Beruflich Dokumente
Kultur Dokumente
What appears very evident from this is that respondent has absolutely not the slightest
intention to reside in Sta. Rosa permanently.
This ineluctably confirms that respondent has not developed animus manendi over the
latter place, Sta. Rosa[,] and that he has not actually abandoned his old domicile of origin
in Pagsanjan. 29
As for the third BHW witness, Flocerfina Torres, the HRET gives credence to her
testimony that she conducted a household census in Villa de Toledo every three months,
but not once had she seen petitioner in the alleged Sta. Rosa residence, and that she was
advised by petitioner to proceed to his house in Cabuyao, Laguna when she had
attempted to solicit from petitioner at his "Rafter's establishment because it was near her
residence in Sta. Rosa." From the foregoing testimonies, the HRET found in the
questioned Decision that:
The uniform testimony of our 3 BHW witnesses disputing the physical presence of the
respondent at his claimed Toledo address during all the time that they were performing
their routine duties at that community, and which encompassed the period of "1 year and
2 months before the May 14, 2007 election", revealed that he was not staying in Sta.
Rosa. 30 DHIcET
The HRET likewise contends that the fact that petitioner registered as a voter in Sta. Rosa
does not prove that he is a resident thereat, given that a voter is required to reside in the
place wherein he proposes to vote only for six months preceding the election.
The HRET avers that this Court had explained the importance of property ownership in
Aquino v. COMELEC, et al. 31 and finds no merit in petitioner's insistence that the will
of the electorate attests to his residence in Sta. Rosa because, the HRET further avers,
"[a] disqualified candidate cannot assume office." 32
The HRET likewise contends that the purpose of the residency requirement is to ensure
that the person elected is familiar with the needs and problems of his constituency.
The issues for determination are: (1) whether the HRET had jurisdiction over the case;
and (2) whether petitioner sufficiently complied with the one-year residency requirement
to be a Member of the House of Representatives, as provided in the 1987 Constitution.
IETCAS
The first issue is procedural and involves the jurisdiction of the HRET vis-à-vis that of
the COMELEC in cases involving the qualification of Members of the House of
Representatives. Petitioner suggests that the matters raised in HRET Case No. 07-034
were already passed upon by the COMELEC in SPA No. 07-046 (PES), thus the HRET
should have dismissed the case for forum-shopping.
We do not agree. The 1987 Constitution explicitly provides under Article VI, Section 17
thereof that the HRET and the Senate Electoral Tribunal (SET) shall be the sole judges of
all contests relating to the election, returns, and qualifications of their respective
members. The authority conferred upon the Electoral Tribunal is full, clear and complete.
The use of the word sole emphasizes the exclusivity of the jurisdiction of these Tribunals,
33 which is conferred upon the HRET and the SET after elections and the proclamation
of the winning candidates. A candidate who has not been proclaimed and who has not
taken his oath of office cannot be said to be a member of the House of Representatives.
34
Thus, private respondent correctly pointed out that a petition for quo warranto is within
the exclusive jurisdiction of the HRET, and cannot be considered forum shopping even if,
as in this case, the COMELEC had already passed upon in administrative or quasi-
judicial proceedings the issue of the qualification of the Member of the House of
Representatives while the latter was still a candidate. cSDHEC
Anent the second issue pertaining to petitioner's compliance with the residency
requirement for Members of the House of Representatives, after studying the evidence
submitted by the parties, we find for petitioner, taking into account our ruling in Frivaldo
v. COMELEC, 35 which reads in part:
This Court has time and again liberally and equitably construed the electoral laws of our
country to give fullest effect to the manifest will of our people, for in case of doubt,
political laws must be interpreted to give life and spirit to the popular mandate freely
expressed through the ballot. Otherwise stated, legal niceties and technicalities cannot
stand in the way of the sovereign will. . . . (Emphasis supplied)
For the foregoing reason, the Court must exercise utmost caution before disqualifying a
winning candidate, shown to be the clear choice of the constituents that he wishes to
represent in Congress.
The qualifications of a member of the House of Representatives are found in Article VI,
Section 6 of the Constitution, which provides: HDacIT
Section 6. No person shall be a Member of the House of Representatives unless he is
a natural-born citizen of the Philippines and, on the day of the election, is at least twenty-
five years of age, able to read and write, and, except the party-list representatives, a
registered voter in the district in which he shall be elected, and a resident thereof for a
period of not less than one year immediately preceding the day of the election. (Emphasis
supplied)
We find the interpretation of the HRET of the residency requirement under the
Constitution to be overly restrictive and unwarranted under the factual circumstances of
this case.
The evidence presented by private respondent before the HRET hardly suffices to prove
that petitioner failed to comply with the one-year residency requirement under the
Constitution. Private respondent's documentary evidence to disqualify petitioner mainly
consisted of (a) petitioner's certificates of candidacy (COCs) for various positions in
1998, 2001 and 2004, which all indicated his residence as Pagsanjan, Laguna within the
Fourth District of said province; (b) his application for a driver's license in August 2005
that indicated Pagsanjan, Laguna as his residence; and (c) the statement in his COCs
including his 2007 COC for Congressman for the First District of Laguna that his place
of birth was Pagsanjan, Laguna. CSIDEc
The only thing these pieces of documentary evidence prove is that petitioner's domicile of
origin was Pagsanjan, Laguna and it remained his domicile up to 2005, at the latest. On
the other hand, what petitioner asserted in his 2007 COC is that he had been a resident of
Sta. Rosa, Laguna in the First District of Laguna as of February 2006 and respondent's
evidence failed contradict that claim.
If it is true that petitioner and his family had been living in Sta. Rosa, Laguna as of
February 2006 with the intent to reside therein permanently, that would more than fulfill
the requirement that petitioner be a resident of the district where he was a candidate for at
least one year before election day, which in this case was May 14, 2007.
In order to buttress his claim that he and his family actually resided in Sta. Rosa, Laguna
beginning at least in February 2006, petitioner's evidence included, among others: (a)
original and extended lease contracts for a townhouse in Villa de Toledo, Barangay
Balibago, Sta. Rosa, Laguna; (b) certification issued by the President of the Villa de
Toledo Homeowners Association, Inc, that petitioner has been a resident of said
Subdivision since February 2006; (c) affidavits of petitioner's neighbors in Villa de
Toledo attesting that petitioner has been a resident of said subdivision since February
2006; (d) certification of the barangay chairman of Barangay Balibago, Sta. Rosa,
Laguna that petitioner is a resident of Villa de Toledo within the said barangay; (e)
certificates of attendance of petitioner's children in schools located in Sta. Rosa, Laguna
since 2005; and (f) DTI certificates of business issued in the name of petitioner and his
wife to show that they own and operate businesses in Sta. Rosa, Laguna since 2003.
AaSTIH
The fact that a few barangay health workers attested that they had failed to see petitioner
whenever they allegedly made the rounds in Villa de Toledo is of no moment, especially
considering that there were witnesses (including petitioner's neighbors in Villa de
Toledo) that were in turn presented by petitioner to prove that he was actually a resident
of Villa de Toledo, in the address he stated in his COC. The law does not require a person
to be in his home twenty-four (24) hours a day, seven days a week, in order to fulfill the
residency requirement. It may be that whenever these health workers do their rounds
petitioner was out of the house to attend to his own employment or business. It is not
amiss to note that even these barangay health workers, with the exception of one, confirm
seeing petitioner's wife at the address stated in petitioner's 2007 COC. Indeed, these
health workers' testimonies do not conclusively prove that petitioner did not in fact reside
in Villa de Toledo for at least the year before election day.
Neither do we find anything wrong if petitioner sometimes transacted business or
received visitors in his Cabuyao house, instead of the alleged Sta. Rosa residence, as
there is nothing in the residency requirement for candidates that prohibits them from
owning property and exercising their rights of ownership thereto in other places aside
from the address they had indicated as their place of residence in their COC. HcSDIE
As regards the weight to be given the contract of lease vis-à-vis petitioner's previous
COCs, we find Perez v. COMELEC 36 to be instructive in this case, and quote the
pertinent portions of the decision below:
In the case at bar, the COMELEC found that private respondent changed his residence
from Gattaran to Tuguegarao, the capital of Cagayan, in July 1990 on the basis of the
following: (1) the affidavit of Engineer Alfredo Ablaza, the owner of the residential
apartment at 13-E Magallanes St., Tuguegarao, Cagayan, where private respondent had
lived in 1990; (2) the contract of lease between private respondent, as lessee, and Tomas
T. Decena, as lessor, of a residential apartment at Kamias St., Tanza, Tuguegarao,
Cagayan, for the period July 1, 1995 to June 30, 1996; (3) the marriage certificate, dated
January 18, 1998, between private respondent and Lerma Dumaguit; (4) the certificate of
live birth of private respondent's second daughter; and (5) various letters addressed to
private respondent and his family, which all show that private respondent was a resident
of Tuguegarao, Cagayan for at least one (1) year immediately preceding the elections on
May 11, 1998.
There is thus substantial evidence supporting the finding that private respondent had been
a resident of the Third District of Cagayan and there is nothing in the record to detract
from the merit of this factual finding. HTDCAS
Petitioner contends that the fact that private respondent was a resident of Gattaran, at
least until June 22, 1997, is shown by the following documentary evidence in the record,
to wit: (1) his certificates of candidacy for governor of Cagayan in the 1988, 1992 and
1995 elections; (2) his voter's registration records, the latest of which was made on June
22, 1997; and (3) the fact that private respondent voted in Gattaran, Cagayan, in the
elections of 1987, 1988, 1992 and 1995.
The contention is without merit. The fact that a person is registered as a voter in one
district is not proof that he is not domiciled in another district. Thus, in Faypon v.
Quirino, this Court held that the registration of a voter in a place other than his residence
of origin is not sufficient to consider him to have abandoned or lost his residence.
Nor is it of much importance that in his certificates of candidacy for provincial governor
in the elections of 1988, 1992, and 1995, private respondent stated that he was a resident
of Gattaran. Under the law, what is required for the election of governor is residency in
the province, not in any district or municipality, one year before the election. IaAScD
Moreover, as this Court said in Romualdez-Marcos v. COMELEC:
It is the fact of residence, not a statement in a certificate of candidacy, which ought to be
decisive in determining whether or not an individual has satisfied the constitution's
residency qualification requirement. The said statement becomes material only when
there is or appears to be a deliberate attempt to mislead, misinform, or hide a fact which
would otherwise render a candidate ineligible.
In this case, although private respondent declared in his certificates of candidacy prior to
the May 11, 1998 elections that he was a resident of Gattaran, Cagayan, the fact is that he
was actually a resident of the Third District not just for one (1) year prior to the May 11,
1998 elections but for more than seven (7) years since July 1990. His claim that he had
been a resident of Tuguegarao since July 1990 is credible considering that he was
governor from 1988 to 1998 and, therefore, it would be convenient for him to maintain
his residence in Tuguegarao, which is the capital of the province of Cagayan.
As always, the polestar of adjudication in cases of this nature is Gallego v. Vera, in which
this Court held: "[W]hen the evidence on the alleged lack of residence qualification is
weak or inconclusive and it clearly appears, as in the instant case, that the purpose of the
law would not be thwarted by upholding the right to the office, the will of the electorate
should be respected." In this case, considering the purpose of the residency requirement,
i.e., to ensure that the person elected is familiar with the needs and problems of his
constituency, there can be no doubt that private respondent is qualified, having been
governor of the entire province of Cagayan for ten years immediately before his election
as Representative of that province's Third District. 37 EcICDT
Thus, in the case above, the Court found that the affidavit of the lessor and the contract of
lease were sufficient proof that private respondent therein had changed his residence. In
the case now before us, although private respondent raised alleged formal defects in the
contract of lease, the lessor himself testified that as far as he was concerned, he and
petitioner had a valid contract and he confirmed that petitioner and his family are the
occupants of the leased premises.
Petitioner correctly pointed out that the lack of proper notarization does not necessarily
nullify nor render the parties' transaction void ab initio. In Mallari v. Alsol, we found a
contract of lease to be valid despite the non-appearance of one of the parties before a
notary public, and ruled in this wise:
Notarization converts a private document into a public document. However, the non-
appearance of the parties before the notary public who notarized the document does not
necessarily nullify nor render the parties' transaction void ab initio. Thus:
. . . Article 1358 of the New Civil Code on the necessity of a public document is only for
convenience, not for validity or enforceability. Failure to follow the proper form does not
invalidate a contract. Where a contract is not in the form prescribed by law, the parties
can merely compel each other to observe that form, once the contract has been perfected.
This is consistent with the basic principle that contracts are obligatory in whatever form
they may have been entered into, provided all essential requisites are present. cDCEHa
Hence, the Lease Contract is valid despite Mayor Perez's failure to appear before the
notary public. 38
The HRET puts undue emphasis on the fact that petitioner is only leasing a townhouse in
Sta. Rosa while he owns houses in Pagsanjan and Cabuyao. His ownership of properties
in other places has been taken to mean that petitioner did not intend to make Sta. Rosa his
permanent residence or that he had not abandoned his domicile of origin.
Although it is true that the latest acquired abode is not necessarily the domicile of choice
of a candidate, there is nothing in the Constitution or our election laws which require a
congressional candidate to sell a previously acquired home in one district and buy a new
one in the place where he seeks to run in order to qualify for a congressional seat in that
other district. Neither do we see the fact that petitioner was only leasing a residence in
Sta. Rosa at the time of his candidacy as a barrier for him to run in that district. Certainly,
the Constitution does not require a congressional candidate to be a property owner in the
district where he seeks to run but only that he resides in that district for at least a year
prior to election day. To use ownership of property in the district as the determinative
indicium of permanence of domicile or residence implies that only the landed can
establish compliance with the residency requirement. This Court would be, in effect,
imposing a property requirement to the right to hold public office, which property
requirement would be unconstitutional. AEIcSa
This case must be distinguished from Aquino v. COMELEC 39 and Domino v.
COMELEC, 40 where the disqualified candidate was shown to be merely leasing a
residence in the place where he sought to run for office. In Aquino and Domino, there
appeared to be no other material reason for the candidate to lease residential property in
the place where he filed his COC, except to fulfill the residency requirement under
election laws.
In the case at bar, there are real and substantial reasons for petitioner to establish Sta.
Rosa as his domicile of choice and abandon his domicile of origin and/or any other
previous domicile. To begin with, petitioner and his wife have owned and operated
businesses in Sta. Rosa since 2003. Their children have attended schools in Sta. Rosa at
least since 2005. Although ownership of property should never be considered a
requirement for any candidacy, petitioner had sufficiently confirmed his intention to
permanently reside in Sta. Rosa by purchasing residential properties in that city even
prior to the May 2007 election, as evidenced by certificates of title issued in the name of
petitioner and his wife. One of these properties is a residence in Bel-Air, Sta. Rosa which
petitioner acquired even before 2006 but which petitioner had been leasing out. He claims
that he rented out this property because prior to 2006 he had not decided to permanently
reside in Sta. Rosa. This could explain why in early 2006 petitioner had to rent a
townhouse in Villa de Toledo — his Bel-Air residence was occupied by a tenant. The
relatively short period of the lease was also adequately explained by petitioner — they
rented a townhouse while they were in the process of building their own house in Sta.
Rosa. True enough, petitioner and his spouse subsequently purchased a lot also in Villa
de Toledo in April 2007, about a month before election day, where they have constructed
a home for their family's use as a residence. In all, petitioner had adequately shown that
his transfer of residence to Sta. Rosa was bona fide and was not merely for complying
with the residency requirement under election laws. ESCDHA
It was incumbent upon private respondent to prove his assertion that petitioner is indeed
disqualified from holding his congressional seat. Private respondent's burden of proof
was not only to establish that petitioner's domicile of origin is different from Sta. Rosa
but also that petitioner's domicile for the one year prior to election day continued to be
Pagsanjan, Laguna which was petitioner's domicile of origin or that petitioner had chosen
a domicile other than Sta. Rosa, Laguna for that same period. In other words, to prove
petitioner's disqualification, the relevant period is the one year period prior to election
day. It would be absurd to rule that the petitioner in a quo warranto suit only needs to
prove that the candidate had some other previous domicile, regardless of how remote in
time from election day that previous domicile was established, and then the candidate
would already have the burden to prove abandonment of that previous domicile. It is the
burden of the petitioner in a quo warranto case to first prove the very fact of
disqualification before the candidate should even be called upon to defend himself with
countervailing evidence.
In our considered view, private respondent failed to discharge his burden of proof.
Petitioner's COCs for previous elections and his 2005 application for a driver's license
only proved that his domicile of origin was Pagsanjan, Laguna and it remained to be so
up to 2005. Affidavits/testimonies of respondent's witnesses, at most, tended to prove that
petitioner was on several instances found in his house in Cabuyao, Laguna, which was
not even his domicile of origin. Cabuyao, Laguna is in the Second District of Laguna
while petitioner's domicile of origin, Pagsanjan, is in the Fourth District of Laguna.
Based on private respondent's own documentary submissions, Cabuyao was never even
stated as a domicile or residence in any of the petitioner's COCs. Moreover, owning an
abode in Cabuyao where petitioner is occasionally found did not prove that Cabuyao is
petitioner's real domicile. Indeed, disregarding Cabuyao as petitioner's domicile would be
consistent with the established principle that physical presence in a place sans the intent
to permanently reside therein is insufficient to establish domicile. Neither did private
respondent's submissions refute petitioner's evidence that since February 2006 petitioner
has chosen Sta. Rosa as his domicile. ITAaHc
To summarize, private respondent's own evidence did not categorically establish where
petitioner's domicile is nor did said evidence conclusively prove that for the year prior to
the May 14, 2007 petitioner had a domicile other than where he actually resided, i.e., Sta.
Rosa, Laguna. To be sure, Gallego v. Vera 41 decreed that:
We might add that the manifest intent of the law in fixing a residence qualification is to
exclude a stranger or newcomer, unacquainted with the conditions and needs of a
community and not identified with the latter, from an elective office to serve that
community; and when the evidence on the alleged lack of residence qualification is weak
or inconclusive and it clearly appears, as in the instant case, that the purpose of the law
would not be thwarted by upholding the right to the office, the will of the electorate
should be respected. . . . (Emphasis supplied)
Frivaldo 42 likewise prescribed that:
. . . To successfully challenge a winning candidate's qualifications, the petitioner must
clearly demonstrate that the ineligibility is so patently antagonistic to constitutional and
legal principles that overriding such ineligibility and thereby giving effect to the apparent
will of the people, would ultimately create greater prejudice to the very democratic
institutions and juristic traditions that our Constitution and laws so zealously protect and
promote. . . . (Emphasis supplied) cACHSE
In Torayno, 43 the Court had the occasion to say that:
The Constitution and the law requires residence as a qualification for seeking and holding
elective public office, in order to give candidates the opportunity to be familiar with the
needs, difficulties, aspirations, potentials for growth and all matters vital to the welfare of
their constituencies; likewise, it enables the electorate to evaluate the office seekers'
qualifications and fitness for the job they aspire for. . . .
Recently, in Japzon v. COMELEC, 44 the Court, citing Papandayan, Jr. v. COMELEC,
45 said:
In Papandayan, Jr. v. Commission on Elections, the Court provided a summation of the
different principles and concepts in jurisprudence relating to the residency qualification
for elective local officials. Pertinent portions of the ratio in Papandayan are reproduced
below:
Our decisions have applied certain tests and concepts in resolving the issue of whether or
not a candidate has complied with the residency requirement for elective positions. The
principle of animus revertendi has been used to determine whether a candidate has an
"intention to return" to the place where he seeks to be elected. Corollary to this is a
determination whether there has been an "abandonment" of his former residence which
signifies an intention to depart therefrom. In Caasi v. Court of Appeals, this Court set
aside the appealed orders of the COMELEC and the Court of Appeals and annulled the
election of the respondent as Municipal Mayor of Bolinao, Pangasinan on the ground that
respondent's immigration to the United States in 1984 constituted an abandonment of his
domicile and residence in the Philippines. Being a green card holder, which was proof
that he was a permanent resident or immigrant of the United States, and in the absence of
any waiver of his status as such before he ran for election on January 18, 1988,
respondent was held to be disqualified under §68 of the Omnibus Election Code of the
Philippines (Batas Pambansa Blg. 881). TaCEHA
In Co v. Electoral Tribunal of the House of Representatives, respondent Jose Ong, Jr. was
proclaimed the duly elected representative of the 2nd District of Northern Samar. The
House of Representatives Electoral Tribunal (HRET) upheld his election against claims
that he was not a natural born Filipino citizen and a resident of Laoang, Northern Samar.
In sustaining the ruling of the HRET, this Court, citing Faypon v. Quirino, applied the
concept of animus revertendi or "intent to return", stating that his absence from his
residence in order to pursue studies or practice his profession as a certified public
accountant in Manila or his registration as a voter other than in the place where he was
elected did not constitute loss of residence. The fact that respondent made periodical
journeys to his home province in Laoag revealed that he always had animus revertendi.
In Abella v. Commission on Elections and Larrazabal v. Commission on Elections, it was
explained that the determination of a person's legal residence or domicile largely depends
upon the intention that may be inferred from his acts, activities, and utterances. In that
case, petitioner Adelina Larrazabal, who had obtained the highest number of votes in the
local elections of February 1, 1988 and who had thus been proclaimed as the duly elected
governor, was disqualified by the COMELEC for lack of residence and registration
qualifications, not being a resident nor a registered voter of Kananga, Leyte. The
COMELEC ruled that the attempt of petitioner Larrazabal to change her residence one
year before the election by registering at Kananga, Leyte to qualify her to run for the
position of governor of the province of Leyte was proof that she considered herself a
resident of Ormoc City. This Court affirmed the ruling of the COMELEC and held that
petitioner Larrazabal had established her residence in Ormoc City, not in Kananga, Leyte,
from 1975 up to the time that she ran for the position of Provincial Governor of Leyte on
February 1, 1988. There was no evidence to show that she and her husband maintained
separate residences, i.e., she at Kananga, Leyte and her husband at Ormoc City. The fact
that she occasionally visited Kananga, Leyte through the years did not signify an
intention to continue her residence after leaving that place. cda
In Romualdez v. RTC, Br. 7, Tacloban City, the Court held that "domicile" and
"residence" are synonymous. The term "residence", as used in the election law, imports
not only an intention to reside in a fixed place but also personal presence in that place,
coupled with conduct indicative of such intention. "Domicile" denotes a fixed permanent
residence to which when absent for business or pleasure, or for like reasons, one intends
to return. In that case, petitioner Philip G. Romualdez established his residence during the
early 1980's in Barangay Malbog, Tolosa, Leyte. It was held that the sudden departure
from the country of petitioner, because of the EDSA People's Power Revolution of 1986,
to go into self-exile in the United States until favorable conditions had been established,
was not voluntary so as to constitute an abandonment of residence. The Court explained
that in order to acquire a new domicile by choice, there must concur (1) residence or
bodily presence in the new locality, (2) an intention to remain there, and (3) an intention
to abandon the old domicile. There must be animus manendi coupled with animus non
revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite
period of time; the change of residence must be voluntary; and the residence at the place
chosen for the new domicile must be actual.
Ultimately, the Court recapitulates in Papandayan, Jr. that it is the fact of residence that is
the decisive factor in determining whether or not an individual has satisfied the residency
qualification requirement. CTAIDE
We do not doubt that the residency requirement is a means to prevent a stranger or
newcomer from holding office on the assumption that such stranger or newcomer would
be insufficiently acquainted with the needs of his prospective constituents. However, it is
appropriate to point out at this juncture that aside from petitioner's actual, physical
presence in Sta. Rosa for more than a year prior to election day, he has demonstrated that
he has substantial ties to Sta. Rosa and the First District of Laguna for an even longer
period than that. Petitioner has business interests in Sta. Rosa comprised of restaurants
and a residential property for lease. Petitioner has two children studying in Sta. Rosa
schools even before 2006. These circumstances provided petitioner with material reasons
to frequently visit the area and eventually take up residence in the said district.
Significantly, petitioner previously served as Board Member and Vice-Governor for the
Province of Laguna, of which the First District and Sta. Rosa are a part. It stands to
reason that in his previous elected positions petitioner has acquired knowledge of the
needs and aspirations of the residents of the First District who were among his
constituents.
Simply put, petitioner could not be considered a "stranger" to the community which he
sought to represent and that evil that the residency requirement was designed to prevent is
not present in this case. acCTIS
We take this occasion to reiterate our ruling in Sinaca v. Mula, 46 to wit:
[When] a candidate has received popular mandate, overwhelmingly and clearly
expressed, all possible doubts should be resolved in favor of the candidate's eligibility for
to rule otherwise is to defeat the will of the people. Above and beyond all, the
determination of the true will of the electorate should be paramount. It is their voice, not
ours or of anyone else, that must prevail. This, in essence, is the democracy we continue
to hold sacred.
WHEREFORE, premises considered, the petition is hereby GRANTED. The decision of
the HRET in HRET CASE No. 07-034 promulgated on December 16, 2008, and its
Minute Resolution No. 09-080 promulgated on April 30, 2009 in the same case, are
hereby REVERSED AND SET ASIDE.
SO ORDERED.
DECISION
AZCUNA, J p:
These are petitions for certiorari, etc. as special civil actions and/or for review of the
Decision of the Court of Appeals in Lance Corporal Daniel J. Smith v. Hon. Benjamin T.
Pozon, et al., in CA-G.R. SP No. 97212, dated January 2, 2007. HSEcTC
The facts are not disputed.
Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the United States
Armed Forces. He was charged with the crime of rape committed against a Filipina,
petitioner herein, sometime on November 1, 2005, as follows:
The undersigned accused LCpl. Daniel Smith, Ssgt. Chad Brian Carpentier, Dominic
Duplantis, Keith Silkwood and Timoteo L. Soriano, Jr. of the crime of Rape under Article
266-A of the Revised Penal Code, as amended by Republic Act 8353, upon a complaint
under oath filed by Suzette S. Nicolas, which is attached hereto and made an integral part
hereof as Annex "A", committed as follows: 2009jur
"That on or about the First (1st) day of November 2005, inside the Subic Bay Freeport
Zone, Olongapo City and within the jurisdiction of this Honorable Court, the above-
named accused's (sic), being then members of the United States Marine Corps, except
Timoteo L. Soriano, Jr., conspiring, confederating together and mutually helping one
another, with lewd design and by means of force, threat and intimidation, with abuse of
superior strength and taking advantage of the intoxication of the victim, did then and
there willfully, unlawfully and feloniously sexually abuse and have sexual intercourse
with or carnal knowledge of one Suzette S. Nicolas, a 22-year old unmarried woman
inside a Starex Van with Plate No. WKF-162, owned by Starways Travel and Tours, with
Office address at 8900 P. Victor St., Guadalupe, Makati City, and driven by accused
Timoteo L. Soriano, Jr., against the will and consent of the said Suzette S. Nicolas, to her
damage and prejudice. HSTAcI
CONTRARY TO LAW." 1
Pursuant to the Visiting Forces Agreement (VFA) between the Republic of the
Philippines and the United States, entered into on February 10, 1998, the United States, at
its request, was granted custody of defendant Smith pending the proceedings.
During the trial, which was transferred from the Regional Trial Court (RTC) of Zambales
to the RTC of Makati for security reasons, the United States Government faithfully
complied with its undertaking to bring defendant Smith to the trial court every time his
presence was required.
On December 4, 2006, the RTC of Makati, following the end of the trial, rendered its
Decision, finding defendant Smith guilty, thus:
WHEREFORE, premises considered, for failure of the prosecution to adduce sufficient
evidence against accused S/SGT. CHAD BRIAN CARPENTER, L/CPL. KEITH
SILKWOOD AND L/CPL. DOMINIC DUPLANTIS, all of the US Marine Corps
assigned at the USS Essex, are hereby ACQUITTED to the crime charged. EcTIDA
The prosecution having presented sufficient evidence against accused L/CPL. DANIEL J.
SMITH, also of the US Marine Corps at the USS Essex, this Court hereby finds him
GUILTY BEYOND REASONABLE DOUBT of the crime of RAPE defined under
Article 266-A, paragraph 1 (a) of the Revised Penal Code, as amended by R.A. 8353,
and, in accordance with Article 266-B, first paragraph thereof, hereby sentences him to
suffer the penalty of reclusion perpetua together with the accessory penalties provided for
under Article 41 of the same Code.
Pursuant to Article V, paragraph No. 10, of the Visiting Forces Agreement entered into
by the Philippines and the United States, accused L/CPL. DANIEL J. SMITH shall serve
his sentence in the facilities that shall, thereafter, be agreed upon by appropriate
Philippine and United States authorities. Pending agreement on such facilities, accused
L/CPL. DANIEL J. SMITH is hereby temporarily committed to the Makati City Jail.
SDHITE
Accused L/CPL. DANIEL J. SMITH is further sentenced to indemnify complainant
SUZETTE S. NICOLAS in the amount of P50,000.00 as compensatory damages plus
P50,000.00 as moral damages.
SO ORDERED. 2
As a result, the Makati court ordered Smith detained at the Makati jail until further
orders.
On December 29, 2006, however, defendant Smith was taken out of the Makati jail by a
contingent of Philippine law enforcement agents, purportedly acting under orders of the
Department of the Interior and Local Government, and brought to a facility for detention
under the control of the United States government, provided for under new agreements
between the Philippines and the United States, referred to as the Romulo-Kenney
Agreement of December 19, 2006 which states: SEAHcT
The Government of the Republic of the Philippines and the Government of the United
States of America agree that, in accordance with the Visiting Forces Agreement signed
between our two nations, Lance Corporal Daniel J. Smith, United States Marine Corps,
be returned to U.S. military custody at the U.S. Embassy in Manila.
(SGD.) KRISTIE A. KENNEY (SGD.) ALBERTO G. ROMULO
Representative of the United Representative of the Republic
States of America of the Philippines
DATE: 12-19-06 DATE: December 19, 2006
and the Romulo-Kenney Agreement of December 22, 2006 which states:
The Department of Foreign Affairs of the Republic of the Philippines and the Embassy of
the United States of America agree that, in accordance with the Visiting Forces
Agreement signed between the two nations, upon transfer of Lance Corporal Daniel J.
Smith, United States Marine Corps, from the Makati City Jail, he will be detained at the
first floor, Rowe (JUSMAG) Building, U.S. Embassy Compound in a room of
approximately 10 x 12 square feet. He will be guarded round the clock by U.S. military
personnel. The Philippine police and jail authorities, under the direct supervision of the
Philippine Department of Interior and Local Government (DILG) will have access to the
place of detention to ensure the United States is in compliance with the terms of the VFA.
DScTaC
The matter was brought before the Court of Appeals which decided on January 2, 2007,
as follows:
WHEREFORE, all the foregoing considered, we resolved to DISMISS the petition for
having become moot. 3
Hence, the present actions.
The petitions were heard on oral arguments on September 19, 2008, after which the
parties submitted their memoranda.
Petitioners contend that the Philippines should have custody of defendant L/CPL Smith
because, first of all, the VFA is void and unconstitutional. EHSAaD
This issue had been raised before, and this Court resolved in favor of the constitutionality
of the VFA. This was in Bayan v. Zamora, 4 brought by Bayan, one of petitioners in the
present cases.
Against the barriers of res judicata vis-à-vis Bayan, and stare decisis vis-à-vis all the
parties, the reversal of the previous ruling is sought on the ground that the issue is of
primordial importance, involving the sovereignty of the Republic, as well as a specific
mandate of the Constitution.
The provision of the Constitution is Art. XVIII, Sec. 25 which states:
Sec. 25. After the expiration in 1991 of the Agreement between the Philippines and
the United States of America concerning Military Bases, foreign military bases, troops, or
facilities shall not be allowed in the Philippines except under a treaty duly concurred in
by the Senate and, when the Congress so requires, ratified by a majority of the votes cast
by the people in a national referendum held for that purpose, and recognized as a treaty
by the other contracting State. aIHCSA
The reason for this provision lies in history and the Philippine experience in regard to the
United States military bases in the country.
It will be recalled that under the Philippine Bill of 1902, which laid the basis for the
Philippine Commonwealth and, eventually, for the recognition of independence, the
United States agreed to cede to the Philippines all the territory it acquired from Spain
under the Treaty of Paris, plus a few islands later added to its realm, except certain naval
ports and/or military bases and facilities, which the United States retained for itself.
This is noteworthy, because what this means is that Clark and Subic and the other places
in the Philippines covered by the RP-US Military Bases Agreement of 1947 were not
Philippine territory, as they were excluded from the cession and retained by the US.
Accordingly, the Philippines had no jurisdiction over these bases except to the extent
allowed by the United States. Furthermore, the RP-US Military Bases Agreement was
never advised for ratification by the United States Senate, a disparity in treatment,
because the Philippines regarded it as a treaty and had it concurred in by our Senate.
TSIDEa
Subsequently, the United States agreed to turn over these bases to the Philippines; and
with the expiration of the RP-US Military Bases Agreement in 1991, the territory covered
by these bases were finally ceded to the Philippines.
To prevent a recurrence of this experience, the provision in question was adopted in the
1987 Constitution.
The provision is thus designed to ensure that any agreement allowing the presence of
foreign military bases, troops or facilities in Philippine territory shall be equally binding
on the Philippines and the foreign sovereign State involved. The idea is to prevent a
recurrence of the situation in which the terms and conditions governing the presence of
foreign armed forces in our territory were binding upon us but not upon the foreign State.
Applying the provision to the situation involved in these cases, the question is whether or
not the presence of US Armed Forces in Philippine territory pursuant to the VFA is
allowed "under a treaty duly concurred in by the Senate . . . and recognized as a treaty by
the other contracting State".
This Court finds that it is, for two reasons. aEIcHA
First, as held in Bayan v. Zamora, 5 the VFA was duly concurred in by the Philippine
Senate and has been recognized as a treaty by the United States as attested and certified
by the duly authorized representative of the United States government.
The fact that the VFA was not submitted for advice and consent of the United States
Senate does not detract from its status as a binding international agreement or treaty
recognized by the said State. For this is a matter of internal United States law. Notice can
be taken of the internationally known practice by the United States of submitting to its
Senate for advice and consent agreements that are policymaking in nature, whereas those
that carry out or further implement these policymaking agreements are merely submitted
to Congress, under the provisions of the so-called Case-Zablocki Act, within sixty days
from ratification. 6 HDITCS
The second reason has to do with the relation between the VFA and the RP-US Mutual
Defense Treaty of August 30, 1951. This earlier agreement was signed and duly ratified
with the concurrence of both the Philippine Senate and the United States Senate.
The RP-US Mutual Defense Treaty states: 7
MUTUAL DEFENSE TREATY BETWEEN THE REPUBLIC OF THE PHILIPPINES
AND THE UNITED STATES OF AMERICA. Signed at Washington, August 30, 1951.
The Parties of this Treaty
Reaffirming their faith in the purposes and principles of the Charter of the United Nations
and their desire to live in peace with all peoples and all governments, and desiring to
strengthen the fabric of peace in the Pacific area.
Recalling with mutual pride the historic relationship which brought their two peoples
together in a common bond of sympathy and mutual ideals to fight side-by-side against
imperialist aggression during the last war. CEHcSI
Desiring to declare publicly and formally their sense of unity and their common
determination to defend themselves against external armed attack, so that no potential
aggressor could be under the illusion that either of them stands alone in the Pacific area.
Desiring further to strengthen their present efforts for collective defense for the
preservation of peace and security pending the development of a more comprehensive
system of regional security in the Pacific area.
Agreeing that nothing in this present instrument shall be considered or interpreted as in
any way or sense altering or diminishing any existing agreements or understandings
between the Republic of the Philippines and the United States of America.
Have agreed as follows:
ARTICLE I. The parties undertake, as set forth in the Charter of the United Nations, to
settle any international disputes in which they may be involved by peaceful means in
such a manner that international peace and security and justice are not endangered and to
refrain in their international relation from the threat or use of force in any manner
inconsistent with the purposes of the United Nations. IDAESH
ARTICLE II. In order more effectively to achieve the objective of this Treaty, the
Parties separately and jointly by self-help and mutual aid will maintain and develop their
individual and collective capacity to resist armed attack.
ARTICLE III. The Parties, through their Foreign Ministers or their deputies, will consult
together from time to time regarding the implementation of this Treaty and whenever in
the opinion of either of them the territorial integrity, political independence or security of
either of the Parties is threatened by external armed attack in the Pacific.
ARTICLE IV. Each Party recognizes that an armed attack in the Pacific area on either of
the parties would be dangerous to its own peace and safety and declares that it would act
to meet the common dangers in accordance with its constitutional processes.
Any such armed attack and all measures taken as a result thereof shall be immediately
reported to the Security Council of the United Nations. Such measures shall be
terminated when the Security Council has taken the measures necessary to restore and
maintain international peace and security. DHITCc
ARTICLE V. For the purpose of Article IV, an armed attack on either of the Parties is
deemed to include an armed attack on the metropolitan territory of either of the Parties, or
on the island territories under its jurisdiction in the Pacific Ocean, its armed forces, public
vessels or aircraft in the Pacific.
ARTICLE VI. This Treaty does not affect and shall not be interpreted as affecting in any
way the rights and obligations of the Parties under the Charter of the United Nations or
the responsibility of the United Nations for the maintenance of international peace and
security.
ARTICLE VII. This Treaty shall be ratified by the Republic of the Philippines and
the United Nations of America in accordance with their respective constitutional
processes and will come into force when instruments of ratification thereof have been
exchanged by them at Manila.
ARTICLE VIII. This Treaty shall remain in force indefinitely. Either Party may
terminate it one year after notice has been given to the other party. HScDIC
IN WITHNESS * WHEREOF the undersigned Plenipotentiaries have signed this Treaty.
DONE in duplicate at Washington this thirtieth day of August, 1951.
For the Republic of the Philippines:
(Sgd.) CARLOS P. ROMULO
(Sgd.) JOAQUIN M. ELIZALDE
(Sgd.) VICENTE J. FRANCISCO
(Sgd.) DIOSDADO MACAPAGAL
For the United States of America:
(Sgd.) DEAN ACHESON
(Sgd.) JOHN FOSTER DULLES
(Sgd.) TOM CONNALLY
(Sgd.) ALEXANDER WILEY 8
Clearly, therefore, joint RP-US military exercises for the purpose of developing the
capability to resist an armed attack fall squarely under the provisions of the RP-US
Mutual Defense Treaty. The VFA, which is the instrument agreed upon to provide for the
joint RP-US military exercises, is simply an implementing agreement to the main RP-US
Military Defense Treaty. The Preamble of the VFA states: EIDTAa
The Government of the United States of America and the Government of the Republic of
the Philippines,
Reaffirming their faith in the purposes and principles of the Charter of the United Nations
and their desire to strengthen international and regional security in the Pacific area;
Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951;
Noting that from time to time elements of the United States armed forces may visit the
Republic of the Philippines;
Considering that cooperation between the United States and the Republic of the
Philippines promotes their common security interests; STIHaE
Recognizing the desirability of defining the treatment of United States personnel visiting
the Republic of the Philippines;
Have agreed as follows: 9
Accordingly, as an implementing agreement of the RP-US Mutual Defense Treaty, it was
not necessary to submit the VFA to the US Senate for advice and consent, but merely to
the US Congress under the Case — Zablocki Act within 60 days of its ratification. It is
for this reason that the US has certified that it recognizes the VFA as a binding
international agreement, i.e., a treaty, and this substantially complies with the
requirements of Art. XVIII, Sec. 25 of our Constitution. 10
The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue of the
fact that the presence of the US Armed Forces through the VFA is a presence "allowed
under" the RP-US Mutual Defense Treaty. Since the RP-US Mutual Defense Treaty itself
has been ratified and concurred in by both the Philippine Senate and the US Senate, there
is no violation of the Constitutional provision resulting from such presence. IcDESA
The VFA being a valid and binding agreement, the parties are required as a matter of
international law to abide by its terms and provisions.
The VFA provides that in cases of offenses committed by the members of the US Armed
Forces in the Philippines, the following rules apply:
Article V
Criminal Jurisdiction
xxx xxx xxx
6. The custody of any United States personnel over whom the Philippines is to
exercise jurisdiction shall immediately reside with United States military authorities, if
they so request, from the commission of the offense until completion of all judicial
proceedings. United States military authorities shall, upon formal notification by the
Philippine authorities and without delay, make such personnel available to those
authorities in time for any investigative or judicial proceedings relating to the offense
with which the person has been charged. In extraordinary cases, the Philippine
Government shall present its position to the United States Government regarding custody,
which the United States Government shall take into full account. In the event Philippine
judicial proceedings are not completed within one year, the United States shall be
relieved of any obligations under this paragraph. The one year period will not include the
time necessary to appeal. Also, the one year period will not include any time during
which scheduled trial procedures are delayed because United States authorities, after
timely notification by Philippine authorities to arrange for the presence of the accused,
fail to do so. cECaHA
Petitioners contend that these undertakings violate another provision of the Constitution,
namely, that providing for the exclusive power of this Court to adopt rules of procedure
for all courts in the Philippines (Art. VIII, Sec. 5[5]). They argue that to allow the transfer
of custody of an accused to a foreign power is to provide for a different rule of procedure
for that accused, which also violates the equal protection clause of the Constitution (Art.
III, Sec. 1.).
Again, this Court finds no violation of the Constitution.
The equal protection clause is not violated, because there is a substantial basis for a
different treatment of a member of a foreign military armed forces allowed to enter our
territory and all other accused. 11 cda
The rule in international law is that a foreign armed forces allowed to enter one's territory
is immune from local jurisdiction, except to the extent agreed upon. The Status of Forces
Agreements involving foreign military units around the world vary in terms and
conditions, according to the situation of the parties involved, and reflect their bargaining
power. But the principle remains, i.e., the receiving State can exercise jurisdiction over
the forces of the sending State only to the extent agreed upon by the parties. 12
As a result, the situation involved is not one in which the power of this Court to adopt
rules of procedure is curtailed or violated, but rather one in which, as is normally
encountered around the world, the laws (including rules of procedure) of one State do not
extend or apply — except to the extent agreed upon — to subjects of another State due to
the recognition of extraterritorial immunity given to such bodies as visiting foreign armed
forces.
Nothing in the Constitution prohibits such agreements recognizing immunity from
jurisdiction or some aspects of jurisdiction (such as custody), in relation to long-
recognized subjects of such immunity like Heads of State, diplomats and members of the
armed forces contingents of a foreign State allowed to enter another State's territory. On
the contrary, the Constitution states that the Philippines adopts the generally accepted
principles of international law as part of the law of the land. (Art. II, Sec. 2). HCEaDI
Applying, however, the provisions of VFA, the Court finds that there is a different
treatment when it comes to detention as against custody. The moment the accused has to
be detained, e.g., after conviction, the rule that governs is the following provision of the
VFA:
Article V
Criminal Jurisdiction
xxx xxx xxx
Sec. 10. The confinement or detention by Philippine authorities of United States
personnel shall be carried out in facilities agreed on by appropriate Philippines and
United States authorities. United States personnel serving sentences in the Philippines
shall have the right to visits and material assistance. ECTIHa
It is clear that the parties to the VFA recognized the difference between custody during
the trial and detention after conviction, because they provided for a specific arrangement
to cover detention. And this specific arrangement clearly states not only that the detention
shall be carried out in facilities agreed on by authorities of both parties, but also that the
detention shall be "by Philippine authorities". Therefore, the Romulo-Kenney
Agreements of December 19 and 22, 2006, which are agreements on the detention of the
accused in the United States Embassy, are not in accord with the VFA itself because such
detention is not "by Philippine authorities".
Respondents should therefore comply with the VFA and negotiate with representatives of
the United States towards an agreement on detention facilities under Philippine
authorities as mandated by Art. V, Sec. 10 of the VFA.
Next, the Court addresses the recent decision of the United States Supreme Court in
Medellin v. Texas (552 US ____ No. 06-984, March 25, 2008), which held that treaties
entered into by the United States are not automatically part of their domestic law unless
these treaties are self-executing or there is an implementing legislation to make them
enforceable. TAESDH
On February 3, 2009, the Court issued a Resolution, thus:
"G.R. No. 175888 (Suzette Nicolas y Sombilon v. Alberto Romulo, et al.); G.R. No.
176051 (Jovito R. Salonga, et al. v. Daniel Smith, et al.); and G.R. No. 176222 (Bagong
Alyansang Makabayan [BAYAN], et al. v. President Gloria Macapagal-Arroyo, et al.).
The parties, including the Solicitor General, are required to submit within three (3) days a
Comment/Manifestation on the following points:
1. What is the implication on the RP-US Visiting Forces Agreement of the recent
US Supreme Court decision in Jose Ernesto Medellin v. Texas, dated March 25, 2008, to
the effect that treaty stipulations that are not self-executory can only be enforced pursuant
to legislation to carry them into effect; and that, while treaties may comprise international
commitments, they are not domestic law unless Congress has enacted implementing
statutes or the treaty itself conveys an intention that it be "self-executory" and is ratified
on these terms? EIAaDC
2. Whether the VFA is enforceable in the US as domestic law, either because it is
self-executory or because there exists legislation to implement it.
3. Whether the RP-US Mutual Defense Treaty of August 30, 1951 was concurred in
by the US Senate and, if so, is there proof of the US Senate advice and consent
resolution? Peralta, J., no part."
After deliberation, the Court holds, on these points, as follows: 2009jur
First, the VFA is a self-executing Agreement, as that term is defined in Medellin itself,
because the parties intend its provisions to be enforceable, precisely because the
Agreement is intended to carry out obligations and undertakings under the RP-US Mutual
Defense Treaty. As a matter of fact, the VFA has been implemented and executed, with
the US faithfully complying with its obligation to produce L/CPL Smith before the court
during the trial.
Secondly, the VFA is covered by implementing legislation, namely, the Case-Zablocki
Act, USC Sec. 112 (b), inasmuch as it is the very purpose and intent of the US Congress
that executive agreements registered under this Act within 60 days from their ratification
be immediately implemented. The parties to these present cases do not question the fact
that the VFA has been registered under the Case-Zablocki Act. DaCTcA
In sum, therefore, the VFA differs from the Vienna Convention on Consular Relations
and the Avena decision of the International Court of Justice (ICJ), subject matter of the
Medellin decision. The Convention and the ICJ decision are not self-executing and are
not registrable under the Case-Zablocki Act, and thus lack legislative implementing
authority.
Finally, the RP-US Mutual Defense Treaty was advised and consented to by the US
Senate on March 20, 1952, as reflected in the US Congressional Record, 82nd Congress,
Second Session, Vol. 98 — Part 2, pp. 2594-2595.
The framers of the Constitution were aware that the application of international law in
domestic courts varies from country to country.
As Ward N. Ferdinandusse states in his Treatise, DIRECT APPLICATION OF
INTERNATIONAL CRIMINAL LAW IN NATIONAL COURTS, some countries
require legislation whereas others do not. HCTAEc
It was not the intention of the framers of the 1987 Constitution, in adopting Article
XVIII, Sec. 25, to require the other contracting State to convert their system to achieve
alignment and parity with ours. It was simply required that the treaty be recognized as a
treaty by the other contracting State. With that, it becomes for both parties a binding
international obligation and the enforcement of that obligation is left to the normal
recourse and processes under international law.
Furthermore, as held by the US Supreme Court in Weinberger v. Rossi, 13 an executive
agreement is a "treaty" within the meaning of that word in international law and
constitutes enforceable domestic law vis-à-vis the United States. Thus, the US Supreme
Court in Weinberger enforced the provisions of the executive agreement granting
preferential employment to Filipinos in the US Bases here.
Accordingly, there are three types of treaties in the American system:
1. Art. II, Sec. 2 treaties — These are advised and consented to by the US Senate in
accordance with Art. II, Sec. 2 of the US Constitution. HScAEC
2. Executive-Congressional Agreements: These are joint agreements of the President
and Congress and need not be submitted to the Senate.
3. Sole Executive Agreements. — These are agreements entered into by the
President. They are to be submitted to Congress within sixty (60) days of ratification
under the provisions of the Case-Zablocki Act, after which they are recognized by the
Congress and may be implemented.
As regards the implementation of the RP-US Mutual Defense Treaty, military aid or
assistance has been given under it and this can only be done through implementing
legislation. The VFA itself is another form of implementation of its provisions.
WHEREFORE, the petitions are PARTLY GRANTED, and the Court of Appeals'
Decision in CA-G.R. SP No. 97212 dated January 2, 2007 is MODIFIED. The Visiting
Forces Agreement (VFA) between the Republic of the Philippines and the United States,
entered into on February 10, 1998, is UPHELD as constitutional, but the Romulo-Kenney
Agreements of December 19 and 22, 2006 are DECLARED not in accordance with the
VFA, and respondent Secretary of Foreign Affairs is hereby ordered to forthwith
negotiate with the United States representatives for the appropriate agreement on
detention facilities under Philippine authorities as provided in Art. V, Sec. 10 of the VFA,
pending which the status quo shall be maintained until further orders by this Court.
IEcDCa
The Court of Appeals is hereby directed to resolve without delay the related matters
pending therein, namely, the petition for contempt and the appeal of L/CPL Daniel Smith
from the judgment of conviction.
No costs.
SO ORDERED.
Domicile is not easily lost. To successfully effect a transfer thereof, one must
demonstrate: (1) an actual removal or change of domicile; (2) a bona fide intention of
abandoning the former place of residence and establishing a new one; and (3) acts which
correspond with that purpose. 36 There must be animus manendi coupled with animus
non revertendi. The purpose to remain in or at the domicile of choice must be for an
indefinite period of time; the change of residence must be voluntary; and the residence at
the place chosen for the new domicile must be actual. 37
Asistio has always been a resident of Caloocan City since his birth or for more than 72
years. His family is known to be among the prominent political families in Caloocan
City. In fact, Asistio served in public office as Caloocan City Second District
representative in the House of Representatives, having been elected as such in the 1992,
1995, 1998, and 2004 elections. In 2007, he also sought election as City Mayor. In all of
these occasions, Asistio cast his vote in the same city. Taking these circumstances into
consideration, gauged in the light of the doctrines above enunciated, it cannot be denied
that Asistio has qualified, and continues to qualify, as a voter of Caloocan City. There is
no showing that he has established domicile elsewhere, or that he had consciously and
voluntarily abandoned his residence in Caloocan City. He should, therefore, remain in the
list of permanent registered voters of Precinct No. 1811A, Barangay 15, Caloocan City.
That Asistio allegedly indicated in his Certificate of Candidacy for Mayor, both for the
2007 and 2010 elections, a non-existent or false address, or that he could not be
physically found in the address he indicated when he registered as a voter, should not
operate to exclude him as a voter of Caloocan City. These purported misrepresentations
in Asistio's COC, if true, might serve as basis for an election offense under the Omnibus
Election Code (OEC), 38 or an action to deny due course to the COC. 39 But to our
mind, they do not serve as proof that Asistio has abandoned his domicile in Caloocan
City, or that he has established residence outside of Caloocan City. AEIHCS
With this disquisition, we find no necessity to discuss the other issues raised in the
petition.
WHEREFORE, the petition is GRANTED. The assailed Order dated February 15, 2010
of the Regional Trial Court, Branch 129, Caloocan City in SCA No. 997 and the decision
dated February 5, 2010 of the Metropolitan Trial Court, Branch 52, Caloocan City in
SCA No. 10-582 are REVERSED and SET ASIDE. Petitioner Luis A. Asistio remains a
registered voter of Precinct No. 1811A, Barangay 15, Caloocan City. The Status Quo
Ante Order issued by this Court on February 23, 2010 is MADE PERMANENT.
SO ORDERED.
On November 9, 1999, the Court of Appeals rendered its Decision declaring the Order of
Arrest void.
On November 12, 1999, the DOJ filed with this Court a petition for review on certiorari,
docketed as G.R. No. 140520, praying that the Decision of the Court of Appeals be
reversed.
On December 18, 2000, this Court rendered a Decision granting the petition of the DOJ
and sustaining the validity of the Order of Arrest against private respondent. The
Decision became final and executory on April 10, 2001.
Meanwhile, as early as November 22, 1999, petitioner Hong Kong Special
Administrative Region filed with the RTC of Manila a petition for the extradition of
private respondent, docketed as Civil Case No. 99-95733, raffled off to Branch 10,
presided by Judge Ricardo Bernardo, Jr. For his part, private respondent filed in the same
case a petition for bail which was opposed by petitioner.
After hearing, or on October 8, 2001, Judge Bernardo, Jr. issued an Order denying the
petition for bail, holding that there is no Philippine law granting bail in extradition cases
and that private respondent is a high "flight risk."
On October 22, 2001, Judge Bernardo, Jr. inhibited himself from further hearing Civil
Case No. 99-95733. It was then raffled off to Branch 8 presided by respondent judge.
aITECD
On October 30, 2001, private respondent filed a motion for reconsideration of the Order
denying his application for bail. This was granted by respondent judge in an Order dated
December 20, 2001 allowing private respondent to post bail, thus: CaDATc
In conclusion, this Court will not contribute to accused's further erosion of civil liberties.
The petition for bail is granted subject to the following conditions:
1. Bail is set at Php750,000.00 in cash with the condition that accused hereby
undertakes that he will appear and answer the issues raised in these proceedings and will
at all times hold himself amenable to orders and processes of this Court, will further
appear for judgment. If accused fails in this undertaking, the cash bond will be forfeited
in favor of the government;
2. Accused must surrender his valid passport to this Court;
3. The Department of Justice is given immediate notice and discretion of filing its
own motion for hold departure order before this Court even in extradition proceeding;
and
4. Accused is required to report to the government prosecutors handling this case or
if they so desire to the nearest office, at any time and day of the week; and if they further
desire, manifest before this Court to require that all the assets of accused, real and
personal, be filed with this Court soonest, with the condition that if the accused flees
from his undertaking, said assets be forfeited in favor of the government and that the
corresponding lien/annotation be noted therein accordingly.
SO ORDERED. HScDIC
On December 21, 2001, petitioner filed an urgent motion to vacate the above Order, but it
was denied by respondent judge in his Order dated April 10, 2002. EHaASD
Hence, the instant petition. Petitioner alleged that the trial court committed grave abuse
of discretion amounting to lack or excess of jurisdiction in admitting private respondent
to bail; that there is nothing in the Constitution or statutory law providing that a potential
extraditee has a right to bail, the right being limited solely to criminal proceedings.
In his comment on the petition, private respondent maintained that the right to bail
guaranteed under the Bill of Rights extends to a prospective extraditee; and that
extradition is a harsh process resulting in a prolonged deprivation of one's liberty.
HCaIDS
Section 13, Article III of the Constitution provides that the right to bail shall not be
impaired, thus:
Sec. 13. All persons, except those charged with offenses punishable by reclusion
perpetua when evidence of guilt is strong, shall, before conviction, be bailable by
sufficient sureties, or be released on recognizance as may be provided by law. The right
to bail shall not be impaired even when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required.
Jurisprudence on extradition is but in its infancy in this jurisdiction. Nonetheless, this is
not the first time that this Court has an occasion to resolve the question of whether a
prospective extraditee may be granted bail. aHADTC
In Government of United States of America v. Hon. Guillermo G. Purganan, Presiding
Judge, RTC of Manila, Branch 42, and Mark B. Jimenez, a.k.a. Mario Batacan Crespo, 1
this Court, speaking through then Associate Justice Artemio V. Panganiban, later Chief
Justice, held that the constitutional provision on bail does not apply to extradition
proceedings. It is "available only in criminal proceedings," thus:
. . . . As suggested by the use of the word "conviction," the constitutional provision on
bail quoted above, as well as Section 4, Rule 114 of the Rules of Court, applies only
when a person has been arrested and detained for violation of Philippine criminal laws. It
does not apply to extradition proceedings because extradition courts do not render
judgments of conviction or acquittal.
Moreover, the constitutional right to bail "flows from the presumption of innocence in
favor of every accused who should not be subjected to the loss of freedom as thereafter
he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt" (De
la Camara v. Enage, 41 SCRA 1, 6, September 17, 1971, per Fernando, J., later CJ). It
follows that the constitutional provision on bail will not apply to a case like extradition,
where the presumption of innocence is not at issue.
The provision in the Constitution stating that the "right to bail shall not be impaired even
when the privilege of the writ of habeas corpus is suspended" does not detract from the
rule that the constitutional right to bail is available only in criminal proceedings. It must
be noted that the suspension of the privilege of the writ of habeas corpus finds application
"only to persons judicially charged for rebellion or offenses inherent in or directly
connected with invasion" (Sec. 18, Art. VIII, Constitution). Hence, the second sentence
in the constitutional provision on bail merely emphasizes the right to bail in criminal
proceedings for the aforementioned offenses. It cannot be taken to mean that the right is
available even in extradition proceedings that are not criminal in nature. ScTIAH
At first glance, the above ruling applies squarely to private respondent's case. However,
this Court cannot ignore the following trends in international law: (1) the growing
importance of the individual person in public international law who, in the 20th century,
has gradually attained global recognition; (2) the higher value now being given to human
rights in the international sphere; (3) the corresponding duty of countries to observe these
universal human rights in fulfilling their treaty obligations; and (4) the duty of this Court
to balance the rights of the individual under our fundamental law, on one hand, and the
law on extradition, on the other. ADSTCa
The modern trend in public international law is the primacy placed on the worth of the
individual person and the sanctity of human rights. Slowly, the recognition that the
individual person may properly be a subject of international law is now taking root. The
vulnerable doctrine that the subjects of international law are limited only to states was
dramatically eroded towards the second half of the past century. For one, the Nuremberg
and Tokyo trials after World War II resulted in the unprecedented spectacle of individual
defendants for acts characterized as violations of the laws of war, crimes against peace,
and crimes against humanity. Recently, under the Nuremberg principle, Serbian leaders
have been persecuted for war crimes and crimes against humanity committed in the
former Yugoslavia. These significant events show that the individual person is now a
valid subject of international law.
On a more positive note, also after World War II, both international organizations and
states gave recognition and importance to human rights. Thus, on December 10, 1948, the
United Nations General Assembly adopted the Universal Declaration of Human Rights in
which the right to life, liberty and all the other fundamental rights of every person were
proclaimed. While not a treaty, the principles contained in the said Declaration are now
recognized as customarily binding upon the members of the international community.
Thus, in Mejoff v. Director of Prisons, 2 this Court, in granting bail to a prospective
deportee, held that under the Constitution, 3 the principles set forth in that Declaration are
part of the law of the land. In 1966, the UN General Assembly also adopted the
International Covenant on Civil and Political Rights which the Philippines signed and
ratified. Fundamental among the rights enshrined therein are the rights of every person to
life, liberty, and due process.
The Philippines, along with the other members of the family of nations, committed to
uphold the fundamental human rights as well as value the worth and dignity of every
person. This commitment is enshrined in Section II, Article II of our Constitution which
provides: "The State values the dignity of every human person and guarantees full respect
for human rights." The Philippines, therefore, has the responsibility of protecting and
promoting the right of every person to liberty and due process, ensuring that those
detained or arrested can participate in the proceedings before a court, to enable it to
decide without delay on the legality of the detention and order their release if justified. In
other words, the Philippine authorities are under obligation to make available to every
person under detention such remedies which safeguard their fundamental right to liberty.
These remedies include the right to be admitted to bail. While this Court in Purganan
limited the exercise of the right to bail to criminal proceedings, however, in light of the
various international treaties giving recognition and protection to human rights,
particularly the right to life and liberty, a reexamination of this Court's ruling in Purganan
is in order. caADSE
First, we note that the exercise of the State's power to deprive an individual of his liberty
is not necessarily limited to criminal proceedings. Respondents in administrative
proceedings, such as deportation and quarantine, 4 have likewise been detained.
cCTIaS
Second, to limit bail to criminal proceedings would be to close our eyes to our
jurisprudential history. Philippine jurisprudence has not limited the exercise of the right
to bail to criminal proceedings only. This Court has admitted to bail persons who are not
involved in criminal proceedings. In fact, bail has been allowed in this jurisdiction to
persons in detention during the pendency of administrative proceedings, taking into
cognizance the obligation of the Philippines under international conventions to uphold
human rights. HDAaIc
The 1909 case of US v. Go-Sioco 5 is illustrative. In this case, a Chinese facing
deportation for failure to secure the necessary certificate of registration was granted bail
pending his appeal. After noting that the prospective deportee had committed no crime,
the Court opined that "To refuse him bail is to treat him as a person who has committed
the most serious crime known to law;" and that while deportation is not a criminal
proceeding, some of the machinery used "is the machinery of criminal law." Thus, the
provisions relating to bail was applied to deportation proceedings. aEcADH
In Mejoff v. Director of Prisons 6 and Chirskoff v. Commission of Immigration, 7 this
Court ruled that foreign nationals against whom no formal criminal charges have been
filed may be released on bail pending the finality of an order of deportation. As
previously stated, the Court in Mejoff relied upon the Universal declaration of Human
Rights in sustaining the detainee's right to bail.
If bail can be granted in deportation cases, we see no justification why it should not also
be allowed in extradition cases. Likewise, considering that the Universal Declaration of
Human Rights applies to deportation cases, there is no reason why it cannot be invoked in
extradition cases. After all, both are administrative proceedings where the innocence or
guilt of the person detained is not in issue.
Clearly, the right of a prospective extraditee to apply for bail in this jurisdiction must be
viewed in the light of the various treaty obligations of the Philippines concerning respect
for the promotion and protection of human rights. Under these treaties, the presumption
lies in favor of human liberty. Thus, the Philippines should see to it that the right to
liberty of every individual is not impaired. CcHDaA
Section 2(a) of Presidential Decree (P.D.) No. 1069 (The Philippine Extradition Law)
defines "extradition" as "the removal of an accused from the Philippines with the object
of placing him at the disposal of foreign authorities to enable the requesting state or
government to hold him in connection with any criminal investigation directed against
him or the execution of a penalty imposed on him under the penal or criminal law of the
requesting state or government." aSATHE
Extradition has thus been characterized as the right of a foreign power, created by treaty,
to demand the surrender of one accused or convicted of a crime within its territorial
jurisdiction, and the correlative duty of the other state to surrender him to the demanding
state. 8 It is not a criminal proceeding. 9 Even if the potential extraditee is a criminal, an
extradition proceeding is not by its nature criminal, for it is not punishment for a crime,
even though such punishment may follow extradition. 10 It is sui generis, tracing its
existence wholly to treaty obligations between different nations. 11 It is not a trial to
determine the guilt or innocence of the potential extraditee. 12 Nor is it a full-blown civil
action, but one that is merely administrative in character. 13 Its object is to prevent the
escape of a person accused or convicted of a crime and to secure his return to the state
from which he fled, for the purpose of trial or punishment. 14
But while extradition is not a criminal proceeding, it is characterized by the following: (a)
it entails a deprivation of liberty on the part of the potential extraditee and (b) the means
employed to attain the purpose of extradition is also "the machinery of criminal law."
This is shown by Section 6 of P.D. No. 1069 (The Philippine Extradition Law) which
mandates the "immediate arrest and temporary detention of the accused" if such "will
best serve the interest of justice." We further note that Section 20 allows the requesting
state "in case of urgency" to ask for the "provisional arrest of the accused, pending receipt
of the request for extradition;" and that release from provisional arrest "shall not
prejudice re-arrest and extradition of the accused if a request for extradition is received
subsequently." DTAaCE
Obviously, an extradition proceeding, while ostensibly administrative, bears all earmarks
of a criminal process. A potential extraditee may be subjected to arrest, to a prolonged
restraint of liberty, and forced to transfer to the demanding state following the
proceedings. "Temporary detention" may be a necessary step in the process of
extradition, but the length of time of the detention should be reasonable.
Records show that private respondent was arrested on September 23, 1999, and remained
incarcerated until December 20, 2001, when the trial court ordered his admission to bail.
In other words, he had been detained for over two (2) years without having been
convicted of any crime. By any standard, such an extended period of detention is a
serious deprivation of his fundamental right to liberty. In fact, it was this prolonged
deprivation of liberty which prompted the extradition court to grant him bail.
While our extradition law does not provide for the grant of bail to an extraditee, however,
there is no provision prohibiting him or her from filing a motion for bail, a right to due
process under the Constitution. ICTHDE
The applicable standard of due process, however, should not be the same as that in
criminal proceedings. In the latter, the standard of due process is premised on the
presumption of innocence of the accused. As Purganan correctly points out, it is from this
major premise that the ancillary presumption in favor of admitting to bail arises. Bearing
in mind the purpose of extradition proceedings, the premise behind the issuance of the
arrest warrant and the "temporary detention" is the possibility of flight of the potential
extraditee. This is based on the assumption that such extraditee is a fugitive from justice.
15 Given the foregoing, the prospective extraditee thus bears the onus probandi of
showing that he or she is not a flight risk and should be granted bail. AcDaEH
The time-honored principle of pacta sunt servanda demands that the Philippines honor its
obligations under the Extradition Treaty it entered into with the Hong Kong Special
Administrative Region. Failure to comply with these obligations is a setback in our
foreign relations and defeats the purpose of extradition. However, it does not necessarily
mean that in keeping with its treaty obligations, the Philippines should diminish a
potential extraditee's rights to life, liberty, and due process. More so, where these rights
are guaranteed, not only by our Constitution, but also by international conventions, to
which the Philippines is a party. We should not, therefore, deprive an extraditee of his
right to apply for bail, provided that a certain standard for the grant is satisfactorily met.
An extradition proceeding being sui generis, the standard of proof required in granting or
denying bail can neither be the proof beyond reasonable doubt in criminal cases nor the
standard of proof of preponderance of evidence in civil cases. While administrative in
character, the standard of substantial evidence used in administrative cases cannot
likewise apply given the object of extradition law which is to prevent the prospective
extraditee from fleeing our jurisdiction. In his Separate Opinion in Purganan, then
Associate Justice, now Chief Justice Reynato S. Puno, proposed that a new standard
which he termed "clear and convincing evidence" should be used in granting bail in
extradition cases. According to him, this standard should be lower than proof beyond
reasonable doubt but higher than preponderance of evidence. The potential extraditee
must prove by "clear and convincing evidence" that he is not a flight risk and will abide
with all the orders and processes of the extradition court. cITCAa
In this case, there is no showing that private respondent presented evidence to show that
he is not a flight risk. Consequently, this case should be remanded to the trial court to
determine whether private respondent may be granted bail on the basis of "clear and
convincing evidence." EAcTDH
WHEREFORE, we DISMISS the petition. This case is REMANDED to the trial court to
determine whether private respondent is entitled to bail on the basis of "clear and
convincing evidence." If not, the trial court should order the cancellation of his bail bond
and his immediate detention; and thereafter, conduct the extradition proceedings with
dispatch.
SO ORDERED. CSDTac
EXECUTIVE DEPARTMENT
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc. claimed
that on February 25, 2006, the CIDG operatives "raided and ransacked without warrant"
their office. Three policemen were assigned to guard their office as a possible "source of
destabilization." Again, the basis was PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their
members were "turned away and dispersed" when they went to EDSA and later, to Ayala
Avenue, to celebrate the 20th Anniversary of People Power I.
A perusal of the "direct injuries" allegedly suffered by the said petitioners shows that they
resulted from the implementation, pursuant to G.O. No. 5, of PP 1017. EHaDIC
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of these
illegal acts? In general, does the illegal implementation of a law render it
unconstitutional?
Settled is the rule that courts are not at liberty to declare statutes invalid although they
may be abused and misabused 135 and may afford an opportunity for abuse in the
manner of application. 136 The validity of a statute or ordinance is to be determined from
its general purpose and its efficiency to accomplish the end desired, not from its effects in
a particular case. 137 PP 1017 is merely an invocation of the President's calling-out
power. Its general purpose is to command the AFP to suppress all forms of lawless
violence, invasion or rebellion. It had accomplished the end desired which prompted
President Arroyo to issue PP 1021. But there is nothing in PP 1017 allowing the police,
expressly or impliedly, to conduct illegal arrest, search or violate the citizens'
constitutional rights.
Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its
implementor committed illegal acts? The answer is no. The criterion by which the
validity of the statute or ordinance is to be measured is the essential basis for the exercise
of power, and not a mere incidental result arising from its exertion. 138 This is logical.
Just imagine the absurdity of situations when laws may be declared unconstitutional just
because the officers implementing them have acted arbitrarily. If this were so, judging
from the blunders committed by policemen in the cases passed upon by the Court,
majority of the provisions of the Revised Penal Code would have been declared
unconstitutional a long time ago.
President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017.
General orders are "acts and commands of the President in his capacity as Commander-
in-Chief of the Armed Forces of the Philippines." They are internal rules issued by the
executive officer to his subordinates precisely for the proper and efficient administration
of law. Such rules and regulations create no relation except between the official who
issues them and the official who receives them. 139 They are based on and are the
product of, a relationship in which power is their source, and obedience, their object. 140
For these reasons, one requirement for these rules to be valid is that they must be
reasonable, not arbitrary or capricious. AIDcTE
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the "necessary and
appropriate actions and measures to suppress and prevent acts of terrorism and lawless
violence."
Unlike the term "lawless violence" which is unarguably extant in our statutes and the
Constitution, and which is invariably associated with "invasion, insurrection or
rebellion," the phrase "acts of terrorism" is still an amorphous and vague concept.
Congress has yet to enact a law defining and punishing acts of terrorism.
In fact, this "definitional predicament" or the "absence of an agreed definition of
terrorism" confronts not only our country, but the international community as well. The
following observations are quite apropos:
In the actual unipolar context of international relations, the "fight against terrorism" has
become one of the basic slogans when it comes to the justification of the use of force
against certain states and against groups operating internationally. Lists of states
"sponsoring terrorism" and of terrorist organizations are set up and constantly being
updated according to criteria that are not always known to the public, but are clearly
determined by strategic interests.
The basic problem underlying all these military actions — or threats of the use of force as
the most recent by the United States against Iraq — consists in the absence of an agreed
definition of terrorism.
Remarkable confusion persists in regard to the legal categorization of acts of violence
either by states, by armed groups such as liberation movements, or by individuals.
The dilemma can by summarized in the saying "One country's terrorist is another
country's freedom fighter." The apparent contradiction or lack of consistency in the use of
the term "terrorism" may further be demonstrated by the historical fact that leaders of
national liberation movements such as Nelson Mandela in South Africa, Habib
Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to mention only a few, were
originally labeled as terrorists by those who controlled the territory at the time, but later
became internationally respected statesmen.
What, then, is the defining criterion for terrorist acts — the differentia specifica
distinguishing those acts from eventually legitimate acts of national resistance or self-
defense?
Since the times of the Cold War the United Nations Organization has been trying in vain
to reach a consensus on the basic issue of definition. The organization has intensified its
efforts recently, but has been unable to bridge the gap between those who associate
"terrorism" with any violent act by non-state groups against civilians, state functionaries
or infrastructure or military installations, and those who believe in the concept of the
legitimate use of force when resistance against foreign occupation or against systematic
oppression of ethnic and/or religious groups within a state is concerned. CSIcTa
The dilemma facing the international community can best be illustrated by reference to
the contradicting categorization of organizations and movements such as Palestine
Liberation Organization (PLO) — which is a terrorist group for Israel and a liberation
movement for Arabs and Muslims — the Kashmiri resistance groups — who are
terrorists in the perception of India, liberation fighters in that of Pakistan — the earlier
Contras in Nicaragua — freedom fighters for the United States, terrorists for the Socialist
camp — or, most drastically, the Afghani Mujahedeen (later to become the Taliban
movement): during the Cold War period they were a group of freedom fighters for the
West, nurtured by the United States, and a terrorist gang for the Soviet Union. One could
go on and on in enumerating examples of conflicting categorizations that cannot be
reconciled in any way — because of opposing political interests that are at the roots of
those perceptions.
How, then, can those contradicting definitions and conflicting perceptions and
evaluations of one and the same group and its actions be explained? In our analysis, the
basic reason for these striking inconsistencies lies in the divergent interest of states.
Depending on whether a state is in the position of an occupying power or in that of a
rival, or adversary, of an occupying power in a given territory, the definition of terrorism
will "fluctuate" accordingly. A state may eventually see itself as protector of the rights of
a certain ethnic group outside its territory and will therefore speak of a "liberation
struggle," not of "terrorism" when acts of violence by this group are concerned, and vice-
versa.
The United Nations Organization has been unable to reach a decision on the definition of
terrorism exactly because of these conflicting interests of sovereign states that determine
in each and every instance how a particular armed movement (i.e. a non-state actor) is
labeled in regard to the terrorists-freedom fighter dichotomy. A "policy of double
standards" on this vital issue of international affairs has been the unavoidable
consequence.
This "definitional predicament" of an organization consisting of sovereign states — and
not of peoples, in spite of the emphasis in the Preamble to the United Nations Charter! —
has become even more serious in the present global power constellation: one superpower
exercises the decisive role in the Security Council, former great powers of the Cold War
era as well as medium powers are increasingly being marginalized; and the problem has
become even more acute since the terrorist attacks of 11 September 2001 I the United
States. 141
The absence of a law defining "acts of terrorism" may result in abuse and oppression on
the part of the police or military. An illustration is when a group of persons are merely
engaged in a drinking spree. Yet the military or the police may consider the act as an act
of terrorism and immediately arrest them pursuant to G.O. No. 5. Obviously, this is abuse
and oppression on their part. It must be remembered that an act can only be considered a
crime if there is a law defining the same as such and imposing the corresponding penalty
thereon.
So far, the word "terrorism" appears only once in our criminal laws, i.e., in P.D. No. 1835
dated January 16, 1981 enacted by President Marcos during the Martial Law regime. This
decree is entitled "Codifying The Various Laws on Anti-Subversion and Increasing The
Penalties for Membership in Subversive Organizations." The word "terrorism" is
mentioned in the following provision: "That one who conspires with any other person for
the purpose of overthrowing the Government of the Philippines . . . by force, violence,
terrorism, . . . shall be punished by reclusion temporal . . . ."
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of the
Philippines) enacted by President Corazon Aquino on May 5, 1985. These two (2) laws,
however, do not define "acts of terrorism." Since there is no law defining "acts of
terrorism," it is President Arroyo alone, under G.O. No. 5, who has the discretion to
determine what acts constitute terrorism. Her judgment on this aspect is absolute, without
restrictions. Consequently, there can be indiscriminate arrest without warrants, breaking
into offices and residences, taking over the media enterprises, prohibition and dispersal of
all assemblies and gatherings unfriendly to the administration. All these can be effected
in the name of G.O. No. 5. These acts go far beyond the calling-out power of the
President. Certainly, they violate the due process clause of the Constitution. Thus, this
Court declares that the "acts of terrorism" portion of G.O. No. 5 is unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit
acts beyond what are necessary and appropriate to suppress and prevent lawless violence,
the limitation of their authority in pursuing the Order. Otherwise, such acts are
considered illegal.
We first examine G.R. No. 171396 (David et al.) cDaEAS
The Constitution provides that "the right of the people to be secured in their persons,
houses, papers and effects against unreasonable search and seizure 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." 142 The plain import of the language of the Constitution is that searches,
seizures and arrests are normally unreasonable unless authorized by a validly issued
search warrant or warrant of arrest. Thus, the fundamental protection given by this
provision is that between person and police must stand the protective authority of a
magistrate clothed with power to issue or refuse to issue search warrants or warrants of
arrest. 143
In the Brief Account 144 submitted by petitioner David, certain facts are established:
first, he was arrested without warrant; second, the PNP operatives arrested him on the
basis of PP 1017; third, he was brought at Camp Karingal, Quezon City where he was
fingerprinted, photographed and booked like a criminal suspect; fourth, he was treated
brusquely by policemen who "held his head and tried to push him" inside an unmarked
car; fifth, he was charged with Violation of Batas Pambansa Bilang No. 880 145 and
Inciting to Sedition; sixth, he was detained for seven (7) hours; and seventh, he was
eventually released for insufficiency of evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:
Sec. 5. Arrest without warrant; when lawful. — A peace officer or a private person may,
without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense.
(b) When an offense has just been committed and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be arrested has
committed it; and
xxx xxx xxx.
Neither of the two (2) exceptions mentioned above justifies petitioner David's warrantless
arrest. During the inquest for the charges of inciting to sedition and violation of BP 880,
all that the arresting officers could invoke was their observation that some rallyists were
wearing t-shirts with the invective "Oust Gloria Now" and their erroneous assumption
that petitioner David was the leader of the rally. 146 Consequently, the Inquest
Prosecutor ordered his immediate release on the ground of insufficiency of evidence. He
noted that petitioner David was not wearing the subject t-shirt and even if he was wearing
it, such fact is insufficient to charge him with inciting to sedition. Further, he also stated
that there is insufficient evidence for the charge of violation of BP 880 as it was not even
known whether petitioner David was the leader of the rally. 147
But what made it doubly worse for petitioners David et al. is that not only was their right
against warrantless arrest violated, but also their right to peaceably assemble.
Section 4 of Article III guarantees:
No law shall be passed abridging the freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and petition the government for redress of
grievances. IEHScT
"Assembly" means a right on the part of the citizens to meet peaceably for consultation in
respect to public affairs. It is a necessary consequence of our republican institution and
complements the right of speech. As in the case of freedom of expression, this right is not
to be limited, much less denied, except on a showing of a clear and present danger of a
substantive evil that Congress has a right to prevent. In other words, like other rights
embraced in the freedom of expression, the right to assemble is not subject to previous
restraint or censorship. It may not be conditioned upon the prior issuance of a permit or
authorization from the government authorities except, of course, if the assembly is
intended to be held in a public place, a permit for the use of such place, and not for the
assembly itself, may be validly required.
The ringing truth here is that petitioner David, et al. were arrested while they were
exercising their right to peaceful assembly. They were not committing any crime, neither
was there a showing of a clear and present danger that warranted the limitation of that
right. As can be gleaned from circumstances, the charges of inciting to sedition and
violation of BP 880 were mere afterthought. Even the Solicitor General, during the oral
argument, failed to justify the arresting officers' conduct. In De Jonge v. Oregon, 148 it
was held that peaceable assembly cannot be made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a crime. The holding of
meetings for peaceable political action cannot be proscribed. Those who assist in the
conduct of such meetings cannot be branded as criminals on that score. The question, if
the rights of free speech and peaceful assembly are not to be preserved, is not as to the
auspices under which the meeting was held but as to its purpose; not as to the relations of
the speakers, but whether their utterances transcend the bounds of the freedom of speech
which the Constitution protects. If the persons assembling have committed crimes
elsewhere, if they have formed or are engaged in a conspiracy against the public peace
and order, they may be prosecuted for their conspiracy or other violations of valid laws.
But it is a different matter when the State, instead of prosecuting them for such offenses,
seizes upon mere participation in a peaceable assembly and a lawful public discussion as
the basis for a criminal charge.
On the basis of the above principles, the Court likewise considers the dispersal and arrest
of the members of KMU et al. (G.R. No. 171483) unwarranted. Apparently, their
dispersal was done merely on the basis of Malacañang's directive canceling all permits
previously issued by local government units. This is arbitrary. The wholesale cancellation
of all permits to rally is a blatant disregard of the principle that "freedom of assembly is
not to be limited, much less denied, except on a showing of a clear and present danger of
a substantive evil that the State has a right to prevent." 149 Tolerance is the rule and
limitation is the exception. Only upon a showing that an assembly presents a clear and
present danger that the State may deny the citizens' right to exercise it. Indeed,
respondents failed to show or convince the Court that the rallyists committed acts
amounting to lawless violence, invasion or rebellion. With the blanket revocation of
permits, the distinction between protected and unprotected assemblies was eliminated.
aTIAES
Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with
the local government units. They have the power to issue permits and to revoke such
permits after due notice and hearing on the determination of the presence of clear and
present danger. Here, petitioners were not even notified and heard on the revocation of
their permits. 150 The first time they learned of it was at the time of the dispersal. Such
absence of notice is a fatal defect. When a person's right is restricted by government
action, it behooves a democratic government to see to it that the restriction is fair,
reasonable, and according to procedure.
G.R. No. 171409, (Cacho-Olivares, et al.) presents another facet of freedom of speech
i.e., the freedom of the press. Petitioners' narration of facts, which the Solicitor General
failed to refute, established the following: first, the Daily Tribune's offices were searched
without warrant; second, the police operatives seized several materials for publication;
third, the search was conducted at about 1:00 o'clock in the morning of February 25,
2006; fourth, the search was conducted in the absence of any official of the Daily Tribune
except the security guard of the building; and fifth, policemen stationed themselves at the
vicinity of the Daily Tribune offices.
Thereafter, a wave of warning came from government officials. Presidential Chief of
Staff Michael Defensor was quoted as saying that such raid was "meant to show a 'strong
presence,' to tell media outlets not to connive or do anything that would help the rebels in
bringing down this government." Director General Lomibao further stated that "if they do
not follow the standards — and the standards are if they would contribute to instability in
the government, or if they do not subscribe to what is in General Order No. 5 and Proc.
No. 1017 — we will recommend a 'takeover.'" National Telecommunications
Commissioner Ronald Solis urged television and radio networks to "cooperate" with the
government for the duration of the state of national emergency. He warned that his
agency will not hesitate to recommend the closure of any broadcast outfit that violates
rules set out for media coverage during times when the national security is threatened.
151
The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down
the steps in the conduct of search and seizure. Section 4 requires that a search warrant be
issued upon probable cause in connection with one specific offence to be determined
personally by the judge after examination under oath or affirmation of the complainant
and the witnesses he may produce. Section 8 mandates that the search of a house, room,
or any other premise be made in the presence of the lawful occupant thereof or any
member of his family or in the absence of the latter, in the presence of two (2) witnesses
of sufficient age and discretion residing in the same locality. And Section 9 states that the
warrant must direct that it be served in the daytime, unless the property is on the person
or in the place ordered to be searched, in which case a direction may be inserted that it be
served at any time of the day or night. All these rules were violated by the CIDG
operatives.
Not only that, the search violated petitioners' freedom of the press. The best gauge of a
free and democratic society rests in the degree of freedom enjoyed by its media. In the
Burgos v. Chief of Staff 152 this Court held that —
As heretofore stated, the premises searched were the business and printing offices of the
"Metropolitan Mail" and the "We Forum" newspapers. As a consequence of the search
and seizure, these premises were padlocked and sealed, with the further result that the
printing and publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to the freedom
of the press guaranteed under the fundamental law, and constitutes a virtual denial of
petitioners' freedom to express themselves in print. This state of being is patently
anathematic to a democratic framework where a free, alert and even militant press is
essential for the political enlightenment and growth of the citizenry.
While admittedly, the Daily Tribune was not padlocked and sealed like the "Metropolitan
Mail" and "We Forum" newspapers in the above case, yet it cannot be denied that the
CIDG operatives exceeded their enforcement duties. The search and seizure of materials
for publication, the stationing of policemen in the vicinity of the The Daily Tribune
offices, and the arrogant warning of government officials to media, are plain censorship.
It is that officious functionary of the repressive government who tells the citizen that he
may speak only if allowed to do so, and no more and no less than what he is permitted to
say on pain of punishment should he be so rash as to disobey. 153 Undoubtedly, the The
Daily Tribune was subjected to these arbitrary intrusions because of its anti-government
sentiments. This Court cannot tolerate the blatant disregard of a constitutional right even
if it involves the most defiant of our citizens. Freedom to comment on public affairs is
essential to the vitality of a representative democracy. It is the duty of the courts to be
watchful for the constitutional rights of the citizen, and against any stealthy
encroachments thereon. The motto should always be obsta principiis. 154
Incidentally, during the oral arguments, the Solicitor General admitted that the search of
the Tribune's offices and the seizure of its materials for publication and other papers are
illegal; and that the same are inadmissible "for any purpose," thus: cIaHDA
JUSTICE CALLEJO:
You made quite a mouthful of admission when you said that the policemen, when
inspected the Tribune for the purpose of gathering evidence and you admitted that the
policemen were able to get the clippings. Is that not in admission of the admissibility of
these clippings that were taken from the Tribune?
SOLICITOR GENERAL BENIPAYO:
Under the law they would seem to be, if they were illegally seized, I think and I
know, Your Honor, and these are inadmissible for any purpose. 155
xxx xxx xxx
SR. ASSO. JUSTICE PUNO:
These have been published in the past issues of the Daily Tribune; all you have to
do is to get those past issues. So why do you have to go there at 1 o'clock in the morning
and without any search warrant? Did they become suddenly part of the evidence of
rebellion or inciting to sedition or what?
SOLGEN BENIPAYO:
Well, it was the police that did that, Your Honor. Not upon my instructions.
SR. ASSO. JUSTICE PUNO:
Are you saying that the act of the policeman is illegal, it is not based on any law,
and it is not based on Proclamation 1017.
SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because there is nothing in
1017 which says that the police could go and inspect and gather clippings from Daily
Tribune or any other newspaper.
SR. ASSO. JUSTICE PUNO:
Is it based on any law?
SOLGEN BENIPAYO:
As far as I know, no, Your Honor, from the facts, no. DITEAc
SR. ASSO. JUSTICE PUNO:
So, it has no basis, no legal basis whatsoever?
SOLGEN BENIPAYO:
Maybe so, Your Honor. Maybe so, that is why I said, I don't know if it is
premature to say this, we do not condone this. If the people who have been injured by this
would want to sue them, they can sue and there are remedies for this. 156
Likewise, the warrantless arrests and seizures executed by the police were, according to
the Solicitor General, illegal and cannot be condoned, thus:
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not contradiction in your theory.
SOLICITOR GENERAL BENIPAYO:
I don't know whether this will clarify. The acts, the supposed illegal or unlawful
acts committed on the occasion of 1017, as I said, it cannot be condoned. You cannot
blame the President for, as you said, a misapplication of the law. These are acts of the
police officers, that is their responsibility. 157
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every
aspect and "should result in no constitutional or statutory breaches if applied according to
their letter."
The Court has passed upon the constitutionality of these issuances. Its ratiocination has
been exhaustively presented. At this point, suffice it to reiterate that PP 1017 is limited to
the calling out by the President of the military to prevent or suppress lawless violence,
invasion or rebellion. When in implementing its provisions, pursuant to G.O. No. 5, the
military and the police committed acts which violate the citizens' rights under the
Constitution, this Court has to declare such acts unconstitutional and illegal. DaAISH
In this connection, Chief Justice Artemio V. Panganiban's concurring opinion, attached
hereto, is considered an integral part of this ponencia.
SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021 — a supervening event —
would have normally rendered this case moot and academic. However, while PP 1017
was still operative, illegal acts were committed allegedly in pursuance thereof. Besides,
there is no guarantee that PP 1017, or one similar to it, may not again be issued. Already,
there have been media reports on April 30, 2006 that allegedly PP 1017 would be
reimposed "if the May 1 rallies" become "unruly and violent." Consequently, the
transcendental issues raised by the parties should not be "evaded;" they must now be
resolved to prevent future constitutional aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a call
by the President for the AFP to prevent or suppress lawless violence. The proclamation is
sustained by Section 18, Article VII of the Constitution and the relevant jurisprudence
discussed earlier. However, PP 1017's extraneous provisions giving the President express
or implied power (1) to issue decrees; (2) to direct the AFP to enforce obedience to all
laws even those not related to lawless violence as well as decrees promulgated by the
President; and (3) to impose standards on media or any form of prior restraint on the
press, are ultra vires and unconstitutional. The Court also rules that under Section 17,
Article XII of the Constitution, the President, in the absence of a legislation, cannot take
over privately-owned public utility and private business affected with public interest.
SIEHcA
In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President
— acting as Commander-in-Chief — addressed to subalterns in the AFP to carry out the
provisions of PP 1017. Significantly, it also provides a valid standard — that the military
and the police should take only the "necessary and appropriate actions and measures to
suppress and prevent acts of lawless violence." But the words "acts of terrorism" found in
G.O. No. 5 have not been legally defined and made punishable by Congress and should
thus be deemed deleted from the said G.O. While "terrorism" has been denounced
generally in media, no law has been enacted to guide the military, and eventually the
courts, to determine the limits of the AFP's authority in carrying out this portion of G.O.
No. 5. STcEaI
On the basis of the relevant and uncontested facts narrated earlier, it is also pristine clear
that (1) the warrantless arrest of petitioners Randolf S. David and Ronald Llamas; (2) the
dispersal of the rallies and warrantless arrest of the KMU and NAFLU-KMU members;
(3) the imposition of standards on media or any prior restraint on the press; and (4) the
warrantless search of the Tribune offices and the whimsical seizures of some articles for
publication and other materials, are not authorized by the Constitution, the law and
jurisprudence. Not even by the valid provisions of PP 1017 and G.O. No. 5.
Other than this declaration of invalidity, this Court cannot impose any civil, criminal or
administrative sanctions on the individual police officers concerned. They have not been
individually identified and given their day in court. The civil complaints or causes of
action and/or relevant criminal Informations have not been presented before this Court.
Elementary due process bars this Court from making any specific pronouncement of
civil, criminal or administrative liabilities.
It is well to remember that military power is a means to an end and substantive civil
rights are ends in themselves. How to give the military the power it needs to protect the
Republic without unnecessarily trampling individual rights is one of the eternal balancing
tasks of a democratic state. During emergency, governmental action may vary in breadth
and intensity from normal times, yet they should not be arbitrary as to unduly restrain our
people's liberty. DECcAS
Perhaps, the vital lesson that we must learn from the theorists who studied the various
competing political philosophies is that, it is possible to grant government the authority to
cope with crises without surrendering the two vital principles of constitutionalism: the
maintenance of legal limits to arbitrary power, and political responsibility of the
government to the governed. 158
WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017 is
CONSTITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-
Arroyo on the AFP to prevent or suppress lawless violence. However, the provisions of
PP 1017 commanding the AFP to enforce laws not related to lawless violence, as well as
decrees promulgated by the President, are declared UNCONSTITUTIONAL. In addition,
the provision in PP 1017 declaring national emergency under Section 17, Article VII of
the Constitution is CONSTITUTIONAL, but such declaration does not authorize the
President to take over privately-owned public utility or business affected with public
interest without prior legislation. DHcESI
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and
the PNP should implement PP 1017, i.e. whatever is "necessary and appropriate actions
and measures to suppress and prevent acts of lawless violence." Considering that "acts of
terrorism" have not yet been defined and made punishable by the Legislature, such
portion of G.O. No. 5 is declared UNCONSTITUTIONAL.
The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and
warrantless arrest of the KMU and NAFLU-KMU members during their rallies, in the
absence of proof that these petitioners were committing acts constituting lawless
violence, invasion or rebellion and violating BP 880; the imposition of standards on
media or any form of prior restraint on the press, as well as the warrantless search of the
Tribune offices and whimsical seizure of its articles for publication and other materials,
are declared UNCONSTITUTIONAL.
No costs.
SO ORDERED.
"OATH OF OFFICE
I, MARY CONCEPCION BAUTISTA of 3026 General G. del Pilar Street, Bangkal,
Makati, Metro Manila having been appointed to the position of CHAIRMAN of the
Commission on Human Rights, do solemnly swear that I will discharge to the best of my
ability all the duties and responsibilities of the office to which I have been appointed;
uphold the Constitution of the Republic of the Philippines, and obey all the laws of the
land without mental reservation or purpose of evasion.
SO HELP ME GOD.
MARY CONCEPCION BAUTISTA
SUBSCRIBED AND SWORN TO before me this 22nd day of December in the year of
Our Lord, 1988 in Manila.
MARCELO B. FERNAN
Chief Justice
Supreme Court of the Philippines" 6
Immediately, after taking her oath of office as Chairman of the Commission on Human
Rights, petitioner Bautista discharged the functions and duties of the Office of Chairman
of the Commission on Human Rights which, as previously stated, she had originally held
merely in an acting capacity beginning 27 August 1987.
On 9 January 1989, petitioner Bautista received a letter from the Secretary of the
Commission on Appointments requesting her to submit to the Commission certain
information and documents as required by its rules in connection with the confirmation of
her appointment as Chairman of the Commission on Human Rights. 7 On 10 January
1989, the Commission on Appointments' Secretary again wrote petitioner Bautista
requesting her presence at a meeting of the Commission on Appointments Committee on
Justice, Judicial and Bar Council and Human Rights set for 19 January 1989 at 9 A.M. at
the Conference Room, 8th Floor, Kanlaon Tower I, Roxas Boulevard, Pasay City that
would deliberate on her appointment as Chairman of the Commission on Human Rights.
8
On 13 January 1989, petitioner Bautista wrote to the Chairman of the Commission on
Appointments stating, for the reasons therein given, why she considered the Commission
on Appointments as having no jurisdiction to review her appointment as Chairman of the
Commission on Human Rights. The petitioner's letter to the Commission on
Appointments' Chairman reads:
"January 13, 1989
SENATE PRESIDENT JOVITO R. SALONGA
Chairman
Commission on Appointments
Senate, Manila
Sir:
We acknowledge receipt of the communication from the Commission on Appointments
requesting our appearance on January 19, 1989 for deliberation on our appointments.
We respectfully submit that the appointments of the Commissioners of the Human Rights
Commission are not subject to confirmation by the Commission on Appointments.
The Constitution, in Article VII Section 16 which expressly vested on the President the
appointing power, has expressly mentioned the government officials whose appointments
are subject to the confirmation of the Commission on Appointments of Congress. The
Commissioners of the Commission on Human Rights are not included among those.
Where the confirmation of the Commission on Appointments is required, as in the case of
the Constitutional Commissions such as the Commission on Audit, Civil Service
Commission and the Commission on Elections, it was expressly provided that the
nominations will be subject to confirmation of Commission on Appointments. The
exclusion again of the Commission on Human Rights, a constitutional office, from this
enumeration is a clear denial of authority to the Commission on Appointments to review
our appointments to the Commission on Human Rights.
Furthermore, the Constitution specifically provides that this Commission is an
independent office which:
a. must investigate all forms of human rights violations involving civil and political
rights;
b. shall monitor the government's compliance in all our treaty obligations on human
rights. We submit that, the monitoring of all agencies of government, includes even
Congress itself, in the performance of its functions which may affect human rights;
c. may call on all agencies of government for the implementation of its mandate.
The powers of the Commission on Appointments is in fact a derogation of the Chief
Executive's appointing power and therefore the grant of that authority to review a valid
exercise of the executive power can never be presumed. It must be expressly granted.