these
reactions to defamatory statement posted on the internet constitute aiding and abetting libel, acts that
Section 5 of the cybercrime law punishes, is another matter that the Court will deal with next in relation
to Section 5 of the law.

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Section 5 of the Cybercrime Law

Section 5 provides:

Sec. 5. Other Offenses. — The following acts shall also constitute an offense:

(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who willfully abets or aids in the
commission of any of the offenses enumerated in this Act shall be held liable.

(b) Attempt in the Commission of Cybercrime. — Any person who willfully attempts to commit any of the
offenses enumerated in this Act shall be held liable.

Petitioners assail the constitutionality of Section 5 that renders criminally liable any person who willfully
abets or aids in the commission or attempts to commit any of the offenses enumerated as cybercrimes.
It suffers from overbreadth, creating a chilling and deterrent effect on protected expression.

The Solicitor General contends, however, that the current body of jurisprudence and laws on aiding and
abetting sufficiently protects the freedom of expression of "netizens," the multitude that avail themselves
of the services of the internet. He points out that existing laws and jurisprudence sufficiently delineate
the meaning of "aiding or abetting" a crime as to protect the innocent. The Solicitor General argues that
plain, ordinary, and common usage is at times sufficient to guide law enforcement agencies in enforcing
the law.51 The legislature is not required to define every single word contained in the laws they craft.

Aiding or abetting has of course well-defined meaning and application in existing laws. When a person
aids or abets another in destroying a forest,52 smuggling merchandise into the country,53 or interfering
in the peaceful picketing of laborers,54 his action is essentially physical and so is susceptible to easy
assessment as criminal in character. These forms of aiding or abetting lend themselves to the tests of
common sense and human experience.

But, when it comes to certain cybercrimes, the waters are muddier and the line of sight is somewhat
blurred. The idea of "aiding or abetting" wrongdoings online threatens the heretofore popular and
unchallenged dogmas of cyberspace use.

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According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos have accessed the internet
within a year, translating to about 31 million users.55 Based on a recent survey, the Philippines ranks 6th
in the top 10 most engaged countries for social networking.56 Social networking sites build social relations
among people who, for example, share interests, activities, backgrounds, or real-life connections.57

Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2 billion people with
shared interests use Facebook to get in touch.58 Users register at this site, create a personal profile or an
open book of who they are, add other users as friends, and exchange messages, including automatic
notifications when they update their profile.59 A user can post a statement, a photo, or a video on
Facebook, which can be made visible to anyone, depending on the user’s privacy settings.

If the post is made available to the public, meaning to everyone and not only to his friends, anyone on
Facebook can react to the posting, clicking any of several buttons of preferences on the program’s screen
such as "Like," "Comment," or "Share." "Like" signifies that the reader likes the posting while "Comment"
enables him to post online his feelings or views about the same, such as "This is great!" When a Facebook
user "Shares" a posting, the original "posting" will appear on his own Facebook profile, consequently
making it visible to his down-line Facebook Friends.

Twitter, on the other hand, is an internet social networking and microblogging service that enables its
users to send and read short text-based messages of up to 140 characters. These are known as "Tweets."
Microblogging is the practice of posting small pieces of digital content—which could be in the form of
text, pictures, links, short videos, or other media—on the internet. Instead of friends, a Twitter user has
"Followers," those who subscribe to this particular user’s posts, enabling them to read the same, and
"Following," those whom this particular user is subscribed to, enabling him to read their posts. Like
Facebook, a Twitter user can make his tweets available only to his Followers, or to the general public. If a
post is available to the public, any Twitter user can "Retweet" a given posting. Retweeting is just reposting
or republishing another person’s tweet without the need of copying and pasting it.

In the cyberworld, there are many actors: a) the blogger who originates the assailed statement; b) the
blog service provider like Yahoo; c) the internet service provider like PLDT, Smart, Globe, or Sun; d) the
internet café that may have provided the computer used for posting the blog; e) the person who makes a
favorable comment on the blog; and f) the person who posts a link to the blog site.60 Now, suppose Maria
(a blogger) maintains a blog on WordPress.com (blog service provider). She needs the internet to access
her blog so she subscribes to Sun Broadband (Internet Service Provider).

One day, Maria posts on her internet account the statement that a certain married public official has an
illicit affair with a movie star. Linda, one of Maria’s friends who sees this post, comments online, "Yes, this
is so true! They are so immoral." Maria’s original post is then multiplied by her friends and the latter’s
friends, and down the line to friends of friends almost ad infinitum. Nena, who is a stranger to both Maria

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and Linda, comes across this blog, finds it interesting and so shares the link to this apparently defamatory
blog on her Twitter account. Nena’s "Followers" then "Retweet" the link to that blog site.

Pamela, a Twitter user, stumbles upon a random person’s "Retweet" of Nena’s original tweet and posts
this on her Facebook account. Immediately, Pamela’s Facebook Friends start Liking and making Comments
on the assailed posting. A lot of them even press the Share button, resulting in the further spread of the
original posting into tens, hundreds, thousands, and greater postings.

The question is: are online postings such as "Liking" an openly defamatory statement, "Commenting" on
it, or "Sharing" it with others, to be regarded as "aiding or abetting?" In libel in the physical world, if Nestor
places on the office bulletin board a small poster that says, "Armand is a thief!," he could certainly be
charged with libel. If Roger, seeing the poster, writes on it, "I like this!," that could not be libel since he
did not author the poster. If Arthur, passing by and noticing the poster, writes on it, "Correct!," would that
be libel? No, for he merely expresses agreement with the statement on the poster. He still is not its author.
Besides, it is not clear if aiding or abetting libel in the physical world is a crime.

But suppose Nestor posts the blog, "Armand is a thief!" on a social networking site. Would a reader and
his Friends or Followers, availing themselves of any of the "Like," "Comment," and "Share" reactions, be
guilty of aiding or abetting libel? And, in the complex world of cyberspace expressions of thoughts, when
will one be liable for aiding or abetting cybercrimes? Where is the venue of the crime?

Except for the original author of the assailed statement, the rest (those who pressed Like, Comment and
Share) are essentially knee-jerk sentiments of readers who may think little or haphazardly of their
response to the original posting. Will they be liable for aiding or abetting? And, considering the inherent
impossibility of joining hundreds or thousands of responding "Friends" or "Followers" in the criminal
charge to be filed in court, who will make a choice as to who should go to jail for the outbreak of the
challenged posting?

The old parameters for enforcing the traditional form of libel would be a square peg in a round hole when
applied to cyberspace libel. Unless the legislature crafts a cyber libel law that takes into account its unique
circumstances and culture, such law will tend to create a chilling effect on the millions that use this new
medium of communication in violation of their constitutionally-guaranteed right to freedom of
expression.

The United States Supreme Court faced the same issue in Reno v. American Civil Liberties Union,61 a case
involving the constitutionality of the Communications Decency Act of 1996. The law prohibited (1) the
knowing transmission, by means of a telecommunications device, of

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"obscene or indecent" communications to any recipient under 18 years of age; and (2) the knowing use
of an interactive computer service to send to a specific person or persons under 18 years of age or to
display in a manner available to a person under 18 years of age communications that, in context, depict
or describe, in terms "patently offensive" as measured by contemporary community standards, sexual or
excretory activities or organs.

Those who challenged the Act claim that the law violated the First Amendment’s guarantee of freedom
of speech for being overbroad. The U.S. Supreme Court agreed and ruled:

The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. §223, is a matter of special
concern for two reasons. First, the CDA is a content-based regulation of speech. The vagueness of such a
regulation raises special U.S. Const. amend. I concerns because of its obvious chilling effect on free speech.
Second, the CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal conviction,
the CDA threatens violators with penalties including up to two years in prison for each act of violation.
The severity of criminal sanctions may well cause speakers to remain silent rather than communicate even
arguably unlawful words, ideas, and images. As a practical matter, this increased deterrent effect, coupled
with the risk of discriminatory enforcement of vague regulations, poses greater U.S. Const. amend. I
concerns than those implicated by certain civil regulations.

xxxx

The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. § 223, presents a great threat of censoring
speech that, in fact, falls outside the statute's scope. Given the vague contours of the coverage of the
statute, it unquestionably silences some speakers whose messages would be entitled to constitutional
protection. That danger provides further reason for insisting that the statute not be overly broad. The
CDA’s burden on protected speech cannot be justified if it could be avoided by a more carefully drafted
statute. (Emphasis ours)

Libel in the cyberspace can of course stain a person’s image with just one click of the mouse. Scurrilous
statements can spread and travel fast across the globe like bad news. Moreover, cyberlibel often goes
hand in hand with cyberbullying that oppresses the victim, his relatives, and friends, evoking from mild to
disastrous reactions. Still, a governmental purpose, which seeks to regulate the use of this cyberspace
communication technology to protect a person’s reputation and peace of mind, cannot adopt means that
will unnecessarily and broadly sweep, invading the area of protected freedoms.62

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If such means are adopted, self-inhibition borne of fear of what sinister predicaments await internet users
will suppress otherwise robust discussion of public issues. Democracy will be threatened and with it, all
liberties. Penal laws should provide reasonably clear guidelines for law enforcement officials and triers of
facts to prevent arbitrary and discriminatory enforcement.63 The terms "aiding or abetting" constitute
broad sweep that generates chilling effect on those who express themselves through cyberspace posts,
comments, and other messages.64 Hence, Section 5 of the cybercrime law that punishes "aiding or
abetting" libel on the cyberspace is a nullity.

When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the void-
for-vagueness doctrine is acceptable. The inapplicability of the doctrine must be carefully delineated. As
Justice Antonio T. Carpio explained in his dissent in Romualdez v. Commission on Elections,65 "we must
view these statements of the Court on the inapplicability of the overbreadth and vagueness doctrines to
penal statutes as appropriate only insofar as these doctrines are used to mount ‘facial’ challenges to penal
statutes not involving free speech."

In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise any
constitutional ground – absence of due process, lack of fair notice, lack of ascertainable standards,
overbreadth, or vagueness. Here, one can challenge the constitutionality of a statute only if he asserts a
violation of his own rights. It prohibits one from assailing the constitutionality of the statute based solely
on the violation of the rights of third persons not before the court. This rule is also known as the
prohibition against third-party standing.66

But this rule admits of exceptions. A petitioner may for instance mount a "facial" challenge to the
constitutionality of a statute even if he claims no violation of his own rights under the assailed statute
where it involves free speech on grounds of overbreadth or vagueness of the statute.

The rationale for this exception is to counter the "chilling effect" on protected speech that comes from
statutes violating free speech. A person who does not know whether his speech constitutes a crime under
an overbroad or vague law may simply restrain himself from speaking in order to avoid being charged of
a crime. The overbroad or vague law thus chills him into silence.67

As already stated, the cyberspace is an incomparable, pervasive medium of communication. It is inevitable

that any government threat of punishment regarding certain uses of the medium creates a chilling effect
on the constitutionally-protected freedom of expression of the great masses that use it. In this case, the
particularly complex web of interaction on social media websites would give law enforcers such latitude
that they could arbitrarily or selectively enforce the law.

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Who is to decide when to prosecute persons who boost the visibility of a posting on the internet by liking
it? Netizens are not given "fair notice" or warning as to what is criminal conduct and what is lawful
conduct. When a case is filed, how will the court ascertain whether or not one netizen’s comment aided
and abetted a cybercrime while another comment did not?

Of course, if the "Comment" does not merely react to the original posting but creates an altogether new
defamatory story against Armand like "He beats his wife and children," then that should be considered an
original posting published on the internet. Both the penal code and the cybercrime law clearly punish
authors of defamatory publications. Make no mistake, libel destroys reputations that society values.
Allowed to cascade in the internet, it will destroy relationships and, under certain circumstances, will
generate enmity and tension between social or economic groups, races, or religions, exacerbating existing
tension in their relationships.

In regard to the crime that targets child pornography, when "Google procures, stores, and indexes child
pornography and facilitates the completion of transactions involving the dissemination of child
pornography," does this make Google and its users aiders and abettors in the commission of child
pornography crimes?68 Byars highlights a feature in the American law on child pornography that the
Cybercrimes law lacks—the exemption of a provider or notably a plain user of interactive computer
service from civil liability for child pornography as follows:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any
information provided by another information content provider and cannot be held civilly liable for any
action voluntarily taken in good faith to restrict access to or availability of material that the provider or
user considers to be obscene...whether or not such material is constitutionally protected.69

When a person replies to a Tweet containing child pornography, he effectively republishes it whether
wittingly or unwittingly. Does this make him a willing accomplice to the distribution of child pornography?
When a user downloads the Facebook mobile application, the user may give consent to Facebook to
access his contact details. In this way, certain information is forwarded to third parties and unsolicited
commercial communication could be disseminated on the basis of this information.70 As the source of
this information, is the user aiding the distribution of this communication? The legislature needs to
address this clearly to relieve users of annoying fear of possible criminal prosecution.

Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on the part
of internet users because of its obvious chilling effect on the freedom of expression, especially since the
crime of aiding or abetting ensnares all the actors in the cyberspace front in a fuzzy way. What is more, as
the petitioners point out, formal crimes such as libel are not punishable unless consummated.71 In the
absence of legislation tracing the interaction of netizens and their level of responsibility such as in other

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countries, Section 5, in relation to Section 4(c)(4) on Libel, Section 4(c)(3) on Unsolicited Commercial
Communications, and Section 4(c)(2) on Child Pornography, cannot stand scrutiny.

But the crime of aiding or abetting the commission of cybercrimes under Section 5 should be permitted
to apply to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data
Interference, Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6)
on Cyber-squatting, Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computer-related
Fraud, Section 4(b)(3) on Computer-related Identity Theft, and Section 4(c)(1) on Cybersex. None of these
offenses borders on the exercise of the freedom of expression.

The crime of willfully attempting to commit any of these offenses is for the same reason not objectionable.
A hacker may for instance have done all that is necessary to illegally access another party’s computer
system but the security employed by the system’s lawful owner could frustrate his effort. Another hacker
may have gained access to usernames and passwords of others but fail to use these because the system
supervisor is alerted.72 If Section 5 that punishes any person who willfully attempts to commit this specific
offense is not upheld, the owner of the username and password could not file a complaint against him for
attempted hacking. But this is not right. The hacker should not be freed from liability simply because of
the vigilance of a lawful owner or his supervisor.

Petitioners of course claim that Section 5 lacks positive limits and could cover the innocent.73 While this
may be true with respect to cybercrimes that tend to sneak past the area of free expression, any attempt
to commit the other acts specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3), Section 4(a)(4),
Section 4(a)(5), Section 4(a)(6), Section 4(b)(1), Section 4(b)(2), Section 4(b)(3), and Section 4(c)(1) as well
as the actors aiding and abetting the commission of such acts can be identified with some reasonable
certainty through adroit tracking of their works. Absent concrete proof of the same, the innocent will of
course be spared.

Section 6 of the Cybercrime Law

Section 6 provides:

Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if
committed by, through and with the use of information and communications technologies shall be
covered by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1)
degree higher than that provided for by the Revised Penal Code, as amended, and special laws, as the
case may be.

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Section 6 merely makes commission of existing crimes through the internet a qualifying circumstance. As
the Solicitor General points out, there exists a substantial distinction between crimes committed through
the use of information and communications technology and similar crimes committed using other means.
In using the technology in question, the offender often evades identification and is able to reach far more
victims or cause greater harm. The distinction, therefore, creates a basis for higher penalties for
cybercrimes.

Section 7 of the Cybercrime Law

Section 7 provides:

Sec. 7. Liability under Other Laws. — A prosecution under this Act shall be without prejudice to any liability
for violation of any provision of the Revised Penal Code, as amended, or special laws.

The Solicitor General points out that Section 7 merely expresses the settled doctrine that a single set of
acts may be prosecuted and penalized simultaneously under two laws, a special law and the Revised Penal
Code. When two different laws define two crimes, prior jeopardy as to one does not bar prosecution of
the other although both offenses arise from the same fact, if each crime involves some important act
which is not an essential element of the other.74 With the exception of the crimes of online libel and
online child pornography, the Court would rather leave the determination of the correct application of
Section 7 to actual cases.

Online libel is different. There should be no question that if the published material on print, said to be
libelous, is again posted online or vice versa, that identical material cannot be the subject of two separate
libels. The two offenses, one a violation of Article 353 of the Revised Penal Code and the other a violation
of Section 4(c)(4) of R.A. 10175 involve essentially the same elements and are in fact one and the same
offense. Indeed, the OSG itself claims that online libel under Section 4(c)(4) is not a new crime but is one
already punished under Article 353. Section 4(c)(4) merely establishes the computer system as another
means of publication.75 Charging the offender under both laws would be a blatant violation of the
proscription against double jeopardy.76

The same is true with child pornography committed online. Section 4(c)(2) merely expands the ACPA’s
scope so as to include identical activities in cyberspace. As previously discussed, ACPA’s definition of child
pornography in fact already covers the use of "electronic, mechanical, digital, optical, magnetic or any
other means." Thus, charging the offender under both Section 4(c)(2) and ACPA would likewise be
tantamount to a violation of the constitutional prohibition against double jeopardy.

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Section 8 of the Cybercrime Law

Section 8 provides:

Sec. 8. Penalties. — Any person found guilty of any of the punishable acts enumerated in Sections 4(a)
and 4(b) of this Act shall be punished with imprisonment of prision mayor or a fine of at least Two hundred
thousand pesos (Ph₱200,000.00) up to a maximum amount commensurate to the damage incurred or
both.

Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with imprisonment
of prision mayor or a fine of not more than Five hundred thousand pesos (Ph₱500,000.00) or both.

If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of reclusion
temporal or a fine of at least Five hundred thousand pesos (Ph₱500,000.00) up to maximum amount
commensurate to the damage incurred or both, shall be imposed.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall be
punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos
(Ph₱200,000.00) but not exceeding One million pesos (Ph₱1,000,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act shall be
punished with the penalties as enumerated in Republic Act No. 9775 or the "Anti-Child Pornography Act
of 2009:" Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for
in Republic Act No. 9775, if committed through a computer system.

Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall be punished
with imprisonment of arresto mayor or a fine of at least Fifty thousand pesos (Ph₱50,000.00) but not
exceeding Two hundred fifty thousand pesos (Ph₱250,000.00) or both.

Any person found guilty of any of the punishable acts enumerated in Section 5 shall be punished with
imprisonment one (1) degree lower than that of the prescribed penalty for the offense or a fine of at least
One hundred thousand pesos (Ph₱100,000.00) but not exceeding Five hundred thousand pesos
(Ph₱500,000.00) or both.

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Section 8 provides for the penalties for the following crimes: Sections 4(a) on Offenses Against the
Confidentiality, Integrity and Availability of Computer Data and Systems; 4(b) on Computer-related
Offenses; 4(a)(5) on Misuse of Devices; when the crime punishable under 4(a) is committed against critical
infrastructure; 4(c)(1) on Cybersex; 4(c)(2) on Child Pornography; 4(c)(3) on Unsolicited Commercial
Communications; and Section 5 on Aiding or Abetting, and Attempt in the Commission of Cybercrime.

The matter of fixing penalties for the commission of crimes is as a rule a legislative prerogative. Here the
legislature prescribed a measure of severe penalties for what it regards as deleterious cybercrimes. They
appear proportionate to the evil sought to be punished. The power to determine penalties for offenses is
not diluted or improperly wielded simply because at some prior time the act or omission was but an
element of another offense or might just have been connected with another crime.77 Judges and
magistrates can only interpret and apply them and have no authority to modify or revise their range as
determined by the legislative department.

The courts should not encroach on this prerogative of the lawmaking body.78

Section 12 of the Cybercrime Law

Section 12 provides:

Sec. 12. Real-Time Collection of Traffic Data. — Law enforcement authorities, with due cause, shall be
authorized to collect or record by technical or electronic means traffic data in real-time associated with
specified communications transmitted by means of a computer system.

Traffic data refer only to the communication’s origin, destination, route, time, date, size, duration, or type
of underlying service, but not content, nor identities.

All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in the collection or
recording of the above-stated information.

The court warrant required under this section shall only be issued or granted upon written application
and the examination under oath or affirmation of the applicant and the witnesses he may produce and

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the showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated
hereinabove has been committed, or is being committed, or is about to be committed; (2) that there are
reasonable grounds to believe that evidence that will be obtained is essential to the conviction of any
person for, or to the solution of, or to the prevention of, any such crimes; and (3) that there are no other
means readily available for obtaining such evidence.

Petitioners assail the grant to law enforcement agencies of the power to collect or record traffic data in
real time as tending to curtail civil liberties or provide opportunities for official abuse. They claim that data
showing where digital messages come from, what kind they are, and where they are destined need not
be incriminating to their senders or recipients before they are to be protected. Petitioners invoke the right
of every individual to privacy and to be protected from government snooping into the messages or
information that they send to one another.

The first question is whether or not Section 12 has a proper governmental purpose since a law may require
the disclosure of matters normally considered private but then only upon showing that such requirement
has a rational relation to the purpose of the law,79 that there is a compelling State interest behind the
law, and that the provision itself is narrowly drawn.80 In assessing regulations affecting privacy rights,
courts should balance the legitimate concerns of the State against constitutional guarantees.81

Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there is a need to put
order to the tremendous activities in cyberspace for public good.82 To do this, it is within the realm of
reason that the government should be able to monitor traffic data to enhance its ability to combat all
sorts of cybercrimes.

Chapter IV of the cybercrime law, of which the collection or recording of traffic data is a part, aims to
provide law enforcement authorities with the power they need for spotting, preventing, and investigating
crimes committed in cyberspace. Crime-fighting is a state business. Indeed, as Chief Justice Sereno points
out, the Budapest Convention on Cybercrimes requires signatory countries to adopt legislative measures
to empower state authorities to collect or record "traffic data, in real time, associated with specified
communications."83 And this is precisely what Section 12 does. It empowers law enforcement agencies
in this country to collect or record such data.

But is not evidence of yesterday’s traffic data, like the scene of the crime after it has been committed,
adequate for fighting cybercrimes and, therefore, real-time data is superfluous for that purpose?
Evidently, it is not. Those who commit the crimes of accessing a computer system without right,84
transmitting viruses,85 lasciviously exhibiting sexual organs or sexual activity for favor or consideration;86
and producing child pornography87 could easily evade detection and prosecution by simply moving the
physical location of their computers or laptops from day to day. In this digital age, the wicked can commit
cybercrimes from virtually anywhere: from internet cafés, from kindred places that provide free internet

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services, and from unregistered mobile internet connectors. Criminals using cellphones under pre-paid
arrangements and with unregistered SIM cards do not have listed addresses and can neither be located
nor identified. There are many ways the cyber criminals can quickly erase their tracks. Those who peddle
child pornography could use relays of computers to mislead law enforcement authorities regarding their
places of operations. Evidently, it is only real-time traffic data collection or recording and a subsequent
recourse to court-issued search and seizure warrant that can succeed in ferreting them out.

Petitioners of course point out that the provisions of Section 12 are too broad and do not provide ample
safeguards against crossing legal boundaries and invading the people’s right to privacy. The concern is
understandable. Indeed, the Court recognizes in Morfe v. Mutuc88 that certain constitutional guarantees
work together to create zones of privacy wherein governmental powers may not intrude, and that there
exists an independent constitutional right of privacy. Such right to be left alone has been regarded as the
beginning of all freedoms.89

But that right is not unqualified. In Whalen v. Roe,90 the United States Supreme Court classified privacy
into two categories: decisional privacy and informational privacy. Decisional privacy involves the right to
independence in making certain important decisions, while informational privacy refers to the interest in
avoiding disclosure of personal matters. It is the latter right—the right to informational privacy—that
those who oppose government collection or recording of traffic data in real-time seek to protect.

Informational privacy has two aspects: the right not to have private information disclosed, and the right
to live freely without surveillance and intrusion.91 In determining whether or not a matter is entitled to
the right to privacy, this Court has laid down a two-fold test. The first is a subjective test, where one
claiming the right must have an actual or legitimate expectation of privacy over a certain matter. The
second is an objective test, where his or her expectation of privacy must be one society is prepared to
accept as objectively reasonable.92

Since the validity of the cybercrime law is being challenged, not in relation to its application to a particular
person or group, petitioners’ challenge to Section 12 applies to all information and communications
technology (ICT) users, meaning the large segment of the population who use all sorts of electronic
devices to communicate with one another. Consequently, the expectation of privacy is to be measured
from the general public’s point of view. Without reasonable expectation of privacy, the right to it would
have no basis in fact.

As the Solicitor General points out, an ordinary ICT user who courses his communication through a service
provider, must of necessity disclose to the latter, a third person, the traffic data needed for connecting
him to the recipient ICT user. For example, an ICT user who writes a text message intended for another
ICT user must furnish his service provider with his cellphone number and the cellphone number of his
recipient, accompanying the message sent. It is this information that creates the traffic data. Transmitting

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communications is akin to putting a letter in an envelope properly addressed, sealing it closed, and
sending it through the postal service. Those who post letters have no expectations that no one will read
the information appearing outside the envelope.

Computer data—messages of all kinds—travel across the internet in packets and in a way that may be
likened to parcels of letters or things that are sent through the posts. When data is sent from any one
source, the content is broken up into packets and around each of these packets is a wrapper or header.
This header contains the traffic data: information that tells computers where the packet originated, what
kind of data is in the packet (SMS, voice call, video, internet chat messages, email, online browsing data,
etc.), where the packet is going, and how the packet fits together with other packets.93 The difference is
that traffic data sent through the internet at times across the ocean do not disclose the actual names and
addresses (residential or office) of the sender and the recipient, only their coded internet protocol (IP)
addresses. The packets travel from one computer system to another where their contents are pieced back
together.

Section 12 does not permit law enforcement authorities to look into the contents of the messages and
uncover the identities of the sender and the recipient.

For example, when one calls to speak to another through his cellphone, the service provider’s
communication’s system will put his voice message into packets and send them to the other person’s
cellphone where they are refitted together and heard. The latter’s spoken reply is sent to the caller in the
same way. To be connected by the service provider, the sender reveals his cellphone number to the
service provider when he puts his call through. He also reveals the cellphone number to the person he
calls. The other ways of communicating electronically follow the same basic pattern.

In Smith v. Maryland,94 cited by the Solicitor General, the United States Supreme Court reasoned that
telephone users in the ‘70s must realize that they necessarily convey phone numbers to the telephone
company in order to complete a call. That Court ruled that even if there is an expectation that phone
numbers one dials should remain private, such expectation is not one that society is prepared to recognize
as reasonable.

In much the same way, ICT users must know that they cannot communicate or exchange data with one
another over cyberspace except through some service providers to whom they must submit certain traffic
data that are needed for a successful cyberspace communication. The conveyance of this data takes them
out of the private sphere, making the expectation to privacy in regard to them an expectation that society
is not prepared to recognize as reasonable.

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The Court, however, agrees with Justices Carpio and Brion that when seemingly random bits of traffic data
are gathered in bulk, pooled together, and analyzed, they reveal patterns of activities which can then be
used to create profiles of the persons under surveillance. With enough traffic data, analysts may be able
to determine a person’s close associations, religious views, political affiliations, even sexual preferences.
Such information is likely beyond what the public may expect to be disclosed, and clearly falls within
matters protected by the right to privacy. But has the procedure that Section 12 of the law provides been
drawn narrowly enough to protect individual rights?

Section 12 empowers law enforcement authorities, "with due cause," to collect or record by technical or
electronic means traffic data in real-time. Petitioners point out that the phrase "due cause" has no
precedent in law or jurisprudence and that whether there is due cause or not is left to the discretion of
the police. Replying to this, the Solicitor General asserts that Congress is not required to define the
meaning of every word it uses in drafting the law.

Indeed, courts are able to save vague provisions of law through statutory construction. But the cybercrime
law, dealing with a novel situation, fails to hint at the meaning it intends for the phrase "due cause." The
Solicitor General suggests that "due cause" should mean "just reason or motive" and "adherence to a
lawful procedure." But the Court cannot draw this meaning since Section 12 does not even bother to
relate the collection of data to the probable commission of a particular crime. It just says, "with due
cause," thus justifying a general gathering of data. It is akin to the use of a general search warrant that
the Constitution prohibits.

Due cause is also not descriptive of the purpose for which data collection will be used. Will the law
enforcement agencies use the traffic data to identify the perpetrator of a cyber attack? Or will it be used
to build up a case against an identified suspect? Can the data be used to prevent cybercrimes from
happening?

The authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint. While
it says that traffic data collection should not disclose identities or content data, such restraint is but an
illusion. Admittedly, nothing can prevent law enforcement agencies holding these data in their hands from
looking into the identity of their sender or receiver and what the data contains. This will unnecessarily
expose the citizenry to leaked information or, worse, to extortion from certain bad elements in these
agencies.

Section 12, of course, limits the collection of traffic data to those "associated with specified
communications." But this supposed limitation is no limitation at all since, evidently, it is the law
enforcement agencies that would specify the target communications. The power is virtually limitless,
enabling law enforcement authorities to engage in "fishing expedition," choosing whatever specified
communication they want. This evidently threatens the right of individuals to privacy.

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The Solicitor General points out that Section 12 needs to authorize collection of traffic data "in real time"
because it is not possible to get a court warrant that would authorize the search of what is akin to a
"moving vehicle." But warrantless search is associated with a police officer’s determination of probable
cause that a crime has been committed, that there is no opportunity for getting a warrant, and that unless
the search is immediately carried out, the thing to be searched stands to be removed. These preconditions
are not provided in Section 12.

The Solicitor General is honest enough to admit that Section 12 provides minimal protection to internet
users and that the procedure envisioned by the law could be better served by providing for more robust
safeguards. His bare assurance that law enforcement authorities will not abuse the provisions of Section
12 is of course not enough. The grant of the power to track cyberspace communications in real time and
determine their sources and destinations must be narrowly drawn to preclude abuses.95

Petitioners also ask that the Court strike down Section 12 for being violative of the void-for-vagueness
doctrine and the overbreadth doctrine. These doctrines however, have been consistently held by this
Court to apply only to free speech cases. But Section 12 on its own neither regulates nor punishes any
type of speech. Therefore, such analysis is unnecessary.

This Court is mindful that advances in technology allow the government and kindred institutions to
monitor individuals and place them under surveillance in ways that have previously been impractical or
even impossible. "All the forces of a technological age x x x operate to narrow the area of privacy and
facilitate intrusions into it. In modern terms, the capacity to maintain and support this enclave of private
life marks the difference between a democratic and a totalitarian society."96 The Court must ensure that
laws seeking to take advantage of these technologies be written with specificity and definiteness as to
ensure respect for the rights that the Constitution guarantees.

Section 13 of the Cybercrime Law

Section 13 provides:

Sec. 13. Preservation of Computer Data. — The integrity of traffic data and subscriber information relating
to communication services provided by a service provider shall be preserved for a minimum period of six
(6) months from the date of the transaction. Content data shall be similarly preserved for six (6) months
from the date of receipt of the order from law enforcement authorities requiring its preservation.

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Law enforcement authorities may order a one-time extension for another six (6) months: Provided, That
once computer data preserved, transmitted or stored by a service provider is used as evidence in a case,
the mere furnishing to such service provider of the transmittal document to the Office of the Prosecutor
shall be deemed a notification to preserve the computer data until the termination of the case.

The service provider ordered to preserve computer data shall keep confidential the order and its
compliance.

Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue deprivation of the right to
property. They liken the data preservation order that law enforcement authorities are to issue as a form
of garnishment of personal property in civil forfeiture proceedings. Such order prevents internet users
from accessing and disposing of traffic data that essentially belong to them.

No doubt, the contents of materials sent or received through the internet belong to their authors or
recipients and are to be considered private communications. But it is not clear that a service provider has
an obligation to indefinitely keep a copy of the same as they pass its system for the benefit of users. By
virtue of Section 13, however, the law now requires service providers to keep traffic data and subscriber
information relating to communication services for at least six months from the date of the transaction
and those relating to content data for at least six months from receipt of the order for their preservation.

Actually, the user ought to have kept a copy of that data when it crossed his computer if he was so minded.
The service provider has never assumed responsibility for their loss or deletion while in its keep.

At any rate, as the Solicitor General correctly points out, the data that service providers preserve on orders
of law enforcement authorities are not made inaccessible to users by reason of the issuance of such
orders. The process of preserving data will not unduly hamper the normal transmission or use of the same.

Section 14 of the Cybercrime Law

Section 14 provides:

Sec. 14. Disclosure of Computer Data. — Law enforcement authorities, upon securing a court warrant,
shall issue an order requiring any person or service provider to disclose or submit subscriber’s information,
traffic data or relevant data in his/its possession or control within seventy-two (72) hours from receipt of

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the order in relation to a valid complaint officially docketed and assigned for investigation and the
disclosure is necessary and relevant for the purpose of investigation.

The process envisioned in Section 14 is being likened to the issuance of a subpoena. Petitioners’ objection
is that the issuance of subpoenas is a judicial function. But it is well-settled that the power to issue
subpoenas is not exclusively a judicial function. Executive agencies have the power to issue subpoena as
an adjunct of their investigatory powers.98

Besides, what Section 14 envisions is merely the enforcement of a duly issued court warrant, a function
usually lodged in the hands of law enforcers to enable them to carry out their executive functions. The
prescribed procedure for disclosure would not constitute an unlawful search or seizure nor would it
violate the privacy of communications and correspondence. Disclosure can be made only after judicial
intervention.

Section 15 of the Cybercrime Law

Section 15 provides:

Sec. 15. Search, Seizure and Examination of Computer Data. — Where a search and seizure warrant is
properly issued, the law enforcement authorities shall likewise have the following powers and duties.

Within the time period specified in the warrant, to conduct interception, as defined in this Act, and:

(a) To secure a computer system or a computer data storage medium;

(b) To make and retain a copy of those computer data secured;

(c) To maintain the integrity of the relevant stored computer data;

(d) To conduct forensic analysis or examination of the computer data storage medium; and

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(e) To render inaccessible or remove those computer data in the accessed computer or computer and
communications network.

Pursuant thereof, the law enforcement authorities may order any person who has knowledge about the
functioning of the computer system and the measures to protect and preserve the computer data therein
to provide, as is reasonable, the necessary information, to enable the undertaking of the search, seizure
and examination.

Law enforcement authorities may request for an extension of time to complete the examination of the
computer data storage medium and to make a return thereon but in no case for a period longer than
thirty (30) days from date of approval by the court.

Petitioners challenge Section 15 on the assumption that it will supplant established search and seizure
procedures. On its face, however, Section 15 merely enumerates the duties of law enforcement
authorities that would ensure the proper collection, preservation, and use of computer system or data
that have been seized by virtue of a court warrant. The exercise of these duties do not pose any threat on
the rights of the person from whom they were taken. Section 15 does not appear to supersede existing
search and seizure rules but merely supplements them.

Section 17 of the Cybercrime Law

Section 17 provides:

Sec. 17. Destruction of Computer Data. — Upon expiration of the periods as provided in Sections 13 and
15, service providers and law enforcement authorities, as the case may be, shall immediately and
completely destroy the computer data subject of a preservation and examination.

Section 17 would have the computer data, previous subject of preservation or examination, destroyed or
deleted upon the lapse of the prescribed period. The Solicitor General justifies this as necessary to clear
up the service provider’s storage systems and prevent overload. It would also ensure that investigations
are quickly concluded.

Petitioners claim that such destruction of computer data subject of previous preservation or examination
violates the user’s right against deprivation of property without due process of law. But, as already stated,
it is unclear that the user has a demandable right to require the service provider to have that copy of the

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data saved indefinitely for him in its storage system. If he wanted them preserved, he should have saved
them in his computer when he generated the data or received it. He could also request the service
provider for a copy before it is deleted.

Section 19 of the Cybercrime Law

Section 19 empowers the Department of Justice to restrict or block access to computer data:

Sec. 19. Restricting or Blocking Access to Computer Data.— When a computer data is prima facie found
to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to
such computer data.

Petitioners contest Section 19 in that it stifles freedom of expression and violates the right against
unreasonable searches and seizures. The Solicitor General concedes that this provision may be
unconstitutional. But since laws enjoy a presumption of constitutionality, the Court must satisfy itself that
Section 19 indeed violates the freedom and right mentioned.

Computer data99 may refer to entire programs or lines of code, including malware, as well as files that
contain texts, images, audio, or video recordings. Without having to go into a lengthy discussion of
property rights in the digital space, it is indisputable that computer data, produced or created by their
writers or authors may constitute personal property. Consequently, they are protected from
unreasonable searches and seizures, whether while stored in their personal computers or in the service
provider’s systems.

Section 2, Article III of the 1987 Constitution provides that the right to be secure in one’s papers and
effects against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable. Further, it states that no search warrant shall issue except upon probable cause to be
determined personally by the judge. Here, the Government, in effect, seizes and places the computer data
under its control and disposition without a warrant. The Department of Justice order cannot substitute
for judicial search warrant.

The content of the computer data can also constitute speech. In such a case, Section 19 operates as a
restriction on the freedom of expression over cyberspace. Certainly not all forms of speech are protected.
Legislature may, within constitutional bounds, declare certain kinds of expression as illegal. But for an
executive officer to seize content alleged to be unprotected without any judicial warrant, it is not enough
for him to be of the opinion that such content violates some law, for to do so would make him judge, jury,
and executioner all rolled into one.100

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Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential
guidelines established to determine the validity of restrictions on speech. Restraints on free speech are
generally evaluated on one of or a combination of three tests: the dangerous tendency doctrine, the
balancing of interest test, and the clear and present danger rule.101 Section 19, however, merely requires
that the data to be blocked be found prima facie in violation of any provision of the cybercrime law. Taking
Section 6 into consideration, this can actually be made to apply in relation to any penal provision. It does
not take into consideration any of the three tests mentioned above.

The Court is therefore compelled to strike down Section 19 for being violative of the constitutional
guarantees to freedom of expression and against unreasonable searches and seizures.

Section 20 of the Cybercrime Law

Section 20 provides:

Sec. 20. Noncompliance. — Failure to comply with the provisions of Chapter IV hereof specifically the
orders from law enforcement authorities shall be punished as a violation of Presidential Decree No. 1829
with imprisonment of prision correctional in its maximum period or a fine of One hundred thousand pesos
(Php100,000.00) or both, for each and every noncompliance with an order issued by law enforcement
authorities.

Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is that the mere failure
to comply constitutes a legislative finding of guilt, without regard to situations where non-compliance
would be reasonable or valid.

But since the non-compliance would be punished as a violation of Presidential Decree (P.D.) 1829,102
Section 20 necessarily incorporates elements of the offense which are defined therein. If Congress had
intended for Section 20 to constitute an offense in and of itself, it would not have had to make reference
to any other statue or provision.

P.D. 1829 states:

Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to 6,000
pesos, or both, shall be imposed upon any person who knowingly or willfully obstructs, impedes,

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frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases
by committing any of the following acts:

x x x.

Thus, the act of non-compliance, for it to be punishable, must still be done "knowingly or willfully." There
must still be a judicial determination of guilt, during which, as the Solicitor General assumes, defense and
justifications for non-compliance may be raised. Thus, Section 20 is valid insofar as it applies to the
provisions of Chapter IV which are not struck down by the Court.

Sections 24 and 26(a) of the Cybercrime Law

Sections 24 and 26(a) provide:

Sec. 24. Cybercrime Investigation and Coordinating Center.– There is hereby created, within thirty (30)
days from the effectivity of this Act, an inter-agency body to be known as the Cybercrime Investigation
and Coordinating Center (CICC), under the administrative supervision of the Office of the President, for
policy coordination among concerned agencies and for the formulation and enforcement of the national
cybersecurity plan.

Sec. 26. Powers and Functions.– The CICC shall have the following powers and functions:

(a) To formulate a national cybersecurity plan and extend immediate assistance of real time commission
of cybercrime offenses through a computer emergency response team (CERT); x x x.

Petitioners mainly contend that Congress invalidly delegated its power when it gave the Cybercrime
Investigation and Coordinating Center (CICC) the power to formulate a national cybersecurity plan without
any sufficient standards or parameters for it to follow.

In order to determine whether there is undue delegation of legislative power, the Court has adopted two
tests: the completeness test and the sufficient standard test. Under the first test, the law must be
complete in all its terms and conditions when it leaves the legislature such that when it reaches the
delegate, the only thing he will have to do is to enforce it.1avvphi1 The second test mandates adequate

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guidelines or limitations in the law to determine the boundaries of the delegate’s authority and prevent
the delegation from running riot.103

Here, the cybercrime law is complete in itself when it directed the CICC to formulate and implement a
national cybersecurity plan. Also, contrary to the position of the petitioners, the law gave sufficient
standards for the CICC to follow when it provided a definition of cybersecurity.

Cybersecurity refers to the collection of tools, policies, risk management approaches, actions, training,
best practices, assurance and technologies that can be used to protect cyber environment and
organization and user’s assets.104 This definition serves as the parameters within which CICC should work
in formulating the cybersecurity plan.

Further, the formulation of the cybersecurity plan is consistent with the policy of the law to "prevent and
combat such [cyber] offenses by facilitating their detection, investigation, and prosecution at both the
domestic and international levels, and by providing arrangements for fast and reliable international
cooperation."105 This policy is clearly adopted in the interest of law and order, which has been considered
as sufficient standard.106 Hence, Sections 24 and 26(a) are likewise valid.

WHEREFORE, the Court DECLARES:

1. VOID for being UNCONSTITUTIONAL:

a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited commercial communications;

b. Section 12 that authorizes the collection or recording of traffic data in real-time; and

c. Section 19 of the same Act that authorizes the Department of Justice to restrict or block access to
suspected Computer Data.

2. VALID and CONSTITUTIONAL:

a. Section 4(a)(1) that penalizes accessing a computer system without right;

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b. Section 4(a)(3) that penalizes data interference, including transmission of viruses;

c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over the internet in bad faith
to the prejudice of others;

d. Section 4(b)(3) that penalizes identity theft or the use or misuse of identifying information belonging
to another;

e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual organs or sexual activity for
favor or consideration;

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

g. Section 6 that imposes penalties one degree higher when crimes defined under the Revised Penal Code
are committed with the use of information and communications technologies;

h. Section 8 that prescribes the penalties for cybercrimes;

i. Section 13 that permits law enforcement authorities to require service providers to preserve traffic data
and subscriber information as well as specified content data for six months;

j. Section 14 that authorizes the disclosure of computer data under a court-issued warrant;

k. Section 15 that authorizes the search, seizure, and examination of computer data under a court-issued
warrant;

l. Section 17 that authorizes the destruction of previously preserved computer data after the expiration
of the prescribed holding periods;

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

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n. Section 24 that establishes a Cybercrime Investigation and Coordinating Center (CICC);

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

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

Further, the Court DECLARES:

1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with respect to the original
author of the post; but VOID and UNCONSTITUTIONAL with respect to others who simply receive the post
and react to it; and

2. Section 5 that penalizes aiding or abetting and attempt in the commission of cybercrimes as VA L I D
and CONSTITUTIONAL only in relation to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal
Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System

Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on
Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computer-
related Identity Theft, and Section 4(c)(1) on Cybersex; but VOID and UNCONSTITUTIONAL with respect
to Sections 4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited Commercial Communications, and 4(c)(4)
on online Libel.1âwphi1

Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of Section 7 that
authorizes prosecution of the offender under both the Revised Penal Code and Republic Act 10175 to
actual cases, WITH THE EXCEPTION of the crimes of:

1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic Act 10175 and
Article 353 of the Revised Penal Code constitutes a violation of the proscription against double jeopardy;
as well as

2. Child pornography committed online as to which, charging the offender under both Section 4(c)(2) of
Republic Act 10175 and Republic Act 9775 or the Anti-Child Pornography Act of 2009 also constitutes a
violation of the same proscription, and, in respect to these, is VOID and UNCONSTITUTIONAL.

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SO ORDERED.

ROBERTO A. ABAD

Associate Justice

WE CONCUR:

See Concurring & Dissenting Opinion

MARIA LOURDES P. A. SERENO

Chief Justice

See Concurring & Dissenting Opinion

ANTONIO T. CARPIO

Associate Justice (no part due to prior case)

PRESBITERO J. VELASCO, JR.*

Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice See Separate Concurring Opinion

ARTURO D. BRION

Associate Justice

DIOSDADO M. PERALTA

Associate Justice LUCAS P. BERSAMIN

Associate Justice

MARIANO C. DEL CASTILLO

Associate Justice MARTIN S. VILLARAMA, JR.

Associate Justice

JOSE PORTUGAL PEREZ

Associate Justice I join Justice Brion in all his positions

JOSE CATRAL MENDOZA

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Associate Justice

BIENVENIDO L. REYES

Associate Justice No Part

ESTELA M. PERLAS-BERNABE*

Associate Justice

See separate dissenting and concurring opinion

MARVIC MARIO VICTOR F. LEONEN

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the
above Decision had been reached in consultation before the case was assigned to the writer of the opinion
of the Court.

MARIA LOURDES P.A. SERENO

Chief Justice

Footnotes

*No part.

1 The US Supreme Court first suggested the standard by implication in footnote 4 of United States v.
Carolene Products (304 U.S. 144, 152 n.4 (1938). See Fatal in Theory and Strict in Fact: An Empirical
Analysis of Strict Scrutiny in the Federal Courts. Winkler, A. UCLA School of Law, Public Law & Legal Theory
Research Paper Series, Research Paper No. 06-14, http://ssrn.com/abstract=897360 (last accessed April
10, 2013).

2 Serrano v. Gallant Maritime Services, Inc., G.R. No. 167614, March 24, 2009, 582 SCRA 254, 278.

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3 White Light Corporation v. City of Manila, G.R. No. 122846, January 20, 2009, 576 SCRA 416, 437.

4 All 50 states of the United States have passed individual state laws criminalizing hacking or unauthorized
access, http://www.ncsl.org/issues-research/telecom/computer-hacking-and-unauthorized-access-
laws.aspx (last accessed May 16, 2013). The United States Congress has also passed the Computer Fraud
and Abuse Act 18 U.S.C. § 1030 that penalizes, among others, hacking. The Budapest Convention on
Cybercrime considers hacking as an offense against the confidentiality, integrity and availability of
computer data and systems and 29 countries have already ratified or acceded,
http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=185&CM=&DF=&CL=ENG (last accessed
May 16, 2013).

5 Ethical Hacking. Palmer, C. IBM Systems Journal, Vol. 40, No. 3, 2001, p. 770,
http://pdf.textfiles.com/security/palmer.pdf (last accessed April 10, 2013).

6 Id. at 774.

7 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, G.R. Nos. 178552, 178554,
178581, 178890, 179157 & 179461, October 5, 2010, 632 SCRA 146, 185.

8 The intentional destruction of property is popularly referred to as vandalism. It includes behavior such
as breaking windows, slashing tires, spray painting a wall with graffiti, and destroying a computer system
through the use of a computer virus, http://legal-dictionary.thefreedictionary.com/Vandalism (last
accessed August 12, 2013).

9 Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council, supra note 7, at 186; Estrada
v. Sandiganbayan, 421 Phil. 290, 354 (2001).

10 Id.

11 Id., citing the Opinion of Justice Vicente V. Mendoza in Estrada v. Sandiganbayan.

12 1987 CONSTITUTION, Article III, Section 1.

247
13 Pollo v. Constantino-David, G.R. No. 181881, October 18, 2011, 659 SCRA 189, 204-205.

14 130 Phil. 415 (1968)

15 535 Phil. 687, 714-715 (2006).

16 Supra note 12, Article II, Section 2.

17 Supra note 12, Article III, Section 3.

18 In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon, supra
note 15.

19 Section 3(g) of Republic Act 10173 or the Data Privacy Act of 2012 defines personal information as "any
information whether recorded in a material form or not, from which the identity of an individual is
apparent or can be reasonably and directly ascertained by the entity holding the information, or when
put together with other information would directly and certainly identify an individual."

20 People v. Uy, G.R. No. 174660, May 30, 2011, 649 SCRA 236.

21 Supra note 17 (G.R. No. 203359 [Guingona]; G.R. No. 203518 [PIFA]).

22 Merriam-Webster, http://www.merriam-webster.com/dictionary/favor (last accessed May 30, 2013).

23 Bicameral Conference Committee, pp. 5-6.

24 Id.

25 Office of the Solicitor General, COMMENT, p. 71.

248
26 REPUBLIC ACT 9208, Section 4(e).

27 Id., Section 3(c).

28 G.R. No. 191080, November 21, 2011, 660 SCRA 475.

29 REVISED PENAL CODE, Article 201 (2)(b)(2), as amended by Presidential Decree 969.

30 Pita v. Court of Appeals, 258-A Phil. 134 (1989).

31 REPUBLIC ACT 9775 entitled AN ACT DEFINING THE CRIME OF CHILD PORNOGRAPHY, PRESCRIBING
PENALTIES THEREFOR AND FOR OTHER PURPOSES.

32 Sto. Tomas v. Salac, G.R. No. 152642, November 13, 2012, 685 SCRA 245, citing People v. Ventura, 114
Phil. 162, 167 (1962).

33 Supra note 31, Section 4(b).

34 G.R. No. 203407 (Bagong Alyansang Makabayan), MEMORANDUM, pp. 34-37.

35 White Buffalo Ventures, LLC v. Univ. of Tex. at Austin, 2004 U.S. Dist. LEXIS 19152 (W.D. Tex. Mar. 22,
2004).

36 Concurring Opinion of Chief Justice Reynato S. Puno in Pharmaceutical and Health Care Association of
the Philippines v. Duque III, 561 Phil. 387, 449 (2007).

37 Supra note 29, Article 362.

38 Borjal v. Court of Appeals, 361 Phil. 1 (1999); Vasquez v. Court of Appeals, 373 Phil. 238 (1999).

249
39 573 Phil. 278 (2008).

40 Vasquez v. Court of Appeals, supra note 38.

41 L. BOADO, COMPACT REVIEWER IN CRIMINAL LAW 403-404 (2d ed. 2007).

42 Vasquez v. Court of Appeals, supra note 38, citing New York Times v. Sullivan, 376 U.S. 254, 11 L.Ed.2d
686 (1964).

43 Annette F. v. Sharon S., 119 Cal. App. 4th 1146, 1151 (Cal. App. 4th Dist. 2004).

44 Borjal v. Court of Appeals, supra note 38, citing United States v. Bustos, 37 Phil. 731 (1918).

45 Supra note 41, at 403.

46 Supra note 29, Article 354.

47 Communication 1815/2008.

48 General Comment 34, ICCPR, par. 47.

49 ICCPR, Article 19(2) and (3).

50 Sandals Resorts Int’l. Ltd. v. Google, Inc., 86 A.D.3d 32 (N.Y. App. Div. 1st Dep’t 2011).

51 Office of the Solicitor General, MEMORANDUM, pp. 69-70.

52 REPUBLIC ACT 3701, Section 1.

250
53 REPUBLIC ACT 4712, Section 5.

54 LABOR CODE, Article 264.

55 G.R. No. 203440 (Sta. Maria), PETITION, p. 2.

56 http://www.statisticbrain.com/social-networking-statistics/ (last accessed January 14, 2013).

57 http://en.wikipedia.org/wiki/Social_networking_service (last accessed January 14, 2013).

58 http://www.statisticbrain.com/social-networking-statistics/ (last accessed January 14, 2013).

59 http://en.wikipedia.org/wiki/Facebook (last accessed January 14, 2013).

60 G. R . No. 203378 (Adonis) and G.R. No. 203391 (Palatino), CONSOLIDATED MEMORANDUM, p. 34.

61 521 U.S. 844 (1997).

62 Griswold v. Connecticut, 381 U.S. 479 (1965).

63 G.R. No. 203378 (Adonis), First AMENDED PETITION, pp. 35-36.

64 Supra note 55, at 33.

65 576 Phil. 357 (2008).

66 Id.

67 Id.

251
68 A contention found in Bruce Byars, Timothy O’Keefe, and Thomas Clement "Google, Inc.: Procurer,
Possessor, Distributor, Aider and Abettor in Child Pornography,"

http://forumonpublicpolicy.com/archivespring08/byars.pdf (last accessed May 25, 2013).

69 Id., citing 47 U.S.C. 230.

70 Bianca Bosker, Facebook To Share Users' Home Addresses, Phone Numbers With External Sites,
http://www.huffingtonpost.com/2011/02/28/facebook-home-addresses-phone-
numbers_n_829459.html (last accessed July 18, 2013).

71 G.R. No. 203440 (Sta Maria), MEMORANDUM, p. 14, citing Luis B. Reyes, The Revised Penal Code: Book
1, 118 (17th ed. 2008).

72 Shiresee Bell, Man Pleads Guilty to Attempted USC Website Hacking, Email Accounts, http://columbia-
sc.patch.com/groups/police-and-fire/p/man-pleaded-guilty-to-hacking-usc-website-email-accounts (last
accessed July 18, 2013); Peter Ryan, Hackers target Bureau of Statistics data,
http://www.abc.net.au/news/2013-04-26/abs-targeted-by-hackers/4652758 (last accessed July 18,
2013).

73 Supra note 34, at 32.

74 Supra note 51, at 49, citing People v. Doriquez, 133 Phil. 295 (1968).

75 Office of the Solicitor General, MEMORANDUM, p. 49.

76 Section 21, Article III, 1987 CONSTITUTION: "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."

77 Baylosis v. Hon. Chavez, Jr., 279 Phil. 448 (1991).

252
78 People v. Dela Cruz, G.R. No. 100386, December 11, 1992, 216 SCRA 476, citing People v. Millora, 252
Phil. 105 (1989).

79 Supra note 14, at 436-437.

80 Ople v. Torres, 354 Phil. 948, 974-975 (1998).

81 In the Matter of the Petition for Habeas Corpus of Capt. Alejano v. Gen. Cabuay, 505 Phil. 298, 322
(2005); Gamboa v. Chan, G.R. No. 193636, July 24, 2012, 677 SCRA 385.

82 SEC. 2. Declaration of Policy. — The State recognizes the vital role of information and communications
industries such as content production, telecommunications, broadcasting electronic commerce, and data
processing, in the nation’s overall social and economic development. The State also recognizes the
importance of providing an environment conducive to the development, acceleration, and rational
application and exploitation of information and communications technology (ICT) to attain free, easy, and
intelligible access to exchange and/or delivery of information; and the need to protect and safeguard the
integrity of computer, computer and communications systems, networks, and databases, and the
confidentiality, integrity, and availability of information and data stored therein, from all forms of misuse,
abuse, and illegal access by making punishable under the law such conduct or conducts. In this light, the
State shall adopt sufficient powers to effectively prevent and combat such offenses by facilitating their
detection, investigation, and prosecution at both the domestic and international levels, and by providing
arrangements for fast and reliable international cooperation.

83 Convention on Cybercrime, Art. 20, opened for signature November 23, 2001, ETS 185.

84 Cybercrime Law, Section 4(a)(1),.

85 Id., Section 4(a)(3)

86 Id., Section 4(c)(1)

87 Id., Section 4(c)(2)

253
88 Supra note 14.

89 Id. at 433-437.

90 429 U.S. 589 (1977).

91 Id. at 599.

92 Supra note 13, at 206.

93 Jonathan Strickland, How IP Convergence Works, http://computer.howstuffworks.com/ip-

convergence2.htm (last accessed May 10, 2013).

94 442 U.S. 735 (1979).

95 Supra note 80, at 983.

96 Supra note 14, at 437, citing Emerson, Nine Justices in Search of a Doctrine, 64 Mich. Law Rev. 219,
229 (1965).

97 G.R. No. 203391 (Palatino v. Ochoa).

98 Biraogo v. Philippine Truth Commission, G.R. Nos. 192935 and 193036, December 7, 2010, 637 SCRA
78, 143; ADMINISTRATIVE CODE of 1987, Book I, Chapter 9, Section 37, and Book VII, Chapter 1, Section
13.

99 Computer data is defined by R.A. 10175 as follows:

"SEC. 3. Definition of Terms. x x x

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xxxx

(e) Computer data refers to any representation of facts, information, or concepts in a form suitable for
processing in a computer system including a program suitable to cause a computer system to perform a
function and includes electronic documents and/or electronic data messages whether stored in local
computer systems or online."

100 Pita v. Court of Appeals, supra note 30, at 151.

101 Chavez v. Gonzales, 569 Phil. 155 (2008).

102 Entitled PENALIZING OBSTRUCTION OF APPREHENSION AND PROSECUTION OF CRIMINAL

OFFENDERS.

103 Gerochi v. Department of Energy, 554 Phil. 563 (2007).

104 REPUBLIC ACT 10175, Section 3(k).

105 Supra note 94.

106 Gerochi v. Department of Energy, supra note 103, at 586, citing Rubi v. Provincial Board of Mindoro,
39 Phil. 660 (1919).

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G.R. No. 202666 September 29, 2014

RHONDA AVE S. VIVARES and SPS. MARGARITA and DAVID SUZARA, Petitioners,

vs.

ST. THERESA'S COLLEGE, MYLENE RHEZA T. ESCUDERO, and JOHN DOES, Respondents.

DECISION

VELASCO, JR., J.:

The individual's desire for privacy is never absolute, since participation in society is an equally powerful
desire. Thus each individual is continually engaged in a personal adjustment process in which he balances
the desire for privacy with the desire for disclosure and communication of himself to others, in light of the
environmental conditions and social norms set by the society in which he lives.

- Alan Westin, Privacy and Freedom (1967)

The Case

Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, in relation to Section
19 of A.M. No. 08-1-16-SC,1 otherwise known as the "Rule on the Writ of Habeas Data." Petitioners herein
assail the July 27, 2012 Decision2 of the Regional Trial Court, Branch 14 in Cebu City (RTC) in SP. Proc. No.
19251-CEB, which dismissed their habeas data petition.

The Facts

Nenita Julia V. Daluz (Julia) and Julienne Vida Suzara (Julienne), both minors, were, during the period
material, graduating high school students at St. Theresa's College (STC), Cebu City. Sometime in January
2012, while changing into their swimsuits for a beach party they were about to attend, Julia and Julienne,
along with several others, took digital pictures of themselves clad only in their undergarments. These
pictures were then uploaded by Angela Lindsay Tan (Angela) on her Facebook3 profile.

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Back at the school, Mylene Rheza T. Escudero (Escudero), a computer teacher at STC’s high school
department, learned from her students that some seniors at STC posted pictures online, depicting
themselves from the waist up, dressed only in brassieres. Escudero then asked her students if they knew
who the girls in the photos are. In turn, they readily identified Julia, Julienne, and Chloe Lourdes Taboada
(Chloe), among others.

Using STC’s computers, Escudero’s students logged in to their respective personal Facebook accounts and
showed her photos of the identified students, which include: (a) Julia and Julienne drinking hard liquor
and smoking cigarettes inside a bar; and (b) Julia and Julienne along the streets of Cebu wearing articles
of clothing that show virtually the entirety of their black brassieres. What is more, Escudero’s students
claimed that there were times when access to or the availability of the identified students’ photos was
not confined to the girls’ Facebook friends,4 but were, in fact, viewable by any Facebook user.5

Upon discovery, Escudero reported the matter and, through one of her student’s Facebook page, showed
the photosto Kristine Rose Tigol (Tigol), STC’s Discipline-in-Charge, for appropriate action. Thereafter,
following an investigation, STC found the identified students to have deported themselves in a manner
proscribed by the school’s Student Handbook, to wit:

1. Possession of alcoholic drinks outside the school campus;

2. Engaging in immoral, indecent, obscene or lewd acts;

3. Smoking and drinking alcoholicbeverages in public places;

4. Apparel that exposes the underwear;

5. Clothing that advocates unhealthy behaviour; depicts obscenity; contains sexually suggestive messages,
language or symbols; and 6. Posing and uploading pictures on the Internet that entail ample body
exposure.

On March 1, 2012, Julia, Julienne, Angela, and the other students in the pictures in question, reported, as
required, to the office of Sr. Celeste Ma. Purisima Pe (Sr. Purisima), STC’s high school principal and ICM6
Directress. They claimed that during the meeting, they were castigated and verbally abused by the STC
officials present in the conference, including Assistant Principal Mussolini S. Yap (Yap), Roswinda Jumiller,

257
and Tigol. What is more, Sr. Purisima informed their parents the following day that, as part of their penalty,
they are barred from joining the commencement exercises scheduled on March 30, 2012.

A week before graduation, or on March 23, 2012, Angela’s mother, Dr. Armenia M. Tan (Tan), filed a
Petition for Injunction and Damages before the RTC of Cebu City against STC, et al., docketed as Civil Case
No. CEB-38594.7 In it, Tan prayed that defendants therein be enjoined from implementing the sanction
that precluded Angela from joining the commencement exercises.

On March 25, 2012,petitioner Rhonda Ave Vivares (Vivares), the mother of Julia, joined the fray as an
intervenor. On March 28, 2012, defendants inCivil Case No. CEB-38594 filed their memorandum,
containing printed copies of the photographs in issue as annexes. That same day, the RTC issued a
temporary restraining order (TRO) allowing the students to attend the graduation ceremony, to which STC
filed a motion for reconsideration.

Despite the issuance of the TRO,STC, nevertheless, barred the sanctioned students from participating in
the graduation rites, arguing that, on the date of the commencement exercises, its adverted motion for
reconsideration on the issuance ofthe TRO remained unresolved.

Thereafter, petitioners filed before the RTC a Petition for the Issuance of a Writ of Habeas Data, docketed
as SP. Proc. No. 19251-CEB8 on the basis of the following considerations:

1. The photos of their children in their undergarments (e.g., bra) were taken for posterity before they
changed into their swimsuits on the occasion of a birthday beach party;

2. The privacy setting of their children’s Facebook accounts was set at "Friends Only." They, thus, have a
reasonable expectation of privacy which must be respected.

3. Respondents, being involved in the field of education, knew or ought to have known of laws that
safeguard the right to privacy. Corollarily, respondents knew or ought to have known that the girls, whose
privacy has been invaded, are the victims in this case, and not the offenders. Worse, after viewing the
photos, the minors were called "immoral" and were punished outright;

4. The photos accessed belong to the girls and, thus, cannot be used and reproduced without their
consent. Escudero, however, violated their rights by saving digital copies of the photos and by

258
subsequently showing them to STC’s officials. Thus, the Facebook accounts of petitioners’ children were
intruded upon;

5. The intrusion into the Facebook accounts, as well as the copying of information, data, and digital images
happened at STC’s Computer Laboratory; and

6. All the data and digital images that were extracted were boldly broadcasted by respondents through
their memorandum submitted to the RTC in connection with Civil Case No. CEB-38594. To petitioners, the
interplay of the foregoing constitutes an invasion of their children’s privacy and, thus, prayed that: (a) a
writ of habeas databe issued; (b) respondents be ordered to surrender and deposit with the court all soft
and printed copies of the subjectdata before or at the preliminary hearing; and (c) after trial, judgment
be rendered declaring all information, data, and digital images accessed, saved or stored, reproduced,
spread and used, to have been illegally obtained inviolation of the children’s right to privacy.

Finding the petition sufficient in form and substance, the RTC, through an Order dated July 5, 2012, issued
the writ of habeas data. Through the same Order, herein respondents were directed to file their verified
written return, together with the supporting affidavits, within five (5) working days from service of the
writ.

In time, respondents complied with the RTC’s directive and filed their verified written return, laying down
the following grounds for the denial of the petition, viz: (a) petitioners are not the proper parties to file
the petition; (b) petitioners are engaging in forum shopping; (c) the instant case is not one where a writ
of habeas data may issue;and (d) there can be no violation of their right to privacy as there is no
reasonable expectation of privacy on Facebook.

Ruling of the Regional Trial Court

On July 27, 2012, the RTC rendered a Decision dismissing the petition for habeas data. The dispositive
portion of the Decision pertinently states:

WHEREFORE, in view of the foregoing premises, the Petition is hereby DISMISSED.

The parties and media must observe the aforestated confidentiality.

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xxxx

SO ORDERED.9

To the trial court, petitioners failed to prove the existence of an actual or threatened violation of the
minors’ right to privacy, one of the preconditions for the issuance of the writ of habeas data. Moreover,
the court a quoheld that the photos, having been uploaded on Facebook without restrictions as to who
may view them, lost their privacy in some way. Besides, the RTC noted, STC gathered the photographs
through legal means and for a legal purpose, that is, the implementation of the school’s policies and rules
on discipline.

Not satisfied with the outcome, petitioners now come before this Court pursuant to Section 19 of the Rule
on Habeas Data.10

The Issues

The main issue to be threshed out inthis case is whether or not a writ of habeas datashould be issued
given the factual milieu. Crucial in resolving the controversy, however, is the pivotal point of whether or
not there was indeed an actual or threatened violation of the right to privacy in the life, liberty, or security
of the minors involved in this case.

Our Ruling

We find no merit in the petition.

Procedural issues concerning the availability of the Writ of Habeas Data

The writ of habeas datais a remedy available to any person whose right to privacy in life, liberty or security
is violated or threatened by an unlawful act or omission of a public official or employee, or of a private
individual or entity engaged in the gathering, collecting or storing of data or information regarding the
person, family, home and correspondence of the aggrieved party.11 It is an independent and summary
remedy designed to protect the image, privacy, honor, information, and freedom of information of an
individual, and to provide a forum to enforce one’s right to the truth and to informational privacy. It seeks

260
to protect a person’s right to control information regarding oneself, particularly in instances in which such
information is being collected through unlawful means in order to achieve unlawful ends.12

In developing the writ of habeas data, the Court aimed to protect an individual’s right to informational
privacy, among others. A comparative law scholar has, in fact, defined habeas dataas "a procedure
designed to safeguard individual freedom from abuse in the information age."13 The writ, however, will
not issue on the basis merely of an alleged unauthorized access to information about a person.Availment
of the writ requires the existence of a nexus between the right to privacy on the one hand, and the right
to life, liberty or security on the other.14 Thus, the existence of a person’s right to informational privacy
and a showing, at least by substantial evidence, of an actual or threatened violation of the right to privacy
in life, liberty or security of the victim are indispensable before the privilege of the writ may be
extended.15

Without an actionable entitlement in the first place to the right to informational privacy, a habeas
datapetition will not prosper. Viewed from the perspective of the case at bar,this requisite begs this
question: given the nature of an online social network (OSN)––(1) that it facilitates and promotes real-
time interaction among millions, if not billions, of users, sans the spatial barriers,16 bridging the gap
created by physical space; and (2) that any information uploaded in OSNs leavesan indelible trace in the
provider’s databases, which are outside the control of the end-users––is there a right to informational
privacy in OSN activities of its users? Before addressing this point, We must first resolve the procedural
issues in this case.

a. The writ of habeas data is not only confined to cases of extralegal killings and enforced disappearances

Contrary to respondents’ submission, the Writ of Habeas Datawas not enacted solely for the purpose of
complementing the Writ of Amparoin cases of extralegal killings and enforced disappearances.

Section 2 of the Rule on the Writ of Habeas Data provides:

Sec. 2. Who May File. – Any aggrieved party may file a petition for the writ of habeas data. However, in
cases of extralegal killings and enforced disappearances, the petition may be filed by:

(a) Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents;
or

261
(b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degreeof
consanguinity or affinity, in default of those mentioned in the preceding paragraph. (emphasis supplied)

Had the framers of the Rule intended to narrow the operation of the writ only to cases of extralegal killings
or enforced disappearances, the above underscored portion of Section 2, reflecting a variance of habeas
data situations, would not have been made.

Habeas data, to stress, was designed "to safeguard individual freedom from abuse in the information
age."17 As such, it is erroneous to limit its applicability to extralegal killings and enforced disappearances
only. In fact, the annotations to the Rule preparedby the Committee on the Revision of the Rules of Court,
after explaining that the Writ of Habeas Data complements the Writ of Amparo, pointed out that:

The writ of habeas data, however, can be availed of as an independent remedy to enforce one’s right to
privacy, more specifically the right to informational privacy. The remedies against the violation of such
right can include the updating, rectification, suppression or destruction of the database or information or
files in possession or in control of respondents.18 (emphasis Ours) Clearly then, the privilege of the Writ
of Habeas Datamay also be availed of in cases outside of extralegal killings and enforced disappearances.

b. Meaning of "engaged" in the gathering, collecting or storing of data or information

Respondents’ contention that the habeas data writ may not issue against STC, it not being an entity
engaged in the gathering, collecting or storing of data or information regarding the person, family, home
and correspondence of the aggrieved party, while valid to a point, is, nonetheless, erroneous.

To be sure, nothing in the Rule would suggest that the habeas data protection shall be available only
against abuses of a person or entity engaged in the businessof gathering, storing, and collecting of data.
As provided under Section 1 of the Rule:

Section 1. Habeas Data. – The writ of habeas datais a remedy available to any person whose right to
privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official
or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or
information regarding the person, family, home and correspondence of the aggrieved party. (emphasis
Ours)

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The provision, when taken in its proper context, as a whole, irresistibly conveys the idea that habeas data
is a protection against unlawful acts or omissions of public officials and of private individuals or entities
engaged in gathering, collecting, or storing data about the aggrieved party and his or her
correspondences, or about his or her family. Such individual or entity need not be in the business of
collecting or storing data.

To "engage" in something is different from undertaking a business endeavour. To "engage" means "to do
or take part in something."19 It does not necessarily mean that the activity must be done in pursuit of a
business. What matters is that the person or entity must be gathering, collecting or storing said data or
information about the aggrieved party or his or her family. Whether such undertaking carries the element
of regularity, as when one pursues a business, and is in the nature of a personal endeavour, for any other
reason or even for no reason at all, is immaterial and such will not prevent the writ from getting to said
person or entity.

To agree with respondents’ above argument, would mean unduly limiting the reach of the writ to a very
small group, i.e., private persons and entities whose business is data gathering and storage, and in the
process decreasing the effectiveness of the writ asan instrument designed to protect a right which is easily
violated in view of rapid advancements in the information and communications technology––a right which
a great majority of the users of technology themselves are not capable of protecting.

Having resolved the procedural aspect of the case, We now proceed to the core of the controversy.

The right to informational privacy on Facebook

a. The Right to Informational Privacy

The concept of privacyhas, through time, greatly evolved, with technological advancements having an
influential part therein. This evolution was briefly recounted in former Chief Justice Reynato S. Puno’s
speech, The Common Right to Privacy,20 where he explained the three strands of the right to privacy, viz:
(1) locational or situational privacy;21 (2) informational privacy; and (3) decisional privacy.22 Of the three,
what is relevant to the case at bar is the right to informational privacy––usually defined as the right of
individuals to control information about themselves.23

With the availability of numerous avenues for information gathering and data sharing nowadays, not to
mention each system’s inherent vulnerability to attacks and intrusions, there is more reason that every
individual’s right to control said flow of information should be protected and that each individual should
have at least a reasonable expectation of privacy in cyberspace. Several commentators regarding privacy

263
and social networking sites, however, all agree that given the millions of OSN users, "[i]n this [Social
Networking] environment, privacy is no longer grounded in reasonable expectations, but rather in some
theoretical protocol better known as wishful thinking."24

It is due to this notion that the Court saw the pressing need to provide for judicial remedies that would
allow a summary hearing of the unlawful use of data or information and to remedy possible violations of
the right to privacy.25 In the same vein, the South African High Court, in its Decision in the landmark case,
H v. W,26 promulgated on January30, 2013, recognized that "[t]he law has to take into account the
changing realities not only technologically but also socially or else it will lose credibility in the eyes of the
people. x x x It is imperative that the courts respond appropriately to changing times, acting cautiously
and with wisdom." Consistent with this, the Court, by developing what may be viewed as the Philippine
model of the writ of habeas data, in effect, recognized that, generally speaking, having an expectation of
informational privacy is not necessarily incompatible with engaging in cyberspace activities, including
those that occur in OSNs.

The question now though is up to whatextent is the right to privacy protected in OSNs? Bear in mind that
informational privacy involves personal information. At the same time, the very purpose of OSNs is
socializing––sharing a myriad of information,27 some of which would have otherwise remained personal.

b. Facebook’s Privacy Tools: a response to the clamor for privacy in OSN activities

Briefly, the purpose of an OSN is precisely to give users the ability to interact and to stay connected to
other members of the same or different social media platform through the sharing of statuses, photos,
videos, among others, depending on the services provided by the site. It is akin to having a room filled
with millions of personal bulletin boards or "walls," the contents of which are under the control of each
and every user. In his or her bulletin board, a user/owner can post anything––from text, to pictures, to
music and videos––access to which would depend on whether he or she allows one, some or all of the
other users to see his or her posts. Since gaining popularity, the OSN phenomenon has paved the way to
the creation of various social networking sites, includingthe one involved in the case at bar,
www.facebook.com (Facebook), which, according to its developers, people use "to stay connected with
friends and family, to discover what’s going on in the world, and to share and express what matters to
them."28

Facebook connections are established through the process of "friending" another user. By sending a
"friend request," the user invites another to connect their accounts so that they can view any and all
"Public" and "Friends Only" posts of the other.Once the request is accepted, the link is established and
both users are permitted to view the other user’s "Public" or "Friends Only" posts, among others.
"Friending," therefore, allows the user to form or maintain one-to-one relationships with other users,

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whereby the user gives his or her "Facebook friend" access to his or her profile and shares certain
information to the latter.29

To address concerns about privacy,30 but without defeating its purpose, Facebook was armed with
different privacy tools designed to regulate the accessibility of a user’s profile31 as well as information
uploaded by the user. In H v. W,32 the South Gauteng High Court recognized this ability of the users to
"customize their privacy settings," but did so with this caveat: "Facebook states in its policies that,
although it makes every effort to protect a user’s information, these privacy settings are not foolproof."33

For instance, a Facebook user canregulate the visibility and accessibility of digital images(photos), posted
on his or her personal bulletin or "wall," except for the user’sprofile picture and ID, by selecting his or her
desired privacy setting:

(a) Public - the default setting; every Facebook user can view the photo;

(b) Friends of Friends - only the user’s Facebook friends and their friends can view the photo;

(b) Friends - only the user’s Facebook friends can view the photo;

(c) Custom - the photo is made visible only to particular friends and/or networks of the Facebook user;
and

(d) Only Me - the digital image can be viewed only by the user.

The foregoing are privacy tools, available to Facebook users, designed to set up barriers to broaden or
limit the visibility of his or her specific profile content, statuses, and photos, among others, from another
user’s point of view. In other words, Facebook extends its users an avenue to make the availability of their
Facebook activities reflect their choice as to "when and to what extent to disclose facts about [themselves]
– and to put others in the position of receiving such confidences."34 Ideally, the selected setting will be
based on one’s desire to interact with others, coupled with the opposing need to withhold certain
information as well as to regulate the spreading of his or her personal information. Needless to say, as the
privacy setting becomes more limiting, fewer Facebook users can view that user’s particular post.

STC did not violate petitioners’ daughters’ right to privacy

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Without these privacy settings, respondents’ contention that there is no reasonable expectation of privacy
in Facebook would, in context, be correct. However, such is not the case. It is through the availability of
said privacy tools that many OSN users are said to have a subjective expectation that only those to
whomthey grant access to their profile will view the information they post or upload thereto.35

This, however, does not mean thatany Facebook user automatically has a protected expectation of privacy
inall of his or her Facebook activities.

Before one can have an expectation of privacy in his or her OSN activity, it is first necessary that said user,
in this case the children of petitioners,manifest the intention to keepcertain posts private, through the
employment of measures to prevent access thereto or to limit its visibility.36 And this intention can
materialize in cyberspace through the utilization of the OSN’s privacy tools. In other words, utilization of
these privacy tools is the manifestation,in cyber world, of the user’s invocation of his or her right to
informational privacy.37

Therefore, a Facebook user who opts to make use of a privacy tool to grant or deny access to his or her
post orprofile detail should not be denied the informational privacy right which necessarily accompanies
said choice.38 Otherwise, using these privacy tools would be a feckless exercise, such that if, for instance,
a user uploads a photo or any personal information to his or her Facebook page and sets its privacy level
at "Only Me" or a custom list so that only the user or a chosen few can view it, said photo would still be
deemed public by the courts as if the user never chose to limit the photo’s visibility and accessibility. Such
position, if adopted, will not only strip these privacy tools of their function but it would also disregard the
very intention of the user to keep said photo or information within the confines of his or her private space.

We must now determine the extent that the images in question were visible to other Facebook users and
whether the disclosure was confidential in nature. In other words, did the minors limit the disclosure of
the photos such that the images were kept within their zones of privacy? This determination is necessary
in resolving the issue of whether the minors carved out a zone of privacy when the photos were uploaded
to Facebook so that the images will be protected against unauthorized access and disclosure.

Petitioners, in support of their thesis about their children’s privacy right being violated, insist that
Escudero intruded upon their children’s Facebook accounts, downloaded copies ofthe pictures and
showed said photos to Tigol. To them, this was a breach of the minors’ privacy since their Facebook
accounts, allegedly, were under "very private" or "Only Friends" setting safeguarded with a password.39
Ultimately, they posit that their children’s disclosure was only limited since their profiles were not open
to public viewing. Therefore, according to them, people who are not their Facebook friends, including
respondents, are barred from accessing said post without their knowledge and consent. Aspetitioner’s

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children testified, it was Angelawho uploaded the subjectphotos which were only viewable by the five of
them,40 although who these five are do not appear on the records.

Escudero, on the other hand, stated in her affidavit41 that "my students showed me some pictures of girls
cladin brassieres. This student [sic] of mine informed me that these are senior high school [students] of
STC, who are their friends in [F]acebook. x x x They then said [that] there are still many other photos
posted on the Facebook accounts of these girls. At the computer lab, these students then logged into their
Facebook account [sic], and accessed from there the various photographs x x x. They even told me that
there had been times when these photos were ‘public’ i.e., not confined to their friends in Facebook."

In this regard, We cannot give muchweight to the minors’ testimonies for one key reason: failure to
question the students’ act of showing the photos to Tigol disproves their allegation that the photos were
viewable only by the five of them. Without any evidence to corroborate their statement that the images
were visible only to the five of them, and without their challenging Escudero’s claim that the other
students were able to view the photos, their statements are, at best, self-serving, thus deserving scant
consideration.42

It is well to note that not one of petitioners disputed Escudero’s sworn account that her students, who
are the minors’ Facebook "friends," showed her the photos using their own Facebook accounts. This only
goes to show that no special means to be able to viewthe allegedly private posts were ever resorted to by
Escudero’s students,43 and that it is reasonable to assume, therefore, that the photos were, in reality,
viewable either by (1) their Facebook friends, or (2) by the public at large.

Considering that the default setting for Facebook posts is"Public," it can be surmised that the photographs
in question were viewable to everyone on Facebook, absent any proof that petitioners’ children positively
limited the disclosure of the photograph. If suchwere the case, they cannot invoke the protection attached
to the right to informational privacy. The ensuing pronouncement in US v. Gines-Perez44 is most
instructive:

[A] person who places a photograph on the Internet precisely intends to forsake and renounce all privacy
rights to such imagery, particularly under circumstances suchas here, where the Defendant did not employ
protective measures or devices that would have controlled access to the Web page or the photograph
itself.45

Also, United States v. Maxwell46 held that "[t]he more open the method of transmission is, the less
privacy one can reasonably expect. Messages sent to the public at large inthe chat room or e-mail that is
forwarded from correspondent to correspondent loses any semblance of privacy."

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That the photos are viewable by "friends only" does not necessarily bolster the petitioners’ contention. In
this regard, the cyber community is agreed that the digital images under this setting still remain to be
outside the confines of the zones of privacy in view of the following:

(1) Facebook "allows the world to be more open and connected by giving its users the tools to interact
and share in any conceivable way;"47

(2) A good number of Facebook users "befriend" other users who are total strangers;48

(3) The sheer number of "Friends" one user has, usually by the hundreds; and

(4) A user’s Facebook friend can "share"49 the former’s post, or "tag"50 others who are not Facebook
friends with the former, despite its being visible only tohis or her own Facebook friends.

It is well to emphasize at this point that setting a post’s or profile detail’s privacy to "Friends" is no
assurance that it can no longer be viewed by another user who is not Facebook friends with the source of
the content. The user’s own Facebook friend can share said content or tag his or her own Facebook friend
thereto, regardless of whether the user tagged by the latter is Facebook friends or not with the former.
Also, when the post is shared or when a person is tagged, the respective Facebook friends of the person
who shared the post or who was tagged can view the post, the privacy setting of which was set at
"Friends."

To illustrate, suppose A has 100 Facebook friends and B has 200. A and B are not Facebook friends. If C,
A’s Facebook friend, tags B in A’s post, which is set at "Friends," the initial audience of 100 (A’s own
Facebook friends) is dramatically increased to 300 (A’s 100 friends plus B’s 200 friends or the public,
depending upon B’s privacy setting). As a result, the audience who can view the post is effectively
expanded––and to a very large extent.

This, along with its other features and uses, is confirmation of Facebook’s proclivity towards user
interaction and socialization rather than seclusion or privacy, as it encourages broadcasting of individual
user posts. In fact, it has been said that OSNs have facilitated their users’ self-tribute, thereby resulting
into the "democratization of fame."51 Thus, it is suggested, that a profile, or even a post, with visibility
set at "Friends Only" cannot easily, more so automatically, be said to be "very private," contrary to
petitioners’ argument.

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As applied, even assuming that the photos in issue are visible only to the sanctioned students’ Facebook
friends, respondent STC can hardly be taken to task for the perceived privacy invasion since it was the
minors’ Facebook friends who showed the pictures to Tigol. Respondents were mere recipients of what
were posted. They did not resort to any unlawful means of gathering the information as it was voluntarily
given to them by persons who had legitimate access to the said posts. Clearly, the fault, if any, lies with
the friends of the minors. Curiously enough, however, neither the minors nor their parents imputed any
violation of privacy against the students who showed the images to Escudero.

Furthermore, petitioners failed to prove their contention that respondents reproduced and broadcasted
the photographs. In fact, what petitioners attributed to respondents as an act of offensive disclosure was
no more than the actuality that respondents appended said photographs in their memorandum submitted
to the trial court in connection with Civil Case No. CEB-38594.52 These are not tantamount to a violation
of the minor’s informational privacy rights, contrary to petitioners’ assertion.

In sum, there can be no quibbling that the images in question, or to be more precise, the photos of minor
students scantily clad, are personal in nature, likely to affect, if indiscriminately circulated, the reputation
of the minors enrolled in a conservative institution. However, the records are bereft of any evidence,
other than bare assertions that they utilized Facebook’s privacy settings to make the photos visible only
to them or to a select few. Without proof that they placed the photographs subject of this case within the
ambit of their protected zone of privacy, they cannot now insist that they have an expectation of privacy
with respect to the photographs in question.

Had it been proved that the access tothe pictures posted were limited to the original uploader, through
the "Me Only" privacy setting, or that the user’s contact list has been screened to limit access to a select
few, through the "Custom" setting, the result may have been different, for in such instances, the intention
to limit access to the particular post, instead of being broadcasted to the public at large or all the user’s
friends en masse, becomes more manifest and palpable.

On Cyber Responsibility

It has been said that "the best filter is the one between your children’s ears."53 This means that self-
regulation on the part of OSN users and internet consumers ingeneral is the best means of avoiding
privacy rights violations.54 As a cyberspace communitymember, one has to be proactive in protecting his
or her own privacy.55 It is in this regard that many OSN users, especially minors, fail.Responsible social
networking or observance of the "netiquettes"56 on the part of teenagers has been the concern of many
due to the widespreadnotion that teenagers can sometimes go too far since they generally lack the people
skills or general wisdom to conduct themselves sensibly in a public forum.57

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Respondent STC is clearly aware of this and incorporating lessons on good cyber citizenship in its
curriculum to educate its students on proper online conduct may be mosttimely. Too, it is not only STC
but a number of schools and organizations have already deemed it important to include digital literacy
and good cyber citizenshipin their respective programs and curricula in view of the risks that the children
are exposed to every time they participate in online activities.58 Furthermore, considering the complexity
of the cyber world and its pervasiveness,as well as the dangers that these children are wittingly or
unwittingly exposed to in view of their unsupervised activities in cyberspace, the participation of the
parents in disciplining and educating their children about being a good digital citizen is encouraged by
these institutions and organizations. In fact, it is believed that "to limit such risks, there’s no substitute for
parental involvement and supervision."59

As such, STC cannot be faulted for being steadfast in its duty of teaching its students to beresponsible in
their dealings and activities in cyberspace, particularly in OSNs, whenit enforced the disciplinary actions
specified in the Student Handbook, absenta showing that, in the process, it violated the students’ rights.

OSN users should be aware of the risks that they expose themselves to whenever they engage
incyberspace activities.1âwphi1 Accordingly, they should be cautious enough to control their privacy and
to exercise sound discretion regarding how much information about themselves they are willing to give
up. Internet consumers ought to be aware that, by entering or uploading any kind of data or information
online, they are automatically and inevitably making it permanently available online, the perpetuation of
which is outside the ambit of their control. Furthermore, and more importantly, information, otherwise
private, voluntarily surrendered by them can be opened, read, or copied by third parties who may or may
not be allowed access to such.

It is, thus, incumbent upon internet users to exercise due diligence in their online dealings and activities
and must not be negligent in protecting their rights. Equity serves the vigilant. Demanding relief from the
courts, as here, requires that claimants themselves take utmost care in safeguarding a right which they
allege to have been violated. These are indispensable. We cannot afford protection to persons if they
themselves did nothing to place the matter within the confines of their private zone. OSN users must be
mindful enough to learn the use of privacy tools, to use them if they desire to keep the information
private, and to keep track of changes in the available privacy settings, such as those of Facebook, especially
because Facebook is notorious for changing these settings and the site's layout often.

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

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

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

No pronouncement as to costs.

SO ORDERED.

PRESBITERO J. VELASCO, JR.

Associate Justice

WE CONCUR:

DIOSDADO M. PERALTA

Associate Justice

MARTIN S. VILLARAMA, JR.

Associate Justice BIENVENIDO L. REYES

Associate Justice

FRANCIS H. JARDELEZA

Associate Justice

AT T E S T A T I O N

I attest that the conclusions in the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court's Division.

PRESBITERO J. VELASCO, JR.

Associate Justice

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Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation, I certify
that the conclusions in the above Decision had been reached in consultation before the case was assigned
to the writer of the opinion of the Court's Division.

ANTONIO T. CARPIO

Acting Chief Justice

Footnotes

1 Issued on January 22, 2008.

2 Penned by Presiding Judge Raphael B. Yrastorza, Sr.

3 Facebook is a "voluntary social network to which members subscribe and submit information. x x x. It
has created a worldwide forum enabling friends to share information such as thoughts, links, and
photographs, with one another." (H v. W., Case No. 12/10142, January 30, 2013, In the South Gauteng
High Court, Johannesburg, Republic of South Africa).

4 By using the "Friends Only" setting.

5 Using "Public" as their Privacy Setting.

6 ICM stands for the "Missionary Sisters of the Immaculate Heart of Mary."

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7 Entitled Dr. Armenia M. Tan, for and in behalf of her minor child v. St. Theresa’s College, High School
Department, Sr. Celeste Ma. Purisima Pe, Mrs.Mussolini S. Yap, Ms. Marnie D. Racaza, Ms. Kristine Rose
Ligot (sic), and Ms. Edita Josephine Yu.

8 Entitled Rhonda Ave S. Vivares, and Sps. Margarita and David Suzara v. St. Theresa’s College, Mylene
Rheza T. Escudero, and John Does.

9 Rollo, p. 39.

10 A.M. No. 08-1-16-SC, February 2, 2008 [Sec. 19. Appeal. – Any party may appeal from the judgment or
final order to the Supreme Court under Rule 45. The appeal may raise questions of fact or law or both.].

11 Id., Sec. 1.

12 Gamboa v. Chan, G.R. No. 193636, July 24, 2012, 677 SCRA 385.

13 See Andres Guadamuz, Habeas Data and the European Data Protection Directive, in THE JOURNAL OF
INFORMATION, LAW AND TECHNOLOGY (JILT) (2001), cited in former Chief Justice Reynato S. Puno’s
speech, The Common Right to Privacy (2008).

14 Gamboa v. Chan, supra note 12.

15 See Roxas v. Macapagal-Arroyo, G.R. No. 189155, September 7, 2010, 630 SCRA 211.

16 In Recasting Privacy Torts in a Spaceless Worldby Patricia Sanchez Abril, the term used to refer to the
physical space which poses a number of problems in privacy torts that occur in Cyberspace - a spaceless
world, is "spatial linchpins." (Harvard Journal of Law & Technology, Vol. 21, Number 1 Fall 2007); See
alsoKizza, Joseph Migga, Ethical and Social Issues in the Information Age, Third Edition, Springer-Verlag
London Limited 2007, p. 303 – "The totality of cyberspace is in reality a borderless selfregulating and
decentralized mosaic of communities with a variety of cultural, political, and religious agendas."

17 From Former Chief Justice Reynato Puno’s speech,"The Writ of Habeas Data," delivered on 19
November 2007, at the UNESCO Policy Forum and Organizational Meeting of the Information for all

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Program (IFAP), Philippine National Committee, citing Enrique Falcon, Habeas Data: Concepto y
Procedimiento 23 (1996).

18 Committee on the Revision of the Rules of Court, A.M. No. 08-1-16-SC, Rule on the Writ of Habeas Data
(2008).

19 http://www.merriam-webster.com/dictionary/engage. Last accessed February 13, 2013.

20 Delivered before the Forum on The Writ of Habeas Data and Human Rights, sponsored by the National
Union of Peoples’ Lawyers on March 12, 2008 at the Innotech Seminar Hall, Commonwealth Ave., Quezon
City. (http://sc.judiciary.gov.ph/speech/03-12-08-speech.pdf. LastAccessed, January 24, 2013).

21 Refers to the privacy that is felt in physicalspace, such as that which may be violated by trespass and
unwarranted search and seizure. Id.

22 Usually defined as the right of individuals to make certain kinds of fundamental choices with respect
to their personal and reproductive autonomy. Id.

23 Id.

24 Romano v. Steelcase, Inc. and Educational & Institutional Services Inc., Supreme Court of New York,
Suffolk County, 30 Misc. 3d 426; 907 N.Y.S.2d 650; 2010 N.Y. Misc. Lexis 4538; 2010 NY Slip Op 20388,
September 21, 2010, Decided. See also Kizza, Joseph Migga, Ethical and Social Issues in the Information
Age,Third Edition, Springer-Verlag London Limited 2007, p. 109, "However, these days in the information
age, the value of privacy has been eroded. We can no longer guarantee our privacy. It has left many
wondering whether there is such a thing as privacy any more. x x x No one has guaranteed privacy any
more unless such an individual is no longerpart of the society." Page 304 reads, "According to recent
studies, personal privacy isbecoming the number-one social and ethical issue of concern for the
information age. Advances in technology have brought with them gadgetry that have diminished
individual private spaces through electronic surveillance and monitoring, transmission, scanning, tapping,
and fast and more efficient means of collecting, categorizing, and sorting data."

25 Puno, The Common Right to Privacy, supra note 20.

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26 Supra note 3. Penned by Judge N. P. Willis.

27 Including but not limited to the following: name, residence, email address, telephone or cellular phone
number, personal pictures, relationship status, date of birth, current location, relatives, hobbies and
interests, employment, profession, educational background, preferences, thoughts, messages,
conversations, internet memes, videos (ranging from personal videos to scene extracts from movies,
television shows, news, et cetera), photos, religious messages, political views,updates, commentaries and
reactions to current events, support and prayer petitions, as well as products and services.

28 http://newsroom.fb.com/Key-Facts. Last accessed January 24, 2013.

29 H v. W, supra note 3.

30 Id.

31 A user’s profile contains basic information about the account owner, i.e. Profile Picture, Full name,
Birthdate, Address, Place of Work, Profession, a list of the user’s "Facebook Friends," among others. It is
akin to an Identification Card.

32 Supra note 3.

33 Id.

34 Westin, Alan, Privacy and Freedom, cited in Valerie Steeves’ work, Reclaiming the Social Value of
Privacy.

35 Newell, Bryce Clayton, Rethinking Reasonable Expectations of Privacy in Online Social Networks,
Richmond Journal of Law and Technology Vol.XVII, Issue 4, 2011, citing Avner Levin and Patricia Sanchez
Abril, Two Notions of Privacy Online, 11 V AND.J. ENT. & TECH. L. 1001, 1012 (2009)
(http://jolt.richmond.edu/v17i4/article12.pdf. Last accessed January 31, 2013)

36 It has been suggested that: focus on the individual’s control over information allows him to decide for
himself what measure of privacy to grant certain topics. It can also relieve the burden of determining

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responsibility for certainperceived privacy breaches. For example, it is clear that the online socializer who
posts embarrassing pictures of himself publicly and without heightened privacy settings is a victim of his
own reckless behavior. By publicizing embarrassing information, he voluntary relinquished control—and
a legally recognizable privacy right—overit. (Avner Levin and Patricia Sanchez Abril, Two Notions of Privacy
Online, 11 V AND.J. ENT. & TECH. L. 1001, 1012 [2009])

37 In the same vein that "a person has a reasonable expectation of privacy in e-mail messages stored in
computers that he alone could retrieve through use of his own assigned password. An objective
expectation of privacy exists with regard to e-mail messages that a person transmits electronically to other
subscribers of the same Internet service who have individually assigned passwords."(United States v.
Maxwell, 42 M.J. 568 (A.F.C.C.A. 1995), 45 M.J. 406 [C.A.A.F. 1996])

38 Romano v. Steelcase, Inc., Supreme Court of New York, Suffolk County, 30 Misc. 3d 426; 907 N.Y.S. 2d
650; 2010 N.Y. Misc. LEXIS 4538; 2010 NY Slip Op 20388, September 21, 2010.

39 Rollo, p. 54.

40 TSN, July 19, 2012, pp. 32-34; 37.

41 Rollo, p. 134

42 People v. Dolorido, G.R. No. 191721, January 12, 2011, 639 SCRA 496.

43 Since the students merely viewed the photographs using their own accounts which are linked to the
profiles of the minors, they being Facebook friends.

44 214 F. Supp. 2d at 225.

45 Furthermore, "[a] person who places information on the information superhighway clearly subjects
said information to being accessed by every conceivable interested party. Simply expressed, if privacy is
sought, then public communication mediums such as the Internet are not adequate forums without
protective measures." Id.

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46 45 M.J. 406 [C.A.A.F. 199]

47 McCarthy, Watson and Weldon-Siviy, Own Your Space: A Guide to Facebook Security.

48 McCarthy, Caroline, Facebook users pretty willing to add strangers as ‘friends’ (2007)

http://news.cnet.com/8301-13577_3-9759401-36.html; https://threatpost.com/en_us/blogs/facebook-
youshould-only-friend-people-you-know-no-seriously-were-not-kidding-081911;
http://blog.kaspersky.com/dont-be-facebook-friends-with-strangers/. Last accessed February 1, 2013.

49 Sharing allows a user to post content from another page or user, to his or her own page or to another
user’s page.

50 A tag is a special kind of link. When you tag someone, you create a link to their timeline. The post you
tag the person in may also be added to that person’s timeline. For example, you can tag a photo to show
who’s in the photo or post a status update and say who you’re with. If you tag a friend in your status
update, anyone who sees that update can click on your friend’s name and go to their timeline. Your status
update may also show up on that friend’s timeline. (From Facebook’s Help Center,
http://www.facebook.com/. Last accessed April 23, 2013)

51 From Patricia Sanchez Abril’s Recasting Privacy Torts in a Spaceless World, supra note 16, citing Lakshmi
Chaudhry, Mirror Mirror on the Web, The Nation, January 29, 2007.

52 Rollo, pp. 41-42.

53 Parry Aftab of WiredSafety.org.

54 Kizza, Joseph Migga, Ethical and Social Issues in the Information Age, Third Edition, SpringerVerlag
London Limited 2007, p. 117

55 Id. at 306.

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56 Netiquette is the social code of network communication; it is the social and moral code of the internet
based on the human condition and the Golden Rule of Netiquette; it is a philosophy of effective internet
communication that utilizes common conventions and norms as a guide for rules and standards.
http://www.networketiquette.net/. Last accessed, February 18, 2013.

57 Technology Trend: Responsible Social Networking for Teens,http://www1.cyfernet.org/tech/06-08-

TeenUseSM.html. Last Accessed, February 18, 2013.

58 Kizza, Joseph Migga, supra note 54, at 341: "Perhaps one ofthe most successful forms of deterrence
has been self-regulation. A number of organizations have formed to advocate parents and teachers to
find a way to regulate objectionable material from reaching our children. Also, families and individuals,
sometimes based on their morals and sometimes based on their religion, have made selfregulation a
cornerstone of their efforts to stop the growing rate of online crimes."

59 Children’s Safety on the Internet,Privacy Rights Clearing House, available at

https://www.privacyrights.org/fs/fs21a-childrensafety.htm#1.Last Accessed, February 18, 2013.

278
G.R. No. 88211 September 15, 1989

FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR., IRENE M. ARANETA, IMEE
MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS, NICANOR YÑIGUEZ and
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), represented by its President, CONRADO F.
ESTRELLA, petitioners,

vs.

HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOÑEZ, MIRIAM DEFENSOR

SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity as Secretary of Foreign Affairs, Executive
Secretary, Secretary of Justice, Immigration Commissioner, Secretary of National Defense and Chief of
Staff, respectively, respondents.

CORTES, J.:

Before the Court is a contreversy of grave national importance. While ostensibly only legal issues are
involved, the Court's decision in this case would undeniably have a profound effect on the political,
economic and other aspects of national life.

We recall that in February 1986, Ferdinand E. Marcos was deposed from the presidency via the non-
violent "people power" revolution and forced into exile. In his stead, Corazon C. Aquino was declared
President of the Republic under a revolutionary government. Her ascension to and consilidation of power
have not been unchallenged. The failed Manila Hotel coup in 1986 led by political leaders of Mr. Marcos,
the takeover of television station Channel 7 by rebel troops led by Col. Canlas with the support of "Marcos
loyalists" and the unseccessful plot of the Marcos spouses to surreptitiously return from Hawii with
mercenaries aboard an aircraft chartered by a Lebanese arms dealer [Manila Bulletin, January 30, 1987]
awakened the nation to the capacity of the Marcoses to stir trouble even from afar and to the fanaticism
and blind loyalty of their followers in the country. The ratification of the 1987 Constitution enshrined the
victory of "people power" and also clearly reinforced the constitutional moorings of Mrs. Aquino's
presidency. This did not, however, stop bloody challenges to the government. On August 28, 1987, Col.
Gregorio Honasan, one of the major players in the February Revolution, led a failed coup that left scores
of people, both combatants and civilians, dead. There were several other armed sorties of lesser
significance, but the message they conveyed was the same — a split in the ranks of the military
establishment that thraetened civilian supremacy over military and brought to the fore the realization
that civilian government could be at the mercy of a fractious military.

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But the armed threats to the Government were not only found in misguided elements and among rabid
followers of Mr. Marcos. There are also the communist insurgency and the seccessionist movement in
Mindanao which gained ground during the rule of Mr. Marcos, to the extent that the communists have
set up a parallel government of their own on the areas they effectively control while the separatist are
virtually free to move about in armed bands. There has been no let up on this groups' determination to
wrest power from the govermnent. Not only through resort to arms but also to through the use of
propaganda have they been successful in dreating chaos and destabilizing the country.

Nor are the woes of the Republic purely political. The accumulated foreign debt and the plunder of the
nation attributed to Mr. Marcos and his cronies left the economy devastated. The efforts at economic
recovery, three years after Mrs. Aquino assumed office, have yet to show concrete results in alleviating
the poverty of the masses, while the recovery of the ill-gotten wealth of the Marcoses has remained
elusive.

Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines to die. But Mrs.
Aquino, considering the dire consequences to the nation of his return at a time when the stability of
government is threatened from various directions and the economy is just beginning to rise and move
forward, has stood firmly on the decision to bar the return of Mr. Marcos and his family.

The Petition

This case is unique. It should not create a precedent, for the case of a dictator forced out of office and
into exile after causing twenty years of political, economic and social havoc in the country and who within
the short space of three years seeks to return, is in a class by itself.

This petition for mandamus and prohibition asks the Courts to order the respondents to issue travel
documents to Mr. Marcos and the immediate members of his family and to enjoin the implementation of
the President's decision to bar their return to the Philippines.

The Issue

Th issue is basically one of power: whether or not, in the exercise of the powers granted by the
Constitution, the President may prohibit the Marcoses from returning to the Philippines.

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According to the petitioners, the resolution of the case would depend on the resolution of the following
issues:

1. Does the President have the power to bar the return of former President Marcos and family to
the Philippines?

a. Is this a political question?

2. Assuming that the President has the power to bar former President Marcos and his family from
returning to the Philippines, in the interest of "national security, public safety or public health

a. Has the President made a finding that the return of former President Marcos and his family to the
Philippines is a clear and present danger to national security, public safety or public health?

b. Assuming that she has made that finding

(1) Have the requirements of due process been complied with in making such finding?

(2) Has there been prior notice to petitioners?

(3) Has there been a hearing?

(4) Assuming that notice and hearing may be dispensed with, has the President's decision, including
the grounds upon which it was based, been made known to petitioners so that they may controvert the
same?

c. Is the President's determination that the return of former President Marcos and his family to the
Philippines is a clear and present danger to national security, public safety, or public health a political
question?

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d. Assuming that the Court may inquire as to whether the return of former President Marcos and
his family is a clear and present danger to national security, public safety, or public health, have
respondents established such fact?

3. Have the respondents, therefore, in implementing the President's decision to bar the return of
former President Marcos and his family, acted and would be acting without jurisdiction, or in excess of
jurisdiction, or with grave abuse of discretion, in performing any act which would effectively bar the return
of former President Marcos and his family to the Philippines? [Memorandum for Petitioners, pp. 5-7;
Rollo, pp. 234-236.1

The case for petitioners is founded on the assertion that the right of the Marcoses to return to the
Philippines is guaranteed under the following provisions of the Bill of Rights, to wit:

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall
any person be denied the equal protection of the laws.

xxx xxx xxx

Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be provided by law.

The petitioners contend that the President is without power to impair the liberty of abode of the Marcoses
because only a court may do so "within the limits prescribed by law." Nor may the President impair their
right to travel because no law has authorized her to do so. They advance the view that before the right to
travel may be impaired by any authority or agency of the government, there must be legislation to that
effect.

The petitioners further assert that under international law, the right of Mr. Marcos and his family to return
to the Philippines is guaranteed.

The Universal Declaration of Human Rights provides:

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Article 13. (1) Everyone has the right to freedom of movement and residence within the borders of each
state.

(2) Everyone has the right to leave any country, including his own, and to return to his country.

Likewise, the International Covenant on Civil and Political Rights, which had been ratified by the
Philippines, provides:

Article 12

1) Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty
of movement and freedom to choose his residence.

2) Everyone shall be free to leave any country, including his own.

3) The above-mentioned rights shall not be subject to any restrictions except those which are
provided by law, are necessary to protect national security, public order (order public), public health or
morals or the rights and freedoms of others, and are consistent with the other rights recognized in the
present Covenant.

4) No one shall be arbitrarily deprived of the right to enter his own country.

On the other hand, the respondents' principal argument is that the issue in this case involves a political
question which is non-justiciable. According to the Solicitor General:

As petitioners couch it, the question involved is simply whether or not petitioners Ferdinand E. Marcos
and his family have the right to travel and liberty of abode. Petitioners invoke these constitutional rights
in vacuo without reference to attendant circumstances.

Respondents submit that in its proper formulation, the issue is whether or not petitioners Ferdinand E.
Marcos and family have the right to return to the Philippines and reside here at this time in the face of
the determination by the President that such return and residence will endanger national security and
public safety.

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It may be conceded that as formulated by petitioners, the question is not a political question as it involves
merely a determination of what the law provides on the matter and application thereof to petitioners
Ferdinand E. Marcos and family. But when the question is whether the two rights claimed by petitioners
Ferdinand E. Marcos and family impinge on or collide with the more primordial and transcendental right
of the State to security and safety of its nationals, the question becomes political and this Honorable Court
can not consider it.

There are thus gradations to the question, to wit:

Do petitioners Ferdinand E. Marcos and family have the right to return to the Philippines and reestablish
their residence here? This is clearly a justiciable question which this Honorable Court can decide.

Do petitioners Ferdinand E. Marcos and family have their right to return to the Philippines and reestablish
their residence here even if their return and residence here will endanger national security and public
safety? this is still a justiciable question which this Honorable Court can decide.

Is there danger to national security and public safety if petitioners Ferdinand E. Marcos and family shall
return to the Philippines and establish their residence here? This is now a political question which this
Honorable Court can not decide for it falls within the exclusive authority and competence of the President
of the Philippines. [Memorandum for Respondents, pp. 9-11; Rollo, pp. 297-299.]

Respondents argue for the primacy of the right of the State to national security over individual rights. In
support thereof, they cite Article II of the Constitution, to wit:

Section 4. The prime duty of the Government is to serve and protect the people. The Government
may call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required,
under conditions provided by law, to render personal, military, or civil service.

Section 5. The maintenance of peace and order, the protection of life, liberty, and property, and the
promotion of the general welfare are essential for the enjoyment by all the people of the blessings of
democracy.

Respondents also point out that the decision to ban Mr. Marcos and family from returning to the
Philippines for reasons of national security and public safety has international precedents. Rafael Trujillo

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of the Dominican Republic, Anastacio Somoza Jr. of Nicaragua, Jorge Ubico of Guatemala, Fulgencio
batista of Cuba, King Farouk of Egypt, Maximiliano Hernandez Martinez of El Salvador, and Marcos Perez
Jimenez of Venezuela were among the deposed dictators whose return to their homelands was prevented
by their governments. [See Statement of Foreign Affairs Secretary Raul S. Manglapus, quoted in
Memorandum for Respondents, pp. 26-32; Rollo, pp. 314-319.]

The parties are in agreement that the underlying issue is one of the scope of presidential power and its
limits. We, however, view this issue in a different light. Although we give due weight to the parties'
formulation of the issues, we are not bound by its narrow confines in arriving at a solution to the
controversy.

At the outset, we must state that it would not do to view the case within the confines of the right to travel
and the import of the decisions of the U.S. Supreme Court in the leading cases of Kent v. Dulles [357 U.S.
116, 78 SCt 1113, 2 L Ed. 2d 1204] and Haig v. Agee [453 U.S. 280, 101 SCt 2766, 69 L Ed. 2d 640) which
affirmed the right to travel and recognized exceptions to the exercise thereof, respectively.

It must be emphasized that the individual right involved is not the right to travel from the Philippines to
other countries or within the Philippines. These are what the right to travel would normally connote.
Essentially, the right involved is the right to return to one's country, a totally distinct right under
international law, independent from although related to the right to travel. Thus, the Universal
Declaration of Humans Rights and the International Covenant on Civil and Political Rights treat the right
to freedom of movement and abode within the territory of a state, the right to leave a country, and the
right to enter one's country as separate and distinct rights. The Declaration speaks of the "right to freedom
of movement and residence within the borders of each state" [Art. 13(l)] separately from the "right to
leave any country, including his own, and to return to his country." [Art. 13(2).] On the other hand, the
Covenant guarantees the "right to liberty of movement and freedom to choose his residence" [Art. 12(l)]
and the right to "be free to leave any country, including his own." [Art. 12(2)] which rights may be
restricted by such laws as "are necessary to protect national security, public order, public health or morals
or enter qqqs own country" of which one cannot be "arbitrarily deprived." [Art. 12(4).] It would therefore
be inappropriate to construe the limitations to the right to return to one's country in the same context as
those pertaining to the liberty of abode and the right to travel.

The right to return to one's country is not among the rights specifically guaranteed in the Bill of Rights,
which treats only of the liberty of abode and the right to travel, but it is our well-considered view that the
right to return may be considered, as a generally accepted principle of international law and, under our
Constitution, is part of the law of the land [Art. II, Sec. 2 of the Constitution.] However, it is distinct and
separate from the right to travel and enjoys a different protection under the International Covenant of
Civil and Political Rights, i.e., against being "arbitrarily deprived" thereof [Art. 12 (4).]

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Thus, the rulings in the cases Kent and Haig which refer to the issuance of passports for the purpose of
effectively exercising the right to travel are not determinative of this case and are only tangentially
material insofar as they relate to a conflict between executive action and the exercise of a protected right.
The issue before the Court is novel and without precedent in Philippine, and even in American
jurisprudence.

Consequently, resolution by the Court of the well-debated issue of whether or not there can be limitations
on the right to travel in the absence of legislation to that effect is rendered unnecessary. An appropriate
case for its resolution will have to be awaited.

Having clarified the substance of the legal issue, we find now a need to explain the methodology for its
resolution. Our resolution of the issue will involve a two-tiered approach. We shall first resolve whether
or not the President has the power under the Constitution, to bar the Marcoses from returning to the
Philippines. Then, we shall determine, pursuant to the express power of the Court under the Constitution
in Article VIII, Section 1, whether or not the President acted arbitrarily or with grave abuse of discretion
amounting to lack or excess of jurisdiction when she determined that the return of the Marcose's to the
Philippines poses a serious threat to national interest and welfare and decided to bar their return.

Executive Power

The 1987 Constitution has fully restored the separation of powers of the three great branches of
government. To recall the words of Justice Laurel in Angara v. Electoral Commission [63 Phil. 139 (1936)],
"the Constitution has blocked but with deft strokes and in bold lines, allotment of power to the executive,
the legislative and the judicial departments of the government." [At 157.1 Thus, the 1987 Constitution
explicitly provides that "[the legislative power shall be vested in the Congress of the Philippines" Art VI,
Sec. 11, "[t]he executive power shall bevested in the President of the Philippines" [Art. VII, Sec. 11, and
"[te judicial power shall be vested in one Supreme Court and in such lower courts as may be established
by law" [Art. VIII, Sec. 1.] These provisions not only establish a separation of powers by actual division
[Angara v. Electoral Commission, supra] but also confer plenary legislative, executive and judicial powers
subject only to limitations provided in the Constitution. For as the Supreme Court in Ocampo v. Cabangis
[15 Phil. 626 (1910)] pointed out "a grant of the legislative power means a grant of all legislative power;
and a grant of the judicial power means a grant of all the judicial power which may be exercised under
the government." [At 631-632.1 If this can be said of the legislative power which is exercised by two
chambers with a combined membership of more than two hundred members and of the judicial power
which is vested in a hierarchy of courts, it can equally be said of the executive power which is vested in
one official the President.

As stated above, the Constitution provides that "[t]he executive power shall be vested in the President of
the Philippines." [Art. VII, Sec. 1]. However, it does not define what is meant by executive power" although

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in the same article it touches on the exercise of certain powers by the President, i.e., the power of control
over all executive departments, bureaus and offices, the power to execute the laws, the appointing power,
the powers under the commander-in-chief clause, the power to grant reprieves, commutations and
pardons, the power to grant amnesty with the concurrence of Congress, the power to contract or
guarantee foreign loans, the power to enter into treaties or international agreements, the power to
submit the budget to Congress, and the power to address Congress [Art. VII, Sec. 14-23].

The inevitable question then arises: by enumerating certain powers of the President did the framers of
the Constitution intend that the President shall exercise those specific powers and no other? Are these se
enumerated powers the breadth and scope of "executive power"? Petitioners advance the view that the
President's powers are limited to those specifically enumerated in the 1987 Constitution. Thus, they
assert: "The President has enumerated powers, and what is not enumerated is impliedly denied to her.
Inclusion unius est exclusio alterius[Memorandum for Petitioners, p. 4- Rollo p. 233.1 This argument
brings to mind the institution of the U.S. Presidency after which ours is legally patterned.**

Corwin, in his monumental volume on the President of the United States grappled with the same problem.
He said:

Article II is the most loosely drawn chapter of the Constitution. To those who think that a constitution
ought to settle everything beforehand it should be a nightmare; by the same token, to those who think
that constitution makers ought to leave considerable leeway for the future play of political forces, it
should be a vision realized.

We encounter this characteristic of Article 11 in its opening words: "The executive power shall be vested
in a President of the United States of America." . . .. [The President: Office and Powers, 17871957, pp. 3-
4.]

Reviewing how the powers of the U.S. President were exercised by the different persons who held the
office from Washington to the early 1900's, and the swing from the presidency by commission to Lincoln's
dictatorship, he concluded that "what the presidency is at any particular moment depends in important
measure on who is President." [At 30.]

This view is shared by Schlesinger who wrote in The Imperial Presidency:

For the American Presidency was a peculiarly personal institution. it remained of course, an agency of
government subject to unvarying demands and duties no remained, of cas President. But, more than most
agencies of government, it changed shape, intensity and ethos according to the man in charge. Each

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President's distinctive temperament and character, his values, standards, style, his habits, expectations,
Idiosyncrasies, compulsions, phobias recast the WhiteHouse and pervaded the entire government. The
executive branch, said Clark Clifford, was a chameleon, taking its color from the character and personality
of the President. The thrust of the office, its impact on the constitutional order, therefore altered from
President to President. Above all, the way each President understood it as his personal obligation to
inform and involve the Congress, to earn and hold the confidence of the electorate and to render an
accounting to the nation and posterity determined whether he strengthened or weakened the
constitutional order. [At 212- 213.]

We do not say that the presidency is what Mrs. Aquino says it is or what she does but, rather, that the
consideration of tradition and the development of presidential power under the different constitutions
are essential for a complete understanding of the extent of and limitations to the President's powers
under the 1987 Constitution. The 1935 Constitution created a strong President with explicitly broader
powers than the U.S. President. The 1973 Constitution attempted to modify the system of government
into the parliamentary type, with the President as a mere figurehead, but through numerous
amendments, the President became even more powerful, to the point that he was also the de facto
Legislature. The 1987 Constitution, however, brought back the presidential system of government and
restored the separation of legislative, executive and judicial powers by their actual distribution among
three distinct branches of government with provision for checks and balances.

It would not be accurate, however, to state that "executive power" is the power to enforce the laws, for
the President is head of state as well as head of government and whatever powers inhere in such positions
pertain to the office unless the Constitution itself withholds it. Furthermore, the Constitution itself
provides that the execution of the laws is only one of the powers of the President. It also grants the
President other powers that do not involve the execution of any provision of law, e.g., his power over the
country's foreign relations.

On these premises, we hold the view that although the 1987 Constitution imposes limitations on the
exercise of specific powers of the President, it maintains intact what is traditionally considered as within
the scope of "executive power." Corollarily, the powers of the President cannot be said to be limited only
to the specific powers enumerated in the Constitution. In other words, executive power is more than the
sum of specific powers so enumerated,

It has been advanced that whatever power inherent in the government that is neither legislative nor
judicial has to be executive. Thus, in the landmark decision of Springer v. Government of the Philippine
Islands, 277 U.S. 189 (1928), on the issue of who between the Governor-General of the Philippines and
the Legislature may vote the shares of stock held by the Government to elect directors in the National
Coal Company and the Philippine National Bank, the U.S. Supreme Court, in upholding the power of the
Governor-General to do so, said:

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...Here the members of the legislature who constitute a majority of the "board" and "committee"
respectively, are not charged with the performance of any legislative functions or with the doing of
anything which is in aid of performance of any such functions by the legislature. Putting aside for the
moment the question whether the duties devolved upon these members are vested by the Organic Act in
the Governor-General, it is clear that they are not legislative in character, and still more clear that they
are not judicial. The fact that they do not fall within the authority of either of these two constitutes logical
ground for concluding that they do fall within that of the remaining one among which the powers of
government are divided ....[At 202-203; Emphasis supplied.]

We are not unmindful of Justice Holmes' strong dissent. But in his enduring words of dissent we find
reinforcement for the view that it would indeed be a folly to construe the powers of a branch of
government to embrace only what are specifically mentioned in the Constitution:

The great ordinances of the Constitution do not establish and divide fields of black and white. Even the
more specific of them are found to terminate in a penumbra shading gradually from one extreme to the
other. ....

xxx xxx xxx

It does not seem to need argument to show that however we may disguise it by veiling words we do not
and cannot carry out the distinction between legislative and executive action with mathematical precision
and divide the branches into watertight compartments, were it ever so desirable to do so, which I am far
from believing that it is, or that the Constitution requires. [At 210- 211.]

The Power Involved

The Constitution declares among the guiding principles that "[t]he prime duty of theGovernment is to
serve and protect the people" and that "[t]he maintenance of peace and order,the protection of life,
liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all the
people of the blessings of democracy." [Art. II, Secs. 4 and 5.]

Admittedly, service and protection of the people, the maintenance of peace and order, the protection of
life, liberty and property, and the promotion of the general welfare are essentially ideals to guide
governmental action. But such does not mean that they are empty words. Thus, in the exercise of
presidential functions, in drawing a plan of government, and in directing implementing action for these

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plans, or from another point of view, in making any decision as President of the Republic, the President
has to consider these principles, among other things, and adhere to them.

Faced with the problem of whether or not the time is right to allow the Marcoses to return to the
Philippines, the President is, under the Constitution, constrained to consider these basic principles in
arriving at a decision. More than that, having sworn to defend and uphold the Constitution, the President
has the obligation under the Constitution to protect the people, promote their welfare and advance the
national interest. It must be borne in mind that the Constitution, aside from being an allocation of power
is also a social contract whereby the people have surrendered their sovereign powers to the State for the
common good. Hence, lest the officers of the Government exercising the powers delegated by the people
forget and the servants of the people become rulers, the Constitution reminds everyone that
"[s]overeignty resides in the people and all government authority emanates from them." [Art. II, Sec. 1.]

The resolution of the problem is made difficult because the persons who seek to return to the country are
the deposed dictator and his family at whose door the travails of the country are laid and from whom
billions of dollars believed to be ill-gotten wealth are sought to be recovered. The constitutional
guarantees they invoke are neither absolute nor inflexible. For the exercise of even the preferred
freedoms of speech and ofexpression, although couched in absolute terms, admits of limits and must be
adjusted to the requirements of equally important public interests [Zaldivar v. Sandiganbayan, G.R. Nos.
79690-707, October 7, 1981.]

To the President, the problem is one of balancing the general welfare and the common good against the
exercise of rights of certain individuals. The power involved is the President's residual power to protect
the general welfare of the people. It is founded on the duty of the President, as steward of the people. To
paraphrase Theodore Roosevelt, it is not only the power of the President but also his duty to do anything
not forbidden by the Constitution or the laws that the needs of the nation demand [See Corwin, supra, at
153]. It is a power borne by the President's duty to preserve and defend the Constitution. It also may be
viewed as a power implicit in the President's duty to take care that the laws are faithfully executed [see
Hyman, The American President, where the author advances the view that an allowance of discretionary
power is unavoidable in any government and is best lodged in the President].

More particularly, this case calls for the exercise of the President's powers as protector of the peace.
Rossiter The American Presidency].The power of the President to keep the peace is not limited merely to
exercising the commander-in-chief powers in times of emergency or to leading the State against external
and internal threats to its existence. The President is not only clothed with extraordinary powers in times
of emergency, but is also tasked with attending to the day-to-day problems of maintaining peace and
order and ensuring domestic tranquility in times when no foreign foe appears on the horizon. Wide
discretion, within the bounds of law, in fulfilling presidential duties in times of peace is not in any way
diminished by the relative want of an emergency specified in the commander-in-chief provision. For in
making the President commander-in-chief the enumeration of powers that follow cannot be said to

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exclude the President's exercising as Commander-in- Chief powers short of the calling of the armed forces,
or suspending the privilege of the writ of habeas corpus or declaring martial law, in order to keep the
peace, and maintain public order and security.

That the President has the power under the Constitution to bar the Marcose's from returning has been
recognized by memembers of the Legislature, and is manifested by the Resolution proposed in the House
of Representatives and signed by 103 of its members urging the President to allow Mr. Marcos to return
to the Philippines "as a genuine unselfish gesture for true national reconciliation and as irrevocable proof
of our collective adherence to uncompromising respect for human rights under the Constitution and our
laws." [House Resolution No. 1342, Rollo, p. 321.1 The Resolution does not question the President's power
to bar the Marcoses from returning to the Philippines, rather, it appeals to the President's sense of
compassion to allow a man to come home to die in his country.

What we are saying in effect is that the request or demand of the Marcoses to be allowed to return to the
Philippines cannot be considered in the light solely of the constitutional provisions guaranteeing liberty
of abode and the right to travel, subject to certain exceptions, or of case law which clearly never
contemplated situations even remotely similar to the present one. It must be treated as a matter that is
appropriately addressed to those residual unstated powers of the President which are implicit in and
correlative to the paramount duty residing in that office to safeguard and protect general welfare. In that
context, such request or demand should submit to the exercise of a broader discretion on the part of the
President to determine whether it must be granted or denied.

The Extent of Review

Under the Constitution, judicial power includes the duty to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government." [Art. VIII, Sec. 1] Given this wording, we cannot agree with the
Solicitor General that the issue constitutes a political question which is beyond the jurisdiction of the Court
to decide.

The present Constitution limits resort to the political question doctrine and broadens the scope of judicial
inquiry into areas which the Court, under previous constitutions, would have normally left to the political
departments to decide. But nonetheless there remain issues beyond the Court's jurisdiction the
determination of which is exclusively for the President, for Congress or for the people themselves through
a plebiscite or referendum. We cannot, for example, question the President's recognition of a foreign
government, no matter how premature or improvident such action may appear. We cannot set aside a
presidential pardon though it may appear to us that the beneficiary is totally undeserving of the grant.
Nor can we amend the Constitution under the guise of resolving a dispute brought before us because the
power is reserved to the people.

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There is nothing in the case before us that precludes our determination thereof on the political question
doctrine. The deliberations of the Constitutional Commission cited by petitioners show that the framers
intended to widen the scope of judicial review but they did not intend courts of justice to settle all actual
controversies before them. When political questions are involved, the Constitution limits the
determination to whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of the official whose action is being questioned. If grave abuse is not established,
the Court will not substitute its judgment for that of the official concerned and decide a matter which by
its nature or by law is for the latter alone to decide. In this light, it would appear clear that the second
paragraph of Article VIII, Section 1 of the Constitution, defining "judicial power," which specifically
empowers the courts to determine whether or not there has been a grave abuse of discretion on the part
of any branch or instrumentality of the government, incorporates in the fundamental law the ruling in
Lansang v. Garcia [G.R. No. L-33964, December 11, 1971, 42 SCRA 4481 that:]

Article VII of the [1935] Constitution vests in the Executive the power to suspend the privilege of the writ
of habeas corpus under specified conditions. Pursuant to the principle of separation of powers underlying
our system of government, the Executive is supreme within his own sphere. However, the separation of
powers, under the Constitution, is not absolute. What is more, it goes hand in hand with the system of
checks and balances, under which the Executive is supreme, as regards the suspension of the privilege,
but only if and when he acts within the sphere alloted to him by the Basic Law, and the authority to
determine whether or not he has so acted is vested in the Judicial Department, which, in this respect, is,
in turn, constitutionally supreme. In the exercise of such authority, the function of the Court is merely to
check — not to supplant the Executive, or to ascertain merely whether he has gone beyond the
constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the
wisdom of his act [At 479-480.]

Accordingly, the question for the Court to determine is whether or not there exist factual bases for the
President to conclude that it was in the national interest to bar the return of the Marcoses to the
Philippines. If such postulates do exist, it cannot be said that she has acted, or acts, arbitrarily or that she
has gravely abused her discretion in deciding to bar their return.

We find that from the pleadings filed by the parties, from their oral arguments, and the facts revealed
during the briefing in chambers by the Chief of Staff of the Armed Forces of the Philippines and the
National Security Adviser, wherein petitioners and respondents were represented, there exist factual
bases for the President's decision..

The Court cannot close its eyes to present realities and pretend that the country is not besieged from
within by a well-organized communist insurgency, a separatist movement in Mindanao, rightist
conspiracies to grab power, urban terrorism, the murder with impunity of military men, police officers

292
and civilian officials, to mention only a few. The documented history of the efforts of the Marcose's and
their followers to destabilize the country, as earlier narrated in this ponencia bolsters the conclusion that
the return of the Marcoses at this time would only exacerbate and intensify the violence directed against
the State and instigate more chaos.

As divergent and discordant forces, the enemies of the State may be contained. The military establishment
has given assurances that it could handle the threats posed by particular groups. But it is the catalytic
effect of the return of the Marcoses that may prove to be the proverbial final straw that would break the
camel's back. With these before her, the President cannot be said to have acted arbitrarily and capriciously
and whimsically in determining that the return of the Marcoses poses a serious threat to the national
interest and welfare and in prohibiting their return.

It will not do to argue that if the return of the Marcoses to the Philippines will cause the escalation of
violence against the State, that would be the time for the President to step in and exercise the
commander-in-chief powers granted her by the Constitution to suppress or stamp out such violence. The
State, acting through the Government, is not precluded from taking pre- emptive action against threats
to its existence if, though still nascent they are perceived as apt to become serious and direct. Protection
of the people is the essence of the duty of government. The preservation of the State the fruition of the
people's sovereignty is an obligation in the highest order. The President, sworn to preserve and defend
the Constitution and to see the faithful execution the laws, cannot shirk from that responsibility.

We cannot also lose sight of the fact that the country is only now beginning to recover from the hardships
brought about by the plunder of the economy attributed to the Marcoses and their close associates and
relatives, many of whom are still here in the Philippines in a position to destabilize the country, while the
Government has barely scratched the surface, so to speak, in its efforts to recover the enormous wealth
stashed away by the Marcoses in foreign jurisdictions. Then, We cannot ignore the continually increasing
burden imposed on the economy by the excessive foreign borrowing during the Marcos regime, which
stifles and stagnates development and is one of the root causes of widespread poverty and all its
attendant ills. The resulting precarious state of our economy is of common knowledge and is easily within
the ambit of judicial notice.

The President has determined that the destabilization caused by the return of the Marcoses would wipe
away the gains achieved during the past few years and lead to total economic collapse. Given what is
within our individual and common knowledge of the state of the economy, we cannot argue with that
determination.

WHEREFORE, and it being our well-considered opinion that the President did not act arbitrarily or with
grave abuse of discretion in determining that the return of former President Marcos and his family at the

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present time and under present circumstances poses a serious threat to national interest and welfare and
in prohibiting their return to the Philippines, the instant petition is hereby DISMISSED.

SO ORDERED.

Separate Opinions

FERNAN, C.J., concurring:

"The threats to national security and public order are real the mounting Communist insurgency, a
simmering separatist movement, a restive studentry, widespread labor disputes, militant farmer groups.
. . . Each of these threats is an explosive ingredient in a steaming cauldron which could blow up if not
handled properly." 1

These are not my words. They belong to my distinguished colleague in the Court, Mr. Justice Hugo E.
Gutierrez, Jr. But they express eloquently the basis of my full concurrence to the exhaustive and well-
written ponencia of Mme. Justice Irene R. Cortes.

Presidential powers and prerogatives are not fixed but fluctuate. They are not derived solely from a
particular constitutional clause or article or from an express statutory grant. Their limits are likely to
depend on the imperatives of events and contemporary imponderables rather than on abstract theories
of law. History and time-honored principles of constitutional law have conceded to the Executive Branch
certain powers in times of crisis or grave and imperative national emergency. Many terms are applied to
these powers: "residual," "inherent," 44 moral," "implied," "aggregate," "emergency." whatever they may
be called, the fact is that these powers exist, as they must if the governance function of the Executive
Branch is to be carried out effectively and efficiently. It is in this context that the power of the President
to allow or disallow the Marcoses to return to the Philippines should be viewed. By reason of its impact
on national peace and order in these admittedly critical times, said question cannot be withdrawn from
the competence of the Executive Branch to decide.

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And indeed, the return of the deposed President, his wife and children cannot but pose a clear and present
danger to public order and safety. One needs only to recall the series of destabilizing actions attempted
by the so-called Marcos loyalists as well as the ultra-rightist groups during the EDSA Revolution's
aftermath to realize this. The most publicized of these offensives is the Manila Hotel incident which
occurred barely five (5) months after the People's Power Revolution. Around 10,000 Marcos supporters,
backed by 300 loyalist soldiers led by Brigadier General Jose Zumel and Lt. Col. Reynaldo Cabauatan
converged at the Manila Hotel to witness the oath-taking of Arturo Tolentino as acting president of the
Philippines. The public disorder and peril to life and limb of the citizens engendered by this event subsided
only upon the eventual surrender of the loyalist soldiers to the authorities.

Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp Aguinaldo incidents. Military
rebels waged simultaneous offensives in different parts of Metro Manila and Sangley Point in Cavite. A
hundred rebel soldiers took over Channel 7 and its radio station DZBB. About 74 soldier rebels attacked
Villamor Air Base, while another group struck at Sangley Point in Cavite and held the 15th Air Force Strike
wing commander and his deputy hostage. Troops on board several vehicles attempted to enter Gate I of
Camp Aguinaldo even as another batch of 200 soldiers encamped at Horseshoe Village.

Another destabilization plot was carried out in April, 1987 by enlisted personnel who forced their way
through Gate 1 of Fort Bonifacio. They stormed into the army stockade but having failed to convince their
incarcerated members to unite in their cause, had to give up nine (9) hours later.

And who can forget the August 28, 1987 coup attempt which almost toppled the Aquino Government?
Launched not by Marcos loyalists, but by another ultra-rightist group in the military led by Col. Gregorio
"Gringo" Honasan who remains at large to date, this most serious attempt to wrest control of the
government resulted in the death of many civilians.

Members of the so-called Black Forest Commando were able to cart away high-powered firearms and
ammunition from the Camp Crame Armory during a raid conducted in June 1988. Most of the group
members were, however, captured in Antipolo, Rizal. The same group was involved in an unsuccessful
plot known as Oplan Balik Saya which sought the return of Marcos to the country.

A more recent threat to public order, peace and safety was the attempt of a group named CEDECOR to
mobilize civilians from nearby provinces to act as blockading forces at different Metro Manila areas for
the projected link-up of Marcos military loyalist troops with the group of Honasan. The pseudo "people
power" movement was neutralized thru checkpoints set up by the authorities along major road arteries
where the members were arrested or forced to turn back.

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While not all of these disruptive incidents may be traced directly to the Marcoses, their occurrence
militates heavily against the wisdom of allowing the Marcoses' return. Not only will the Marcoses'
presence embolden their followers toward similar actions, but any such action would be seized upon as
an opportunity by other enemies of the State, such as the Communist Party of the Philippines and the
NPA'S, the Muslim secessionists and extreme rightists of the RAM, to wage an offensive against the
government. Certainly, the state through its executive branch has the power, nay, the responsibility and
obligation, to prevent a grave and serious threat to its safety from arising.

Apparently lost amidst the debate on whether or not to allow the Marcoses to return to the Philippines is
one factor, which albeit, at first blush appears to be extra legal, constitutes a valid justification for
disallowing the requested return. I refer to the public pulse. It must be remembered that the ouster of
the Marcoses from the Philippines came about as an unexpected, but certainly welcomed, result of the
unprecedented peoples power" revolution. Millions of our people braved military tanks and firepower,
kept vigil, prayed, and in countless manner and ways contributed time, effort and money to put an end to
an evidently untenable claim to power of a dictator. The removal of the Marcoses from the Philippines
was a moral victory for the Filipino people; and the installation of the present administration, a realization
of and obedience to the people's Will.

Failing in legal arguments for the allowance of the Marcoses' return, appeal is being made to sympathy,
compassion and even Filipino tradition. The political and economic gains we have achieved during the
past three years are however too valuable and precious to gamble away on purely compassionate
considerations. Neither could public peace, order and safety be sacrificed for an individual's wish to die in
his own country. Verily in the balancing of interests, the scales tilt in favor of presidential prerogative,
which we do not find to have been gravely abused or arbitrarily exercised, to ban the Marcoses from
returning to the Philippines.

GUTIERREZ, JR., J., dissenting

"The Constitution ... is a law for rulers and people, equally in war and in peace, and covers with the shield
of its protection all classes of men, at all times, and under all circumstances. No doctrine involving more
pernicious consequences was ever invented by the wit of man than that any of its provisions can be
suspended during any of the great exigencies of government." (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed. 281
[1866])

Since our days as law students, we have proclaimed the stirring words of Ex Parte Milligan as self-evident
truth. But faced with a hard and delicate case, we now hesitate to qive substance to their meaning. The
Court has permitted a basic freedom enshrined in the Bill of Rights to be taken away by Government.

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There is only one Bill of Rights with the same interpretation of liberty and the same guarantee of freedom
for both unloved and despised persons on one hand and the rest who are not so stigmatized on the other.

I am, therefore, disturbed by the majority ruling which declares that it should not be a precedent. We are
interpreting the Constitution for only one person and constituting him into a class by himself. The
Constitution is a law for all classes of men at all times. To have a person as one class by himself smacks of
unequal protection of the laws.

With all due respect for the majority in the Court, I believe that the issue before us is one of rights and
not of power. Mr. Marcos is insensate and would not live if separated from the machines which have
taken over the functions of his kidneys and other organs. To treat him at this point as one with full panoply
of power against whom the forces of Government should be marshalled is totally unrealistic. The
Government has the power to arrest and punish him. But does it have the power to deny him his right to
come home and die among familiar surroundings?

Hence, this dissent.

The Bill of Rights provides:

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be provided by law. (Emphasis
supplied, Section 6, Art. 111, Constitution)

To have the petition dismissed, the Solicitor General repeats a ritual invocation of national security and
public safety which is hauntingly familiar because it was pleaded so often by petitioner Ferdinand E.
Marcos to justify his acts under martial law. There is, however, no showing of the existence of a law
prescribing the limits of the power to impair and the occasions for its exercise. And except for citing
breaches of law and order, the more serious of which were totally unrelated to Mr. Marcos and which the
military was able to readily quell, the respondents have not pointed to any grave exigency which permits
the use of untrammeled Governmental power in this case and the indefinite suspension of the
constitutional right to travel.

The respondents' basic argument is that the issue before us is a political question beyond our jurisdiction
to consider. They contend that the decision to ban former President Marcos, and his family on grounds of
national security and public safety is vested by the Constitution in the President alone. The determination

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should not be questioned before this Court. The President's finding of danger to the nation should be
conclusive on the Court.

What is a political question?

In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:

xxx xxx xxx

It is a well-settled doctrine that political questions are not within the province of the judiciary, except to
the extent that power to deal with such questions has been conferred on the courts by express
constitutional or statutory provisions. It is not so easy, however, to define the phrase political question,
nor to determine what matters fall within its scope. It is frequently used to designate all questions that
he outside the scope of the judicial power. More properly, however, it means those questions which,
under the constitution, are to be decided by the people in their sovereign capacity, or in regard to which
full discretionary authority has been delegated to the legislative or executive branch of the government.

We defined a political question in Taniada v. Cuenco (103 Phil. 1051, 1066 [1957]), as follows:

In short, the term 'Political question' connotes, in legal parlance, what it means in ordinary parlance,
namely, a question of policy. In other words, in the language of Corpus Juris Secundum (supra), it refers
to 'those questions which, under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated to the Legislature or
executive branch of the Government. It is concerned with issues dependent upon the wisdom, not legality,
of a particular measure.

The most often quoted definition of political question was made by Justice William J. Brennan Jr., who
penned the decision of the United States Supreme Court in Baker v. Carr (369 US 186,82, S. Ct. 691, L. Ed.
2d. 663 [1962]). The ingredients of a political question as formulated in Baker v. Carr are:

It is apparent that several formulations which vary slightly according to the settings in which the questions
arise may describe a political question, which identifies it as essentially a function of the separation of
powers. Prominent on the surface of any case held to involve a political question is found a textually
demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of
judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without

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an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's
undertaking independent resolution without expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning adherence to a political decision already made; or
potentiality of embarrassment from multifarious pronouncements by various departments on one
question.

For a political question to exist, there must be in the Constitution a power vested exclusively in the
President or Congress, the exercise of which the court should not examine or prohibit. A claim of plenary
or inherent power against a civil right which claim is not found in a specific provision is dangerous. Neither
should we validate a roving commission allowing public officials to strike where they please and to
override everything which to them represents evil. The entire Government is bound by the rule of law.

The respondents have not pointed to any provision of the Constitution which commits or vests the
determination of the question raised to us solely in the President.

The authority implied in Section 6 of the Bill of Rights itself does not exist because no law has been enacted
specifying the circumstances when the right may be impaired in the interest of national security or public
safety. The power is in Congress, not the Executive.

The closest resort to a textile demonstrable constitutional commitment of power may be found in the
commander-in-chief clause which allows the President to call out the armed forces in case of lawless
violence, invasion or rebellion and to suspend the privilege of the writ of habeas corpus or proclaim
martial law in the event of invasion or rebellion, when the public safety requires it.

There is, however, no showing, not even a claim that the followers of former President Marcos are
engaging in rebellion or that he is in a position to lead them. Neither is it claimed that there is a need to
suspend the privilege of the writ of habeas corpus or proclaim martial law because of the arrival of Mr.
Marcos and his family. To be sure, there may be disturbances but not of a magnitude as would compel
this Court to resort to a doctrine of non- justiceability and to ignore a plea for the enforcement of an
express Bill of Rights guarantee.

The respondents themselves are hard-pressed to state who or what constitutes a Marcos "loyalist." The
constant insinuations that the "loyalist" group is heavily funded by Mr. Marcos and his cronies and that
the "loyalists" engaging in rallies and demonstrations have to be paid individual allowances to do so
constitute the strongest indication that the hard core "loyalists" who would follow Marcos right or wrong
are so few in number that they could not possibly destabilize the government, much less mount a serious
attempt to overthrow it.

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Not every person who would allow Mr. Marcos to come home can be tagged a "loyalist." It is in the best
of Filipino customs and traditions to allow a dying person to return to his home and breath his last in his
native surroundings. Out of the 103 Congressmen who passed the House resolution urging permission for
his return, there are those who dislike Mr. Marcos intensely or who suffered under his regime. There are
also many Filipinos who believe that in the spirit of national unity and reconciliation Mr. Marcos and his
family should be permitted to return to the Philippines and that such a return would deprive his fanatic
followers of any further reason to engage in rallies and demonstrations.

The Court, however, should view the return of Mr. Marcos and his family solely in the light of the
constitutional guarantee of liberty of abode and the citizen's right to travel as against the respondents'
contention that national security and public safety would be endangered by a grant of the petition.

Apart from the absence of any text in the Constitution committing the issue exclusively to the President,
there is likewise no dearth of decisional data, no unmanageable standards which stand in the way of a
judicial determination.

Section 6 of the Bill of Rights states categorically that the liberty of abode and of changing the same within
the limits prescribed by law may be impaired only upon a lawful order of a court. Not by an executive
officer. Not even by the President. Section 6 further provides that the right to travel, and this obviously
includes the right to travel out of or back into the Philippines, cannot be impaired except in the interest
of national security, public safety, or public health, as may be provided by law.

There is no law setting the limits on a citizen's right to move from one part of the country to another or
from the Philippines to a foreign country or from a foreign country to the Philippines. The laws cited by
the Solicitor General immigration, health, quarantine, passports, motor vehicle, destierro probation, and
parole are all inapplicable insofar as the return of Mr. Marcos and family is concerned. There is absolutely
no showing how any of these statutes and regulations could serve as a basis to bar their coming home.

There is also no disrespect for a Presidential determination if we grant the petition. We would simply be
applying the Constitution, in the preservation and defense of which all of us in Government, the President
and Congress included, are sworn to participate. Significantly, the President herself has stated that the
Court has the last word when it comes to constitutional liberties and that she would abide by our decision.

As early as 1983, it was noted that this Court has not been very receptive to the invocation of the political
question doctrine by government lawyers. (See Morales, Jr. .v Ponce Enrile, 121 SCRA 538 [1983]).

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Many of those now occupying the highest positions in the executive departments, Congress, and the
judiciary criticized this Court for using what they felt was a doctrine of convenience, expediency, utility or
subservience. Every major challenge to the acts of petitioner Ferdinand E. Marcos under his authoritarian
regime the proclamation of martial law, the ratification of a new constitution, the arrest and detention of
"enemies of the State" without charges being filed against them, the dissolution of Congress and the
exercise by the President of legislative powers, the trial of civilians for civil offenses by military tribunals,
the seizure of some of the country's biggest corporations, the taking over or closure of newspaper offices,
radio and television stations and other forms of media, the proposals to amend the Constitution, etc. was
invariably met by an invocation that the petition involved a political question. It is indeed poetic justice
that the political question doctrine so often invoked by then President Marcos to justify his acts is now
being used against him and his family. Unfortunately, the Court should not and is not allowed to indulge
in such a persiflage. We are bound by the Constitution.

The dim view of the doctrine's use was such that when the present Constitution was drafted, a broad
definition of judicial power was added to the vesting in the Supreme Court and statutory courts of said
power.

The second paragraph of Section 1, Article VIII of the Constitution provides:

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.

This new provision was enacted to preclude this Court from using the political question doctrine as a
means to avoid having to make decisions simply because they are too controversial, displeasing to the
President or Congress, inordinately unpopular, or which may be ignored and not enforced.

The framers of the Constitution believed that the free use of the political question doctrine allowed the
Court during the Marcos years to fall back on prudence, institutional difficulties, complexity of issues,
momentousness of consequences or a fear that it was extravagantly extending judicial power in the cases
where it refused to examine and strike down an exercise of authoritarian power. Parenthetically, at least
two of the respondents and their counsel were among the most vigorous critics of Mr. Marcos (the main
petitioner) and his use of the political question doctrine. The Constitution was accordingly amended. We
are now precluded by its mandate from refusing to invalidate a political use of power through a
convenient resort to the question doctrine. We are compelled to decide what would have been non-
justiceable under our decisions interpreting earlier fundamental charters.

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This is not to state that there can be no more political questions which we may refuse to resolve. There
are still some political questions which only the President, Congress, or a plebiscite may decide. Definitely,
the issue before us is not one of them.

The Constitution requires the Court "to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction."

How do we determine a grave abuse of discretion?

The tested procedure is to require the parties to present evidence. Unfortunately, considerations of
national security do not readily lend themselves to the presentation of proof before a court of justice. The
vital information essential to an objective determination is usually highly classified and it cannot be
rebutted by those who seek to overthrow the government. As early as Barcelon v. Baker (5 Phil. 87, 93
[19051), the Court was faced with a similar situation. It posed a rhetorical question. If after investigating
conditions in the Archipelago or any part thereof, the President finds that public safety requires the
suspension of the privilege of the writ of habeas corpus, can the judicial department investigate the same
facts and declare that no such conditions exist?

In the effort to follow the "grave abuse of discretion" formula in the second paragraph of Section 1, Article
VIII of the Constitution, the court granted the Solicitor General's offer that the military give us a closed
door factual briefing with a lawyer for the petitioners and a lawyer for the respondents present.

The results of the briefing call to mind the concurrence of Justice Vicente Abad Santos in Morales, Jr. v.
Enrile, (121 SCRA 538, 592 [19831):

How can this Court determine the factual basis in order that it can ascertain whether or not the president
acted arbitrarily in suspending the writ when, in the truth words of Montenegro, with its very limited
machinery fit] cannot be in better position [than the Executive Branch] to ascertain or evaluate the
conditions prevailing in the Archipelago? (At p. 887). The answer is obvious. It must rely on the Executive
Branch which has the appropriate civil and military machinery for the facts. This was the method which
had to be used in Lansang. This Court relied heavily on classified information supplied by the military.
Accordingly, an incongruous situation obtained. For this Court, relied on the very branch of the
government whose act was in question to obtain the facts. And as should be expected the Executive
Branch supplied information to support its position and this Court was in no situation to disprove them.
It was a case of the defendant judging the suit. After all is said and done, the attempt by its Court to
determine whether or not the President acted arbitrarily in suspending the writ was a useless and futile
exercise.

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There is still another reason why this Court should maintain a detached attitude and refrain from giving
the seal of approval to the act of the Executive Branch. For it is possible that the suspension of the writ
lacks popular support because of one reason or another. But when this Court declares that the suspension
is not arbitrary (because it cannot do otherwise upon the facts given to it by the Executive Branch) it in
effect participates in the decision-making process. It assumes a task which it is not equipped to handle; it
lends its prestige and credibility to an unpopular act.

The other method is to avail of judicial notice. In this particular case, judicial notice would be the only
basis for determining the clear and present danger to national security and public safety. The majority of
the Court has taken judicial notice of the Communist rebellion, the separatist movement, the rightist
conspiracies, and urban terrorism. But is it fair to blame the present day Marcos for these incidents? All
these problems are totally unrelated to the Marcos of today and, in fact, are led by people who have
always opposed him. If we use the problems of Government as excuses for denying a person's right to
come home, we will never run out of justifying reasons. These problems or others like them will always
be with us.

Significantly, we do not have to look into the factual bases of the ban Marcos policy in order to ascertain
whether or not the respondents acted with grave abuse of discretion. Nor are we forced to fall back upon
judicial notice of the implications of a Marcos return to his home to buttress a conclusion.

In the first place, there has never been a pronouncement by the President that a clear and present danger
to national security and public safety will arise if Mr. Marcos and his family are allowed to return to the
Philippines. It was only after the present petition was filed that the alleged danger to national security
and public safety conveniently surfaced in the respondents' pleadings. Secondly, President Aquino herself
limits the reason for the ban Marcos policy to — (1) national welfare and interest and (2) the continuing
need to preserve the gains achieved in terms of recovery and stability. (See page 7, respondents'
Comment at page 73 of Rollo). Neither ground satisfies the criteria of national security and public safety.
The President has been quoted as stating that the vast majority of Filipinos support her position. (The
Journal, front page, January 24,1989) We cannot validate their stance simply because it is a popular one.
Supreme Court decisions do not have to be popular as long as they follow the Constitution and the law.
The President's original position "that it is not in the interest of the nation that Marcos be allowed to
return at this time" has not changed. (Manila Times, front page, February 7, 1989). On February 11, 1989,
the President is reported to have stated that "considerations of the highest national good dictate that we
preserve the substantial economic and political gains of the past three years" in justifying her firm refusal
to allow the return of Mr. Marcos despite his failing health. (Daily Globe, front page, February 15, 1989).
"Interest of the nation national good," and "preserving economic and political gains," cannot be equated
with national security or public order. They are too generic and sweeping to serve as grounds for the
denial of a constitutional right. The Bill of Rights commands that the right to travel may not be impaired
except on the stated grounds of national security, public safety, or public health and with the added

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requirement that such impairment must be "as provided by law." The constitutional command cannot be
negated by mere generalizations.

There is an actual rebellion not by Marcos followers but by the New Peoples' Army. Feeding as it does on
injustice, ignorance, poverty, and other aspects at under-development, the Communist rebellion is the
clearest and most present danger to national security and constitutional freedoms. Nobody has suggested
that one way to quell it would be to catch and exile its leaders, Mr. Marcos himself was forced to flee the
country because of "peoples' power." Yet, there is no move to arrest and exile the leaders of student
groups, teachers' organizations, pea ant and labor federations, transport workers, and government unions
whose threatened mass actions would definitely endanger national security and the stability of
government. We fail to see how Mr. Marcos could be a greater danger.

The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-soldiers, the hard core
loyalists, and other dissatisfied elements would suddenly unite to overthrow the Republic should a dying
Marcos come home is too speculative and unsubstantial a ground for denying a constitutional right. It is
not shown how extremists from the right and the left who loathe each other could find a rallying point in
the coming of Mr. Marcos.

The "confluence theory" of the Solicitor General or what the majority calls "catalytic effect," which alone
sustains the claim of danger to national security is fraught with perilous implications. Any difficult problem
or any troublesome person can be substituted for the Marcos threat as the catalysing factor. The alleged
confluence of NPAs, secessionists, radical elements, renegade soldiers, etc., would still be present.
Challenged by any critic or any serious problem, the Government can state that the situation threatens a
confluence of rebel forces and proceed to ride roughshod over civil liberties in the name of national
security. Today, a passport is denied. Tomorrow, a newspaper may be closed. Public assemblies may be
prohibited. Human rights may be violated. Yesterday, the right to travel of Senators Benigno Aquino, Jr.
and Jovito Salonga was curtailed. Today, it is the right of Mr. Marcos and family. Who will be tomorrow's
pariahs I deeply regret that the Court's decision to use the political question doctrine in a situation where
it does not apply raises all kinds of disturbing possibilities.

I must emphasize that General Renato de Villa, the Chief of Staff of the Armed Forces, has personally
assured the Court that a rebellion of the above combined groups will not succeed and that the military is
on top of the situation. Where then is the clear danger to national security? The Court has taken judicial
notice of something which even the military denies. There would be severe strains on military capabilities
according to General de Villa. There would be set-backs in the expected eradication of the Communist
threat. There would be other serious problems but all can be successfully contained by the military. I must
stress that no reference was made to a clear and present danger to national security as would allow an
overriding of the Bill of Rights.

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The Solicitor General's argument that the failure of Congress to enact a statute defining the parameters
of the right to travel and to freely choose one's abode has constrained the President to fill in the vacuum,
is too reminiscent of Amendment No. 6 of the martial law Constitution to warrant serious consideration.
Amendment No. 6 allowed Marcos to issue decrees whenever the Batasang Pambansa failed or was
unable to act adequately on any matter for any reason that in his judgment required immediate action.
When the Bill of Rights provides that a right may not be impaired except in the interest of national security,
public safety, or public health and further requires that a law must provide when such specifically defined
interests are prejudiced or require protection, the inaction of Congress does not give reason for the
respondents to assume the grounds for its impairment.

The fact that the Marcoses have been indicted before American federal courts does not obstruct us from
ruling against an unconstitutional assertion of power by Philippine officials. Let the United States apply its
laws. We have to be true to our own.

Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The agony of traveling while
hooked up to machines which have taken over the functions of his heart, lungs, and kidneys may hasten
his death. The physical condition of Mr. Marcos does not justify our ignoring or refusing to act on his claim
to a basic right which is legally demandable and enforceable. For his own good, it might be preferable to
stay where he is. But he invokes a constitutional right. We have no power to deny it to him.

The issuance of a passport may be discretionary but it should not be withheld if to do so would run counter
to a constitutional guarantee. Besides, the petitioners are not asking for passports and nothing else. Any
travel documents or any formal lifting of the Marcos ban as would allow international airlines to sell them
tickets would suffice.

With all due respect for the majority opinion, I disagree with its dictum on the right to travel. I do not
think we should differentiate the right to return home from the right to go abroad or to move around in
the Philippines. If at all, the right to come home must be more preferred than any other aspect of the
right to travel. It was precisely the banning by Mr. Marcos of the right to travel by Senators Benigno
Aquino, Jr., Jovito Salonga, and scores of other "undesirables" and "threats to national security" during
that unfortunate period which led the framers of our present Constitution not only to re-enact but to
strengthen the declaration of this right. Media often asks, "what else is new?" I submit that we now have
a freedom loving and humane regime. I regret that the Court's decision in this case sets back the gains
that our country has achieved in terms of human rights, especially human rights for those whom we do
not like or those who are against us.

The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list of former dictators who
were barred by their successors from returning to their respective countries. There is no showing that the
countries involved have constitutions which guarantee the liberty of abode and the freedom to travel and

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that despite such constitutional protections, the courts have validated the "ban a return" policy. Neither
is it shown that the successors of the listed dictators are as deeply committed to democratic principles
and as observant of constitutional protections as President Aquino.

It is indeed regrettable that some followers of the former President are conducting a campaign to sow
discord and to divide the nation. Opposition to the government no matter how odious or disgusting is,
however, insufficient ground to ignore a constitutional guarantee.

During the protracted deliberations on this case, the question was asked is the Government helpless to
defend itself against a threat to national security? Does the President have to suspend the privilege of the
writ of habeas corpus or proclaim martial law? Can she not take less drastic measures?

Of course, the Government can act. It can have Mr. Marcos arrested and tried in court. The Government
has more than ample powers under eixisting law to deal with a person who transgresses the peace and
imperils public safety. But the denial of travel papers is not one of those powers because the Bill of Rights
says so. There is no law prescribing exile in a foreign land as the penalty for hurting the Nation.

Considering all the foregoing, I vote to GRANT the petition.

CRUZ, J., dissenting:

It is my belief that the petitioner, as a citizen of the Philippines, is entitled to return to and live — and die
— in his own country. I say this with a heavy heart but say it nonetheless. That conviction is not diminished
one whit simply because many believe Marcos to be beneath contempt and undeserving of the very
liberties he flounted when he was the absolute ruler of this land.

The right of the United States government to detain him is not the question before us, nor can we resolve
it. The question we must answer is whether or not, assuming that Marcos is permitted to leave Hawaii
(which may depend on the action we take today), the respondents have acted with grave abuse of
discretion in barring him from his own country.

My reluctant conclusion is that they have, absent the proof they said they were prepared to offer, but
could not, that the petitioner's return would prejudice the security of the State.

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I was the one who, in the open hearing held on June 27,1989, asked the Solicitor General if the
government was prepared to prove the justification for opposing the herein petition, i.e. that it had not
acted arbitrarily. He said it was. Accordingly, the Court, appreciating the classified nature of the
information expected, scheduled a closed-door hearing on July 25,1988. The Solicitor General and three
representatives from the military appeared for the respondents, together with former Senator Arturo M.
Tolentino, representing the petitioners.

In about two hours of briefing, the government failed dismally to show that the return of Marcos dead or
alive would pose a threat to the national security as it had alleged. The fears expressed by its
representatives were based on mere conjectures of political and economic destabilization without any
single piece of concrete evidence to back up their apprehensions.

Amazingly, however, the majority has come to the conclusion that there exist "factual bases for the
President's decision" to bar Marcos's return. That is not my recollection of the impressions of the Court
after that hearing.

In holding that the President of the Philippines has residual powers in addition to the specific powers
granted by the Constitution, the Court is taking a great leap backward and reinstating the discredited
doctrine announced in Planas v. Gil (67 Phil. 62). This does not square with the announced policy of the
Constitutional Commission, which was precisely to limit rather than expand presidential powers, as a
reaction to the excesses of the past dictatorship.

I can only repeat Justice Black's wry observation in the Steel Seizure Case (343 U.S. 579) that if it was true
that the President had been granted the totality of executive power, "it is difficult to see why our
forefathers bothered to add several specific items, including some trifling ones, . . . I cannot accept the
view that this clause is a grant in bulk of all conceivable executive power but regard it as an allocation to
the presidential office of the generic powers thereafter stated."

I have no illusion that the stand I am taking will be met with paeans of praise, considering that Marcos is
perhaps the most detested man in the entire history of our country. But we are not concerned here with
popularity and personalities. As a judge, I am not swayed by what Justice Cardozo called the "hooting
throng" that may make us see things through the prisms of prejudice. I bear in mind that when I sit in
judgment as a member of this Court, I must cast all personal feelings aside.

The issue before us must be resolved with total objectivity, on the basis only of the established facts and
the applicable law and not of wounds that still fester and scars that have not healed. And not even of fear,
for fear is a phantom. That phantom did not rise when the people stood fast at EDSA against the threat of
total massacre in defense at last of their freedom.

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I cannot turn back on the lessons of liberty that I taught for more than three decades as a professor of
Constitutional Law. These principles have not changed simply because I am now on the Court or a new
administration is in power and the shoe is on the other foot.

Like the martyred Ninoy Aquino who also wanted to come back to the Philippines against the prohibitions
of the government then, Marcos is entitled to the same right to travel and the liberty of abode that his
adversary invoked. These rights are guaranteed by the Constitution to all individuals, including the patriot
and the homesick and the prodigal son returning, and tyrants and charlatans and scoundrels of every
stripe.

I vote to grant the petition.

PARAS, J., dissenting:

I dissent. Already, some people refer to us as a nation without discipline. Are we ready to be also called a
society without compassion?

The issue as to whether or not former President Ferdinand E. Marcos should be allowed to return to the
Philippines may be resolved by answering two simple questions: Does he have the right to return to his
own country and should national safety and security deny him this right?

There is no dispute that the former President is still a Filipino citizen and both under the Universal
Declaration of Human Rights and the 1987 Constitution of the Philippines, he has the right to return to his
own country except only if prevented by the demands of national safety and national security.

Our Armed Forces have failed to prove this danger. They are bereft of hard evidence, and all they can rely
on is sheer speculation. True, there is some danger but there is no showing as to the extent.

It is incredible that one man alone together with his family, who had been ousted from this country by
popular will, can arouse an entire country to rise in morbid sympathy for the cause he once espoused.

It is therefore clear to me, all other opinions to the contrary notwithstanding, that the former President
should be allowed to return to our country under the conditions that he and the members of his family

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be under house arrest in his hometown in Ilocos Norte, and should President Marcos or any member of
his family die, the body should not be taken out of the municipality of confinement and should be buried
within ten (10) days from date.

If we do this, our country shall have maintained its regard for fundamental human rights, for national
discipline, and for human compassion.

PADILLA, J., dissenting:

I dissent. As I see it, the core issue in this case is, which right will prevail in the conflict between the right
of a Filipino, Ferdinand E. Marcos, to return to the Philippines, and the right of the Philippine Government
to bar such return in the interest of national security and public safety. In this context, the issue is clearly
justiciable involving, as it does, colliding assertions of individual right and governmental power. Issues of
this nature more than explain why the 1986 Constitutional Commission, led by the illustrious former Chief
Justice Roberto Concepcion, incorporated in the 1987 Constitution, the new provision on the power of
Judicial Review, viz:

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. Article VIII, Section 1, par. 2; (Emphasis supplied)

Mr. Marcos invokes in his favor the specific and precise constitutional right of every Filipino to travel
which, in the language of the Constitution, shall not be impaired "except in the interest of national
security, public safety, or public health, as may be provided by law" (Art. III, Sec. 6). That the right to travel
comprises the right to travel within the country, to travel out of the country and to return to the country
(Philippines), is hardly disputable. Short of all such components, the right to travel is meaningless. The
real question arises in the interpretation of the qualifications attached by the Constitution to such right
to travel.

Petitioners contend that, in the absence of restricting legislation, the right to travel is absolute. I do not
agree. It is my view that, with or without restricting legislation, the interest of national security, public
safety or public health can justify and even require restrictions on the right to travel, and that the clause
"as may be provided by law" contained in Article III, Section 6 of the 1987 Constitution merely declares a
constitutional leave or permission for Congress to enact laws that may restrict the right to travel in the

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interest of national security, public safety or public health. I do not, therefore, accept the petitioners'
submission that, in the absence of enabling legislation, the Philippine Government is powerless to restrict
travel even when such restriction is demanded by national security, public safety or public health, The
power of the State, in particular cases, to restrict travel of its citizens finds abundant support in the police
power of the state wich may be exercised to preserve and maintain government as well as promote the
general welfare of the greatest number of people.

And yet, the power of the State, acting through a government in authority at any given time, to restrict
travel, even if founded on police power, cannot be absolute and unlimited under all circumstances, much
less, can it be arbitrary and irrational.

Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific constitutional right, i.e., the
right to return to the country. 1 Have the respondents presented sufficient evidence to offset or override
the exercise of this right invoked by Mr. Marcos? Stated differently, have the respondents shown to the
Court sufficient factual bases and data which would justify their reliance on national security and public
safety in negating the right to return invoked by Mr. Marcos?

I have given these questions a searching examination. I have carefully weighed and assessed the "briefing"
given the Court by the highest military authorities of the land last 28 July 1989. 1 have searched, but in
vain, for convincing evidence that would defeat and overcome the right of Mr. Marcos as a Filipino to
return to this country. It appears to me that the apprehensions entertained and expressed by the
respondents, including those conveyed through the military, do not, with all due respect, escalate to
proportions of national security or public safety. They appear to be more speculative than real, obsessive
rather than factual. Moreover, such apprehensions even if translated into realities, would be "under
control," as admitted to the Court by said military authorities, given the resources and facilities at the
command of government. But, above all, the Filipino people themselves, in my opinion, will know how to
handle any situation brought about by a political recognition of Mr. Marcos' right to return, and his actual
return, to this country. The Court, in short, should not accept respondents' general apprehensions,
concerns and perceptions at face value, in the light of a countervailing and even irresistible, specific, clear,
demandable, and enforceable right asserted by a Filipino.

Deteriorating political, social, economic or exceptional conditions, if any, are not to be used as a pretext
to justify derogation of human rights. 2

As a member of the United Nations, the Philippines has obligations under its charter. By adopting the
generally accepted principles of international law as part of the law of the land, (Art. II, Sec. 2 of the
Constitution), the Philippine government cannot just pay lip service to Art. 13, par. 2 of the Universal
Declaration of Human Rights which provides that everyone has the right to leave any country, including
his own, and to return to his country. This guarantee is reiterated in Art. XII, par. 2 of the International

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Covenant on Civil and Political Rights which states that "no one shall be arbitrarily deprived of the right to
enter his own country." (Emphasis supplied) "Arbitrary" or "arbitrarily" was specifically chosen by the
drafters of the Covenant 3 hoping to protect an individual against unexpected, irresponsible or excessive
encroachment on his rights by the state based on national traditions or a particular sense of justice which
falls short of international law or standards. 4

The Solicitor General maintains that because the respondents, as alter egos of the President, have raised
the argument of "national security" and "public safety," it is the duty of this Court to unquestioningly yield
thereto, thus casting the controversy to the realm of a political question. I do not agree. I believe that it is
one case where the human and constitutional light invoked by one party is so specific, substantial and
clear that it cannot be overshadowed, much less, nullified by simplistic generalities; worse, the Court
neglects its duty under the Constitution when it allows the theory of political question to serve as a
convenient, and yet, lame excuse for evading what, to me, is its clearly pressing and demandable duty to
the Constitution.

During the oral arguments in this case, I asked the Solicitor General how one could validly defend the right
of former Senator Benigno S. Aquino, Jr., a Filipino, to return to the Philippines in 1983 and, at the same
time, credibly deny the right of Mr. Marcos, also a Filipino, to return to the Philippines in 1989. I still have
not found a satisfactory answer to that question. Instead, it has become clearer by the day that the drama
today is the same drama in 1983 with the only difference that the actors are in opposite roles, which really
makes one hope, in the national interest, that the mistake in 1983 should not be made to persist in 1989.

To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal, political or otherwise,
the following are the cogent and decisive propositions in this case —

1. Mr. Marcos is a Filipino and, as such, entitled to return to die and be buried in this country;

2. respondents have not shown any "hard evidence" or convincing proof why his right as a Filipino
to return should be denied him. All we have are general conclusions of "national security" and "public
safety" in avoidance of a specific demandable and enforceable constitutional and basic human right to
return;

3. the issue of Marcos' return to the Philippines, perhaps more than any issue today, requires of all
members of the Court, in what appears to be an extended political contest, the "cold neutrality of an
impartial judge." It is only thus that we fortify the independence of this Court, with fidelity, not to any
person, party or group but to the Constitution and only to the Constitution.

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ACCORDINGLY, I vote to GRANT the petition.

SARMIENTO, J., dissenting:

I vote to grant the petition.

The only issue that saddles the Court is simply: "whether or not, in the exercise of the powers granted by
the Constitution, the President may prohibit the Marcoses from returning to the Philippines." 1 I therefore
take exception to allusions 2 anent "the capacity of the Marcoses to stir trouble even from afar." 3 I have
legitimate reason to fear that my brethren, in passing judgment on the Marcoses (insofar as their "capacity
to stir trouble" is concerned), have overstepped the bounds of judicial restraint, or even worse, convicted
them without trial.

I also find quite strained what the majority would have as the "real issues" facing the Court: "The right to
return to one's country," pitted against "the right of travel and freedom of abode", and their supposed
distinctions under international law, as if such distinctions, under international law in truth and in fact
exist. There is only one right involved here, whether under municipal or international law: the light of
travel, whether within one's own country, or to another, and the right to return thereto. The Constitution
itself makes no distinctions; let then, no one make a distinction. Ubi lex non distinguish nec nos distinguere
debemus.

As the majority would indeed have it, the issue is one of power: Does the Executive have the power to
deny a citizen his right to travel (back to the country or to another)? It is a question that, in essence,
involves the application, and no more, of the provisions of the 1987 Constitution:

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be provided by law. 4

The majority says, with ample help from American precedents, that the President is possessed of the
power, thus:

On these premises, we hold the view that although the 1987 Constitution imposes limitations on the
exercise of specific powers of the President, it maintains intact what is traditionally considered as within
the scope of "executive power." Corollarily, the powers of the President cannot be said to be limited only

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to the specific powers enumerated in the Constitution. In other words, executive power is more than the
sum of specific powers so enumerated. 5

So also:

Faced with the problem of whether or not the time is right to allow the Marcoses to return to the
Philippines, the President is, under the Constitution, constrained to consider these basic principles in
arriving at a decision. More than that, having sworn to defend and uphold the Constitution, the President
has the obligation under the Constitution to protect the people, promote their welfare and advance the
national interest. It must be borne in mind that the Constitution, aside from being an allocation of power
is also a social contract whereby the people have surrendered their sovereign powers to the State for the
common good. Hence, lest the officers of the Government exercising the powers delegated by the people
forget and the servants of the people become rulers, the Constitution reminds everyone that "sovereignty
resides in the people and all government authority emanates from them." [Art. II, Sec. 1 . ] 6

And finally:

To the President, the problem is one of balancing the general welfare and the common good against the
exercise of rights of certain individuals. The power involved is the President's residual power to protect
the general welfare of the people. It is founded on the duty of the President, as steward of the people. To
paraphrase Theodore Roosevelt, it is not only the power of the President but also his duty to do anything
not forbidden by the Constitution or the laws that the needs of the nation demanded [See Corwin, supra,
at 153]. It is a power borne by the President's duty to preserve and defend the Constitution. It also may
be viewed as a power implicit in the President's duty to take care that the laws are faithfully executed
[See Hyman, The American President, where the author advances the view that an allowance of
discretionary power is unavoidable in any government and is best lodged in the President]. 7

I am not persuaded.

First: While the Chief Executive exercises powers not found expressly in the Charter, but has them by
constitutional implication* the latter must yield to the paramountcy of the Bill of Rights. According to
Fernando: "A regime of constitutionalism is thus unthinkable without an assurance of the primacy of a big
of rights. Precisely a constitution exists to assure that in the discharge of the governmental functions, the
dignity that is the birthright of every human being is duly safeguarded. To be true to its primordial aim a
constitution must lay down the boundaries beyond which he's forbidden territory for state action" 8

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My brethren have not demonstrated, to my satisfaction, how the President may override the direct
mandate of the fundamental law. It will not suffice, so I submit, to say that the President's plenitude of
powers, as provided in the Constitution, or by sheer constitutional implication, prevail over express
constitutional commands. "Clearly," so I borrow J.B.L. Reyes, in his own right, a titan in the field of public
law, "this argument ... rests ... not upon the text of the (Constitution] ... but upon a mere inference
therefrom." 9 For if it were, indeed, the intent of the Charter to create an exception, that is, by Presidential
action, to the right of travel or liberty of abode and of changing the same other than what it explicitly says
already ("limits prescribed by law" 10 or "upon lawful order of the court" 11 the Charter could have
specifically declared so. As it is, the lone deterrents to the right in question are: (1) decree of statute, or
(2) lawful judicial mandate. Had the Constitution intended a third exception, that is, by Presidential
initiative, it could have so averred. It would also have made the Constitution, as far as limits to the said
right are concerned, come full circle: Limits by legislative, judicial, and executive processes.

Obviously, none of the twin legal bars exist. There is no law banning the Marcoses from the country;
neither is there any court decree banishing him from Philippine territory.

It is to be noted that under the 1973 Constitution, the right to travel is worded as follows:

Sec. 5. The liberty of abode and of travel shall not be impaired except upon lawful order of the court, or
when necessary in the interest of national security, public safety, or public health. 12

Under this provision, the right may be abated: (1) upon a lawful court order, or (2) "when necessary in the
interest of national security, public safety, or public health. 13 Arguably, the provision enabled the Chief
Executive (Marcos) to moderate movement of citizens, which, Bernas says, justified such practices as
"hamletting", forced relocations, or the establishment of free-fire zones.14

The new Constitution, however, so it clearly appears, has divested the Executive's implied power. And, as
it so appears, the right may be impaired only "within the limits provided by law .15 The President is out
of the picture.

Admittedly, the Chief Executive is the "sole" judge of all matters affecting national security 16 and foreign
affairs; 17 the Bill of Rights precisely, a form of check against excesses of officialdom is, in this case, a
formidable barrier against Presidential action. (Even on matters of State security, this Constitution
prescribes limits to Executive's powers as Commander-in-Chief.)

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Second: Assuming, ex hypothesis that the President may legally act, the question that emerges is: Has it
been proved that Marcos, or his return, will, in fact, interpose a threat to the national security , public
safety, or public health?" What appears in the records are vehement insistences that Marcos does pose a
threat to the national good and yet, at the same time, we have persistent claims, made by the military top
brass during the lengthy closed-door hearing on July 25, 1989, that "this Government will not fall" should
the former first family in exile step on Philippine soil. which is which?

At any rate, it is my opinion that we can not leave that determination solely to the Chief Executive. The
Court itself must be content that the threat is not only clear, but more so, present.18

That the President "has the obligation under the Constitution to protect the people ... " 19 is an obligation
open to no doubt. But the question, and so I ask again and again, is: From whom? If we say "from Marcos,"
we unravel chinks in our political armor. It also flies in the face of claims, so confidently asserted, that
"this Government will not fall" even if we allowed Marcos to return.

It flies, finally, in the face of the fact that a good number of the henchmen trusted allies, implementors of
martial law, and pathetic parasites of the ex-first couple are, in fact, in the Government, in the comfort of
its offices, and or at the helm of its key agencies. Let us not, therefore, joke ourselves of moral factors
warranting the continued banishment of Marcos. Morality is the last refuge of the self-righteous.

Third: The problem is not of balancing the general welfare against the exercise of individual liberties. 20
As I indicated, not one shred of evidence, let alone solid evidence, other than surmises of possibilities, has
been shown to justify the 'balancing act" referred to. Worse, these conjectures contradict contentions
that as far as Philippine society is concerned, Marcos is "history".

The power of the President, so my brethren declaim, "calls for the exercise of the President's power as
protector of peace. 21

This is the self-same falsehood Marcos foisted on the Filipino people to justify the authoritarian rule. It
also means that we are no better than he has.

That "[t]he power of the President to keep the peace is not limited merely to exercising the commander-
in-chief powers in times of emergency or to leading the State against external and internal threats to its
existence" 22 is a bigger fantasy: It not only summons the martial law decisions of pre-"EDSA" (especially
with respect to the detestable Amendment No. 6), it is inconsistent with the express provisions of the
commander-in-chief clause of the 1987 Charter, a Charter that has perceptibly reduced the Executive's
powers vis-a-vis its 1973 counterpart. 23

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II.

The undersigned would be lacking in candor to conceal his dislike, to say the least, for Marcos. Because of
Marcos, the writer of it's dissent lost a son His son's only "offense" was that he openly and unabatedly
criticized the dictator, his associates, and his military machinery. He would pay dearly for it; he was
arrested and detained, without judicial warrant or decision, for seven months and seven days. He was
held incommunicado a greater part of the time, in the military stockade of Camp Crame. In his last week
in detention, he was, grudgingly, hospitalized (prison hospital) and confined for chronic asthma. The
deplorable conditions of his imprisonment exacerbated his delicate health beyond cure. He died, on
November 11, 1977, a martyr on the altar of the martial law apparatus.

The undersigned also counts himself as one of the victims of Marcos' ruthless apparatchiki. On August 14,
1979, he was, along with former President Diosdado Macapagal, and Congressmen Rogaciano Mercado
and Manuel Concordia, charged, "ASSOed"and placed under house arrest, for "inciting to sedition" and
"rumor mongering " 24 in the midst of the distribution of Ang Demokrasya Sa Pilipinas (Democracy In the
Philippines), a book extremely critical of martial rule, published by him and former Congressman
Concordia, authored by President Macapagal and translated into Tagalog by Congressman Rogaciano
Mercado. In addition, they were also all accused of libel in more than two dozens of criminal complaints
filed by the several military officers named in the "condemned" book as having violated the human rights
of dissenters, and for other crimes, in the office of the Provincial Fiscal of Rizal. It had to take the events
at "EDSA" to set them free from house arrest and these political offenses. I am for Marcos' return not
because I have a score to settle with him. Ditto's death or my arrest are scores that can not be settled.

I feel the ex-President's death abroad (presented in the dailies as 'imminent") would leave him
'unpunished for his crimes to country and countrymen. If punishment is due, let this leadership inflict it.
But let him stand trial and accord him due process.

Modesty aside, I have staunchly and consistently advocated the human right of travel and movement and
the liberty of abode. 25 We would have betrayed our own Ideals if we denied Marcos his rights. It is his
constitutional right, a right that can not be abridged by personal hatred, fear, founded or unfounded, and
by speculations of the "man's "capacity" "to stir trouble" Now that the shoe is on the other foot, let no
more of human rights violations be repeated against any one, friend or foe. In a democratic framework,
there is no this as getting even.

The majority started this inquiry on the question of power. I hold that the President, under the present
Constitution and existing laws, does not have it. Mandamus, I submit, lies.

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Narvasa, Melencio-Herrera, Gancayco, Griño- Aquino, Medialdea and Regalado, JJ., concur.

Feliciano, J., is on leave.

Separate Opinions

FERNAN, C.J., concurring:

"The threats to national security and public order are real the mounting Communist insurgency, a
simmering separatist movement, a restive studentry, widespread labor disputes, militant farmer groups.
. . . Each of these threats is an explosive ingredient in a steaming cauldron which could blow up if not
handled properly." 1

These are not my words. They belong to my distinguished colleague in the Court, Mr. Justice Hugo E.
Gutierrez, Jr. But they express eloquently the basis of my full concurrence to the exhaustive and well-
written ponencia of Mme. Justice Irene R. Cortes.

Presidential powers and prerogatives are not fixed but fluctuate. They are not derived solely from a
particular constitutional clause or article or from an express statutory grant. Their limits are likely to
depend on the imperatives of events and contemporary imponderables rather than on abstract theories
of law. History and time-honored principles of constitutional law have conceded to the Executive Branch
certain powers in times of crisis or grave and imperative national emergency. Many terms are applied to
these powers: "residual," "inherent," 44 moral," "implied," "aggregate," 'emergency." whatever they may
be called, the fact is that these powers exist, as they must if the governance function of the Executive
Branch is to be carried out effectively and efficiently. It is in this context that the power of the President
to allow or disallow the Marcoses to return to the Philippines should be viewed. By reason of its impact
on national peace and order in these admittedly critical times, said question cannot be withdrawn from
the competence of the Executive Branch to decide.

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And indeed, the return of the deposed President, his wife and children cannot but pose a clear and present
danger to public order and safety. One needs only to recall the series of destabilizing actions attempted
by the so-called Marcos loyalists as well as the ultra-rightist groups during the EDSA Revolution's
aftermath to realize this. The most publicized of these offensives is the Manila Hotel incident which
occurred barely five (5) months after the People's Power Revolution. Around 10,000 Marcos supporters,
backed by 300 loyalist soldiers led by Brigadier General Jose Zumel and Lt. Col. Reynaldo Cabauatan
converged at the Manila Hotel to witness the oath-taking of Arturo Tolentino as acting president of the
Philippines. The public disorder and peril to life and limb of the citizens engendered by this event subsided
only upon the eventual surrender of the loyalist soldiers to the authorities.

Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp Aguinaldo incidents. Military
rebels waged simultaneous offensives in different parts of Metro Manila and Sangley Point in Cavite. A
hundred rebel soldiers took over Channel 7 and its radio station DZBB. About 74 soldier rebels attacked
Villamor Air Base, while another group struck at Sangley Point in Cavite and held the 15th Air Force Strike
wing commander and his deputy hostage. Troops on board several vehicles attempted to enter Gate I of
Camp Aguinaldo even as another batch of 200 soldiers encamped at Horseshoe Village.

Another destabilization plot was carried out in April, 1987 by enlisted personnel who forced their way
through Gate 1 of Fort Bonifacio. They stormed into the army stockade but having failed to convince their
incarcerated members to unite in their cause, had to give up nine (9) hours later.

And who can forget the August 28, 1987 coup attempt which almost toppled the Aquino Government?
Launched not by Marcos loyalists, but by another ultra-rightist group in the military led by Col. Gregorio
"Gringo" Honasan who remains at large to date, this most serious attempt to wrest control of the
government resulted in the death of many civilians.

Members of the so-called Black Forest Commando were able to cart away high-powered firearms and
ammunition from the Camp Crame Armory during a raid conducted in June 1988. Most of the group
members were, however, captured in Antipolo, Rizal. The same group was involved in an unsuccessful
plot known as Oplan Balik Saya which sought the return of Marcos to the country.

A more recent threat to public order, peace and safety was the attempt of a group named CEDECOR to
mobilize civilians from nearby provinces to act as blockading forces at different Metro Manila areas for
the projected link-up of Marcos military loyalist troops with the group of Honasan. The pseudo "people
power" movement was neutralized thru checkpoints set up by the authorities along major road arteries
where the members were arrested or forced to turn back.

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While not all of these disruptive incidents may be traced directly to the Marcoses, their occurrence
militates heavily against the wisdom of allowing the Marcoses' return. Not only will the Marcoses'
presence embolden their followers toward similar actions, but any such action would be seized upon as
an opportunity by other enemies of the State, such as the Communist Party of the Philippines and the
NPA'S, the Muslim secessionists and extreme rightists of the RAM, to wage an offensive against the
government. Certainly, the state through its executive branch has the power, nay, the responsibility and
obligation, to prevent a grave and serious threat to its safety from arising.

Apparently lost amidst the debate on whether or not to allow the Marcoses to return to the Philippines is
one factor, which albeit, at first blush appears to be extra legal, constitutes a valid justification for
disallowing the requested return. I refer to the public pulse. It must be remembered that the ouster of
the Marcoses from the Philippines came about as an unexpected, but certainly welcomed, result of the
unprecedented peoples power" revolution. Millions of our people braved military tanks and firepower,
kept vigil, prayed, and in countless manner and ways contributed time, effort and money to put an end to
an evidently untenable claim to power of a dictator. The removal of the Marcoses from the Philippines
was a moral victory for the Filipino people; and the installation of the present administration, a realization
of and obedience to the people's Will.

Failing in legal arguments for the allowance of the Marcoses' return, appeal is being made to sympathy,
compassion and even Filipino tradition. The political and economic gains we have achieved during the
past three years are however too valuable and precious to gamble away on purely compassionate
considerations. Neither could public peace, order and safety be sacrificed for an individual's wish to die in
his own country. Verily in the balancing of interests, the scales tilt in favor of presidential prerogative,
which we do not find to have been gravely abused or arbitrarily exercised, to ban the Marcoses from
returning to the Philippines.

GUTIERREZ, JR., J., dissenting

"The Constitution ... is a law for rulers and people, equally in war and in peace, and covers with the shield
of its protection all classes of men, at all times, and under all circumstances. No doctrine involving more
pernicious consequences was ever invented by the wit of man than that any of its provisions can be
suspended during any of the great exigencies of government." (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed. 281
[1866])

Since our days as law students, we have proclaimed the stirring words of Ex Parte Milligan as self-evident
truth. But faced with a hard and delicate case, we now hesitate to qive substance to their meaning. The
Court has permitted a basic freedom enshrined in the Bill of Rights to be taken away by Government.

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There is only one Bill of Rights with the same interpretation of liberty and the same guarantee of freedom
for both unloved and despised persons on one hand and the rest who are not so stigmatized on the other.

I am, therefore, disturbed by the majority ruling which declares that it should not be a precedent. We are
interpreting the Constitution for only one person and constituting him into a class by himself. The
Constitution is a law for all classes of men at all times. To have a person as one class by himself smacks of
unequal protection of the laws.

With all due respect for the majority in the Court, I believe that the issue before us is one of rights and
not of power. Mr. Marcos is insensate and would not live if separated from the machines which have
taken over the functions of his kidneys and other organs. To treat him at this point as one with full panoply
of power against whom the forces of Government should be marshalled is totally unrealistic. The
Government has the power to arrest and punish him. But does it have the power to deny him his right to
come home and die among familiar surroundings?

Hence, this dissent.

The Bill of Rights provides:

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be provided by law. (Emphasis
supplied, Section 6, Art. 111, Constitution)

To have the petition dismissed, the Solicitor General repeats a ritual invocation of national security and
public safety which is hauntingly familiar because it was pleaded so often by petitioner Ferdinand E.
Marcos to justify his acts under martial law. There is, however, no showing of the existence of a law
prescribing the limits of the power to impair and the occasions for its exercise. And except for citing
breaches of law and order, the more serious of which were totally unrelated to Mr. Marcos and which the
military was able to readily quell, the respondents have not pointed to any grave exigency which permits
the use of untrammeled Governmental power in this case and the indefinite suspension of the
constitutional right to travel.

The respondents' basic argument is that the issue before us is a political question beyond our jurisdiction
to consider. They contend that the decision to ban former President Marcos, and his family on grounds of
national security and public safety is vested by the Constitution in the President alone. The determination

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should not be questioned before this Court. The President's finding of danger to the nation should be
conclusive on the Court.

What is a political question?

In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:

xxxxxxxxx

It is a well-settled doctrine that political questions are not within the province of the judiciary, except to
the extent that power to deal with such questions has been conferred on the courts by express
constitutional or statutory provisions. It is not so easy, however, to define the phrase political question,
nor to determine what matters fall within its scope. It is frequently used to designate all questions that
he outside the scope of the judicial power. More properly, however, it means those questions which,
under the constitution, are to be decided by the people in their sovereign capacity, or in regard to which
full discretionary authority has been delegated to the legislative or executive branch of the government.

We defined a political question in Taniada v. Cuenco (103 Phil. 1051, 1066 [1957]), as follows:

In short, the term 'Political question' connotes, in legal parlance, what it means in ordinary parlance,
namely, a question of policy. In other words, in the language of Corpus Juris Secundum (supra), it refers
to 'those questions which, under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated to the Legislature or
executive branch of the Government. It is concerned with issues dependent upon the wisdom, not legality,
of a particular measure.

The most often quoted definition of political question was made by Justice Wilham J. Brennan Jr., who
penned the decision of the United States Supreme Court in Baker v. Carr (369 US 186,82, S. Ct. 691, L. Ed.
2d. 663 [1962]). The ingredients of a political question as formulated in Baker v. Carr are:

It is apparent that several formulations which vary slightly according to the settings in which the questions
arise may describe a political question, which Identifies it as essentially a function of the separation of
powers. Prominent on the surface of any case held to involve a political question is found a textually
demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of
judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without

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an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's
undertaking independent resolution without expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning adherence to a political decision already made; or
potentiality of embarrassment from multifarious pronouncements by various departments on one
question.

For a political question to exist, there must be in the Constitution a power vested exclusively in the
President or Congress, the exercise of which the court should not examine or prohibit. A claim of plenary
or inherent power against a civil right which claim is not found in a specific provision is dangerous. Neither
should we validate a roving commission allowing public officials to strike where they please and to
override everything which to them represents evil. The entire Govern ment is bound by the rule of law.

The respondents have not pointed to any provision of the Constitution which commits or vests the
determination of the question raised to us solely in the President.

The authority implied in Section 6 of the Bill of Rights itself does not exist because no law has been enacted
specifying the circumstances when the right may be impaired in the interest of national security or public
safety. The power is in Congress, not the Executive.

The closest resort to a textile demonstrable constitutional commitment of power may be found in the
commander-in-chief clause which allows the President to call out the armed forces in case of lawless
violence, invasion or rebellion and to suspend the privilege of the writ of habeas corpus or proclaim
martial law in the event of invasion or rebellion, when the public safety requires it.

There is, however, no showing, not even a claim that the followers of former President Marcos are
engaging in rebellion or that he is in a position to lead them. Neither is it claimed that there is a need to
suspend the privilege of the writ of habeas corpus or proclaim martial law because of the arrival of Mr.
Marcos and his family. To be sure, there may be disturbances but not of a magnitude as would compel
this Court to resort to a doctrine of non- justiceability and to ignore a plea for the enforcement of an
express Bill of Rights guarantee.

The respondents themselves are hard-pressed to state who or what constitutes a Marcos "loyalist." The
constant insinuations that the "loyalist" group is heavily funded by Mr. Marcos and his cronies and that
the "loyalists" engaging in rallies and demonstrations have to be paid individual allowances to do so
constitute the strongest indication that the hard core "loyalists" who would follow Marcos right or wrong
are so few in number that they could not possibly destabilize the government, much less mount a serious
attempt to overthrow it.

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Not every person who would allow Mr. Marcos to come home can be tagged a "loyalist." It is in the best
of Filipino customs and traditions to allow a dying person to return to his home and breath his last in his
native surroundings. Out of the 103 Congressmen who passed the House resolution urging permission for
his return, there are those who dislike Mr. Marcos intensely or who suffered under his regime. There are
also many Filipinos who believe that in the spirit of national unity and reconciliation Mr. Marcos and his
family should be permitted to return to the Philippines and that such a return would deprive his fanatic
followers of any further reason to engage in rallies and demonstrations.

The Court, however, should view the return of Mr. Marcos and his family solely in the light of the
constitutional guarantee of liberty of abode and the citizen's right to travel as against the respondents'
contention that national security and public safety would be endangered by a grant of the petition.

Apart from the absence of any text in the Constitution committing the issue exclusively to the President,
there is likewise no dearth of decisional data, no unmanageable standards which stand in the way of a
judicial determination.

Section 6 of the Bill of Rights states categorically that the liberty of abode and of changing the same within
the limits prescribed by law may be impaired only upon a lawful order of a court. Not by an executive
officer. Not even by the President. Section 6 further provides that the right to travel, and this obviously
includes the right to travel out of or back into the Philippines, cannot be impaired except in the interest
of national security, public safety, or public health, as may be provided by law.

There is no law setting the limits on a citizen's right to move from one part of the country to another or
from the Philippines to a foreign country or from a foreign country to the Philippines. The laws cited by
the Solicitor General immigration, health, quarantine, passports, motor vehicle, destierro probation, and
parole are all inapplicable insofar as the return of Mr. Marcos and family is concerned. There is absolutely
no showing how any of these statutes and regulations could serve as a basis to bar their coming home.

There is also no disrespect for a Presidential determination if we grant the petition. We would simply be
applying the Constitution, in the preservation and defense of which all of us in Government, the President
and Congress included, are sworn to participate. Significantly, the President herself has stated that the
Court has the last word when it comes to constitutional liberties and that she would abide by our decision.

As early as 1983, it was noted that this Court has not been very receptive to the invocation of the political
question doctrine by government lawyers. (See Morales, Jr. .v Ponce Enrile, 121 SCRA 538 [1983]).

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Many of those now occupying the highest positions in the executive departments, Congress, and the
judiciary criticized this Court for using what they felt was a doctrine of convenience, expediency, utility or
subservience. Every major challenge to the acts of petitioner Ferdinand E. Marcos under his authoritarian
regime the proclamation of martial law, the ratification of a new constitution, the arrest and detention of
"enemies of the State" without charges being filed against them, the dissolution of Congress and the
exercise by the President of legislative powers, the trial of civilians for civil offenses by military tribunals,
the seizure of some of the country's biggest corporations, the taking over or closure of newspaper offices,
radio and television stations and other forms of media, the proposals to amend the Constitution, etc. was
invariably met by an invocation that the petition involved a political question. It is indeed poetic justice
that the political question doctrine so often invoked by then President Marcos to justify his acts is now
being used against him and his family. Unfortunately, the Court should not and is not allowed to indulge
in such a persiflage. We are bound by the Constitution.

The dim view of the doctrine's use was such that when the present Constitution was drafted, a broad
definition of judicial power was added to the vesting in the Supreme Court and statutory courts of said
power.

The second paragraph of Section 1, Article VIII of the Constitution provides:

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.

This new provision was enacted to preclude this Court from using the political question doctrine as a
means to avoid having to make decisions simply because they are too controversial, displeasing to the
President or Congress, inordinately unpopular, or which may be ignored and not enforced.

The framers of the Constitution believed that the free use of the political question doctrine allowed the
Court during the Marcos years to fall back on prudence, institutional difficulties, complexity of issues,
momentousness of consequences or a fear that it was extravagantly extending judicial power in the cases
where it refused to examine and strike down an exercise of authoritarian power. Parenthetically, at least
two of the respondents and their counsel were among the most vigorous critics of Mr. Marcos (the main
petitioner) and his use of the political question doctrine. The Constitution was accordingly amended. We
are now precluded by its mandate from refusing to invalidate a political use of power through a
convenient resort to the question doctrine. We are compelled to decide what would have been non-
justiceable under our decisions interpreting earlier fundamental charters.

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This is not to state that there can be no more political questions which we may refuse to resolve. There
are still some political questions which only the President, Congress, or a plebiscite may decide. Definitely,
the issue before us is not one of them.

The Constitution requires the Court "to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction."

How do we determine a grave abuse of discretion?

The tested procedure is to require the parties to present evidence. Unfortunately, considerations of
national security do not readily lend themselves to the presentation of proof before a court of justice. The
vital information essential to an objective determination is usually highly classified and it cannot be
rebutted by those who seek to overthrow the government. As early as Barcelon v. Baker (5 Phil. 87, 93
[19051), the Court was faced with a similar situation. It posed a rhetorical question. If after investigating
conditions in the Archipelago or any part thereof, the President finds that public safety requires the
suspension of the privilege of the writ of habeas corpus, can the judicial department investigate the same
facts and declare that no such conditions exist?

In the effort to follow the "grave abuse of discretion" formula in the second paragraph of Section 1, Article
VIII of the Constitution, the court granted the Solicitor General's offer that the military give us a closed
door factual briefing with a lawyer for the petitioners and a lawyer for the respondents present.

The results of the briefing call to mind the concurrence of Justice Vicente Abad Santos in Morales, Jr. v.
Enrile, (121 SCRA 538, 592 [19831):

How can this Court determine the factual basis in order that it can ascertain whether or not the president
acted arbitrarily in suspending the writ when, in the truth words of Montenegro, with its very limited
machinery fit] cannot be in better position [than the Executive Branch] to ascertain or evaluate the
conditions prevailing in the Archipelago? (At p. 887). The answer is obvious. It must rely on the Executive
Branch which has the appropriate civil and military machinery for the facts. This was the method which
had to be used in Lansang. This Court relied heavily on classified information supplied by the military.
Accordingly, an incongruous situation obtained. For this Court, relied on the very branch of the
government whose act was in question to obtain the facts. And as should be expected the Executive
Branch supplied information to support its position and this Court was in no situation to disprove them.
It was a case of the defendant judging the suit. After all is said and done, the attempt by its Court to
determine whether or not the President acted arbitrarily in suspending the writ was a useless and futile
exercise.

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There is still another reason why this Court should maintain a detached attitude and refrain from giving
the seal of approval to the act of the Executive Branch. For it is possible that the suspension of the writ
lacks popular support because of one reason or another. But when this Court declares that the suspension
is not arbitrary (because it cannot do otherwise upon the facts given to it by the Executive Branch) it in
effect participates in the decision-making process. It assumes a task which it is not equipped to handle; it
lends its prestige and credibility to an unpopular act.

The other method is to avail of judicial notice. In this particular case, judicial notice would be the only
basis for determining the clear and present danger to national security and public safety. The majority of
the Court has taken judicial notice of the Communist rebellion, the separatist movement, the rightist
conspiracies, and urban terrorism. But is it fair to blame the present day Marcos for these incidents? All
these problems are totally unrelated to the Marcos of today and, in fact, are led by people who have
always opposed him. If we use the problems of Government as excuses for denying a person's right to
come home, we will never run out of justifying reasons. These problems or others like them will always
be with us.

Significantly, we do not have to look into the factual bases of the ban Marcos policy in order to ascertain
whether or not the respondents acted with grave abuse of discretion. Nor are we forced to fall back upon
judicial notice of the implications of a Marcos return to his home to buttress a conclusion.

In the first place, there has never been a pronouncement by the President that a clear and present danger
to national security and public safety will arise if Mr. Marcos and his family are allowed to return to the
Philippines. It was only after the present petition was filed that the alleged danger to national security
and public safety conveniently surfaced in the respondents' pleadings. Secondly, President Aquino herself
limits the reason for the ban Marcos policy to-41) national welfare and interest and (2) the continuing
need to preserve the gains achieved in terms of recovery and stability. (See page 7, respondents'
Comment at page 73 of Rollo). Neither ground satisfies the criteria of national security and public safety.
The President has been quoted as stating that the vast majority of Filipinos support her position. (The
Journal, front page, January 24,1989) We cannot validate their stance simply because it is a popular one.
Supreme Court decisions do not have to be popular as long as they follow the Constitution and the law.
The President's original position "that it is not in the interest of the nation that Marcos be allowed to
return at this time" has not changed. (Manila Times, front page, February 7, 1989). On February 11, 1989,
the President is reported to have stated that "considerations of the highest national good dictate that we
preserve the substantial economic and political gains of the past three years" in justifying her firm refusal
to allow the return of Mr. Marcos despite his failing health. (Daily Globe, front page, February 15, 1989).
"Interest of the nation national good," and "preserving economic and political gains," cannot be equated
with national security or public order. They are too generic and sweeping to serve as grounds for the
denial of a constitutional right. The Bill of Rights commands that the right to travel may not be impaired
except on the stated grounds of national security, public safety, or public health and with the added

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requirement that such impairment must be "as provided by law." The constitutional command cannot be
negated by mere generalizations.

There is an actual rebellion not by Marcos followers but by the New Peoples' Army. Feeding as it does on
injustice, ignorance, poverty, and other aspects at under-development, the Communist rebellion is the
clearest and most present danger to national security and constitutional freedoms. Nobody has suggested
that one way to quell it would be to catch and exile its leaders, Mr. Marcos himself was forced to flee the
country because of "peoples' power." Yet, there is no move to arrest and exile the leaders of student
groups, teachers' organizations, pea ant and labor federations, transport workers, and government unions
whose threatened mass actions would definitely endanger national security and the stability of
government. We fail to see how Mr. Marcos could be a greater danger.

The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-soldiers, the hard core
loyalists, and other dissatisfied elements would suddenly unite to overthrow the Republic should a dying
Marcos come home is too speculative and unsubstantial a ground for denying a constitutional right. It is
not shown how extremists from the right and the left who loathe each other could find a rallying point in
the coming of Mr. Marcos.

The "confluence theory" of the Solicitor General or what the majority calls "catalytic effect," which alone
sustains the claim of danger to national security is fraught with perilous implications. Any difficult problem
or any troublesome person can be substituted for the Marcos threat as the catalysing factor. The alleged
confluence of NPAS, secessionists, radical elements, renegade soldiers, etc., would still be present.
Challenged by any critic or any serious problem, the Government can state that the situation threatens a
confluence of rebel forces and proceed to ride roughshod over civil liberties in the name of national
security. Today, a passport is denied. Tomorrow, a newspaper may be closed. Public assemblies may be
prohibited. Human rights may be violated. Yesterday, the right to travel of Senators Benigno Aquino, Jr.
and Jovito Salonga was curtailed. Today, it is the right of Mr. Marcos and family. Who will be tomorrow's
pariahs I deeply regret that the Court's decision to use the political question doctrine in a situation where
it does not apply raises all kinds of disturbing possibilities.

I must emphasize that General Renato de Villa, the Chief of Staff of the Armed Forces, has personally
assured the Court that a rebellion of the above combined groups will not succeed and that the military is
on top of the situation. Where then is the clear danger to national security? The Court has taken judicial
notice of something which even the military denies. There would be severe strains on military capabilities
according to General de Villa. There would be set-backs in the expected eradication of the Communist
threat. There would be other serious problems but all can be successfully contained by the military. I must
stress that no reference was made to a clear and present danger to national security as would allow an
overriding of the Bill of Rights.

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The Solicitor General's argument that the failure of Congress to enact a statute defining the parameters
of the right to travel and to freely choose one's abode has constrained the President to fill in the vacuum,
is too reminiscent of Amendment No. 6 of the martial law Constitution to warrant serious consideration.
Amendment No. 6 allowed Marcos to issue decrees whenever the Batasang Pambansa failed or was
unable to act adequately on any matter for any reason that in his judgment required immediate action.
When the Bill of Rights provides that a right may not be impaired except in the interest of national security,
public safety, or public health and further requires that a law must provide when such specifically defined
interests are prejudiced or require protection, the inaction of Congress does not give reason for the
respondents to assume the grounds for its impairment.

The fact that the Marcoses have been indicted before American federal courts does not obstruct us from
ruling against an unconstitutional assertion of power by Philippine officials. Let the United States apply its
laws. We have to be true to our own.

Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The agony of traveling while
hooked up to machines which have taken over the functions of his heart, lungs, and kidneys may hasten
his death. The physical condition of Mr. Marcos does not justify our ignoring or refusing to act on his claim
to a basic right which is legally demandable and enforceable. For his own good, it might be preferable to
stay where he is. But he invokes a constitutional right. We have no power to deny it to him.

The issuance of a passport may be discretionary but it should not be withheld if to do so would run counter
to a constitutional guarantee. Besides, the petitioners are not asking for passports and nothing else. Any
travel documents or any formal lifting of the Marcos ban as would allow international airlines to sell them
tickets would suffice.

With all due respect for the majority opinion, I disagree with its dictum on the right to travel. I do not
think we should differentiate the right to return home from the right to go abroad or to move around in
the Philippines. If at all, the right to come home must be more preferred than any other aspect of the
right to travel. It was precisely the banning by Mr. Marcos of the right to travel by Senators Benigno
Aquino, Jr., Jovito Salonga, and scores of other "undesirables" and "threats to national security" during
that unfortunate period which led the framers of our present Constitution not only to re-enact but to
strengthen the declaration of this right. Media often asks, "what else is new?" I submit that we now have
a freedom loving and humane regime. I regret that the Court's decision in this case sets back the gains
that our country has achieved in terms of human rights, especially human rights for those whom we do
not like or those who are against us.

The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list of former dictators who
were barred by their successors from returning to their respective countries. There is no showing that the
countries involved have constitutions which guarantee the liberty of abode and the freedom to travel and

328
that despite such constitutional protections, the courts have validated the "ban a return" policy. Neither
is it shown that the successors of the listed dictators are as deeply committed to democratic principles
and as observant of constitutional protections as President Aquino.

It is indeed regrettable that some followers of the former President are conducting a campaign to sow
discord and to divide the nation. Opposition to the government no matter how odious or disgusting is,
however, insufficient ground to ignore a constitutional guarantee.

During the protracted deliberations on this case, the question was asked is the Government helpless to
defend itself against a threat to national security? Does the President have to suspend the privilege of the
writ of habeas corpus or proclaim martial law? Can she not take less drastic measures?

Of course, the Government can act. It can have Mr. Marcos arrested and tried in court. The Government
has more than ample powers under eixisting law to deal with a person who transgresses the peace and
imperils public safety. But the denial of travel papers is not one of those powers because the Bill of Rights
says so. There is no law prescribing exile in a foreign land as the penalty for hurting the Nation.

Considering all the foregoing, I vote to GRANT the petition.

CRUZ, J., dissenting:

It is my belief that the petitioner, as a citizen of the Philippines, is entitled to return to and live-and die-in
his own country. I say this with a heavy heart but say it nonetheless. That conviction is not diminished one
whit simply because many believe Marcos to be beneath contempt and undeserving of the very liberties
he flounted when he was the absolute ruler of this land.

The right of the United States government to detain him is not the question before us, nor can we resolve
it. The question we must answer is whether or not, assuming that Marcos is permitted to leave Hawaii
(which may depend on the action we take today), the respondents have acted with grave abuse of
discretion in barring him from his own country.

My reluctant conclusion is that they have, absent the proof they said they were prepared to offer, but
could not, that the petitioner's return would prejudice the security of the State.

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I was the one who, in the open hearing held on June 27,1989, asked the Solicitor General if the
government was prepared to prove the justification for opposing the herein petition, i. that it had not
acted arbitrarily. He said it was. Accordingly, the Court, appreciating the classified nature of the
information expected, scheduled a closed-door hearing on July 25,1988. The Solicitor General and three
representatives from the military appeared for the respondents, together with former Senator Arturo M.
Tolentino, representing the petitioners.

In about two hours of briefing, the government failed dismally to show that the return of Marcos dead or
alive would pose a threat to the national security as it had alleged. The fears expressed by its
representatives were based on mere conjectures of political and economic destabilization without any
single piece of concrete evidence to back up their apprehensions.

Amazingly, however, the majority has come to the conclusion that there exist "factual bases for the
President's decision" to bar Marcos's return. That is not my recollection of the impressions of the Court
after that hearing.

In holding that the President of the Philippines has residual powers in addition to the specific powers
granted by the Constitution, the Court is taking a great leap backward and reinstating the discredited
doctrine announced in Planas v. Gil (67 Phil. 62). This does not square with the announced policy of the
Constitutional Commission, which was precisely to limit rather than expand presidential powers, as a
reaction to the excesses of the past dictatorship.

I can only repeat Justice Black's wry observation in the Steel Seizure Case (343 U.S. 579) that if it was true
that the President had been granted the totality of executive power, "it is difficult to see why our
forefathers bothered to add several specific items, including some trifling ones, . . . I cannot accept the
view that this clause is a grant in bulk of all conceivable executive power but regard it as an allocation to
the presidential office of the generic powers thereafter stated."

I have no illusion that the stand I am taking will be met with paeans of praise, considering that Marcos is
perhaps the most detested man in the entire history of our country. But we are not concerned here with
popularity and personalities. As a judge, I am not swayed by what Justice Cardozo called the "hooting
throng" that may make us see things through the prisms of prejudice. I bear in mind that when I sit in
judgment as a member of this Court, I must cast all personal feelings aside.

The issue before us must be resolved with total objectivity, on the basis only of the established facts and
the applicable law and not of wounds that still fester and scars that have not healed. And not even of fear,
for fear is a phantom. That phantom did not rise when the people stood fast at EDSA against the threat of
total massacre in defense at last of their freedom.

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I cannot turn back on the lessons of liberty that I taught for more than three decades as a professor of
Constitutional Law. These principles have not changed simply because I am now on the Court or a new
administration is in power and the shoe is on the other foot.

Like the martyred Ninoy Aquino who also wanted to come back to the Philippines against the prohibitions
of the government then, Marcos is entitled to the same right to travel and the liberty of abode that his
adversary invoked. These rights are guaranteed by the Constitution to all individuals, including the patriot
and the homesick and the prodigal son returning, and tyrants and charlatans and scoundrels of every
stripe.

I vote to grant the petition.

PARAS, J., dissenting:

I dissent. Already, some people refer to us as a nation without discipline. Are we ready to be also called a
society without compassion?

The issue as to whether or not former President Ferdinand E. Marcos should be allowed to return to the
Philippines may be resolved by answering two simple questions: Does he have the right to return to his
own country and should national safety and security deny him this right?

There is no dispute that the former President is still a Filipino citizen and both under the Universal
Declaration of Human Rights and the 1987 Constitution of the Philippines, he has the right to return to his
own country except only if prevented by the demands of national safety and national security.

Our Armed Forces have failed to prove this danger. They are bereft of hard evidence, and all they can rely
on is sheer speculation. True, there is some danger but there is no showing as to the extent.

It is incredible that one man alone together with his family, who had been ousted from this country by
popular will, can arouse an entire country to rise in morbid sympathy for the cause he once espoused.

It is therefore clear to me, all other opinions to the contrary notwithstanding, that the former President
should be allowed to return to our country under the conditions that he and the members of his family

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be under house arrest in his hometown in Ilocos Norte, and should President Marcos or any member of
his family die, the body should not be taken out of the municipality of confinement and should be buried
within ten (10) days from date.

If we do this, our country shall have maintained its regard for fundamental human rights, for national
discipline, and for human compassion.

PADILLA, J., dissenting:

I dissent. As I see it, the core issue in this case is, which right will prevail in the conflict between the right
of a Filipino, Ferdinand E. Marcos, to return to the Philippines, and the right of the Philippine Government
to bar such return in the interest of national security and public safety. In this context, the issue is clearly
justiciable involving, as it does, colliding assertions of individual right and governmental power. Issues of
this nature more than explain why the 1986 Constitutional Commission, led by the illustrious former Chief
Justice Roberto Concepcion, incorporated in the 1987 Constitution, the new provision on the power of
Judicial Review, viz:

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. Article VIII, Section 1, par. 2; (Emphasis supplied)

Mr. Marcos invokes in his favor the specific and precise constitutional right of every Filipino to travel
which, in the language of the Constitution, shall not be impaired "except in the interest of national
security, public safety, or public health, as may be provided by law" (Art. III, Sec. 6). That the right to travel
comprises the right to travel within the country, to travel out of the country and to return to the country
(Philippines), is hardly disputable. Short of all such components, the right to travel is meaningless. The
real question arises in the interpretation of the qualifications attached by the Constitution to such right
to travel.

Petitioners contend that, in the absence of restricting legislation, the right to travel is absolute. I do not
agree. It is my view that, with or without restricting legislation, the interest of national security, public
safety or public health can justify and even require restrictions on the right to travel, and that the clause
"as may be provided by law" contained in Article III, Section 6 of the 1987 Constitution merely declares a
constitutional leave or permission for Congress to enact laws that may restrict the right to travel in the
interest of national security, public safety or public health. I do not, therefore, accept the petitioners'
submission that, in the absence of enabling legislation, the Philippine Government is powerless to restrict
travel even when such restriction is demanded by national security, public safety or public health, The

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power of the State, in particular cases, to restrict travel of its citizens finds abundant support in the police
power of the state wich may be exercised to preserve and maintain government as well as promote the
general welfare of the greatest number of people.

And yet, the power of the State, acting through a government in authority at any given time, to restrict
travel, even if founded on police power, cannot be absolute and unlimited under all circumstances, much
less, can it be arbitrary and irrational.

Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific constitutional right, i.e., the
right to return to the country. 1 Have the respondents presented sufficient evidence to offset or override
the exercise of this right invoked by Mr. Marcos? Stated differently, have the respondents shown to the
Court sufficient factual bases and data which would justify their reliance on national security and public
safety in negating the right to return invoked by Mr. Marcos?

I have given these questions a searching examination. I have carefully weighed and assessed the "briefing"
given the Court by the highest military authorities of the land last 28 July 1989. 1 have searched, but in
vain, for convincing evidence that would defeat and overcome the right of Mr. Marcos as a Filipino to
return to this country. It appears to me that the apprehensions entertained and expressed by the
respondents, including those conveyed through the military, do not, with all due respect, escalate to
proportions of national security or public safety. They appear to be more speculative than real, obsessive
rather than factual. Moreover, such apprehensions even if translated into realities, would be "under
control," as admitted to the Court by said military authorities, given the resources and facilities at the
command of government. But, above all, the Filipino people themselves, in my opinion, will know how to
handle any situation brought about by a political recognition of Mr. Marcos' right to return, and his actual
return, to this country. The Court, in short, should not accept respondents' general apprehensions,
concerns and perceptions at face value, in the light of a countervailing and even irresistible, specific, clear,
demandable, and enforceable right asserted by a Filipino.

Deteriorating political, social, economic or exceptional conditions, if any, are not to be used as a pretext
to justify derogation of human rights. 2

As a member of the United Nations, the Philippines has obligations under its charter. By adopting the
generally accepted principles of international law as part of the law of the land, (Art. II, Sec. 2 of the
Constitution), the Philippine government cannot just pay lip service to Art. 13, par. 2 of the Universal
Declaration of Human Rights which provides that everyone has the right to leave any country, including
his own, and to return to his country. This guarantee is reiterated in Art. XII, par. 2 of the International
Covenant on Civil and Political Rights which states that "no one shall be arbitrarily deprived of the right to
enter his own country." (Emphasis supplied) "Arbitrary" or "arbitrarily" was specifically chosen by the
drafters of the Covenant 3 hoping to protect an individual against unexpected, irresponsible or excessive

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encroachment on his rights by the state based on national traditions or a particular sense of justice which
falls short of international law or standards. 4

The Solicitor General maintains that because the respondents, as alter egos of the President, have raised
the argument of "national security" and "public safety," it is the duty of this Court to unquestioningly yield
thereto, thus casting the controversy to the realm of a political question. I do not agree. I believe that it is
one case where the human and constitutional light invoked by one party is so specific, substantial and
clear that it cannot be overshadowed, much less, nullified by simplistic generalities; worse, the Court
neglects its duty under the Constitution when it allows the theory of political question to serve as a
convenient, and yet, lame excuse for evading what, to me, is its clearly pressing and demandable duty to
the Constitution.

During the oral arguments in this case, I asked the Solicitor General how one could validly defend the right
of former Senator Benigno S. Aquino, Jr., a Filipino, to return to the Philippines in 1983 and, at the same
time, credibly deny the right of Mr. Marcos, also a Filipino, to return to the Philippines in 1989. I still have
not found a satisfactory answer to that question. Instead, it has become clearer by the day that the drama
today is the same drama in 1983 with the only difference that the actors are in opposite roles, which really
makes one hope, in the national interest, that the mistake in 1983 should not be made to persist in 1989.

To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal, political or otherwise,
the following are the cogent and decisive propositions in this case-

1. Mr. Marcos is a Filipino and, as such, entitled to return to die and be buried in this country;

2. respondents have not shown any "hard evidence" or con- vincing proof why his right as a Filipino
to return should be denied him. All we have are general conclusions of "national security" and "public
safety" in avoidance of a specific demandable and enforceable constitutional and basic human right to
return;

3. the issue of Marcos' return to the Philippines, perhaps more than any issue today, requires of all
members of the Court, in what appears to be an extended political contest, the "cold neutrality of an
impartial judge." It is only thus that we fortify the independence of this Court, with fidelity, not to any
person, party or group but to the Constitution and only to the Constitution.

ACCORDINGLY, I vote to GRANT the petition.

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SARMIENTO, J., dissenting:

I vote to grant the petition.

The only issue that saddles the Court is simply: "whether or not, in the exercise of the powers granted by
the Constitution, the President may prohibit the Marcoses from returning to the Philippines." 1 I therefore
take exception to allusions 2 anent "the capacity of the Marcoses to stir trouble even from afar." 3 I have
legitimate reason to fear that my brethren, in passing judgment on the Marcoses (insofar as their "capacity
to stir trouble" is concerned), have overstepped the bounds of judicial restraint, or even worse, convicted
them without trial.

I also find quite strained what the majority would have as the "real issues" facing the Court: "The right to
return to one's country," pitted against "the right of travel and freedom of abode", and their supposed
distinctions under international law, as if such distinctions, under international law in truth and in fact
exist. There is only one right involved here, whether under municipal or international law: the light of
travel, whether within one's own country, or to another, and the right to return thereto. The Constitution
itself makes no distinctions; let then, no one make a distinction. Ubi lex non distinguish nec nos distinguere
debemus.

As the majority would indeed have it, the issue is one of power: Does the Executive have the power to
deny a citizen his right to travel (back to the country or to another)? It is a question that, in essence,
involves the application, and no more, of the provisions of the 1987 Constitution:

Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety, or public health, as may be provided by law. 4

The majority says, with ample help from American precedents, that the President is possessed of the
power, thus:

On these premises, we hold the view that although the 1987 Constitution imposes limitations on the
exercise of specific powers of the President, it maintains intact what is traditionally considered as within
the scope of "executive power." Corollarily, the powers of the President cannot be said to be limited only
to the specific powers enumerated in the Constitution. In other words, executive power is more than the
sum of specific powers so enumerated. 5

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So also:

Faced with the problem of whether or not the time is right to allow the Marcoses to return to the
Philippines, the President is, under the Constitution, constrained to consider these basic principles in
arriving at a decision. More than that, having sworn to defend and uphold the Constitution, the President
has the obligation under the Constitution to protect the people, promote their welfare and advance the
national interest. It must be borne in mind that the Constitution, aside from being an allocation of power
is also a social contract whereby the people have surrendered their sovereign powers to the State for the
common good. Hence, lest the officers of the Government exercising the powers delegated by the people
forget and the servants of the people become rulers, the Constitution reminds everyone that "sovereignty
resides in the people and all government authority emanates from them." [Art. II, Sec. 1 . ] 6

And finally:

To the President, the problem is one of balancing the general welfare and the common good against the
exercise of rights of certain individuals. The power involved is the President's residual power to protect
the general welfare of the people. It is founded on the duty of the President, as steward of the people. To
paraphrase Theodore Roosevelt, it is not only the power of the President but also his duty to do anything
not forbidden by the Constitution or the laws that the needs of the nation demanded [See Corwin, supra,
at 153]. It is a power borne by the President's duty to preserve and defend the Constitution. It also may
be viewed as a power implicit in the President's duty to take care that the laws are faithfully executed
[See Hyman, The American President, where the author advances the view that an allowance of
discretionary power is unavoidable in any government and is best lodged in the President]. 7

I am not persuaded.

First: While the Chief Executive exercises powers not found expressly in the Charter, but has them by
constitutional implication* the latter must yield to the paramountcy of the Bill of Rights. According to
Fernando: "A regime of constitutionalism is thus unthinkable without an assurance of the primacy of a big
of rights. Precisely a constitution exists to assure that in the discharge of the governmental functions, the
dignity that is the birthright of every human being is duly safeguarded. To be true to its primordial aim a
constitution must lay down the boundaries beyond which he's forbidden territory for state action" 8

My brethren have not demonstrated, to my satisfaction, how the President may override the direct
mandate of the fundamental law. It will not suffice, so I submit, to say that the President's plenitude of

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powers, as provided in the Constitution, or by sheer constitutional implication, prevail over express
constitutional commands. "Clearly," so I borrow J.B.L. Reyes, in Ms own right, a titan in the field of public
law, "this argument ... rests ... not upon the text of the (Constitution] ... but upon a mere inference
therefrom." 9 For if it were, indeed, the intent of the Charter to create an exception, that is, by Presidential
action, to the right of travel or liberty of abode and of changing the same other than what it explicitly says
already ("limits prescribed by law" 10 or "upon lawful order of the court" 11 the Charter could have
specifically declared so. As it is, the lone deterrents to the right in question are: (1) decree of statute, or
(2) lawful judicial mandate. Had the Constitution intended a third exception, that is, by Presidential
initiative, it could have so averred. It would also have made the Constitution, as far as limits to the said
right are concerned, come full circle: Limits by legislative, judicial, and executive processes.

Obviously, none of the twin legal bars exist. There is no law banning the Marcoses from the country;
neither is there any court decree banishing him from Philippine territory.

It is to be noted that under the 1973 Constitution, the right to travel is worded as follows:

Sec. 5. The liberty of abode and of travel shall not be impaired except upon lawful order of the court, or
when necessary in the interest of national security, public safety, or public health. 12

Under this provision, the right may be abated: (1) upon a lawful court order, or (2) "when necessary in the
interest of national security, public safety, or public health. 13 Arguably, the provision enabled the Chief
Executive (Marcos) to moderate movement of citizens, which, Bernas says, justified such practices as
"hamletting", forced relocations, or the establishment of free-fire zones.14

The new Constitution, however, so it clearly appears, has divested the Executive's implied power. And, as
it so appears, the right may be impaired only "within the limits provided by law .15 The President is out
of the picture.

Admittedly, the Chief Executive is the "sole" judge of all matters affecting national security 16 and foreign
affairs; 17 the Bill of Rights precisely, a form of check against excesses of officialdom is, in this case, a
formidable barrier against Presidential action. (Even on matters of State security, this Constitution
prescribes limits to Executive's powers as Commander-in-Chief.)

Second: Assuming, ex hypothesis that the President may legally act, the question that emerges is: Has it
been proved that Marcos, or his return, will, in fact, interpose a threat to the national security , public
safety, or public health?" What appears in the records are vehement insistences that Marcos does pose a
threat to the national good and yet, at the same time, we have persistent claims, made by the military top

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brass during the lengthy closed-door hearing on July 25, 1989, that "this Government will not fall" should
the former first family in exile step on Philippine soil. which is which?

At any rate, it is my opinion that we can not leave that determination solely to the Chief Executive. The
Court itself must be content that the threat is not only clear, but more so, present.18

That the President "has the obligation under the Constitution to protect the people ... " 19 is an obligation
open to no doubt. But the question, and so I ask again and again, is: From whom? If we say "from Marcos,"
we unravel chinks in our political armor. It also flies in the face of claims, so confidently asserted, that
"this Government will not fall" even if we allowed Marcos to return.

It flies, finally, in the face of the fact that a good number of the henchmen trusted allies, implementors of
martial law, and pathetic parasites of the ex-first couple are, in fact, in the Government, in the comfort of
its offices, and or at the helm of its key agencies. Let us not, therefore, joke ourselves of moral factors
warranting the continued banishment of Marcos. Morality is the last refuge of the self-righteous.

Third: The problem is not of balancing the general welfare against the exercise of individual liberties. 20
As I indicated, not one shred of evidence, let alone solid evidence, other than surmises of possibilities, has
been shown to justify the 'balancing act" referred to. Worse, these conjectures contradict contentions
that as far as Philippine society is concerned, Marcos is "history".

The power of the President, so my brethren declaim, "calls for the exercise of the President's power as
protector of peace. 21

This is the self-same falsehood Marcos foisted on the Filipino people to justify the authoritarian rule. It
also means that we are no better than he has.

That "[t]he power of the President to keep the peace is not limited merely to exercising the commander-
in-chief powers in times of emergency or to leading the State against external and internal threats to its
existence" 22 is a bigger fantasy: It not only summons the martial law decisions of pre-"EDSA" (especially
with respect to the detestable Amendment No. 6), it is inconsistent with the express provisions of the
commander-in-chief clause of the 1987 Charter, a Charter that has perceptibly reduced the Executive's
powers vis-a-vis its 1973 counterpart. 23

II.

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The undersigned would be lacking in candor to conceal his dislike, to say the least, for Marcos. Because of
Marcos, the writer of it's dissent lost a son His son's only "offense" was that he openly and unabatedly
criticized the dictator, his associates, and his military machinery. He would pay dearly for it; he was
arrested and detained, without judicial warrant or decision, for seven months and seven days. He was
held incommunicado a greater part of the time, in the military stockade of Camp Crame. In his last week
in detention, he was, grudgingly, hospitalized (prison hospital) and confined for chronic asthma. The
deplorable conditions of his imprisonment exacerbated his delicate health beyond cure. He died, on
November 11, 1977, a martyr on the altar of the martial law apparatus.

The undersigned also counts himself as one of the victims of Marcos' ruthless apparatchiki. On August 14,
1979, he was, along with former President Diosdado Macapagal, and Congressmen Rogaciano Mercado
and Manuel Concordia, charged, "ASSOed"and placed under house arrest, for "inciting to sedition" and
"rumor mongering " 24 in the midst of the distribution of Ang Demokrasya Sa Pilipinas (Democracy In the
Philippines), a book extremely critical of martial rule, published by him and former Congressman
Concordia, authored by President Macapagal and translated into Tagalog by Congressman Rogaciano
Mercado. In addition, they were also all accused of libel in more than two dozens of criminal complaints
filed by the several military officers named in the "condemned" book as having violated the human rights
of dissenters, and for other crimes, in the office of the Provincial Fiscal of Rizal. It had to take the events
at "EDSA" to set them free from house arrest and these political offenses. I am for Marcos' return not
because I have a score to settle with him. Ditto's death or my arrest are scores that can not be settled.

I feel the ex-President's death abroad (presented in the dailies as 'imminent") would leave him
'unpunished for Ms crimes to country and countrymen. If punishment is due, let this leadership inflict it.
But let him stand trial and accord him due process.

Modesty aside, I have staunchly and consistently advocated the human right of travel and movement and
the liberty of abode. 25 We would have betrayed our own Ideals if we denied Marcos his rights. It is his
constitutional right, a right that can not be abridged by personal hatred, fear, founded or unfounded, and
by speculations of the "man's "capacity" "to stir trouble" Now that the shoe is on the other foot, let no
more of human rights violations be repeated against any one, friend or foe. In a democratic framwork,
there is no this as getting even.

The majority started this inquiry on the question of power. I hold that the President, under the present
Constitution and existing laws, does not have it. Mandamus, I submit, lies.

Narvasa, Melencio-Herrera, Gancayco, Griño- Aquino, Medialdea and Regalado, JJ., concur.

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Feliciano, J., is on leave.

Footnotes

** The Philippine presidency under the 1935 Constitution was patterned in large measure after the
American presidency. But at the outset, it must be pointed out that the Philippine government established
under the constitutions of 1935, 1973 and 1987 is a unitary government with general powers unlike that
of the United States which is a federal government with limited and enumerated powers. Even so, the
powers of the president of the United States have through the years grown, developed and taken shape
as students of that presidency have demonstrated.

FERNAN, C. J.:

1 From the speech "Restrictions on Human Rights-States of Emergency, National Security, Public
Safety and Public Order" delivered at the Lawasia Seminar on Human Rights, Today and Tomorrow: The
Role of Human Rights Commissions and Other Organs, at the Manila Hotel on August 27, 1988.

CRUZ, J.

1 In addition, he invokes the right as a basic human right recognized by the Universal Declaration
ration of Human Rights. ni

2 S.P. Marks, Principles and Norms of Human Rights Applicable in Emergency Situations: Under
development, Catastrophies and Armed Conflicts, The International Dimensions of Human Rights, Vol. 1
Unesco, 1982, pp. 175-204.

3 P. Hassan, The Word "Arbitrary" as used in the Universal Declaration of Human Rights: "Illegal or Unjust",
10 Harv Int. L.J., p. 225 (1969). 4 FC Newman and IC Vasak Civil and Political Rights, The International
Dimensions of Human Rights, pp. 135-166.

4 F.C. Newman and K.Vasak and Poitical Rights, The International Dimensions of Human Rights, pp.
135-166.5as to whether the U.S. Federal Government will allow Mr. Marcos to leave the United States, is
beyond the issues in this case; similarly, as to how the Philippine government should deal with Mr. Marcos
upon his return is also outside of the issues in this case.

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5 As to whether the U.S. Federal Government will allow Mr. Marcos to leave the United States, is beyond
the issues in this case; similarly, as to how the Philippine Government should deal with Mr. Marcos upon
his return is also outside of the issues in this case.

SARMIENTO, J.:

1 Decision, 4.

2 See supra, 1-4.

3 Supra, 2.

4 CONST., art. Ill, see. 6.

5 Decision, supra, 18; emphasis in the original.

6 Supra, 20-21.

7 Supra, 21-22.

* But see Cruz, J., Dissenting.

8 FERNANDO, THE BILL OF RIGHTS, 4 (1972 ed.).

9 Republic v. Quasha, No L-30299, Aug. 17, 1972, 46 SCRA 160,169.

10 CONST., supra.

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11 Supra.

12 CONST. (1973), art. IV, sec. 5.

13 Supra.

14 See BERNAS, THE CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES, 263 (1987 ED.)

15 CONST. (1987), art III, sec. 6, supra.

16 See Supra ,Aart VII, sec 18.

17 See Go Tek v. Deportation Board , No. L-23846, September 9, 1977, 79 scra 17.

18 See Lansang v. Garcia, Nos. L-33964, 33965, 33973, 33982, 34004, 34013, 34039, 34265, and 34339,
December 11, 1971, 42 SCRA 448, 480.

19 Decision, supra, 21.

20 Supra.

21 Supra.

22 Supra, 22.

23 Abraham ("Ditto") Sarmiento, Jr., then Editor-in-Chief, Philippine Collegian (1975-1976), official
student organ of the University of the philippines. He was detained in the military stockade for
commoncriminals from Jan. to Aug, 1976.

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24 SPI No. 79-347 ("For: Violation of Presidential Decree No. 90 and Article 142 of the Revised Penal Code,
as amended the JG.R. No. 54180, Diosdado Macapagal, Rogaciano M. Mercado, Manuel A. Concordia, and
Abraham F. Sarmiento, Petitioners, vs- The Preliminary Investigating Panel in SPI No. 79-347 [Hamilton B.
Dimaya Brigadier General, AFP, The Judge Advocate General, Chairman; Leon 0. Ridao Colonel, JAGS GSC
Deputy Judge Advocate General, Member; and Amor B. Felipe, Colonel, JAGS (GSC) Executive Officer,
Member], and the Minister of National Defense, Respondent Supreme Court.

25 See Santos v. The Special Commottee on Travel, et al., G.R. No. L-45748, June 28, 1977, of which
the undersigned was the counsel of the petitioner.

The Lawphil Project - Arellano Law Foundation

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