G.R. No.
L-99            November 16, 1945 That the denial of said petition is a flagrant violation of the
PIO DURAN, petitioner,  Commonwealth Act No. 682, and that the respondent has
vs.
SALVADOR ABAD SANTOS, Judge of People's
Court, respondent.
Marciano Almario for petitioner.
Judge Salvador Abad Santos of People's Court in his own behalf.
JARANILLA, J.:
This certiorari proceeding was instituted by petitioner Pio Duran
against respondent Honorable Salvador Abad Santos, Judge of
the People's Court, praying that the order of said respondent
judge of October 12 and October 15, 1945, denying him bail not
set aside and that he be allowed to put up a bail not to exceed
P20,000 for his provisional release. The pertinent allegations of
the petitions are:
That the petitioner is a Filipino political prisoner under the custody
of the Director of Prisons in the New Bilibid Prison, Muntinglupa,
Rizal, for not less than three months without any information
having filed against him: That the petitioner filed a petition in the
People's Court for his release on bail and that the Solicitor
General recommended that the petitioner be provisionally
released on P35,000 bail; That after hearing the statements of
Special Prosecutor V. D. Carpio, in representation of the Solicitor
General, and Atty. Marciano Almario, counsel for the petitioner,
which statements are contained in Appendix E of the petition, the
said respondent judge denied the petition for bail on October 121,
1945, and refused to reconsider it by his order issued on October
15, 1945; and.
Constitution of the Philippines and of section 19 of
committed a great abuse of discretion for which petitioner has no
other plain speedy and adequate remedy in the ordinary course
of law. 
The respondent judge, in answer to the petition, denies abuse of
discretion and alleges that the reason for the denial of the petition
for the release of the petitioner on bail was set forth in his order of
October 15, 1945, which reads as follows:
The detainee's adherence to the enemy as manifested by
his utterances and activities during the Japanese
domination especially as Executive General of the
Makapili; as Director of General of the Kalibapi; as Vice-
Minister of State for Home Affairs; member of the Council
of State; as member of the National Assembly under the
Japanese-sponsored Philippine Republic and as
President of the New Leaders Association — historical
facts of contemporary history and of public knowledge
which the petitioner cannot deny — makes the case
against him quite serious and may the necessitate the
imposition of the capital punishment.
The evidence against the petitioner, according to said Appendix E
of the petition, consists of documentary proofs received by the
Office of Special Prosecutors from the Counter Intelligence Corps
(CIC), which documentary evidence is considered confidential,
having been received with that injunction from the military
authorities, and so the special prosecutor who appeared at the
hearing in the court below manifested that he was not free to
divulge the contents thereof. The special prosecutor, however,
mentioned in his statements before the People's Court certain
facts which are stated by the respondent judge in his answer to
the petition.  of said section 19 of Act No. 682 for his temporary release on
It appears that the petitioner was originally detained by the United
States Army, which had investigated the acts of said petitioner
and gathered the corresponding evidence; and that after the
hostilities were ended, with the formal acceptance by Japan of
the terms of the Allies, the said petitioner and the evidence
gathered against him were turned over to the Commonwealth
Government and the Office of Special Prosecutors for such action
as may be warranted. The said petitioner was detained by the
military authorities from July 4 to September 26, 1945, when he
was turned over to the Commonwealth Government, as may be
gleaned from Appendix A filed by him in this case. As a military
political prisoner, he could not be bailed out. Now he invokes the
provisions of Commonwealth Act No. 682 creating the People's
Court and the Office of Special Prosecutor and specifically
section 19 of said Act, said section reads partly as follows:
. . . Provided, however, That existing provisions of law to
the contrary notwithstanding, the aforesaid political
prisoners may, in the discretion of the People's Court,
after due notice to the Office of Special Prosecutors and
hearing, be released on bail, even prior to the
presentation of the corresponding information, unless the
Court, finds that there is strong evidence of the
commission of a capital offense . . .
As may be seen the above express provision of law, the release
of a detainee on bail, "even prior to the presentation of the
corresponding information," is purely discretionary on the
People's Court find that there is strong evidence of the
commission of a capital offense," in which case no bail whatever
can be granted, as the provision appears mandatory. In other
words, aside from that, the People's Court has the absolute
discretion to grant bail or not. Having invoked the clear provision
bail, the petitioner cannot attack it as being illegal or
unconstitutional. And it appearing that his case is covered by said
exception of the law, it must be held that he cannot be admitted to
bail. 
But even if we should concede counsel's contention, for the sake
of argument, that the People's Court has not been given that
discretion to deny bail to the petitioner, still the conclusion of the
respondent judge is not unfounded for the following reasons: 
First, the special prosecutor stated that the information to be filed
in the case would be for treason, which is "the highest of all
crimes" (In re Charge to Grand Jury, 30 F. Cas., No. 18, 269; 2
Curt., 530; U. S. vs. Lagnason, 3 P. R. A. 247; 3 Phil., 472, U.
S. vs. Abad, 1 Phil., 437), penalized with capital punishment
under article 114 of the Revised Penal Code; and 
Secondly, the recital by the special prosecutor of the supposed
acts committed by the petitioner and referred to by the
respondent judge in his order of October 15, 1945, above quoted,
which acts were not rebutted by counsel for the petitioner at the
hearing on the petition for bail, supports the conclusion and ruling
of the People's Court. 
It is true that during the oral argument in this case counsel for the
petitioner denied the imputation that the petitioner was the
Executive General of the "Makapili," but he openly admitted that
at the hearing before the People's Court he did not make any
effort to deny or disprove the said imputation or the others
appearing in Appendix E of the petition. In view thereof, how can
we expect the People's Court not to take into consideration what
had been stated then, appearing in said Appendix E?
Counsel's contention that there was strong have presented
evidence to prove that there was strong evidence of the
commission of a capital offense before People's Court could deny
bail in this case was substantially complied with, although the
information charging the commission of the crime of treason had
not as yet been filed. We are of the opinion and so hold that
hearing set and held for the purpose (see Appendix E) was amply
sufficient for the People's Court to be informed and to determine
whether there was strong evidence of the commission of a capital
offense. The special prosecutor clearly informed the People's
Court in the presence of the adverse counsel, in part, as follows:
. . . I understand strict assurance has been made that all
witnesses required to make a testimony will be
considered secret, and that their statements will be held
strictly confidential and if we have to answer that question
as propounded by the Court, as I have said, I would be
violating the injunction given to us to consider those
documents as confidential. I may venture, however, to
explain by stating several facts which we believe are so
well known not only by the Court or by the Office of the
Special Prosecutors by the people as a whole, which no
one can deny, not even the detained petitioner or anyone
else, and those facts are as follows: That the petitioner
herein was a member of the Council of the State during
the Japanese occupation. He was the Director of General
Affairs of the Kalibapi. He was elected member of the
National Assembly under the puppet Republic. He was
Vice-Minister of State for Home Affairs. He was the
Executive General of Makapili. Lastly, he became
President of the New Leaders Association. These facts, I
repeat, are things which I venture to say neither the
petitioner nor anyone else can dare deny and therefore, l
feel free to divulge without any violation of trust or
confidence. Furthermore, I can state with assuredness
that among the articles of association of the Makapili, of
which the petitioner was the Executive General, it is
stated: "To fight the common enemies side by side with
other Asians on any front in the present war." Another:
"To collaborate unreservedly and unstintedly with Imperial
Japaneses Army and Navy in the Philippines in such a
way and means as may, in the joint judgment of the
Imperial Japanese forces and the association (association
meaning Makapili) be deemed necessary and fruitful." 
The case of the petitioner herein by reason of his
prominence in social political and court circles is such that
this case has assumed pre-eminence and interest of
tremendous proportion not only in this country but
perhaps even in the United States — all by reason known
associations, connections and statements made by the
detained petitioner publicly and privately in his advocacy
of the Greater East Asia Co-Prosperity Sphere and his
advocacy of Japan as the leading nation in the Orient in
the proposed Asiatic Monroeism on which he had been
working for so many years before and during the war, and
I take it for granted even now. And no one can dispute the
facts that in his advocacy of this program aforesaid the
petitioner has made statements, as follows: "The flight, of
MacArthur once again shows that the White men's in East
Asia is mercenary and imperialistic. He comes to exploit
the people and the natural resources, fill his pockets with
as much wealth as can be obtained irrespective of the
means, and later return to his own native land to spend
the declining years of his life in comfortable indolence. He
cares not for the defense of any of the colonies he may
have acquired. At first sign of danger he pacts his bag
and baggage and runs away, leaving the native
inhabitants to whatever fate awaits them." This appears in
an article written by the detained petitioner in the Tribune
of March 22, 1942.  this particular case. Right now, it our conviction that the
Further, the detained petitioner has said: "We, who have
always doubted the sincerity of occidental
disinterestedness in Asia, adhere to the theory that it is
only through the unified efforts of all of all Asiatics that the
complete emancipation not only of the Philippines but of
all Asia may be achieved, that is why we are co-operating
solely and wholeheartedly with the Japanese military
administration and urge our countrymen to do same."
That come from a radio speech, reported in the Tribune of
May 6, 1942.
Again, the detained petitioner has stated: "With the
Japanese spirit moving the one hundred million people of
Japan, who are solidly behind the prosecution of the
Greater East Asia War to a successful end, the Great
Empire of Japan cannot be beaten in the current war."
That also came from an article reported in the newspaper,
Tribune, July 7, 1942.  charged in the information for a capital offense and punishable by
And on January 30, 1945, there appeared an article in the
Tribune an item, as follows: "Lingayen front, Jan. 27. —
Makapili members thrust into American lines following the
landing of the invaders in the Lingayen, gulf shores, it was
revealed here. Forming death defying squads, these
youthful Filipinos stormed into enemy lines with fixed
bayonets causing heavy casualties among the
Americans."
Up to the present time, the Office of Special Prosecutors
has not the material time to check up all the evidence
submitted to us by the military authorities. There are more
than 4,000 such cases in our hands aid unless we are
given enough time it will be very hard for us to go over
evidence against the petitioner is rather convincing.
Neither have we formulated the necessary information;
but I venture to say that when we file the necessary
information to the Court it would not be for a simple crime
but for treason. I submit, however, the foregoing facts as
above stated to give the Court an idea of the nature of the
evidence that will in due time be adduced in support of
the information that we will file. (See Payao vs. Lesaca,
63 Phil., 210.) 
In view of the foregoing, it cannot be stated that the petitioner has
been deprived of his liberty without due process of law, because
his petition for bail had been set for hearing and he was given an
opportunity to be heard when the above circumstances were
submitted to the People's Court, where it was made to appear
satisfactorily that he was being detained due to highly
treasonable activities against the Commonwealth of the
Philippines and the United States, which activities would be
death, and that the evidence in the case strong.
Wherefore, we find and so hold that the petition is without merit
and therefore the same is hereby ordered dismissed with costs
against the petitioner. So ordered.
G.R. No. L-30773 February 18, 1970
FELIXBERTO C. STA. MARIA, petitioner,  University and the Constitution and laws of the Republic of the
vs.
SALVADOR P. LOPEZ, THE BOARD OF REGENTS OF THE
UNIVERSITY OF THE PHILIPPINES, and NEMESIO
CERALDE, respondents.
V.E. del Rosario and Associates and Atienza, Tabora & del
Rosario for petitioner.
Office of the Solicitor General Felix V. Makasiar, Solicitor
Bernardo P. Pardo and Special Counsel Perfecto V. Fernandez
for respondents Salvador Lopez, et al.
Crispin D. Baizas for respondent Nemesio Ceralde.
SANCHEZ, J.:
Directly under attack in this an original action for certiorari,
prohibition and mandamus is the validity of the transfer of
petitioner Felixberto C. Sta.Maria from his post of Dean, College
of Education, University of the Philippines (UP), to the Office of
respondent UP President Salvador P. Lopez, there to become
Special Assistant in charge of public information and relations.
Petitioner, a professor of English and Comparative Literature
(formerly Dean of the UP College in Baguio), was elected Dean of
the College of Education on May 5, 1967 by the Board of
Regents, on nomination of the UP President. His appointment as
such Dean was for a five year term, "effective May 16, 1967 until
May 17, 1972, unless sooner terminated, with all the rights and
privileges as well as the duties and obligations attached to the
position in accordance with the rules and regulations of the
Philippines.
The issues in this case can be better understood if framed in its
proper setting, viz:
As far back as February 11, 1969, the graduate and
undergraduate students of the UP College of Education
presented to President Salvador P. Lopez a number of demands
having a bearing on the general academic program1 and the
physical plant and services,2 with a cluster of special demands.3 In
response, President Lopez created a committee composed of eight
graduate students, two undergraduate students, and four faculty
members. This committee met 9 times with Dean Sta. Maria in
February and March 1969. On March 17, 1969, Dean Sta. Maria
gave President Lopez a written summary of the dialogues he had
with the committee and enumerated in connection with the demands,
the steps taken,4 the steps being taken5 and the steps ito be taken in
consultation with the faculty.6 He also recommended to the UP
President the following: a more adequate budget responsive to the
needs of the college, taking into account its expanding graduate
program; improvement of the library service in terms of a better book
collection and more adequate space and reading rooms, particularly
for graduate students; appointment of more faculty members on the
senior level to handle the large graduate program, and to meet the
acute need for more graduate advisers, critics, and committee
members; improvement of the water system of the college;
improvement of the physical plant of the college, including its
classrooms, offices, toilets, sidewalks and surrounding landscape;
and construction of a graduate students' dormitory.
But the students were not to be appeased. For, Dean Sta. Maria,
according to them, did not act on some of their demands.
Respondents herein have stressed that in the meetings of the
education graduate committee, Dean Sta. Maria neither included
in the agenda nor consulted the faculty about the students'
demands on "foreign language proficiency examination" and on
"research and thesis writing pressures". They have brought out
the fact that many members of the faculty shared the students'
grievances on the absence of definite standards and procedures
on academic work, including teaching load, administrative and
committee assignments, faculty evaluation, and favoritism and
discrimination.
On July 16, 1969, Adelaida E. Masuhud, President of the UP
Graduate Education Student Organization., led a group who
visited President Lopez and submitted to him a progress report
on the students' demands taken up with Sta. Maria since March
26, 1969. She acknowledged that the dean had granted ten
demands7 but deplored the fact that the dean had ignored the
following; submission to the faculty for decision, of the demand for
abolition of foreign language requirements and comprehensive
examinations; fixing the criteria for selection, admission, appointment
and promotion of faculty members; formulation of clear-cut policies
on thesis advising, faculty teaching load, and faculty membership on
standing committees; and appointment of a permanent director for
the Graduate Education Studies of the SPED Program. She thus
stated: "I appreciate the efforts of the Dean in acting On some of our
demands. However, the Dean has failed to take further action on the
demands that have far reaching implications for the students, faculty
and the College as a whole. As a consequence problems, confusion
and demoralization of students and faculty have cropped up anew in
the college."
The students threatened to boycott their classes the next day,
July 17. President Lopez asked that they desist, suggested that
they instead attend a student-faculty meeting the next day in his
office.
But on July 17, the Education Graduate Student Organization
boycotted their classes just the same. The President met the
striking students' representatives and the faculty members of the
College of Education. Charges of favoritism were allegedly hurled
by some of the faculty members against Sta. Maria. On the other
hand, the dean offered to sit down with the students.The latter,
however, refused to enter into a dialogue unless he (the dean)
were first ousted.
In a separate development, the faculty members of the College of
Education convened in the afternoon of July 22. They resolved,
amongst others, to recognize the right of a college dean to his
position from which he cannot be removed unless for cause (44 in
favor, 2 abstained), and not to endorse the students' demand for
the forced resignation of Sta. Maria (36 in favor, 5 against, 3
abstained).
The boycott fever infected other colleges. On July 22, 1969, the
newly installed members of the UP Student Council voted to
support the education students' strike. The next day, July 23, the
main avenues leading to the university gates were barricaded,
buses denied entrance, and students cajoled into joining the
strike. It was thus on that day that all academic activity in the
university came to a complete stand still. In the morning of July
23, at 10:00 o'clock, the UP President called a meeting of the
faculty of the College of Education. Those present gave him a
vote of confidence (40 in favor, 7 abstained) to resolve the issue
on hand as he sees fit.
Armed with the vote of confidence of the education faculty, on the
same day, July 23, 1969, President Lopez issued the transfer
order herein challenged, Administrative Order 77. That order,
addressed to Dean Sta. Maria, reads:
 By special authority vested in me by the Board of
Regents and pursuant to the Civil Service Law
and the University Code, you are hereby
transferred from the College of Education to the
Office of the President as Special Assistant8 with
the rank of Dean, without reduction in salary, in the
interest of the service.
This transfer involves your administrative position
only and in no way affects your status as
professor of the University.
This order shall take effect immediately.
Simultaneously, President Lopez appointed ad interim Professor
Nemesio R. Ceralde as "acting Dean of the College of Education,
without additional compensation, effective July 23, 1969".
President Lopez was to explain in a press statement of July 23,
1969 that he "cannot permit the continued disruption of the
academic life of the institution"; that the transfer order was made
"[i]n the interest of the service" and "as an emergency measure"
because the meetings with the faculty, students, Sta. Maria and
the UP President had "proved fruitless in the face ofthe refusal of
the College of Education students to discuss any further their
demands unless and until Dean Sta. Maria resigns his position";
and that, therefore, "the complete shut-down of classes in the
Diliman campus has compelled" him to "transfer Dean Sta. Maria
to other duties".
Having received the transfer order on the same day, July 23, Sta.
Maria forthwith wrote a letter, which he himself hand carried to
President Lopez, requesting that "(a) a formal investigation be
conducted by the Board of Regents on the circumstances which
led to the promulgation of the above order, and on the basis
thereof; and (b) said order be reconsidered and set aside forbeing
manifestly unjust, unfair, unconstitutional, and contrary to law,
and, therefore, null and void."
The next day, July 24, Sta. Maria announced to the education
students and faculty, through Memorandum 17, that the transfer
order "is now the subject of a pending request for
reconsideration ... and, for this reason, its effectivity is necessarily
suspended", and that he shall continue "to be the Dean ...
pursuant to his appointment as such for the period from January
1, 1968 to May 15, 1972."
On July 25, 1969, the education faculty signed a "Declaration of
Concern" stating, amongst others, that when they gave President
Lopez a vote of confidence, they "did so in the belief and
confidence that he ... will uphold the democratic processes in the
solution of the problem and will respect the fundamental rights of
the individual." Similar declarations of concern came from the
faculties of law, medicine, arts and sciences, and nursing.
At President Lopez' request, a special meeting of the Board of
Regents was held on July 25, 1969. President Lopez there
reported Dean Sta. Maria's transfer and Professor Ceralde's ad
interim appointment as Acting Dean of the College of Education.
He told the board that because of "failure of leadership in the
College of Education, a crisis of confidence emerged in that
institution"; that the ultimate result was the boycott of classes by
the students "starting on July 17, 1969 in protest against the
inaction of Dean Sta. Maria on their demands submitted months
ago"; and that this situation impelled him to issue Administrative
Order 77 "as demanded by the prevailing crisis."
The board confirmed Dean Sta. Maria's transfer and Professor
Ceralde's appointment, considered as premature Sta. Maria's
Memorandum 17 heretofore mentioned, but gave due course to
his plea for reconsideration and granted him a chance to be
heard at the next board meeting on July 29, 1969.
In the said meeting of July 29, Sta. Maria did not personally
appear. He sent his counsel who manifested that Sta. Maria was
not recognizing the board's jurisdiction unless, without further
hearing, the board first revoke the transfer order. The board
resolved: "... to take cognizance and consider as a new petition of
Dean Sta. Maria, submitted through counsel, his declaration that
the efficacy of the President's Administrative Order No. 77
transferring him should first be suspended by the Board and held
in abeyance as a prerequisite f or the hearing being prayed for. In
this connection, Dean Sta. Maria will be asked to file a
Memorandum with the Board in support of his new petition."
The foregoing had been the developments when Sta. Maria filed
the present petition for certiorari, prohibition and mandamus in
this Court on July 31, 1969 against respondents Salvador P.
Lopez, the Board of Regents and Nemesio R. Ceralde.
The case is now ripe for decision.
1. Discussion of the issues herein involved necessarily has to
start with the examination of the terms of employment, the
covenant which binds petitioner with the university. The contract,
it bears repeating, stipulates that the dean's five-year term is
qualified by the clause: "unless sooner terminated, with all the
rights and privileges as well as the duties and obligations
attached to the position in accordance with the rules and
regulations of the University and the Constitution and laws of the
Republic of the Philippines." The authority for this appointment is
found in Article 79 of the university code providing that "[t]he term
of office of all deans ... shall be five years from the date of their
appointment without prejudice to reappointment and until their
successors shall have been appointed.
We first look into the meaning of the phrase "unless sooner
terminated" embodied in the contract of employment. Right at the
start, it would seem to us that the term "unless sooner
terminated" cannot be equated or tied up with some such terms
as "terminable at will", or "removable at pleasure".
A number of reasons there are why petitioner may not be
removed at pleasure before the expiry of his term. First.
Petitioner's contract of employment has a fixed term of five years.
It is not an appointment in an acting capacity.9 Nor is petitioner's
designation that of an officer-in-charge as it is known in
administrative practice. Second. Nothing in the rules and regulations
of the university or its charter would indicate that a college dean
appointed with a term can be separated without cause. On the
contrary, reason there is to be believe that the university policy points
quite to the contrary. An instance is the resolution of the Board of
Regents of June 14, 1961, fixing the term of office of the UP
President. It was there stated that "uncertainty of tenure and
frequency of change in the incumbent of the position are not for the
best interests of the University." This concept is self-evident. Third.
Again, there is nothing either in the UP charter or code empowering
the UP President or the Board of Regents to insert such a clause —
unless sooner 
terminated — as would authorize dismissal at will. Fourth. As this
Court, in Lacson vs. Roque, 92 Phil. 456, 463, ruled, "strict
construction of law relating to suspension and removal, is the
universal rule." Petitioner, with a definite term of employment, may
not thus be removed except for cause. The reasons being that the
removal was not expressly declared to be exercisable at pleasure or
at will; and that the fixity of the term of office gives rise to the
inference that he may be removed from office only for misbehavior
as to which he shall be entitled to notice and hearing. As was well
pointed out in Lacson vs. Roque, "[a]n inferential authority to remove
at pleasure can not be deduced, since the existence of a defined
term, ipso factonegatives such an inference and implies a contrary
presumption, i.e., that the incumbent shall hold office to the end of
his term subject to removal for cause." 10
The foregoing paves the way for the consideration of what we
believe is the overriding question: Was Sta. Maria removed?
2. Respondents stand on the premise that Sta. Maria was not
removed; he was just temporarily assigned to another position.
We may well start with the statement that a dean of a UP college
holds a non-competitive or unclassified civil service position. 11 As
such, and upon the provisions of his contract of employment, he is
protected by constitutional and statutory provisions on security of
term. 12 He cannot be removed during the term except for cause and
after prior hearing and investigation. 13 Which requisites are also
embodied in the university charter 14 and in the university code." 15
But is there really need for a formal prior hearing? No need,
respondents say. For, the Civil Service Law requires prior hearing
only in cases of removal, dismissal or suspension. Sta. Maria,
respondents underscore, was not suspended, dismissed or
removed; he was merely transferred to another position without
reduction in salary or rank in the interest of public
service. 16 Respondents proceed to aver that the transfer was neither
disciplinary nor punitive. 17 A promotion, so they claim, because in
the new position he would be an officer of the university not just of
one college; 18 he would enjoy a rank at par with senior college
deans; 19 and that he would be in line for one of the vice-presidencies
of the university. 20 Respondents also say that such transfer was an
emergency measure to stave off a crisis that gripped the campus —
the paralyzing disruption of classes. 21 They emphasize that there
was an urgent and genuine need for petitioner's talents and services
in the newly created Public Affairs and University Relations Office.
Quite interesting it is to inquire whether Dean Sta. Maria was
transferred, promoted, demoted, or removed without his consent.
3. A transfer is a "movement from one position to another which is
of equivalent rank, level or salary, without break in
service." 22 Promotion is the "advancement from one position to
another with an increase in duties and responsibilities as authorized
by law, and usually accompanied by an increase in salary." 23
A transfer that results in promotion or demotion, advancement or
reduction 24 or a transfer that aims to "lure the employee away from
his permanent position", cannot be done without the employee's
consent. 25 For that would constitute removal from office. Indeed, no
permanent unless the officer or employee is transfer can take place
unless the officer of the employee is first removed from the position
held, and then appointed to another position. 26
When an officer is reduced in rank or grade and suffers a big cut
in pay, he is demoted; 27 and when he is demoted, he is removed
from office. 28 But a demotion means something more than a
reduction in salary: there may be a demotion in the type of position
though the salary may remain the same. 29 A transfer that aims by
indirect method to terminate services or to force resignation also is
removal. 30
4. Concededly transfers there are which do not amount to
removal. Some such transfers can be effected without the need
for charges being preferred, without trial or hearing, and even
without the consent of the employee.
The clue to such transfers may be found in the "nature of the
appointment." 31 Where the appointment does not indicate a specific
station, an employee may be transferred or reassigned provided the
transfer affects no substantial change in title, rank and salary. Thus,
one who is appointed "principal in the Bureau of Public Schools" and
is designated to head a pilot school may be transferred to the post of
principal of another school. 32
And the rule that outlaws unconsented transfers as anathema to
security of tenure applies only to an officer who is appointed —
not merely assigned — to a particular station. 33 Such a rule does
not prescribe a transfer carried out under a specific statute that
empowers the head of an agency to periodically reassign the
employees and officers in order to improve the service of the
agency. 34 The use of approved techniques or methods in personnel
management to harness the abilities of employees to promote
optimum public service cannot be objected to. 35 Neither does
illegality attach to the transfer or reassignment of an officer pending
the determination of an administrative Charge against him; 36 or to
the transfer of an employee from his assigned station to the main
office, effected in good faith and in the interest of the service
pursuant to Section 82 of the Civil Service Act. 37
5. The next point of inquiry is whether or not Administrative Order
77 would stand the test of validity vis-a-vis the principles just
enunciated.
That the university is vested with corporate powers exercised by
the board of regents and the President is a proposition which is
not open to question. 38 The board, upon recommendation of the
President, is clothed with authority to hire and fire after investigation
and hearing. 39 The President, on the other hand, may fill vacancies
temporarily, 40 transfer faculty members 41 from one department to
another, 42 and make arrangements to meet emergencies occurring
between board meetings so that the work of the university may not
suffer. 43
To be stressed at this point, however, is that the appointment of
Sta. Maria is that of "Dean, College of Education, University of the
Philippines." He is not merely a dean "in the university". His
appointment is to a specific position; and, more importantly, to a
specific station.
A line of distinction must be drawn between the office of dean and
that of professor, say, of English and Comparative Literature. A
professor in the latter capacity may be assigned to handle
classes from one college to another or to any other unit in the
university where English is offered. He may even be transferred
from graduate school to undergraduate classes. He cannot
complain if such was done without his consent. He has no fixed
station. 44 As for him, it can always be argued that the interests of the
service are paramount.
But a college dean holding an appointment with a fixed term
stands on a different plane. He cannot, without his consent, be
transferred before the end of his term. He cannot be asked to
give up his post. Nor may he be appointed as dean of another
college. Much less can he be transferred to another position even
if it be dignified with a dean's rank. 45
6. We now come to the problem of whether or not petitioners
transfer from the College of Education to the Office of the
President as special assistant with the rank of dean without
reduction in salary was permanent. Facts there are which would
show that far from being a temporary measure, petitioner's
transfer was in fact a removal.
Respondent university president himself admitted that the transfer
order was an ad interim appointment. That the transfer was a
removal has been confirmed by the UP President's reference to
Sta. Maria's deanship of the College of Education as his "former
position". This plainly indicates that Sta. Maria ceased to be dean
of the college. Thus:
 The validity of Dean Sta. Maria's designation or
appointment as Special Assistant to the President
rests upon two acts:
(a) The transfer order of July 23, 1969, which
operates as an ad interim appointment under Art.
44(e) of the Revised U.P. Code; and
(b) The confirmation on such appointment by the
Board of Regents in its special meeting on July
25, 1969. 46
And again:
The position of Special Assistant to the President
with the rank of Dean carries equal, if not higher,
rank than the position of Dean of the College of
Education. As Special Assistant to the President,
Dean Sta. Maria has become an officer of the
University while in his former position, he was
merely an officer of the college in the University. 47
Not that the foregoing stand alone. The reasons advanced by
respondents to justify such transfer are quite revealing. They pictured
Sta. Maria as a bungling administrator, incompetent, inefficient,
unworthy, a miscast. They averred that he did not act on the petitions
and grievances of graduate students; that he caused widespread
dissatisfaction amongst faculty members and students because of
his "inaction", his "lack of sincerity and candor in dealing" with them,
that he was guilty of "inflexible arrogant attitude and actuation" as
dean; that he miserably failed to avert a boycott that was caused by
a "crisis of confidence" and "failure of leadership" in his college; that
he abandoned his post when he was most needed; that he refused to
accept solutions even as he failed to advance his own to mitigate the
crisis; that in sum, he was a miscast in the College of
Education. 48 Of course, these are merely charges. But they
collectively reflect the thinking of respondents toward petitioner. In
the picture thus presented, it would not be unreasonable to say that
Sta. Maria's transfer was with the character of permanence to take
him away from his duties and responsibilities as dean, in all of which
allegedly he was a failure.
And if more were needed to show that the transfer of Sta. Maria
was permanent, there is the fact that Nemesio Ceralde was
appointed "ad interim" acting dean of the College of Education.
And, Ceralde's appointment was confirmed by the Board of
Regents on July 25, 1969. Again, there is respondent's averment
that petitioner's new position as special assistant to the President
could be a stepping-stone to a higher position — that of Vice
Presidency of the university. Were his appointment but
temporary, there would be no occasion to say that he could be
elevated to another position of a higher category.
More than this, the transfer was a demotion. A demotion,
because: First, Deanship in a university, being an academic
position which requires learning, ability and scholarship, is more
exalted than that of a special assistant who merely assists the
President, as the title indicates. The special assistant does not
make authoritative decisions. Second. The position of dean is a
line position where the holder makes authoritative decisions in his
own name and responsibility. A special assistant does not rise
above the level of staff position. Third. The position of dean is
created by law, the university charter, and cannot be abolished
even by the Board of Regents. That of special assistant, upon the
other hand, is not so provided by law; it was a creation of the
university president.
It will not avail respondents any to say that Sta. Maria retained
"the rank of Dean". In actual administrative practice, the terms
"with rank of" dean is meaningless. He is no dean at all. He of
course, basks, in the trappings of the dean. A palliative it could
have been intended to be. But actually he is a dean without a
college.
7. Respondents nonetheless insist that the "interest of the
service" is the primary reason for the transfer. They say that there
was an urgent need to bring the academic life of the university
back to normal and Sta. Maria's transfer was the only feasible
solution. They point to the need for petitioner's services in the
Office of Public Affairs and University Relations purportedly "to
improve the relations of the University with its various
constituencies." They cling to the principle of "least
sacrifice. 49 They urge that only three options were left to the
university, namely: to keep Sta. Maria at all costs and risk an
indefinite paralysis of the university life; to give due course to the
charges filed against Sta. Maria, preventively suspend him during the
investigation, and after hearing dismiss him if the evidence so
warrants; and to transfer him as a non-disciplinary measure in the
interest of the service. Respondents claim that the first option was
out of the question. The reason they give is that the university could
not afford an indefinite disruption of academic life. To respondents,
the second was feasible but distasteful — the administration was in
no mood to prejudice Sta. Maria through a proceeding that would
reflect on his record. So the university administration opted for the
third method, a solution said to be the most convenient and
expeditious and based on the principle of "least sacrifice".
Implicit in the university's stand is that Dean Sta. Maria had to be
uprooted from his position as a price to buy the peace of the
students and induce them to return to their classes. Such could
have been an easy way to climb out of difficulties. But transfer
could be but a ploy to cover dismissal. And dismissal cannot be
justified on grounds of expediency. Appropriately to be
remembered here is that due process is associated with the
sporting idea of fair play; 50 it shuns oppression and eschews unfair
dealing; it obeys the dictates of justice and is ruled by reason. The
Scriptures no less remind us to hear before we condemn. 51 Fidelity
to this cardinal principle must have impelled Congress, just recently,
to clarify the authority to transfer subordinate officers and employees,
an authority so often misused and abused to ride roughshod over
hapless civil servants. As amended, the Civil Service Law provides
that "if the employee believes that there is no justification for the
transfer, he may appeal his case ... and pending his appeal and
decision thereon, his transfer shall be held in abeyance." This was
intended to fortify the protective wall built around the employee's
right to security of tenure, to guard against unbridled encroachments
masquerading in the "interest of the service". And, to think that this
amendment came just a few days after Sta. Maria was transferred
without prior hearing.
The current climate of activism of the young people, recognized
to be worldwide, whether on or off campus, is a phenomenon in
this country that commands attention. Demonstrations and
boycotts which are manifestations of such activism are
constitutionally protected. But there are limits. A fundamental
precondition to the exercise of such rights, we perceive, is that
the activity should not impair the rights of others whose roots are
as deep and as equally protected by iron-clad guarantees. A high
regard to a man's dignity is the hallmark of our law.
The students demanded Sta. Maria's ouster. The President of the
university acceded to their demand. But Sta. Maria's right to be
removed only, in the words of the law, "after due process" was
disregarded. That Sta. Maria's right alone was impaired is not
justification for the action taken against him. Unless, of course,
justice be-replaced by collective action as the test for validity.
And, unless we admit that arbitrariness is permissible if it comes
from an impersonal multitude.
Nor may it be assumed that emergency could justify disregard of
constitutional rights. It would seem pertinent to observe that a
fundamental charter is for all times and for all conditions.
Eloquent are these passages from the declaration of concern
from the College of Law faculty:
We, the faculty of the College of Law, University
of the Philippines, view with the utmost concern
the removal of Felixberto Sta. Maria from his
position as Dean of the College of Education by
the President of the University of the Philippines.
As members of the academic community that is
the University, as members of the Philippine Bar,
and as citizens of our Republic, we speak out in
protest against this violation of the Rule of Law in
our midst and the clear disregard of the
fundamental rights of one of our colleagues.
A member of the faculty of the University of the
Philippines, pleading for his day in court, asking to
be heard in his defense, desirous to confront his
accusers, and appealing for a hearing by a
disinterested body, has been summarily
condemned without trial. He has been punished
without evidence formally presented. He has been
stripped of his powers and prerogatives as Dean,
in violation of that most basic and fundamental
right — that no person shall be deprived of his life,
liberty or property without due process of law and
in accordance with the regularly established
procedures.
Our concern has nothing to do with the merits of
the case against Felixberto Sta. Maria. We protest
the procedure that was followed in disregard of
due process. Under a legal system like ours, there
are established procedures to settle disputes. The
arbitrary rule of one or the mob rule of the many
are alien to our free institutions. Under existing
university rules and practice, charges against
students, no matter how minor, are formally
investigated. Why should a dean be entitled to
less?
We are aware that the action against Dean Sta.
Maria was denominated a transfer to other duties
in the University without reduction in rank or
salary. This thin veneer of legalism, this
transparent attempt to follow the letter but not the
spirit of the Constitution, the University Charter,
the U.P. Revised Code, the Civil Service Law, and
the Civil Service Rules and Regulations deceives
no one. Who can, in good conscience, honestly
say that Dean Sta. Maria has not been reduced in
rank, privileges and prerogatives? Who can
discount his moral anguish and suffering?
The vote of confidence given by the faculty of the
College of Education notwithstanding, the
President of the University remains bound by and
can act only in consonance with, the Rule of Law.
We agree with the President that there should be
no disruption of the academic life of the
community. Like him, we want peace, but not at
any price. Peace secured at the expense of
Constitutional principles is no peace at all; and the
peace just now obtained is no more than a
transitory lull, a precarious interlude that could
lead to even more serious disorders and disregard
of fundamental rights.
 We also regard with alarm this action against
Dean Sta. Maria because of its consequences on
the morale of the faculty. The exercise of
independent judgment in the performance of
academic responsibilities is imperilled where the
force of numbers can replace the rational solution
to a controversy.
Believing that the action taken against Dean Sta.
Maria is not irreversible, we submit to the
President of the University this declaration of
concern, urging him to reconsider his action. 52
8. The argument that the transfer of Sta. Maria was made in the
interest of public service has dwindled in strength on the face of the
circumstances. Of course, the university is under compulsion to bring
normalcy to the campus, to end the boycott of classes. The decision
to transfer could really refract the temper of the times. We do say,
however, that emotion or muscle need not displace reason.
Nor do we believe it too difficult for the authorities to hew to the
line drawn by the due process clause, to cause charges to be
formalized, Sta. Maria suspended, and given a fair chance to
defend himself. This procedure does not necessarily bring about
humiliation. On the contrary, it exudes the spirit of fairness.
The baneful effects of Sta. Maria's transfer were easily and
promptly felt. The professors in different faculties were alarmed.
Obviously they felt that to compel a professor to give up his
constitutional right is beyond tolerance. A declaration of concern
was expressed not only by the faculty of the College of Law as
aforesaid but also the Colleges of Education, Arts and Sciences,
Medicine and PGH School of Nursing, all of the UP.
More than these, such transfer undermined the integrity of UP.
The university buckled under strain, yielded where it should have
upheld its commitment to the rule of law. Peace may not be
secured at the expense of consecrate constitutional principles. A
contrary rule could lead to more serious disorders.
9. Respondents urge that "the traditional concepts and
requirements of due press could not be made to apply to every
kind of administrative action, without the consequent inefficiency
and frustration of legislative purpose." They argue that certain
types of administrative action may be taken without prior hearing
and still satisfy the requirements of due process. The existence of
a public emergency, they insist, would suffice to justify summary
action. To prop up their stand, respondents cite such summary
administrative actions as distraint of a delinquent taxpayer's
property; 53 abatement of a nuisance per sep; 54 cancellation of a
passport of one who absconds to another country to evade criminal
prosecution. 55
No question that a summary administrative action is appropriate
in the cases cited. Examples can be multiplied. Thus, without
providing for a prior hearing, a bank conservator may seize a
distressed bank; 56 the Food and Drug Administrator may confiscate
harmful drugs whose labels are allegedly misleading; 57 the Civil
Aeronautics Board may suspend a letter of registration; 58 and the
Securities and Exchange Commission may suspend the license of a
securities dealer to deal in small offerings. 59 In all these cases, the
courts have uniformly ruled that due process does not require judicial
inquiry as a condition to the exercise of administrative discretion. "It
is sufficient, where only property rights are concerned, that there is at
some stage an opportunity for a hearing and a judicial
determination." 60
We can go on citing cases where regulatory agencies, in a
manner of speaking, shoot first before asking questions without
offending against due process. But it is pointless to cite them
here, much less rely upon them to support Sta. Maria's
unconsented transfer. For central to those cases is that they
involve the exercise of regulatory authority pursuant to a
delegated police power. The reason these agencies are given
such summary powers is that they come to grip with issues that
are mostly scientific and technical, issues that are "perhaps not
readily reducible to the simple question-and-answer method so
dearly beloved by lawyers." 61 Hence, in place of formal hearing
they resort to inspection, examination and testing — techniques
regarded as sufficient substitutes upon which to base an
administrative action. 62 Whether poultry is putrid, or drug is harmful,
or a ship is unseaworthy, are matters better left to scientific analysis
or technical inspection without the need of a formal hearing. Based
on such examination and inspection, summary orders for
condemnation or confiscation may follow.
But the UP President's decision to summarily take the deanship
away from Sta. Maria cannot, by any stretch of imagination, be
cast in the same type of administrative actions that regulatory
agencies exercise under a delegated police power. The UP
President's action here is unlike that, for instance, of the Central
Bank in removing the officers of a floundering bank in order to
take over its management. 63 Not even the so-called emergency
situation in the campus could be invoked to firm up his summary
action. Seemingly, the decision to transfer Sta. Maria was dictated by
the howling protest of demonstrating students who wanted to muscle
in their demands for curriculum changes. But precisely, it is in
situations such as this that one should be on guard lest reason and
justice be overwhelmed by excitement and passion.
10. Again, respondents cite the so called "crisis of confidence"
and "failure of leadership" in the College of Education. Allegedly,
these factors caused the student boycott which UP tried to avert
by the expedient of banishing Sta. Maria from, and effectively
depriving him of his deanship, of the College of Education.
The boycott, we are made to understand, was called because
Sta. Maria resisted the pressures exerted by the graduate
students. He refused to give in to their demands demands that
sought to eliminate or influence the direction of curricular
requirements, specifically those which pertain to foreign
languages and comprehensive examinations. The graduate
students, it is alleged, considered these requirements as
"obsolete vestiges of colonial education, ... activities which do not
in any way add to the learning activity of the student." 64
Of course, students are entitled to petition school administrators
for change in curriculum, faculty, and school regulations. 65 Elders
should listen to what they say, and respond to their plea for university
instructions that have relevance in their education. 66
This is a fast changing age of ferment and activism. Every day
new discoveries change man's life, morals, and attitude. The
university therefore cannot remain aloof to the contemporary
scene. 67 Perhaps the Wilsonian description of the ideal University as
a place where "calm science" sits "not knowing that the world
passes", a place where past and present are discussed "with
knowledge and without passion", a place "slow to take excitement"
and unlike the world outside "in its self-possession ..." 68 would now
appear to be anachronistic.
The students are "probably right in much of what they say,
however wrong their prescriptions for righting matters." 69When
they protest whether against the college administration or against the
Establishment, they should be accorded the full scope of the
constitutional protection to free speech and assembly. 70 On the other
hand, any decision or action to give in to their demands must not be
dictated solely by their "readiness ... to shout down and in other ways
to stifle the free expression of opinion of those with whom they
disagree." 71 Otherwise, the probability exists that a minority group of
students may succeed in their attempt to impose, by disruptive
action, their views or their will on the majority. What indeed is
deplorable is "when we are confronted only with violence for
violences sake, and with attempts to frighten or intimidate an
administration into doing things for which it can itself see neither the
rationale nor the electoral mandate; when we are offered, as the only
argument for change, the fact that a number of people are
themselves very angry and excited; and when we are presented with
a violent objection to what exists, unaccompanied by any
constructive concept of what, ideally, ought to exist in its place." 72
Compelling is the need to adhere to the traditional democratic
processes and procedures to secure action and redress.
Decisions that are prodded by ultimatums and tantrums are
generally regarded with apprehension.
It was in the face of student revolt that the university officials
buckled under and gave in to the students' protest against the
continued presence of Dean Sta. Maria in the College of
Education.
11. And yet, a close look into the so-called unfulfilled demands —
abolition of foreign language and comprehensive examination —
would reveal that. Dean Sta. Maria could not have unilaterally
granted them.
On the foreign language requirement, the students manifested
that it is —
... absurd and obsolete. Foreign students fulfill this
requirement by an examination in their language.
Many of us take Spanish for the sake of
completing the requirements. We understand that
these requirements in other universities equip the
students for his research. So if a student is doing
research on Spanish laws governing the
educational system and would need to use
Spanish, therefore he has to have a reading
knowledge of Spanish. Such is not the case with
us. We demand that this requirement be
abolished in the graduate's level. 73
On the comprehensive examination requirements, the students say:
... The present practice is by subject, excluding
the cognates. Graduate students believe that they
are taking another final examination in a subject
they have already passed. We question the
absence of policy as to who should give
comprehensive examination. We demand that the
College consider the use of qualifying examination
aside from the Dean's proposed admissions
test. 74
These requirements, we believe, are aimed at the development of
the student's depth of insight and breadth of view. This, after all, is
an end that a university education strives to attain. Foreign
languages, should be conceded, widen a man's world. Spanish, in
particular, is one of the links to our past. We can but surmise that
Dean Sta. Maria had cogent reasons to sidetrack the demands. It is
within the realm of probabilities that the dean wanted to preserve the
high standards of professional scholarship in the college. Perhaps he
was loathe to turn his college into a factory for half-baked graduates.
The University of the Philippines, we must remember, has set a
standard and established a tradition for learning and leadership.
Consider, too, the fact that the education students are the future
mentors of the youth. Necessarily, they are expected to come
through college with as thorough and extensive preparation as
possible if they are to serve as educational leaders and models
for scholarship.
On top of all, Dean Sta. Maria cannot single-handy do away with
these requirements. The responsibility for fixing the academic
requisites for graduation and the receiving of a degree is lodged
not in the dean but in the university council, composed of the
President of the university and all faculty members from assistant
professor to full professor. 75 The Dean may only recommend
proposals affecting courses of study." 76
But Dean Sta. Maria had not been remiss in his duties. Truth to
tell, the students admit that Dean Sta. Maria was not after all
unreasonably inflexible, intransigent He sympathetically listened
to them, and broadly satisfied those demands that were within his
power as Dean to give, short of compromising the academic
standards of the university. indeed, the President of the
Education Graduate Student Organization appreciated the Dean's
efforts to meet some of our demands". But Dean Sta. Maria could
go no further. He went along with the students as far as the limits
of his power and discretion would allow him to go. Only the
University Council and the Board of Regents could recast the
academic requirements in the way the students wanted them to
be. If so, why did they not act on the issue to avert the crisis? But
perhaps the university administration would not want to risk the
downgrading of the university's academic standards.
The editor of the Philippine Collegian, writing the valedictory
editorial, said:
We criticized an administration which seemed to
sway to the tune of student power as a sheer
force. The administration cannot act only because
of a show of might; it must have reasons for any
act. And it must make these reasons known,
acting because of them without waiting for the
prodding of power.
No decision of the President should be forced by
emergency, or consideration of expediency. If
emergency, or expediency, or the fear of student
power muscle are the only reasons for a decision,
then the decision should not be taken at all.
On the other hand, if a decision is impending, and
is going to be taken anyway, then the decision-
makers should not wait to be forced into the
decision by an emergency situation. They should
decide, and avert that situation which is so costly
in terms of class hours and the integrity of the
decision. And then, in terms of the reaction of the
people involved by that dubiously-taken decision.
Because we cannot allow it to appear that the
University is being ruled by the considerations of
expediency, or by the dictates of emergency. The
University must be guided by things less base and
more basic. It must be ruled by reason, by justice,
by the search for truth. This should always be
made clear, and always be respected. The
University can be neither a self-designed social
instrument nor an institution ruled by force. It is
there, if anywhere, that we must be true to
reason. 77
It is because of all the foregoing that we are left under no doubt that
petitioner Felixberto Sta. Maria is entitled to be restored to his
position as Dean of the College of Education.
12. Just as we are about to draw this opinion to a close, our
attention is drawn to the alleged non exhaustion of administrative
remedies. A sufficient answer would be that Dean Sta. Maria
asked that he be restored to his position pending investigation of
any charge against him. But the board refused. Instead, it
confirmed the ad interimappointment of respondent Prof.
Nemesio Ceralde as "acting Dean" in place of Sta. Maria.
Virtually the door was closed. Nothing was left for Sta. Maria to
do but go to Court. 78

Of course, Sta. Maria stood pat on his right to keep his position
as Dean. This is perfectly understandable. Hindsight now reveals
that further pursuit of administrative remedy before the Board of
Regents would be but an act of supererogation At any rate, there
is no compelling reason to resort to this remedy.79 Here, the
claimed right is the constitutionally protected due process.
Mandamus will lie. 80

FOR THE REASONS GIVEN, the writ of certiorari and prohibition

prayed for is hereby granted; the transfer of petitioner Felixberto
C. Sta. Maria from his position as Dean of the College of
Education, University of the Philippines, to the position of Special
Assistant to the President, University of the Philippines, as well as
the ad interim appointment of Prof. Nemesio Ceralde "as acting
Dean" of the College of Education, University of the Philippines,
are hereby set aside and declared null and void; the writ
of mandamus prayed for is hereby granted, and the President
and the Board of Regents of the University of the Philippines are
hereby ordered to restore said petitioner Felixberto C. Sta. Maria
to his position of Dean, College of Education, University of the
Philippines.

No costs. So ordered.
G.R. No. L-1612             February 26, 1948
JORGE B. VARGAS, petitioner,  (f) it impairs the rule making power of the Supreme Court,
vs.
EMILIO RILLORAZA, JOSE BERNABE, MANUEL ESCUDERO,
Judges of the People's Court, and THE SOLICITOR
GENERAL OF THE PHILIPPINES, respondents.
Claro M. Recto for petitioner.
Office of the Solicitor General Manuel Lim and Assistant Solicitor
General Manuel P. Barcelona for respondents.
HILADO, J.:
Counsel for the defense, in a motion dated August 28, 1947,
assails the constitutionality of section 14 of the People's Court Act
(Commonwealth Act No. 682) upon the following grounds:
(a) It provides for qualification of members of the
Supreme Court, other than those provided in section 6,
Article VIII of the Philippine Constitution.
(b) It authorizes the appointment of members of the
Supreme Court who do not possess the qualifications set
forth in section 6, Article VIII, of the Philippine
Constitution.
(c) It removes from office the members of the Supreme
Court by means of a procedure other than impeachment,
contrary to Article IX, of the Philippine Constitution.
(d) It deprives the Commission on Appointments of
Congress of its constitutional prerogative to confirm or
reject appointments to the Supreme Court.
(e) It creates two Supreme Courts.
contrary to section 13, Article VIII of the Philippine
Constitution.
(g) It is a Bill of Attainder, for it punishes by
disqualification members of the Supreme Court who
rendered said public service during the Japanese
occupation.
(h) It denies equal protection of the laws.
(i) It is an ex post pacto legislation.
(j) It amends the Constitution by a procedure not
sanctioned by Article XV, of the Philippine Constitution.
(k) It destroys the independence of the Judiciary, and it
permits the "packing" of the Supreme Court in certain
cases, either by Congress or by the President.
The Solicitor General, in behalf of the prosecution, opposes the
motion and in support of his opposition submits these
propositions:
1. Power of Congress to enact section 14 of
Commonwealth Act No. 682.
2. Section 14 of Commonwealth Act No. 682 does not and
is not intended to provide an additional qualification for
members of the Supreme Court, much less does it amend
section 6, Article VIII, of the Constitution of the
Philippines.
3. Qualifications of members of the Supreme Court
prescribed in section 6, Article VIII of the Constitution
apply to permanent "appointees" — not to temporary
"designees."
4. Section 5, Article VIII of the Constitution is not
applicable to temporary designations under section 14,
Commonwealth Act No. 682.
5. It does not remove but merely disqualifies the members
of the Supreme Court affected to sit and vote in the
particular class of cases therein mentioned.
6. It does not create an additional "Special Supreme
Court."
7. It does not impair the rule-making power of the
Supreme Court but merely supplements the Rules of
Court.
8. It is not a bill of attainder.
9. It is not an ex post pacto law.
10. It does not deny equal protection of the laws either to
the Justices of the Supreme Court affected or the treason
indicates concerned.
11. It does not amend any constitutional provision.
12. It does not destroy the independence of the judiciary
or curtail the jurisdiction of the Supreme Court.
This opposition is a reproduction by reference in the instant case
of a similar pleading filed by the Solicitor General in G.R. No. L-
398, People vs. Sison, pursuant to the resolution of this Court in
the instant case dated October 30, 1947, granting the prayer of
the Assistant Solicitor General that in the consideration of
petitioner's memorandum herein of September 27, 1947.
It will not be necessary for the purposes of this resolution to
consider and decide all the legal questions thus raised by these
conflicting contentions of the parties.
For the purposes of the present resolution, the considerations
presently to be set forth are deemed insufficient. Article VIII,
section 4, of the Constitution ordains that the Supreme Court
shall be composed of a Chief Justice and ten Associate Justices
and may sit either in banc or in two divisions unless otherwise
provided by law. Section 5 of the same Article provides, inter alia,
that the members of the Supreme Court shall be appointed by the
President with the consent of the Commission on Appointments.
Section 6 of the same Article stipulates that no person may be
appointed member of the Supreme Court unless he has been five
years a citizen of the Philippines, is at least 40 years of age, and
has for 10 years or more been a judge of a court of record or
engaged in the practice of law in the Philippines. By virtue of
section 9 of said Article, the members of the Supreme Court,
among other judicial officials, shall not hold office during good
behavior, until they reach, the age of 70 years, or become
incapacitated, or become incapacitated to discharge the duties of
their office. Section 13 of the same Article VIII, inter alia,
enunciates procedure thereby repealed as statutes and are
declared rules of court, subject to the power of the Supreme
Court to alter and modify the same, and to the power of the
Congress to repeal, alter, or supplement them. Art. XVI, section
2, provides that "all laws of the Philippine Islands shall continue in
force until the inauguration of the Commonwealth, and thereafter
they shall remain operative unless inconsistent with this
Constitution, until amended, altered, modified, or repealed by the
Congress of the Philippines ..."
Before the adoption of the Constitution, the law on disqualification
of judges was contained in the Code of Civil Procedure, sections
8 and 608. If said sections should be considered as parts of the
then existing adjective legislation, Article VIII, section 13, of the
constitution repealed them along with the others dealing with
pleading, practice and procedure, as statutes, and declared them
rules of court, subject to the power of the Supreme Court to alter
and modify the same, without prejudice to the power of the
Congress to repeal, alter or supplement them. In such case,
when the Constitution so provided in said section 13, it
sanctioned as rules of court, among other provisions, those in
said sections 8 and 609 of the former Code of Civil Procedure
concerning the disqualification of judges. If said sections should
be deemed as pertaining to then existing substantive legislation,
then they were continued as laws or statutes by the aforecited
provision of Article XVI, section 2.
By virtue either of Article VIII, section 13, or Article XVI, section 2,
of the constitution, therefore, the grounds for disqualifying judges,
which had been held to include justices of the Supreme Court
(Jurado & Co, vs. Hongkong & Shanghai Banking Corporation, 1
Phil., 395) were those established in sections 8 and 608 of the
former Code of Civil Procedure. The Supreme Court later
promulgated the present Rules of Court wherein Rule 123 treats
of the matter of disqualification of judicial officers. The provisions
of said rule have been taken from the above-cited sections 8 and
608 of the same former Code of Civil Procedure (see also II
Moran, Comments on the Rules of Court, 2d ed., pp. 779-782).
By reason of the fact that the aforementioned provisions of the
former Code of Civil Procedure were continued by the constitution
itself, either as rules of court or as laws or statutes — a point we
need not now decide — there can be no question of
unconstitutionality or repugnancy of said provisions to the
constitution as regards the disqualification of judicial officers. In
other words, the framers deemed it fit, right and proper that said
provisions shall continue to govern the disqualification of judicial
officers.
Such question of unconstitutionality or repugnancy to the
constitution, however, arises in relation to the disqualification of
certain members of the Supreme Court provided for in section 14
of the People's Court Act which says:
SEC. 14. Any Justice of the Supreme Court who held any
office or position under the Philippine Executive
Commission or under the government called Philippine
Republic may not sit and vote in any case brought to that
Court under section thirteen hereof in which the accused
is a person who held any office or position under either or
both the Philippine Executive Commission and the
Philippine Republic or any branch, instrumentality and/or
agency thereof.
If, on account of such disqualification, or because of any
of the grounds or disqualification of judges, in Rule 126,
section 1 of the Rules of Court, or on account of illness,
absence of temporary disability the requisite number of
Justices necessary to constitute a quorum or to render
judgment in any case is not present, the President may
designate such number of Judges of First Instance,
Judges-at-large of First Instance, or Cadastral Judges,
having none of the disqualifications set forth in said
section one hereof, as may be necessary to sit
temporarily as Justice of said Court, in order to form
a quorum or until a judgment in said case is reached.
We propose to approach this question from the following angles:
(a) whether or not the Congress had power to ass to the pre-
existing grounds of disqualification of a Justice of the Supreme
Court, that provided for in said section 14; (b) whether or not a
person may act as a Justice of the Supreme Court who has not
been duly appointed by the President and confirmed by the
Commission on Appointments pursuant to the constitution , even
only as a "designee"; and (c) whether or not by the method of
"designation" created by the aforecited section 14 a Judge of First
Instance, Judge-at-large of First Instance, or Cadastral Judge,
designated by the President under the same section can
constitutionally "sit temporarily as Justice" of the Supreme Court
by virtue thereof.
(a) We start with the principle, well known to the legal profession,
that no act of the legislature repugnant to the constitution can
become law (In re Guariña, 24 Phil., 37, 45; Marbury vs.
Madison, 1 Cranch 175). To discover whether the above quoted
section 14 of the People's Court Act is repugnant to the
constitution, one of the best tests would be to compare the
operation with the same section if the latter were to be allowed to
produce its effects. It is self evident that before the enactment of
the oft-quoted section of the People's Court Act, it was not only
the power but the bounden duty of all members of the Supreme
Court to sit in judgment in all treason cases duly brought or
appealed to the Court. That power and that duty arise from the
above cited sections of Article VIII of the Constitution, namely,
section 4, providing how the court shall be composed and how it
may sit, section 9, ordaining that they shall hold office during
good behavior until they reach the age of seventy years or
become, incapacitated to discharge the duties of their office, and
the pertinent constitutional and statutory provisions bearing on
the jurisdiction, powers and responsibilities of the Supreme Court.
Competently referring to the instant case, if section 14 of the
People's Court Act had not been inserted therein, there can be no
question that each and every member of this Court would have to
sit in judgment in said case.
But if said section 14 were to be effective, such members of the
Court "who held any office or position under the Philippine
Executive Commission or under the government called Philippine
Republic" would be disqualified from sitting and voting in the
instant case, because the accused herein is a person who
likewise held an office or position at least under the Philippine
Executive Commission. In other words, what the constitution in
this respect ordained as a power and a duty to be exercised and
fulfilled by said members of the People's Court Act would prohibit
them from exercising and fulfilling. What the constitution directs
the section prohibits. A clearer case of repugnancy of
fundamental law can hardly be imagined.
For repugnancy to result it is not necessary that there should be
an actual removal of the disqualified Justice from his office for, as
above demonstrated, were it not for the challenged section 14
there would have been an uninterrupted continuity in the tenure
of the displaced Justice and in his exercise of the powers and
fulfillment of the duties appertaining to his office, saving only
proper cases or disqualification under Rule 126. What matters
here is not only that the Justice affected continue to be a member
of the Court and to enjoy the emoluments as well as to exercise
the other powers and fulfill the other duties of his office, but that
he be left unhampered to exercise all the powers and fulfill all the
responsibilities of said office in all cases properly coming before
his Court under the constitution, again without prejudice to proper
cases of disqualification under Rule 126. Any statute enacted by
the legislature which would impede him in this regard, in the
words of this Court in In re Guariña, supra, citing Marbury vs.
Madison, supra, "simply can not become law."
It goes without saying that, whether the matter of disqualification
of judicial officers belong to the realm of adjective, or to that of
substantive law, whatever modifications, change or innovation the
legislature may propose to introduce therein, must not in any way
contravene the provisions of the constitution, nor be repugnant to
the genius of the governmental system established thereby. The
tripartite system, the mutual independence of the three
departments — in particular, the independence of the judiciary —,
the scheme of checks and balances, are commonplaces in
democratic governments like this Republic. No legislation may be
allowed which would destroy or tend to destroy any of them.
Under Article VIII, section 2 (4) of the Constitution the Supreme
Court may not be deprived of its appellate jurisdiction, among
others, over those criminal cases where the penalty may be death
or life imprisonment. Pursuant to Article VIII, sections 4, 5, 6, and
9 of the Constitution the jurisdiction of the Supreme Court may
only be exercised by the Chief Justice with the consent of the
Commission of Appointments, sitting in banc or in division, and in
cases like those involving treason they must sit in banc. If
according to section 4 of said Article VIII, "the Supreme Court
shall be composed" of the Chief Justice and Associate Justices
therein referred to, its jurisdiction can only be exercised by it as
thus composed. To disqualify any of these constitutional
component members of the Court — particularly, as in the instant
case, a majority of them — is nothing short of pro tanto depriving
the Court itself of its jurisdiction as established by the
fundamental law. Disqualification of a judge is a deprivation of his
judicial power. (Diehl vs. Crumb, 72 Okl., 108; 179 Pac., 44). And
if that judge is the one designated by the constitution to exercise
the jurisdiction of his court, as is the case with the Justices of this
Court, the deprivation of his or their judicial power is equivalent to
the deprivation of the judicial power of the court itself. It would
seem evident that if the Congress could disqualify members of
this Court to take part in the hearing and determination of certain
collaboration cases it could extend the disqualification to other
cases. The question is not one of degree or reasonableness. It
affects the very heart of judicial independence.
Willoughby's United States Constitutional Law, under the topic of
separation of powers, Volume 3, pages 1622-1624, says:
Upon the other hand, as we shall see, the courts have not
hesitated to protect their own independence from
legislative control, not simply be refusing to give effect to
retroactive declaratory statutes, or to acts attempting the
revision or reversal of judicial determination, but by
refusing themselves to entertain jurisdiction in cases in
which they have not been given the power to enforce their
decrees by their own writs of execution. Thus, as already
mentioned, they have refused to act where their decisions
have been subject to legislative or administrative
revisions. Finally, even where the extent of their
jurisdiction, as to both parties litigant and subject-matter,
has been subject to legislative control, the courts have not
permitted themselves to be deprived of the power
necessary for maintaining the dignity, the orderly course
of their procedure, and the effectiveness of their writs.
In order that the court may perform its judicial functions
with dignity and effectiveness, it is necessary that it
should possess certain powers. Among these is the right
to issue certain writs, called extra-ordinary writs, such
as mandamus, injunction, certiorari, prohibition, etc. and
especially, to punish for contempt any disobedience to its
orders. The possession of these powers the courts have
jealously guarded, and in accordance with the
constitutional doctrine of the separation and
independence of the three departments of government,
have held, and undoubtedly will continue to hold, invalid
any attempt on the part of the legislature to deprive them
by statute of any power the exercise of which they deem
essential to the proper performance of their judicial
functions. The extent of their jurisdiction, they argue, may
be more or less within legislative control, but the
possession of powers for the efficient exercise of that
jurisdiction, whether statutory or constitutional, which they
do possess, they cannot be deprived of.
It has already been pointed out that the jurisdiction of the
inferior Federal courts and the appellate jurisdiction of the
Supreme Court are wholly within the control of Congress,
depending as they do upon statutory grant. It has,
however, been argued that while the extent of this
jurisdiction is thus within the control of the legislature, that
body may not control the manner in which the jurisdiction
which is granted shall be exercised, at least to the extent
of denying to the courts the authority to issue writs and
take other judicial action necessary for the proper and
effective execution of their functions. In other words, the
argument is, that while jurisdiction is obtained by
congressional grant, judicial power, when once a court is
established and given a jurisdiction, at once attaches by
direct force of the Constitution.
This position was especially argued by Senator Knox,
Spooner and Culberson and contested by Senator Bailey
during the debate upon the Repburn Railway Rate Bill of
1906. The point at issue was the constitutionality of the
amendment offered by Senator Bailey providing that no
rate or charge, regulation or practice, prescribed by the
Interstate Commerce Commission, should be set aside or
suspended by any preliminary or interlocutory decree or
order of a circuit court.
This position would seem to be well taken, and would
apply to attempts upon the part of Congress to specify the
classes of statutes whose constitutionality may be
questioned by the courts, or to declare the number of
justices of the Supreme Court who will be required to
concur in order to render a judgment declaring the
unconstitutionality of an act of Congress.
In State vs. Morrill (16 Ark., 384), the Supreme Court of Arkansas
declared:
The legislature may regulate the exercise of, but cannot
abridge, the express or necessarily implied powers
granted to this court by the Constitution. If it could, it might
encroach upon both the judicial and executive
departments, and draw to itself all the powers of
government; and thereby destroy that admirable system
of checks and balances to be found in the organic
framework of both the federal and state institutions, and a
favorite theory in the government of the American people .
...
The members affected by the prohibition have heretofore
disqualified themselves, partly because they presumed the
statute valid and partly because they would rather have no hand
in the revision of the appeals, for the purpose of avoiding even a
breath of suspicion as to the impartiality of their actuations.
However, realizing upon a thorough analysis of the matter by
counsel on both sides, the far-reaching implications which the
precedent might authorize, imperilling the independence of one
coordinate branch of the Government, they finally cast aside all
reluctance to consider the point, and came out with practical
unanimity to condemn any legislation which impinges or might
impinge upon the fundamental independents powers of the
judicature.
Some of them have no quarrel with legislative authority to
enumerate instances in which judges may not sit. They would
even concede that. But, they say, let the rules be
promulgated before the event happens or litigation arises. To
promulgate them after, would enable the Congress in specific
situations to order that Judge X shall not decide the controversy
between Y and Z or that Justice M shall not sit in the appeal of
P.S. and so on ad infinitum, and thus decisively influence the
decision, for or against one party litigant. Such legislative power
might thus be wielded to interfere with the functions of the
judiciary, depriving Philippine citizens of their right of impartial
awards from judges selected without any reference to the parties
or interest to be affected. Unnecessary to prove or impute sinister
motives behind the statutory disqualification. Enough that
recognition of the power might give way to the operation of
unworthy combinations or oppressive designs.
Let it not be argued that the Court is the same, only the
membership being different. Because Article VIII, sections 4 and
5, of the Constitution do not admit any composition of the
Supreme Court other than the Chief Justice and Associate
Justices therein mentioned appointed as therein provided. And
the infringement is enhanced and aggravated where a majority of
the members of the Court — as in this case — are replaced by
judges of first instance. It is distinctly another Supreme Court in
addition to this. And the constitution provides for
only oneSupreme Court.
From all that has been said above it results that the ground for
disqualification added by section 14 of Commonwealth Act No.
682 to those already existing at the time of the adoption of the
Constitution and continued by it is not only arbitrary and irrational
but positively violative of the organic law.
(b) In the face of the constitutional requirement (Art. VIII, section
5) that the members of the Supreme Court should
be appointed by the President with the consent of the
Commission on Appointments, we are of the opinion that no
person not so appointed may act as Justice of the Supreme Court
and that the "designation" authorized in section 14 of the People's
Court Act to be made by the President of any Judge of First
Instance, Judge-at-large of First Instance or cadastral Judge can
not possibly be a compliance with the provision requiring that
appointment. An additional disqualifying circumstance of the
"designee" is the lack of confirmation by or consent of the
Commission on Appointments. Without intending the least
reflection on the ability, learning, and integrity of any such
"designee", we are merely construing and applying the
fundamental law of the land. A Judge of First Instance, Judge-at-
large of First Instance or Cadastral Judge, under section 149 of
the Revised Administrative Code, need not be at least forty years
of age, nor have more than ten years or more been a judge of a
court of record or engaged in the practice of law in the Philippines
(as required by section 6 of Article VIII of the Constitution),
because under said section he need only have practiced law for a
period of not less than five years or have held during a like period
within the Philippines an office requiring a lawyer's diploma. So
that it may happen that a "designee" under section 14 of the
People's Court Act, sitting as a substitute Justice of the Supreme
Court in particular collaboration cases, and participating therein in
the deliberations and functions of the Supreme Court, like any
regular Justice thereof, does not possess the required
constitutional qualifications of a regular member of said Court.
Here again is another point of repugnancy between the
challenged section and the constitution. And if we consider the
actual fact that only four of the present ten Justices of this Court
are not adversely affected by the disqualification established in
section 14 of the People's Court Act, we see that the "designees"
constitute a majority when sitting with said four Justices, giving
rise to the result that, if the composed by them all should be
considered as the Supreme Court, it would be composed by four
members appointed and confirmed pursuant to sections 4 and 5
of Article VIII of the Constitution and six who have not been so
appointed and confirmed. The situation would not be helped any
by saying that such composition of the Court is only temporary,
for no temporary composition of the Supreme Court is authorized
by the constitution. This tribunal, as established under the organic
law, is one of the permanent institutions of the government. The
clause "unless otherwise provided by law" found in said section 4
can not be construed to authorize any legislation which would
alter the composition of the Supreme Court, as determined by the
Constitution, for however brief a time as may be imagined. In
principle, what really matters is not the length or shortness of the
constitutional composition of the Court, but the very permanence
an unalterability of that composition so long as the constitution
which ordains it remains permanent and unaltered. We are
furthermore of opinion that said clause refers to the number of
Justices who were to compose the Court upon its initial
organization under the Commonwealth, and the manner of its
sitting; that is, that the Legislature, when providing for the initial
organization of the Supreme Court under the Commonwealth,
was authorized to fix a different number of Justices than eleven,
and determine the manner of the Court's sitting differently from
that established in section 4 of Article VIII of the Constitution, but
it was and is not empowered to alter the qualifications of the
Justices and the mode of their appointment, which are matters
governed by sections 5 and 6 of said Article VIII wherein the
clause "unless otherwise provided by law" does not ever exist,
nor the provision on who shall be the component members of the
Court. Such a legislation was enacted in the form of
Commonwealth Acts Nos. 3 and 259, the pertinent provisions of
which amended sections 133 and 134 of the Revised
Administrative Code. But after liberation, the Chief Executive, by
Executive Order No. 40 (41 Off. Gaz., 187) amended sections
133 and 134 of the Revised Administrative Code, as amended by
section section 2 of Commonwealth Act No. 3 and sections 1 and
2 of Commonwealth Act No. 259, and repealed all acts or parts of
acts inconsistent with the provisions of said executive order; and
the same Chief Executive, by Executive Order No. 86 (42 Off.
Gaz., 15) further amended section 133 of the Revised
Administrative Code, as thus previously amended, also repealing
all acts or parts of acts inconsistent therewith. Both by virtue of
Executive Order no. 40 and Executive Order No. 86, the number
of Justices of the Supreme Court, as originally fixed at eleven by
the Constitution, was restored.
(c) However temporary or brief may be the action or participation
of a judge designated under section 14 of the People's Court Act
in a collaboration case of the class therein defined, there is no
escaping the fact that he would be participating in the
deliberations and acts of the Supreme Court, as the appellate
tribunal in such a case, and if allowed to do so, his vote would
count as much as that of any regular Justice of the Court. There
can be no doubt that the Chief Justice and Associate Justices
required by section 4 of Article VIII of the Constitution to compose
the Supreme Court — indeed, a "temporary member" thereof
would be a misnomer, implying a position not contemplated by
the constitution. Section 5 of the same Article VIII, in requiring the
members of the Supreme Court to be appointed by the President
with the consent of the Commission on Appointment, makes it
plainly indubitable that the Chief Justice and Associate Justices
who are to compose the Court and sit therein under section 4,
have to be thus appointed and confirmed.
As already adverted to, a mere designation under section 14 of
the People's Court Act does not satisfy the Constitutional
requirement of appointment, with the additional circumstance that
as to such designation, the Commission on Appointments is
entirely dispensed with. We find absolutely nothing in the context
which may soundly be construed as authorizing, merely by
legislation, any change in the constitutional composition of the
Supreme Court, or the performance of its functions by any but
its constitutional members. On the other hand, we have to go by
the cardinal rule that "usually provisions of a constitution are
mandatory rather than directory, and mandatory provisions are
binding on all department of the government." (16 C.J.S., 120).
The main reason for this rule is that in the Constitutions
the sovereign itself speaks and is laying down rules
which, for the time at least, are to control alike the
government and the governed. It is an instrument of a
solemn and permanent character, laying down
fundamental maxims, and, ordinarily, is not supposed to
concern itself with mere rules or order in unessential
matters (Baker vs. Moorhead, 174 N.W., 430, 431; 103
Neb. m, 811);
Court is loath to say that any language of the constitution
is merely directory. Scopes vs. State, 289 S.W., 363, 366;
154 Tenn., 105; 53 A.L.R., 821). (Footnote 93, C.J.S.,
120.)
Under sections 4 and 5 of Article VIII of the Constitution, it is clear
that the framers intended the Supreme Court to function through
the members who are therein defined: and by section 6 they
determined who may be appointed such members. This naturally
excludes the intervention of any person or official who is not a
member of the Court in the performance of its functions; and it is
self-evident that the "designees" spoken of in section 14 of the
People's Court Act can not be such members in view of the fact
that they have not been appointed and confirmed as such
pursuant to said sections 5 and 6.
Hence, we do not see the way clear to the proposition that the
"designees" in such a case can constitutionally "sit temporarily as
Justices" of the Supreme Court.
By an act of the United States Congress dated February 6, 1905,
it was provided in part as follows:
Temporary judges of the Supreme Court; ... Whenever by
reason of temporary disability of any judge of the
Supreme Court or by reason of vacancies occurring
therein, a quorum of the court shall not be present for
business the Governor General of the Philippine Islands is
authorized to designate a judge or judges of the court of
First Instance in the islands to sit and act temporarily as
judge or judges of the Supreme Court in order to
constitute a quorum of said Supreme Court for business. .
...
As part of the membership of the Court believes that this
provision is still in force by virtue of Article XVI, section 2, of the
Constitution, and should still be applied to cases of "temporary
disability ... or vacancies occurring" and preventing a quorum;
while the other members are not prepared to subscribe to the
same view, for the reason that the designation" thereby
authorized would be "inconsistent with this constitution," in the
word of the cited section, the same as the "designation"
authorized by section 14 of the People's Court Act. Anyway, we
need not decide the point now.
This decision has been prepared before this date, and is being
promulgated before the Court acts upon the Solicitor General's
motion to dismiss dates February 17, 1948, for the rulings
contained herein.
For the foregoing consideration, it is declared and ordered: (a)
that section 14 of the People's Court Act is unconstitutional in the
respects specified in the body of this resolution; and (b) that this
case be dealt with henceforward in pursuance of and in harmony
with this resolution. So ordered.

G.R. No. 211833, April 07, 2015

 FERDINAND R. VILLANUEVA, PRESIDING JUDGE, MCTC,
COMPOSTELA-NEW BATAAN, COMPOSTELA VALLEY
PROVINCE, Petitioner, v. JUDICIAL AND BAR
COUNCIL, Respondent.
DECISION
REYES, J.:
Presiding Judge Ferdinand R. Villanueva (petitioner) directly came to
this Court via a Petition for Prohibition, Mandamus, and Certiorari, and
Declaratory Relief1 under Rules 65 and 63 of the Rules of Court,
respectively, with prayer for the issuance of a temporary restraining
order and/or writ of preliminary injunction, to assail the policy of the
Judicial and Bar Council (JBC), requiring five years of service as judges
of first-level courts before they can qualify as applicant to second-level
courts, on the ground that it is unconstitutional, and was issued with
grave abuse of discretion.chanRoblesvirtualLawlibrary
The Facts
The petitioner was appointed on September 18, 2012 as the Presiding
Judge of the Municipal Circuit Trial Court, Compostela-New Bataan,
Poblacion, Compostela Valley Province, Region XI, which is a first-level
court. On September 27, 2013, he applied for the vacant position of
Presiding Judge in the following Regional Trial Courts (RTCs): Branch
31, Tagum City; Branch 13, Davao City; and Branch 6, Prosperidad,
Agusan Del Sur.
In a letter2 dated December 18, 2013, JBC's Office of Recruitment,
Selection and Nomination, informed the petitioner that he was not
included in the list of candidates for the said stations. On the same
date, the petitioner sent a letter, through electronic mail, seeking
reconsideration of his non-inclusion in the list of considered applicants
and protesting the inclusion of applicants who did not pass the
prejudicature examination.
The petitioner was informed by the JBC Executive Officer, through a
letter3 dated February 3, 2014, that his protest and reconsideration
was duly noted by the JBC en banc. However, its decision not to
include his name in the list of applicants was upheld due to the JBC's
long-standing policy of opening the chance for promotion to second-
level courts to, among others, incumbent judges who have served in
their current position for at least five years, and since the petitioner
has been a judge only for more than a year, he was excluded from the
list. This caused the petitioner to take recourse to this Court.
In his petition, he argued that: (1) the Constitution already prescribed
the qualifications of an RTC judge, and the JBC could add no more; (2)
the JBC's five-year requirement violates the equal protection and due
process clauses of the Constitution; and (3) the JBC's five-year
requirement violates the constitutional provision on Social Justice and
Human Rights for Equal Opportunity of Employment. The petitioner
also asserted that the requirement of the Prejudicature Program
mandated by Section 104 of Republic Act (R.A.) No. 85575 should not
be merely directory and should be fully implemented. He further
alleged that he has all the qualifications for the position prescribed by
the Constitution and by Congress, since he has already complied with
the requirement of 10 years of practice of law.
In compliance with the Court's Resolution6 dated April 22, 2014, the
JBC7 and the Office of the Solicitor General (OSG)8separately
submitted their Comments. Summing up the arguments of the JBC and
the OSG, they essentially stated that the petition is procedurally infirm
and that the assailed policy does not violate the equal protection and
due process clauses. They posited that: (1) the writ of certiorari and
prohibition cannot issue to prevent the JBC from performing its
principal function under the Constitution to recommend appointees to
the Judiciary because the JBC is not a tribunal exercising judicial or
quasi-judicial function; (2) the remedy of mandamus and declaratory
relief will not lie because the petitioner has no clear legal right that
needs to be protected; (3) the equal protection clause is not violated
because the classification of lower court judges who have served at
least five years and those who have served less than five years is valid
as it is performance and experience based; and (4) there is no
violation of due process as the policy is merely internal in nature.
chanRoblesvirtualLawlibrary
The Issue
The crux of this petition is whether or not the policy of JBC requiring
five years of service as judges of first-level courts before they can
qualify as applicant to second-level courts is constitutional.
Ruling of the Court
Procedural Issues:
Before resolving the substantive issues, the Court considers it
necessary to first determine whether or not the action for certiorari,
prohibition and mandamus, and declaratory relief commenced by the
petitioner was proper.
One. The remedies of certiorari and prohibition are tenable. "The
present Rules of Court uses two special civil actions for determining
and correcting grave abuse of discretion amounting to lack or excess
of jurisdiction. These are the special civil actions for certiorari and
prohibition, and both are governed by Rule 65."9 As discussed in the
case of Maria Carolina P. Araullo, etc., et al. v. Benigno Simeon C.
Aquino III, etc., et al.,10 this Court explained that:
chanroblesvirtuallawlibrary
With respect to the Court, however, the remedies of certiorari and
prohibition are necessarily broader in scope and reach, and the writ
of certiorari or prohibition may be issued to correct errors of
jurisdiction committed not only by a tribunal, corporation, board or
officer exercising judicial, quasi-judicial or ministerial functions but
also to set right, undo and restrain any act of grave abuse of discretion
amounting to lack or excess of jurisdiction by any branch or
instrumentality of the Government, even if the latter does not exercise
judicial, quasi-judicial or ministerial functions. This application is
expressly authorized by the text of the second paragraph of Section 1,
supra.
Thus, petitions for certiorari and prohibition are appropriate remedies
to raise constitutional issues and to review and/or prohibit or nullify
the acts of legislative and executive officials.11 (Citation omitted)
In this case, it is clear that the JBC does not fall within the scope of a
tribunal, board, or officer exercising judicial or quasi-judicial functions.
In the process of selecting and screening applicants, the JBC neither
acted in any judicial or quasi-judicial capacity nor assumed unto itself
any performance of judicial or quasi-judicial prerogative. However,
since the formulation of guidelines and criteria, including the policy
that the petitioner now assails, is necessary and incidental to the
exercise of the JBC's constitutional mandate, a determination must be
made on whether the JBC has acted with grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing and enforcing the
said policy.
Besides, the Court can appropriately take cognizance of this case by
virtue of the Court's power of supervision over the JBC. Jurisprudence
provides that the power of supervision is the power of oversight, or the
authority to see that subordinate officers perform their duties. It
ensures that the laws and the rules governing the conduct of a
government entity are observed and complied with. Supervising
officials see to it that rules are followed, but they themselves do not
lay down such rules, nor do they have the discretion to modify or
replace them. If the rules are not observed, they may order the work
done or redone, but only to conform to such rules. They may not
prescribe their own manner of execution of the act. They have no
discretion on this matter except to see to it that the rules are
followed.12
Following this definition, the supervisory authority of the Court over
the JBC is to see to it that the JBC complies with its own rules and
procedures. Thus, when the policies of the JBC are being attacked,
then the Court, through its supervisory authority over the JBC, has the
duty to inquire about the matter and ensure that the JBC complies
with its own rules.
Two. The remedy of mandamus cannot be availed of by the petitioner
in assailing JBC's policy. The petitioner insisted that mandamus is
proper because his right was violated when he was not included in the
list of candidates for the RTC courts he applied for. He said that his
non-inclusion in the list of candidates for these stations has caused
him direct injury.
It is essential to the issuance of a writ of mandamus that the applicant
should have a clear legal right to the thing demanded and it must be
the imperative duty of the respondent to perform the act
required.13The petitioner bears the burden to show that there is such a
clear legal right to the performance of the act, and a corresponding
compelling duty on the part of the respondent to perform the act. The
remedy of mandamus, as an extraordinary writ, lies only to compel an
officer to perform a ministerial duty, not a discretionary one.14 Clearly,
the use of discretion and the performance of a ministerial act are
mutually exclusive.
The writ of mandamus does not issue to control or review the exercise
of discretion or to compel a course of conduct, which, it quickly seems
to us, was what the petitioner would have the JBC do in his favor. The
function of the JBC to select and recommend nominees for vacant
judicial positions is discretionary, not ministerial. Moreso, the
petitioner cannot claim any legal right to be included in the list of
nominees for judicial vacancies. Possession of the constitutional and
statutory qualifications for appointment to the judiciary may not be
used to legally demand that one's name be included in the list of
candidates for a judicial vacancy. One's inclusion in the list of the
candidates depends on the discretion of the JBC, thus: chanroblesvirtuallawlibrary
The fact that an individual possesses the constitutional and statutory
qualifications for appointment to the Judiciary does not create an
entitlement or expectation that his or her name be included in the list
of candidates for a judicial vacancy. By submitting an application or
accepting a recommendation, one submits to the authority of the JBC
to subject the former to the search, screening, and selection process,
and to use its discretion in deciding whether or not one should be
included in the list. Indeed, assuming that if one has the legal right to
be included in the list of candidates simply because he or she
possesses the constitutional and statutory qualifications, then the
application process would then be reduced to a mere mechanical
function of the JBC; and the search, screening, and selection process
would not only be unnecessary, but also improper. However, this is
clearly not the constitutional intent. One's inclusion in the list of
candidates is subject to the discretion of the JBC over the
selection of nominees for a particular judicial post. Such
candidate's inclusion is not, therefore, a legally demandable right, but
simply a privilege the conferment of which is subject to the JBC's
sound discretion.
Moreover, petitioner is essentially seeking a promotional appointment,
that is, a promotion from a first-level court to a second level
court. There is no law, however, that grants him the right to a
promotion to second-level courts.15 (Emphasis in the original)
Clearly, to be included as an applicant to second-level judge is not
properly compellable by mandamus inasmuch as it involves the
exercise of sound discretion by the JBC.
Three. The petition for declaratory relief is improper. "An action for
declaratory relief should be filed by a person interested under a deed,
a will, a contract or other written instrument, and whose rights are
affected by a statute, an executive order, a regulation or an ordinance.
The relief sought under this remedy includes the interpretation and
determination of the validity of the written instrument and the judicial
declaration of the parties' rights or duties thereunder."16 "[T]he
purpose of the action is to secure an authoritative statement of the
rights and obligations of the parties under a statute, deed,
contract, etc., for their guidance in its enforcement or compliance and
not to settle issues arising from its alleged breach."17
In this case, the petition for declaratory relief did not involve an
unsound policy. Rather, the petition specifically sought a judicial
declaration that the petitioner has the right to be included in the list of
applicants although he failed to meet JBC's five-year requirement
policy. Again, the Court reiterates that no person possesses a legal
right under the Constitution to be included in the list of nominees for
vacant judicial positions. The opportunity of appointment to judicial
office is a mere privilege, and not a judicially enforceable right that
may be properly claimed by any person. The inclusion in the list of
candidates, which is one of the incidents of such appointment, is not a
right either. Thus, the petitioner cannot claim any right that could have
been affected by the assailed policy.
Furthermore, the instant petition must necessarily fail because this
Court does not have original jurisdiction over a petition for declaratory
relief even if only questions of law are involved.18 The special civil
action of declaratory relief falls under the exclusive jurisdiction of the
appropriate RTC pursuant to Section 1919 of Batas Pambansa Blg. 129,
as amended by R.A.No. 7691.20
Therefore, by virtue of the Court's supervisory duty over the JBC and
in the exercise of its expanded judicial power, the Court assumes
jurisdiction over the present petition. But in any event, even if the
Court will set aside procedural infirmities, the instant petition should
still be dismissed.
chanRoblesvirtualLawlibrary
Substantive Issues
As an offspring of the 1987 Constitution, the JBC is mandated to
recommend appointees to the judiciary and only those nominated by
the JBC in a list officially transmitted to the President may be
appointed by the latter as justice or judge in the judiciary. Thus, the
JBC is burdened with a great responsibility that is imbued with public
interest as it determines the men and women who will sit on the
judicial bench. While the 1987 Constitution has provided the
qualifications of members of the judiciary, this does not preclude the
JBC from having its own set of rules and procedures and providing
policies to effectively ensure its mandate.
The functions of searching, screening, and selecting are necessary and
incidental to the JBC's principal function of choosing and
recommending nominees for vacancies in the judiciary for appointment
by the President. However, the Constitution did not lay down in precise
terms the process that the JBC shall follow in determining applicants'
qualifications. In carrying out its main function, the JBC has the
authority to set the standards/criteria in choosing its nominees for
every vacancy in the judiciary, subject only to the minimum
qualifications required by the Constitution and law for every position.
The search for these long held qualities necessarily requires a degree
of flexibility in order to determine who is most fit among the
applicants. Thus, the JBC has sufficient but not unbridled license to act
in performing its duties.
JBC's ultimate goal is to recommend nominees and not simply to fill up
judicial vacancies in order to promote an effective and efficient
administration of justice. Given this pragmatic situation, the JBC had
to establish a set of uniform criteria in order to ascertain whether an
applicant meets the minimum constitutional qualifications and
possesses the qualities expected of him and his office. Thus, the
adoption of the five-year requirement policy applied by JBC to the
petitioner's case is necessary and incidental to the function conferred
by the Constitution to the JBC.
Equal Protection
There is no question that JBC employs standards to have a rational
basis to screen applicants who cannot be all accommodated and
appointed to a vacancy in the judiciary, to determine who is best
qualified among the applicants, and not to discriminate against any
particular individual or class.
The equal protection clause of the Constitution does not require the
universal application of the laws to all persons or things without
distinction; what it requires is simply equality among equals as
determined according to a valid classification. Hence, the Court has
affirmed that if a law neither burdens a fundamental right nor targets
a suspect class, the classification stands as long as it bears a rational
relationship to some legitimate government end.21 ChanRoblesVirtualawlibrary
"The equal protection clause, therefore, does not preclude
classification of individuals who may be accorded different treatment
under the law as long as the classification is reasonable and not
arbitrary."22 "The mere fact that the legislative classification may result
in actual inequality is not violative of the right to equal protection, for
every classification of persons or things for regulation by law produces
inequality in some degree, but the law is not thereby rendered
invalid."23
That is the situation here. In issuing the assailed policy, the JBC
merely exercised its discretion in accordance with the constitutional
requirement and its rules that a member of the Judiciary must be of
proven competence, integrity, probity and independence.24"To ensure
the fulfillment of these standards in every member of the Judiciary, the
JBC has been tasked to screen aspiring judges and justices, among
others, making certain that the nominees submitted to the President
are all qualified and suitably best for appointment. In this way, the
appointing process itself is shielded from the possibility of extending
judicial appointment to the undeserving and mediocre and, more
importantly, to the ineligible or disqualified."25
Consideration of experience by JBC as one factor in choosing
recommended appointees does not constitute a violation of the equal
protection clause. The JBC does not discriminate when it employs
number of years of service to screen and differentiate applicants from
the competition. The number of years of service provides a relevant
basis to determine proven competence which may be measured by
experience, among other factors. The difference in treatment between
lower court judges who have served at least five years and those who
have served less than five years, on the other hand, was rationalized
by JBC as follows: chanroblesvirtuallawlibrary
Formulating policies which streamline the selection process falls
squarely under the purview of the JBC. No other constitutional body is
bestowed with the mandate and competency to set criteria for
applicants that refer to the more general categories of probity,
integrity and independence.
The assailed criterion or consideration for promotion to a second-level
court, which is five years experience as judge of a first-level court, is a
direct adherence to the qualities prescribed by the Constitution.
Placing a premium on many years of judicial experience, the JBC is
merely applying one of the stringent constitutional standards requiring
that a member of the judiciary be of "proven competence." In
determining competence, the JBC considers, among other
qualifications, experience and performance.
Based on the JBC's collective judgment, those who have been judges
of first-level courts for five (5) years are better qualified for promotion
to second-level courts. It deems length of experience as a judge as
indicative of conversance with the law and court procedure. Five years
is considered as a sufficient span of time for one to acquire
professional skills for the next level court, declog the dockets, put in
place improved procedures and an efficient case management system,
adjust to the work environment, and gain extensive experience in the
judicial process.
A five-year stint in the Judiciary can also provide evidence of
the integrity, probity, and independence of judges seeking
promotion. To merit JBC's nomination for their promotion, they must
have had a "record of, and reputation for, honesty, integrity,
incorruptibility, irreproachable conduct, and fidelity to sound moral and
ethical standards." Likewise, their decisions must be reflective of the
soundness of their judgment, courage, rectitude, cold neutrality and
strength of character.
Hence, for the purpose of determining whether judges are worthy of
promotion to the next level court, it would be premature or difficult to
assess their merit if they have had less than one year of service on the
bench.26 (Citations omitted and emphasis in the original)
At any rate, five years of service as a lower court judge is not the only
factor that determines the selection of candidates for RTC judge to be
appointed by the President. Persons with this qualification are neither
automatically selected nor do they automatically become nominees.
The applicants are chosen based on an array of factors and are
evaluated based on their individual merits. Thus, it cannot be said that
the questioned policy was arbitrary, capricious, or made without any
basis.
Clearly, the classification created by the challenged policy satisfies the
rational basis test. The foregoing shows that substantial distinctions do
exist between lower court judges with five year experience and those
with less than five years of experience, like the petitioner, and the
classification enshrined in the assailed policy is reasonable and
relevant to its legitimate purpose. The Court, thus, rules that the
questioned policy does not infringe on the equal protection clause as it
is based on reasonable classification intended to gauge the proven
competence of the applicants. Therefore, the said policy is valid and
constitutional.
Due Process
The petitioner averred that the assailed policy violates procedural due
process for lack of publication and non-submission to the University of
the Philippines Law Center Office of the National Administrative
Register (ONAR). The petitioner said that the assailed policy will affect
all applying judges, thus, the said policy should have been published.
Contrary to the petitioner's contention, the assailed JBC policy need
not be filed in the ONAR because the publication requirement in the
ONAR is confined to issuances of administrative agencies under the
Executive branch of the government.27 Since the JBC is a body under
the supervision of the Supreme Court,28 it is not covered by the
publication requirements of the Administrative Code.
Nevertheless, the assailed JBC policy requiring five years of service as
judges of first-level courts before they can qualify as applicants to
second-level courts should have been published. As a general rule,
publication is indispensable in order that all statutes, including
administrative rules that are intended to enforce or implement existing
laws, attain binding force and effect. There are, however, several
exceptions to the requirement of publication, such as interpretative
regulations and those merely internal in nature, which regulate only
the personnel of the administrative agency and not the public. Neither
is publication required of the so-called letters of instructions issued by
administrative superiors concerning the rules or guidelines to be
followed by their subordinates in the performance of their duties.29
Here, the assailed JBC policy does not fall within the administrative
rules and regulations exempted from the publication requirement. The
assailed policy involves a qualification standard by which the JBC shall
determine proven competence of an applicant. It is not an internal
regulation, because if it were, it would regulate and affect only the
members of the JBC and their staff. Notably, the selection process
involves a call to lawyers who meet the qualifications in the
Constitution and are willing to serve in the Judiciary to apply to these
vacant positions. Thus, it is but a natural consequence thereof that
potential applicants be informed of the requirements to the judicial
positions, so that they would be able to prepare for and comply with
them.
The Court also noted the fact that in JBC-009, otherwise known as the
Rules of the Judicial and Bar Council, the JBC had put its criteria in
writing and listed the guidelines in determining competence,
independence, integrity and probity. Section 1, Paragraph 1 of Rule 9
expressly provides that applicants for the Court of Appeals and
the Sandiganbayan, should, as a general rule, have at least five years
of experience as an RTC judge, thus: chanroblesvirtuallawlibrary
RULE 9 - SPECIAL GUIDELINES FOR NOMINATION TO A VACANCY IN
THE COURT OF APPEALS AND SANDIGANBAYAN
Section 1. Additional criteria for nomination to the Court of Appeals
and the Sandiganbayan. - In addition to the foregoing guidelines the
Council should consider the following in evaluating the merits of
applicants for a vacancy in the Court of Appeals and Sandiganbayan:
1. As a general rule, he must have at least five years of experience
as a judge of Regional Trial Court, except when he has in his favor
outstanding credentials, as evidenced by, inter alia, impressive
scholastic or educational record and performance in the Bar
examinations, excellent reputation for honesty, integrity, probity and
independence of mind; at least very satisfactory performance rating
for three (3) years preceding the filing of his application for
nomination; and excellent potentials for appellate judgeship.
x x x x (Emphasis ours)
The express declaration of these guidelines in JBC-009, which have
been duly published on the website of the JBC and in a newspaper of
general circulation suggests that the JBC is aware that these are not
mere internal rules, but are rules implementing the Constitution that
should be published. Thus, if the JBC were so-minded to add special
guidelines for determining competence of applicants for RTC judges,
then it could and should have amended its rules and published the
same. This, the JBC did not do as JBC-009 and its amendatory rule do
not have special guidelines for applicants to the RTC.
Moreover, jurisprudence has held that rules implementing a statute
should be published. Thus, by analogy, publication is also required for
the five-year requirement because it seeks to implement a
constitutional provision requiring proven competence from members of
the judiciary.
Nonetheless, the JBC's failure to publish the assailed policy has not
prejudiced the petitioner's private interest. At the risk of being
repetitive, the petitioner has no legal right to be included in the list of
nominees for judicial vacancies since the possession of the
constitutional and statutory qualifications for appointment to the
Judiciary may not be used to legally demand that one's name be
included in the list of candidates for a judicial vacancy. One's inclusion
in the shortlist is strictly within the discretion of the JBC.30
As to the issue that the JBC failed or refused to implement the
completion of the prejudicature program as a requirement for
appointment or promotion in the judiciary under R.A. No. 8557, this
ground of the petition, being unsubstantiated, was unfounded. Clearly,
it cannot be said that JBC unlawfully neglects the performance of a
duty enjoined by law.
Finally, the petitioner argued but failed to establish that the assailed
policy violates the constitutional provision under social justice and
human rights for equal opportunity of employment. The OSG
explained: chanroblesvirtuallawlibrary
[T]he questioned policy does not violate equality of employment
opportunities. The constitutional provision does not call for
appointment to the Judiciary of all who might, for any number of
reasons, wish to apply. As with all professions, it is regulated by the so, the Court will refrain from interfering with the exercise of JBC's
State. The office of a judge is no ordinary office. It is imbued with powers, and will respect the initiative and independence inherent in
public interest and is central in the administration of justice x x x. the latter.
cralawred

Applicants who meet the constitutional and legal qualifications must

vie and withstand the competition and rigorous screening and selection
process. They must submit themselves to the selection criteria,
processes and discretion of respondent JBC, which has the
constitutional mandate of screening and selecting candidates whose
names will be in the list to be submitted to the President. So long as a
fair opportunity is available for all applicants who are evaluated on the
basis of their individual merits and abilities, the questioned policy
cannot be struck down as unconstitutional.31 (Citations omitted)
WHEREFORE, premises considered, the petition is DISMISSED. The
Court, however, DIRECTS that the Judicial and Bar Council comply
with the publication requirement of (1) the assailed policy requiring
five years of experience as judges of first-level courts before they can
qualify as applicant to the Regional Trial Court, and (2) other special
guidelines that the Judicial and Bar Council is or will be implementing.
SO ORDERED. chanro

From the foregoing, it is apparent that the petitioner has not

established a clear legal right to justify the issuance of a preliminary
injunction. The petitioner has merely filed an application with the JBC
for the position of RTC judge, and he has no clear legal right to be
nominated for that office nor to be selected and included in the list to
be submitted to the President which is subject to the discretion of the
JBC. The JBC has the power to determine who shall be recommended
to the judicial post. To be included in the list of applicants is a privilege
as one can only be chosen under existing criteria imposed by the JBC
itself. As such, prospective applicants, including the petitioner, cannot
claim any demandable right to take part in it if they fail to meet these
criteria. Hence, in the absence of a clear legal right, the issuance of an
injunctive writ is not justified.

As the constitutional body granted with the power of searching for,

screening, and selecting applicants relative to recommending
appointees to the Judiciary, the JBC has the authority to determine
how best to perform such constitutional mandate. Pursuant to this
authority, the JBC issues various policies setting forth the guidelines to
be observed in the evaluation of applicants, and formulates rules and
guidelines in order to ensure that the rules are updated to respond to
existing circumstances. Its discretion is freed from legislative,
executive or judicial intervention to ensure that the JBC is shielded
from any outside pressure and improper influence. Limiting qualified
applicants in this case to those judges with five years of experience
was an exercise of discretion by the JBC. The potential applicants,
however, should have been informed of the requirements to the
judicial positions, so that they could properly prepare for and comply G.R. No. 203335               February 11, 2014
with them. Hence, unless there are good and compelling reasons to do
JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY
P. MEDINA, JANETTE TORAL and ERNESTO SONIDO,
JR., Petitioners,  G.R. No. 203359
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE
DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE
INFORMATION AND COMMUNICATIONS TECHNOLOGY
OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE
and THE DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203299
LOUIS "BAROK" C. BIRAOGO, Petitioner,  ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA
vs.
NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE
NATIONAL POLICE, Respondents.
x-----------------------x
G.R. No. 203306
ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG
MAMAMAYAN MOVEMENT, INC., JERRY S. YAP, BERTENI
"TOTO" CAUSING, HERNANI Q. CUARE, PERCY LAPID,
TRACY CABRERA, RONALDO E. RENTA, CIRILO P.
SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners,  x-----------------------x
vs.
OFFICE OF THE PRESIDENT, represented by President
Benigno Simeon Aquino III, SENATE OF THE PHILIPPINES,
and HOUSE OF REPRESENTATIVES, Respondents.
x-----------------------x
SENATOR TEOFISTO DL GUINGONA III, Petitioner, 
vs.
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE,
THE SECRETARY OF THE DEPARTMENT OF INTERIOR AND
LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE, and DIRECTOR OF THE NATIONAL
BUREAU OF INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203378
ORDENES-CASCOLAN, H. HARRY L. ROQUE, JR., ROMEL R.
BAGARES, and GILBERT T. ANDRES, Petitioners, 
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF
BUDGET AND MANAGEMENT, THE DEPARTMENT OF
JUSTICE, THE DEPARTMENT OF THE INTERIOR AND LOCAL
GOVERNMENT, THE NATIONAL BUREAU OF
INVESTIGATION, THE PHILIPPINE NATIONAL POLICE, AND
THE INFORMATION AND COMMUNICATIONS TECHNOLOGY
OFFICE-DEPARTMENT OF SCIENCE AND
TECHNOLOGY, Respondents.
G.R. No. 203391
HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO,
VENCER MARI CRISOSTOMO OF ANAKBAYAN, MA.
KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN,
ISABELLE THERESE BAGUISI OF THE NATIONAL UNION OF
STUDENTS OF THE PHILIPPINES, ET AL., Petitioners, 
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive
Secretary and alter-ego of President Benigno Simeon Aquino
III, LEILA DE LIMA in her capacity as Secretary of
Justice, Respondents.
x-----------------------x
G.R. No. 203407
BAGONG ALYANSANG MAKABAYAN SECRETARY
GENERAL RENATO M. REYES, JR., National Artist
BIENVENIDO L. LUMBERA, Chairperson of Concerned
Artists of the Philippines, ELMER C. LABOG, Chairperson of
Kilusang Mayo Uno, CRISTINA E. PALABAY, Secretary
General of Karapatan, FERDINAND R. GAITE, Chairperson of
COURAGE, JOEL B. MAGLUNSOD, Vice President of
Anakpawis Party-List, LANA R. LINABAN, Secretary General
Gabriela Women's Party, ADOLFO ARES P. GUTIERREZ, and
JULIUS GARCIA MATIBAG, Petitioners,  G.R. No. 203453
vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic
of the Philippines, PAQUITO N. OCHOA, JR., Executive
Secretary, SENATE OF THE PHILIPPINES, represented by
SENATE PRESIDENT JUAN PONCE ENRILE, HOUSE OF
REPRESENTATIVES, represented by SPEAKER FELICIANO
BELMONTE, JR., LEILA DE LIMA, Secretary of the
Department of Justice, LOUIS NAPOLEON C. CASAMBRE,
Executive Director of the Information and Communications
Technology Office, NONNATUS CAESAR R. ROJAS, Director
of the National Bureau of Investigation, D/GEN. NICANOR A.
BARTOLOME, Chief of the Philippine National Police,
MANUEL A. ROXAS II, Secretary of the Department of the
Interior and Local Government, Respondents.
x-----------------------x
G.R. No. 203440
MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA,
AMPARITA STA. MARIA, RAY PAOLO J. SANTIAGO,
GILBERT V. SEMBRANO, and RYAN JEREMIAH D. QUAN (all
of the Ateneo Human Rights Center),Petitioners, 
vs.
HONORABLE PAQUITO OCHOA in his capacity as Executive
Secretary, HONORABLE LEILA DE LIMA in her capacity as
Secretary of Justice, HONORABLE MANUEL ROXAS in his
capacity as Secretary of the Department of Interior and Local
Government, The CHIEF of the Philippine National Police,
The DIRECTOR of the National Bureau of Investigation (all of
the Executive Department of Government), Respondents.
x-----------------------x
NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES
(NUJP), PHILIPPINE PRESS INSTITUTE (PPI), CENTER FOR
MEDIA FREEDOM AND RESPONSIBILITY, ROWENA
CARRANZA PARAAN, MELINDA QUINTOS-DE JESUS,
JOSEPH ALWYN ALBURO, ARIEL SEBELLINO AND THE
PETITIONERS IN THE e-PETITION http://www.nujp.org/no-to-
ra10175/, Petitioners, 
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF
JUSTICE, THE SECRETARY OF THE INTERIOR AND LOCAL
GOVERNMENT, THE SECRETARY OF BUDGET AND
MANAGEMENT, THE DIRECTOR GENERAL OF THE
PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, THE CYBERCRIME
INVESTIGATION AND COORDINATING CENTER, AND ALL
AGENCIES AND INSTRUMENTALITIES OF GOVERNMENT
AND ALL PERSONS ACTING UNDER THEIR INSTRUCTIONS,
ORDERS, DIRECTION IN RELATION TO THE
IMPLEMENTATION OF REPUBLIC ACT NO.
10175, Respondents.
x-----------------------x
G.R. No. 203454
PAUL CORNELIUS T. CASTILLO & RYAN D.
ANDRES, Petitioners, 
vs.
THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY
OF INTERIOR AND LOCAL GOVERNMENT,Respondents.
x-----------------------x
G.R. No. 203469
ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO;
BENJAMIN NOEL A. ESPINA; MARCK RONALD C. RIMORIN;
JULIUS D. ROCAS; OLIVER RICHARD V. ROBILLO; AARON
ERICK A. LOZADA; GERARD ADRIAN P. MAGNAYE; JOSE
REGINALD A. RAMOS; MA. ROSARIO T. JUAN; BRENDALYN
P. RAMIREZ; MAUREEN A. HERMITANIO; KRISTINE JOY S.
REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F.
CABIGON; BENRALPH S. YU; CEBU BLOGGERS SOCIETY,
INC. PRESIDENT RUBEN B. LICERA, JR; and PINOY
EXPAT/OFW BLOG AWARDS, INC. COORDINATOR PEDRO
E. RAHON; Petitioners, 
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as
President of the Republic of the Philippines; SENATE OF
THE PHILIPPINES, represented by HON. JUAN PONCE
ENRILE, in his capacity as Senate President; HOUSE OF
REPRESENTATIVES, represented by FELICIANO R.
BELMONTE, JR., in his capacity as Speaker of the House of
Representatives; HON. PAQUITO N. OCHOA, JR., in his
capacity as Executive Secretary; HON. LEILA M. DE LIMA, in
her capacity as Secretary of Justice; HON. LOUIS
NAPOLEON C. CASAMBRE, in his capacity as Executive
Director, Information and Communications Technology
Office; HON. NONNATUS CAESAR R. ROJAS, in his capacity
as Director, National Bureau of Investigation; and P/DGEN.
NICANOR A. BARTOLOME, in his capacity as Chief,
Philippine National Police, Respondents.
x-----------------------x
G.R. No. 203501
PHILIPPINE BAR ASSOCIATION, INC., Petitioner, 
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his official
capacity as President of the Republic of the Philippines;
HON. PAQUITO N. OCHOA, JR., in his official capacity as
Executive Secretary; HON. LEILA M. DE LIMA, in her official
capacity as Secretary of Justice; LOUIS NAPOLEON C.
CASAMBRE, in his official capacity as Executive Director,
Information and Communications Technology Office;
NONNATUS CAESAR R. ROJAS, in his official capacity as
Director of the National Bureau of Investigation; and
DIRECTOR GENERAL NICANOR A. BARTOLOME, in his
official capacity as Chief of the Philippine National
Police, Respondents.
x-----------------------x
G.R. No. 203509
BAYAN MUNA REPRESENTATIVE NERI J.
COLMENARES, Petitioner,  MANRIQUE, JR., LAUREN DADO, MARCO VITTORIA TOBIAS
vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA,
JR., Respondent.
x-----------------------x
G.R. No. 203515
NATIONAL PRESS CLUB OF THE PHILIPPINES, INC.
represented by BENNY D. ANTIPORDA in his capacity as
President and in his personal capacity, Petitioner,  PHILIPPINE NATIONAL POLICE, THE HEAD OF THE DOJ
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON
AQUINO III, DEPARTMENT OF JUSTICE, DEPARTMENT OF
INTERIOR AND LOCAL GOVERNMENT, PHILIPPINE
NATIONAL POLICE, NATIONAL BUREAU OF
INVESTIGATION, DEPARTMENT OF BUDGET AND
MANAGEMENT AND ALL OTHER GOVERNMENT
INSTRUMENTALITIES WHO HAVE HANDS IN THE PASSAGE
AND/OR IMPLEMENTATION OF REPUBLIC ACT
10175, Respondents.
x-----------------------x
G.R. No. 203518
PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of
DAKILA-PHILIPPINE COLLECTIVE FOR MODERN HEROISM,
represented by Leni Velasco, PARTIDO LAKAS NG MASA,
represented by Cesar S. Melencio, FRANCIS EUSTON R.
ACERO, MARLON ANTHONY ROMASANTA TONSON,
TEODORO A. CASIÑO, NOEMI LARDIZABAL-DADO, IMELDA
ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M.
RAGRAGIO, MARIA FATIMA A. VILLENA, MEDARDO M.
SUMAYAO, IRENE CHIA, ERASTUS NOEL T. DELIZO,
CRISTINA SARAH E. OSORIO, ROMEO FACTOLERIN, NAOMI
L. TUPAS, KENNETH KENG, ANA ALEXANDRA C.
CASTRO, Petitioners, 
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF
JUSTICE, THE SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT, THE SECRETARY OF SCIENCE AND
TECHNOLOGY, THE EXECUTIVE DIRECTOR OF THE
INFORMATION TECHNOLOGY OFFICE, THE DIRECTOR OF
THE NATIONAL BUREAU OF INVESTIGATION, THE CHIEF,
OFFICE OF CYBERCRIME, and THE OTHER MEMBERS OF
THE CYBERCRIME INVESTIGATION AND COORDINATING
CENTER, Respondents.
DECISION
ABAD, J.:
These consolidated petitions seek to declare several provisions of
Republic Act (R.A.) 10175, the Cybercrime Prevention Act of
2012, unconstitutional and void.
 The Facts and the Case
The cybercrime law aims to regulate access to and use of the
cyberspace. Using his laptop or computer, a person can connect
to the internet, a system that links him to other computers and
enable him, among other things, to:
1. Access virtual libraries and encyclopedias for all kinds
of information that he needs for research, study,
amusement, upliftment, or pure curiosity;
2. Post billboard-like notices or messages, including
pictures and videos, for the general public or for special
audiences like associates, classmates, or friends and
read postings from them;
3. Advertise and promote goods or services and make
purchases and payments;
4. Inquire and do business with institutional entities like
government agencies, banks, stock exchanges, trade
houses, credit card companies, public utilities, hospitals,
and schools; and
5. Communicate in writing or by voice with any person
through his e-mail address or telephone.
This is cyberspace, a system that accommodates millions and
billions of simultaneous and ongoing individual accesses to and
uses of the internet. The cyberspace is a boon to the need of the
current generation for greater information and facility of
communication. But all is not well with the system since it could
not filter out a number of persons of ill will who would want to use
cyberspace technology for mischiefs and crimes. One of them
can, for instance, avail himself of the system to unjustly ruin the
reputation of another or bully the latter by posting defamatory
statements against him that people can read.
And because linking with the internet opens up a user to
communications from others, the ill-motivated can use the
cyberspace for committing theft by hacking into or surreptitiously
accessing his bank account or credit card or defrauding him
through false representations. The wicked can use the
cyberspace, too, for illicit trafficking in sex or for exposing to
pornography guileless children who have access to the internet.
For this reason, the government has a legitimate right to regulate
the use of cyberspace and contain and punish wrongdoings.
Notably, there are also those who would want, like vandals, to
wreak or cause havoc to the computer systems and networks of
indispensable or highly useful institutions as well as to the laptop
or computer programs and memories of innocent individuals.
They accomplish this by sending electronic viruses or virtual
dynamites that destroy those computer systems, networks,
programs, and memories. The government certainly has the duty
and the right to prevent these tomfooleries from happening and
punish their perpetrators, hence the Cybercrime Prevention Act.
But petitioners claim that the means adopted by the cybercrime
law for regulating undesirable cyberspace activities violate certain
of their constitutional rights. The government of course asserts
that the law merely seeks to reasonably put order into cyberspace
activities, punish wrongdoings, and prevent hurtful attacks on the
system.
Pending hearing and adjudication of the issues presented in
these cases, on February 5, 2013 the Court extended the original
120-day temporary restraining order (TRO) that it earlier issued
on October 9, 2012, enjoining respondent government agencies
from implementing the cybercrime law until further orders.
The Issues Presented
Petitioners challenge the constitutionality of the following
provisions of the cybercrime law that regard certain acts as
crimes and impose penalties for their commission as well as
provisions that would enable the government to track down and
penalize violators. These provisions are:
a. Section 4(a)(1) on Illegal Access;
b. Section 4(a)(3) on Data Interference;
c. Section 4(a)(6) on Cyber-squatting;
d. Section 4(b)(3) on Identity Theft;
e. Section 4(c)(1) on Cybersex;
f. Section 4(c)(2) on Child Pornography;
g. Section 4(c)(3) on Unsolicited Commercial
Communications;
h. Section 4(c)(4) on Libel;
i. Section 5 on Aiding or Abetting and Attempt in the
Commission of Cybercrimes;
j. Section 6 on the Penalty of One Degree Higher;
k. Section 7 on the Prosecution under both the Revised
Penal Code (RPC) and R.A. 10175;
l. Section 8 on Penalties;
m. Section 12 on Real-Time Collection of Traffic Data;
n. Section 13 on Preservation of Computer Data;
o. Section 14 on Disclosure of Computer Data;
p. Section 15 on Search, Seizure and Examination of
Computer Data;
q. Section 17 on Destruction of Computer Data;
r. Section 19 on Restricting or Blocking Access to
Computer Data;
s. Section 20 on Obstruction of Justice;
t. Section 24 on Cybercrime Investigation and
Coordinating Center (CICC); and
u. Section 26(a) on CICC’s Powers and Functions.
Some petitioners also raise the constitutionality of related Articles
353, 354, 361, and 362 of the RPC on the crime of libel.
The Rulings of the Court
Section 4(a)(1)
Section 4(a)(1) provides:
Section 4. Cybercrime Offenses. – The following acts constitute
the offense of cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of
computer data and systems:
(1) Illegal Access. – The access to the whole or any part of a
computer system without right.
Petitioners contend that Section 4(a)(1) fails to meet the strict
scrutiny standard required of laws that interfere with the
fundamental rights of the people and should thus be struck down.
The Court has in a way found the strict scrutiny standard, an
American constitutional construct,  useful in determining the
1
constitutionality of laws that tend to target a class of things or
persons. According to this standard, a legislative classification
that impermissibly interferes with the exercise of fundamental
right or operates to the peculiar class disadvantage of a suspect
class is presumed unconstitutional. The burden is on the
government to prove that the classification is necessary to
achieve a compelling state interest and that it is the least
restrictive means to protect such interest.  Later, the strict scrutiny
2
standard was used to assess the validity of laws dealing with the
regulation of speech, gender, or race as well as other
fundamental rights, as expansion from its earlier applications to
equal protection. 3
In the cases before it, the Court finds nothing in Section 4(a)(1)
that calls for the application of the strict scrutiny standard since
no fundamental freedom, like speech, is involved in punishing
what is essentially a condemnable act – accessing the computer
system of another without right. It is a universally condemned
conduct. 4
Petitioners of course fear that this section will jeopardize the work
of ethical hackers, professionals who employ tools and
techniques used by criminal hackers but would neither damage
the target systems nor steal information. Ethical hackers evaluate
the target system’s security and report back to the owners the
vulnerabilities they found in it and give instructions for how these
can be remedied. Ethical hackers are the equivalent of
independent auditors who come into an organization to verify its
bookkeeping records. 5
Besides, a client’s engagement of an ethical hacker requires an
agreement between them as to the extent of the search, the
methods to be used, and the systems to be tested. This is
referred to as the "get out of jail free card." Since the ethical
6
hacker does his job with prior permission from the client, such
permission would insulate him from the coverage of Section 4(a)
(1).
Section 4(a)(3) of the Cybercrime Law
Section 4(a)(3) provides:
Section 4. Cybercrime Offenses. – The following acts constitute
the offense of cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of
computer data and systems:
xxxx
(3) Data Interference. – The intentional or reckless alteration, Besides, the overbreadth challenge places on petitioners the
damaging, deletion or deterioration of computer data, electronic heavy burden of proving that under no set of circumstances will
document, or electronic data message, without right, including the Section 4(a)(3) be valid.  Petitioner has failed to discharge this
11

introduction or transmission of viruses. burden.

Petitioners claim that Section 4(a)(3) suffers from overbreadth in Section 4(a)(6) of the Cybercrime Law
that, while it seeks to discourage data interference, it intrudes into
the area of protected speech and expression, creating a chilling Section 4(a)(6) provides:
and deterrent effect on these guaranteed freedoms.
Section 4. Cybercrime Offenses. – The following acts constitute
Under the overbreadth doctrine, a proper governmental purpose, the offense of cybercrime punishable under this Act:
constitutionally subject to state regulation, may not be achieved
by means that unnecessarily sweep its subject broadly, thereby (a) Offenses against the confidentiality, integrity and availability of
invading the area of protected freedoms.  But Section 4(a)(3)
7
computer data and systems:
does not encroach on these freedoms at all. It simply punishes
what essentially is a form of vandalism,  the act of willfully
8

destroying without right the things that belong to others, in this
case their computer data, electronic document, or electronic data
message. Such act has no connection to guaranteed freedoms.
There is no freedom to destroy other people’s computer systems
and private documents.
All penal laws, like the cybercrime law, have of course an
inherent chilling effect, an in terrorem effect  or the fear of
9 (i) Similar, identical, or confusingly similar to an existing
possible prosecution that hangs on the heads of citizens who are
minded to step beyond the boundaries of what is proper. But to
prevent the State from legislating criminal laws because they
instill such kind of fear is to render the state powerless in
addressing and penalizing socially harmful conduct.  Here, the
10
chilling effect that results in paralysis is an illusion since Section
4(a)(3) clearly describes the evil that it seeks to punish and
creates no tendency to intimidate the free exercise of one’s
constitutional rights.
xxxx
(6) Cyber-squatting. – The acquisition of domain name over the
internet in bad faith to profit, mislead, destroy the reputation, and
deprive others from registering the same, if such a domain name
is:
trademark registered with the appropriate government
agency at the time of the domain name registration;
(ii) Identical or in any way similar with the name of a
person other than the registrant, in case of a personal
name; and
(iii) Acquired without right or with intellectual property
interests in it.
Petitioners claim that Section 4(a)(6) or cyber-squatting violates
the equal protection clause  in that, not being narrowly tailored, it
12
will cause a user using his real name to suffer the same fate as
those who use aliases or take the name of another in satire,
parody, or any other literary device. For example, supposing
there exists a well known billionaire-philanthropist named "Julio
Gandolfo," the law would punish for cyber-squatting both the
person who registers such name because he claims it to be his
pseudo-name and another who registers the name because it
happens to be his real name. Petitioners claim that, considering
the substantial distinction between the two, the law should
recognize the difference.
But there is no real difference whether he uses "Julio Gandolfo"
which happens to be his real name or use it as a pseudo-name
for it is the evil purpose for which he uses the name that the law
condemns. The law is reasonable in penalizing him for acquiring
the domain name in bad faith to profit, mislead, destroy
reputation, or deprive others who are not ill-motivated of the
rightful opportunity of registering the same. The challenge to the
constitutionality of Section 4(a)(6) on ground of denial of equal
protection is baseless.
Section 4(b)(3) of the Cybercrime Law
Section 4(b)(3) provides:
Section 4. Cybercrime Offenses. – The following acts constitute
the offense of cybercrime punishable under this Act:
xxxx
b) Computer-related Offenses:
xxxx
(3) Computer-related Identity Theft. – The intentional acquisition,
use, misuse, transfer, possession, alteration, or deletion of
identifying information belonging to another, whether natural or
juridical, without right: Provided: that if no damage has yet been
caused, the penalty imposable shall be one (1) degree lower.
Petitioners claim that Section 4(b)(3) violates the constitutional
rights to due process and to privacy and correspondence, and
transgresses the freedom of the press.
The right to privacy, or the right to be let alone, was
institutionalized in the 1987 Constitution as a facet of the right
protected by the guarantee against unreasonable searches and
seizures.  But the Court acknowledged its existence as early as
13
1968 in Morfe v. Mutuc,  it ruled that the right to privacy exists
14
independently of its identification with liberty; it is in itself fully
deserving of constitutional protection.
Relevant to any discussion of the right to privacy is the concept
known as the "Zones of Privacy." The Court explained in "In the
Matter of the Petition for Issuance of Writ of Habeas Corpus of
Sabio v. Senator Gordon"  the relevance of these zones to the
15
right to privacy:
Zones of privacy are recognized and protected in our laws. Within
these zones, any form of intrusion is impermissible unless
excused by law and in accordance with customary legal process.
The meticulous regard we accord to these zones arises not only
from our conviction that the right to privacy is a "constitutional
right" and "the right most valued by civilized men," but also from
our adherence to the Universal Declaration of Human Rights
which mandates that, "no one shall be subjected to arbitrary
interference with his privacy" and "everyone has the right to the
protection of the law against such interference or attacks."
Two constitutional guarantees create these zones of privacy: (a)
the right against unreasonable searches  and seizures, which is
16
the basis of the right to be let alone, and (b) the right to privacy of
communication and correspondence.  In assessing the challenge
17
that the State has impermissibly intruded into these zones of
privacy, a court must determine whether a person has exhibited a
reasonable expectation of privacy and, if so, whether that
expectation has been violated by unreasonable government
intrusion.
18
The usual identifying information regarding a person includes his
name, his citizenship, his residence address, his contact number,
his place and date of birth, the name of his spouse if any, his
occupation, and similar data.  The law punishes those who
19
acquire or use such identifying information without right, implicitly
to cause damage. Petitioners simply fail to show how government
effort to curb computer-related identity theft violates the right to
privacy and correspondence as well as the right to due process of
law.
Also, the charge of invalidity of this section based on the
overbreadth doctrine will not hold water since the specific
conducts proscribed do not intrude into guaranteed freedoms like
speech. Clearly, what this section regulates are specific actions:
the acquisition, use, misuse or deletion of personal identifying
data of another. There is no fundamental right to acquire
another’s personal data.
Further, petitioners fear that Section 4(b)(3) violates the freedom
of the press in that journalists would be hindered from accessing
the unrestricted user account of a person in the news to secure
information about him that could be published. But this is not the
essence of identity theft that the law seeks to prohibit and punish.
Evidently, the theft of identity information must be intended for an
illegitimate purpose. Moreover, acquiring and disseminating
information made public by the user himself cannot be regarded
as a form of theft.
The Court has defined intent to gain as an internal act which can
be established through the overt acts of the offender, and it may
be presumed from the furtive taking of useful property pertaining
to another, unless special circumstances reveal a different intent
on the part of the perpetrator.  As such, the press, whether in
20
quest of news reporting or social investigation, has nothing to fear
since a special circumstance is present to negate intent to gain
which is required by this Section.
Section 4(c)(1) of the Cybercrime Law
Section 4(c)(1) provides:
Sec. 4. Cybercrime Offenses.– The following acts constitute the
offense of cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
(1) Cybersex.– The willful engagement, maintenance, control, or
operation, directly or indirectly, of any lascivious exhibition of
sexual organs or sexual activity, with the aid of a computer
system, for favor or consideration.
Petitioners claim that the above violates the freedom of
expression clause of the Constitution.  They express fear that
21
private communications of sexual character between husband
and wife or consenting adults, which are not regarded as crimes
under the penal code, would now be regarded as crimes when
done "for favor" in cyberspace. In common usage, the term
"favor" includes "gracious kindness," "a special privilege or right
granted or conceded," or "a token of love (as a ribbon) usually
worn conspicuously."  This meaning given to the term "favor"
22
embraces socially tolerated trysts. The law as written would invite
law enforcement agencies into the bedrooms of married couples
or consenting individuals.
But the deliberations of the Bicameral Committee of Congress on
this section of the Cybercrime Prevention Act give a proper
perspective on the issue. These deliberations show a lack of
intent to penalize a "private showing x x x between and among
two private persons x x x although that may be a form of
obscenity to some."  The understanding of those who drew up
23
the cybercrime law is that the element of "engaging in a business"
is necessary to constitute the illegal cybersex.  The Act actually
24
seeks to punish cyber prostitution, white slave trade, and
pornography for favor and consideration. This includes interactive
prostitution and pornography, i.e., by webcam. 25
The subject of Section 4(c)(1)—lascivious exhibition of sexual
organs or sexual activity—is not novel. Article 201 of the RPC
punishes "obscene publications and exhibitions and indecent
shows." The Anti-Trafficking in Persons Act of 2003 penalizes
those who "maintain or hire a person to engage in prostitution or
pornography."  The law defines prostitution as any act,
26
transaction, scheme, or design involving the use of a person by
another, for sexual intercourse or lascivious conduct in exchange
for money, profit, or any other consideration.
27
The case of Nogales v. People28 shows the extent to which the
State can regulate materials that serve no other purpose than
satisfy the market for violence, lust, or pornography.  The Court
29
weighed the property rights of individuals against the public
welfare. Private property, if containing pornographic materials,
may be forfeited and destroyed. Likewise, engaging in sexual
acts privately through internet connection, perceived by some as
a right, has to be balanced with the mandate of the State to
eradicate white slavery and the exploitation of women.
In any event, consenting adults are protected by the wealth of
jurisprudence delineating the bounds of obscenity. The Court will
30
not declare Section 4(c)(1) unconstitutional where it stands a
construction that makes it apply only to persons engaged in the
business of maintaining, controlling, or operating, directly or
indirectly, the lascivious exhibition of sexual organs or sexual
activity with the aid of a computer system as Congress has
intended.
Section 4(c)(2) of the Cybercrime Law
Section 4(c)(2) provides:
Sec. 4. Cybercrime Offenses. – The following acts constitute the
offense of cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(2) Child Pornography. — The unlawful or prohibited acts defined
and punishable by Republic Act No. 9775 or the Anti-Child
Pornography Act of 2009, committed through a computer system:
Provided, That the penalty to be imposed shall be (1) one degree
higher than that provided for in Republic Act No. 9775.
It seems that the above merely expands the scope of the Anti- Section 4(c)(3) of the Cybercrime Law
Child Pornography Act of 2009  (ACPA) to cover identical
31

activities in cyberspace. In theory, nothing prevents the Section 4(c)(3) provides:

government from invoking the ACPA when prosecuting persons
who commit child pornography using a computer system. Sec. 4. Cybercrime Offenses. – The following acts constitute the
Actually, ACPA’s definition of child pornography already offense of cybercrime punishable under this Act:
embraces the use of "electronic, mechanical, digital, optical,
magnetic or any other means." Notably, no one has questioned
xxxx
this ACPA provision.
(c) Content-related Offenses:
Of course, the law makes the penalty higher by one degree when
the crime is committed in cyberspace. But no one can complain
since the intensity or duration of penalty is a legislative xxxx
prerogative and there is rational basis for such higher
penalty.  The potential for uncontrolled proliferation of a particular
32 (3) Unsolicited Commercial Communications. – The transmission
piece of child pornography when uploaded in the cyberspace is of commercial electronic communication with the use of computer
incalculable. system which seeks to advertise, sell, or offer for sale products
and services are prohibited unless:
Petitioners point out that the provision of ACPA that makes it
unlawful for any person to "produce, direct, manufacture or create (i) There is prior affirmative consent from the recipient; or
any form of child pornography"  clearly relates to the prosecution
33

of persons who aid and abet the core offenses that ACPA seeks
to punish.  Petitioners are wary that a person who merely
34
doodles on paper and imagines a sexual abuse of a 16-year-old
is not criminally liable for producing child pornography but one
who formulates the idea on his laptop would be. Further, if the
author bounces off his ideas on Twitter, anyone who replies to the
tweet could be considered aiding and abetting a cybercrime.
The question of aiding and abetting the offense by simply
commenting on it will be discussed elsewhere below. For now the
Court must hold that the constitutionality of Section 4(c)(2) is not
successfully challenged.
(ii) The primary intent of the communication is for service
and/or administrative announcements from the sender to
its existing users, subscribers or customers; or
(iii) The following conditions are present:
(aa) The commercial electronic communication
contains a simple, valid, and reliable way for the
recipient to reject receipt of further commercial
electronic messages (opt-out) from the same
source;
 (bb) The commercial electronic communication
does not purposely disguise the source of the
electronic message; and
(cc) The commercial electronic communication
does not purposely include misleading information
in any part of the message in order to induce the
recipients to read the message.
The above penalizes the transmission of unsolicited commercial
communications, also known as "spam." The term "spam"
surfaced in early internet chat rooms and interactive fantasy
games. One who repeats the same sentence or comment was
said to be making a "spam." The term referred to a Monty
Python’s Flying Circus scene in which actors would keep saying
"Spam, Spam, Spam, and Spam" when reading options from a
menu. 35
The Government, represented by the Solicitor General, points out
that unsolicited commercial communications or spams are a
nuisance that wastes the storage and network capacities of
internet service providers, reduces the efficiency of commerce
and technology, and interferes with the owner’s peaceful
enjoyment of his property. Transmitting spams amounts to
trespass to one’s privacy since the person sending out spams
enters the recipient’s domain without prior permission. The OSG
contends that commercial speech enjoys less protection in law.
But, firstly, the government presents no basis for holding that
unsolicited electronic ads reduce the "efficiency of computers."
Secondly, people, before the arrival of the age of computers,
have already been receiving such unsolicited ads by mail. These
have never been outlawed as nuisance since people might have
interest in such ads. What matters is that the recipient has the
option of not opening or reading these mail ads. That is true with
spams. Their recipients always have the option to delete or not to
read them.
To prohibit the transmission of unsolicited ads would deny a
person the right to read his emails, even unsolicited commercial
ads addressed to him. Commercial speech is a separate category
of speech which is not accorded the same level of protection as
that given to other constitutionally guaranteed forms of
expression but is nonetheless entitled to protection.  The State
36
cannot rob him of this right without violating the constitutionally
guaranteed freedom of expression. Unsolicited advertisements
are legitimate forms of expression.
Articles 353, 354, and 355 of the Penal Code
Section 4(c)(4) of the Cyber Crime Law
Petitioners dispute the constitutionality of both the penal code
provisions on libel as well as Section 4(c)(4) of the Cybercrime
Prevention Act on cyberlibel.
The RPC provisions on libel read:
Art. 353. Definition of libel. — A libel is public and malicious
imputation of a crime, or of a vice or defect, real or imaginary, or
any act, omission, condition, status, or circumstance tending to
cause the dishonor, discredit, or contempt of a natural or juridical
person, or to blacken the memory of one who is dead.
Art. 354. Requirement for publicity. — Every defamatory
imputation is presumed to be malicious, even if it be true, if no
good intention and justifiable motive for making it is shown,
except in the following cases:
 1. A private communication made by any person to
another in the performance of any legal, moral or social
duty; and
2. A fair and true report, made in good faith, without any
comments or remarks, of any judicial, legislative or other
official proceedings which are not of confidential nature,
or of any statement, report or speech delivered in said
proceedings, or of any other act performed by public
officers in the exercise of their functions.
Art. 355. Libel means by writings or similar means. — A libel
committed by means of writing, printing, lithography, engraving,
radio, phonograph, painting, theatrical exhibition,
cinematographic exhibition, or any similar means, shall be
punished by prision correccional in its minimum and medium
periods or a fine ranging from 200 to 6,000 pesos, or both, in
addition to the civil action which may be brought by the offended
party.
The libel provision of the cybercrime law, on the other hand,
merely incorporates to form part of it the provisions of the RPC on
libel. Thus Section 4(c)(4) reads:
Sec. 4. Cybercrime Offenses. — The following acts constitute the
offense of cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(4) Libel. — The unlawful or prohibited acts of libel as defined in
Article 355 of the Revised Penal Code, as amended, committed
through a computer system or any other similar means which
may be devised in the future.
Petitioners lament that libel provisions of the penal code  and, in
37
effect, the libel provisions of the cybercrime law carry with them
the requirement of "presumed malice" even when the latest
jurisprudence already replaces it with the higher standard of
"actual malice" as a basis for conviction.  Petitioners argue that
38
inferring "presumed malice" from the accused’s defamatory
statement by virtue of Article 354 of the penal code infringes on
his constitutionally guaranteed freedom of expression.
Petitioners would go further. They contend that the laws on libel
should be stricken down as unconstitutional for otherwise good
jurisprudence requiring "actual malice" could easily be overturned
as the Court has done in Fermin v. People  even where the
39
offended parties happened to be public figures.
The elements of libel are: (a) the allegation of a discreditable act
or condition concerning another; (b) publication of the charge; (c)
identity of the person defamed; and (d) existence of malice. 40
There is "actual malice" or malice in fact  when the offender
41
makes the defamatory statement with the knowledge that it is
false or with reckless disregard of whether it was false or
not.  The reckless disregard standard used here requires a high
42
degree of awareness of probable falsity. There must be sufficient
evidence to permit the conclusion that the accused in fact
entertained serious doubts as to the truth of the statement he
published. Gross or even extreme negligence is not sufficient to
establish actual malice.43
The prosecution bears the burden of proving the presence of
actual malice in instances where such element is required to
establish guilt. The defense of absence of actual malice, even
when the statement turns out to be false, is available where the
offended party is a public official or a public figure, as in the cases
of Vasquez (a barangay official) and Borjal (the Executive
Director, First National Conference on Land Transportation).
Since the penal code and implicitly, the cybercrime law, mainly
target libel against private persons, the Court recognizes that
these laws imply a stricter standard of "malice" to convict the
author of a defamatory statement where the offended party is a
public figure. Society’s interest and the maintenance of good
government demand a full discussion of public affairs. 44
Parenthetically, the Court cannot accept the proposition that its
ruling in Fermin disregarded the higher standard of actual malice
or malice in fact when it found Cristinelli Fermin guilty of
committing libel against complainants who were public figures.
Actually, the Court found the presence of malice in fact in that
case. Thus:
It can be gleaned from her testimony that petitioner had the
motive to make defamatory imputations against complainants.
Thus, petitioner cannot, by simply making a general denial,
convince us that there was no malice on her part. Verily, not only
was there malice in law, the article being malicious in itself, but
there was also malice in fact, as there was motive to talk ill
against complainants during the electoral campaign. (Emphasis
ours)
Indeed, the Court took into account the relatively wide leeway
given to utterances against public figures in the above case,
cinema and television personalities, when it modified the penalty
of imprisonment to just a fine of ₱6,000.00.
But, where the offended party is a private individual, the
prosecution need not prove the presence of malice. The law
explicitly presumes its existence (malice in law) from the
defamatory character of the assailed statement.  For his defense,
45
the accused must show that he has a justifiable reason for the
defamatory statement even if it was in fact true.46
Petitioners peddle the view that both the penal code and the
Cybercrime Prevention Act violate the country’s obligations under
the International Covenant of Civil and Political Rights (ICCPR).
They point out that in Adonis v. Republic of the Philippines,  the
47
United Nations Human Rights Committee (UNHRC) cited its
General Comment 34 to the effect that penal defamation laws
should include the defense of truth.
But General Comment 34 does not say that the truth of the
defamatory statement should constitute an all-encompassing
defense. As it happens, Article 361 recognizes truth as a defense
but under the condition that the accused has been prompted in
making the statement by good motives and for justifiable ends.
Thus:
Art. 361. Proof of the truth. — In every criminal prosecution for
libel, the truth may be given in evidence to the court and if it
appears that the matter charged as libelous is true, and,
moreover, that it was published with good motives and for
justifiable ends, the defendants shall be acquitted.
Proof of the truth of an imputation of an act or omission not
constituting a crime shall not be admitted, unless the imputation
shall have been made against Government employees with
respect to facts related to the discharge of their official duties.
In such cases if the defendant proves the truth of the imputation that Section 5 of the cybercrime law punishes, is another matter
made by him, he shall be acquitted. that the Court will deal with next in relation to Section 5 of the law.

Besides, the UNHRC did not actually enjoin the Philippines, as Section 5 of the Cybercrime Law
petitioners urge, to decriminalize libel. It simply suggested that
defamation laws be crafted with care to ensure that they do not Section 5 provides:
stifle freedom of expression. Indeed, the ICCPR states that
48

although everyone should enjoy freedom of expression, its Sec. 5. Other Offenses. — The following acts shall also constitute
exercise carries with it special duties and responsibilities. Free an offense:
speech is not absolute. It is subject to certain restrictions, as may
be necessary and as may be provided by law. 49

(a) Aiding or Abetting in the Commission of Cybercrime. –

Any person who willfully abets or aids in the commission
The Court agrees with the Solicitor General that libel is not a of any of the offenses enumerated in this Act shall be held
constitutionally protected speech and that the government has an liable.
obligation to protect private individuals from defamation. Indeed,
cyberlibel is actually not a new crime since Article 353, in relation
(b) Attempt in the Commission of Cybercrime. — Any
to Article 355 of the penal code, already punishes it. In effect,
person who willfully attempts to commit any of the
Section 4(c)(4) above merely affirms that online defamation
offenses enumerated in this Act shall be held liable.
constitutes "similar means" for committing libel.
Petitioners assail the constitutionality of Section 5 that renders
But the Court’s acquiescence goes only insofar as the cybercrime
criminally liable any person who willfully abets or aids in the
law penalizes the author of the libelous statement or article.
commission or attempts to commit any of the offenses
Cyberlibel brings with it certain intricacies, unheard of when the
enumerated as cybercrimes. It suffers from overbreadth, creating
penal code provisions on libel were enacted. The culture
a chilling and deterrent effect on protected expression.
associated with internet media is distinct from that of print.
The Solicitor General contends, however, that the current body of
The internet is characterized as encouraging a freewheeling,
jurisprudence and laws on aiding and abetting sufficiently protects
anything-goes writing style.  In a sense, they are a world apart in
50

the freedom of expression of "netizens," the multitude that avail

terms of quickness of the reader’s reaction to defamatory
themselves of the services of the internet. He points out that
statements posted in cyberspace, facilitated by one-click reply
existing laws and jurisprudence sufficiently delineate the meaning
options offered by the networking site as well as by the speed
of "aiding or abetting" a crime as to protect the innocent. The
with which such reactions are disseminated down the line to other
Solicitor General argues that plain, ordinary, and common usage
internet users. Whether these reactions to defamatory statement
is at times sufficient to guide law enforcement agencies in
posted on the internet constitute aiding and abetting libel, acts
enforcing the law.  The legislature is not required to define every
51
single word contained in the laws they craft.
Aiding or abetting has of course well-defined meaning and
application in existing laws. When a person aids or abets another
in destroying a forest,  smuggling merchandise into the
52
country,  or interfering in the peaceful picketing of laborers,  his
53 54
action is essentially physical and so is susceptible to easy
assessment as criminal in character. These forms of aiding or
abetting lend themselves to the tests of common sense and
human experience.
But, when it comes to certain cybercrimes, the waters are
muddier and the line of sight is somewhat blurred. The idea of
"aiding or abetting" wrongdoings online threatens the heretofore
popular and unchallenged dogmas of cyberspace use.
According to the 2011 Southeast Asia Digital Consumer Report,
33% of Filipinos have accessed the internet within a year,
translating to about 31 million users.  Based on a recent survey,
55
the Philippines ranks 6th in the top 10 most engaged countries for
social networking.  Social networking sites build social relations
56
among people who, for example, share interests, activities,
backgrounds, or real-life connections. 57
Two of the most popular of these sites are Facebook and Twitter.
As of late 2012, 1.2 billion people with shared interests use
Facebook to get in touch.  Users register at this site, create a
58
personal profile or an open book of who they are, add other users
as friends, and exchange messages, including automatic
notifications when they update their profile.  A user can post a
59
statement, a photo, or a video on Facebook, which can be made
visible to anyone, depending on the user’s privacy settings.
If the post is made available to the public, meaning to everyone
and not only to his friends, anyone on Facebook can react to the
posting, clicking any of several buttons of preferences on the
program’s screen such as "Like," "Comment," or "Share." "Like"
signifies that the reader likes the posting while "Comment"
enables him to post online his feelings or views about the same,
such as "This is great!" When a Facebook user "Shares" a
posting, the original "posting" will appear on his own Facebook
profile, consequently making it visible to his down-line Facebook
Friends.
Twitter, on the other hand, is an internet social networking and
microblogging service that enables its users to send and read
short text-based messages of up to 140 characters. These are
known as "Tweets." Microblogging is the practice of posting small
pieces of digital content—which could be in the form of text,
pictures, links, short videos, or other media—on the internet.
Instead of friends, a Twitter user has "Followers," those who
subscribe to this particular user’s posts, enabling them to read the
same, and "Following," those whom this particular user is
subscribed to, enabling him to read their posts. Like Facebook, a
Twitter user can make his tweets available only to his Followers,
or to the general public. If a post is available to the public, any
Twitter user can "Retweet" a given posting. Retweeting is just
reposting or republishing another person’s tweet without the need
of copying and pasting it.
In the cyberworld, there are many actors: a) the blogger who
originates the assailed statement; b) the blog service provider like
Yahoo; c) the internet service provider like PLDT, Smart, Globe,
or Sun; d) the internet café that may have provided the computer
used for posting the blog; e) the person who makes a favorable
comment on the blog; and f) the person who posts a link to the
blog site.  Now, suppose Maria (a blogger) maintains a blog on
60
WordPress.com (blog service provider). She needs the internet to
access her blog so she subscribes to Sun Broadband (Internet
Service Provider).
One day, Maria posts on her internet account the statement that a
certain married public official has an illicit affair with a movie star.
Linda, one of Maria’s friends who sees this post, comments
online, "Yes, this is so true! They are so immoral." Maria’s original
post is then multiplied by her friends and the latter’s friends, and
down the line to friends of friends almost ad infinitum. Nena, who
is a stranger to both Maria and Linda, comes across this blog,
finds it interesting and so shares the link to this apparently
defamatory blog on her Twitter account. Nena’s "Followers" then
"Retweet" the link to that blog site.
Pamela, a Twitter user, stumbles upon a random person’s
"Retweet" of Nena’s original tweet and posts this on her
Facebook account. Immediately, Pamela’s Facebook Friends
start Liking and making Comments on the assailed posting. A lot
of them even press the Share button, resulting in the further
spread of the original posting into tens, hundreds, thousands, and
greater postings.
The question is: are online postings such as "Liking" an openly
defamatory statement, "Commenting" on it, or "Sharing" it with
others, to be regarded as "aiding or abetting?" In libel in the
physical world, if Nestor places on the office bulletin board a
small poster that says, "Armand is a thief!," he could certainly be
charged with libel. If Roger, seeing the poster, writes on it, "I like
this!," that could not be libel since he did not author the poster. If
Arthur, passing by and noticing the poster, writes on it, "Correct!,"
would that be libel? No, for he merely expresses agreement with
the statement on the poster. He still is not its author. Besides, it is
not clear if aiding or abetting libel in the physical world is a crime.
But suppose Nestor posts the blog, "Armand is a thief!" on a
social networking site. Would a reader and his Friends or
Followers, availing themselves of any of the "Like," "Comment,"
and "Share" reactions, be guilty of aiding or abetting libel? And, in
the complex world of cyberspace expressions of thoughts, when
will one be liable for aiding or abetting cybercrimes? Where is the
venue of the crime?
Except for the original author of the assailed statement, the rest
(those who pressed Like, Comment and Share) are essentially
knee-jerk sentiments of readers who may think little or
haphazardly of their response to the original posting. Will they be
liable for aiding or abetting? And, considering the inherent
impossibility of joining hundreds or thousands of responding
"Friends" or "Followers" in the criminal charge to be filed in court,
who will make a choice as to who should go to jail for the
outbreak of the challenged posting?
The old parameters for enforcing the traditional form of libel would
be a square peg in a round hole when applied to cyberspace libel.
Unless the legislature crafts a cyber libel law that takes into
account its unique circumstances and culture, such law will tend
to create a chilling effect on the millions that use this new medium
of communication in violation of their constitutionally-guaranteed
right to freedom of expression.
The United States Supreme Court faced the same issue in Reno
v. American Civil Liberties Union,  a case involving the
61
constitutionality of the Communications Decency Act of 1996. The
law prohibited (1) the knowing transmission, by means of a
telecommunications device, of
"obscene or indecent" communications to any recipient under 18
years of age; and (2) the knowing use of an interactive computer
service to send to a specific person or persons under 18 years of
age or to display in a manner available to a person under 18
years of age communications that, in context, depict or describe,
in terms "patently offensive" as measured by contemporary
community standards, sexual or excretory activities or organs.
Those who challenged the Act claim that the law violated the First
Amendment’s guarantee of freedom of speech for being
overbroad. The U.S. Supreme Court agreed and ruled:
The vagueness of the Communications Decency Act of 1996
(CDA), 47 U.S.C.S. §223, is a matter of special concern for two
reasons. First, the CDA is a content-based regulation of speech.
The vagueness of such a regulation raises special U.S. Const.
amend. I concerns because of its obvious chilling effect on free
speech. Second, the CDA is a criminal statute. In addition to the
opprobrium and stigma of a criminal conviction, the CDA
threatens violators with penalties including up to two years in
prison for each act of violation. The severity of criminal sanctions
may well cause speakers to remain silent rather than
communicate even arguably unlawful words, ideas, and images.
As a practical matter, this increased deterrent effect, coupled with
the risk of discriminatory enforcement of vague regulations, poses
greater U.S. Const. amend. I concerns than those implicated by
certain civil regulations.
xxxx
The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. §
223, presents a great threat of censoring speech that, in fact, falls
outside the statute's scope. Given the vague contours of the
coverage of the statute, it unquestionably silences some
speakers whose messages would be entitled to constitutional
protection. That danger provides further reason for insisting that
the statute not be overly broad. The CDA’s burden on protected
speech cannot be justified if it could be avoided by a more
carefully drafted statute. (Emphasis ours)
Libel in the cyberspace can of course stain a person’s image with
just one click of the mouse. Scurrilous statements can spread and
travel fast across the globe like bad news. Moreover, cyberlibel
often goes hand in hand with cyberbullying that oppresses the
victim, his relatives, and friends, evoking from mild to disastrous
reactions. Still, a governmental purpose, which seeks to regulate
the use of this cyberspace communication technology to protect a
person’s reputation and peace of mind, cannot adopt means that
will unnecessarily and broadly sweep, invading the area of
protected freedoms. 62
If such means are adopted, self-inhibition borne of fear of what
sinister predicaments await internet users will suppress otherwise
robust discussion of public issues. Democracy will be threatened
and with it, all liberties. Penal laws should provide reasonably
clear guidelines for law enforcement officials and triers of facts to
prevent arbitrary and discriminatory enforcement.  The terms
63
"aiding or abetting" constitute broad sweep that generates chilling
effect on those who express themselves through cyberspace
posts, comments, and other messages.  Hence, Section 5 of the
64
cybercrime law that punishes "aiding or abetting" libel on the
cyberspace is a nullity.
When a penal statute encroaches upon the freedom of speech, a
facial challenge grounded on the void-for-vagueness doctrine is
acceptable. The inapplicability of the doctrine must be carefully
delineated. As Justice Antonio T. Carpio explained in his dissent
in Romualdez v. Commission on Elections,  "we must view these
65
statements of the Court on the inapplicability of the overbreadth
and vagueness doctrines to penal statutes as appropriate only
insofar as these doctrines are used to mount ‘facial’ challenges to
penal statutes not involving free speech."
In an "as applied" challenge, the petitioner who claims a violation
of his constitutional right can raise any constitutional ground –
absence of due process, lack of fair notice, lack of ascertainable
standards, overbreadth, or vagueness. Here, one can challenge
the constitutionality of a statute only if he asserts a violation of his
own rights. It prohibits one from assailing the constitutionality of
the statute based solely on the violation of the rights of third
persons not before the court. This rule is also known as the
prohibition against third-party standing. 66
But this rule admits of exceptions. A petitioner may for instance
mount a "facial" challenge to the constitutionality of a statute even
if he claims no violation of his own rights under the assailed
statute where it involves free speech on grounds of overbreadth
or vagueness of the statute.
The rationale for this exception is to counter the "chilling effect"
on protected speech that comes from statutes violating free
speech. A person who does not know whether his speech
constitutes a crime under an overbroad or vague law may simply
restrain himself from speaking in order to avoid being charged of
a crime. The overbroad or vague law thus chills him into silence.
As already stated, the cyberspace is an incomparable, pervasive
medium of communication. It is inevitable that any government
threat of punishment regarding certain uses of the medium
creates a chilling effect on the constitutionally-protected freedom
of expression of the great masses that use it. In this case, the
particularly complex web of interaction on social media websites
would give law enforcers such latitude that they could arbitrarily
or selectively enforce the law.
Who is to decide when to prosecute persons who boost the
visibility of a posting on the internet by liking it? Netizens are not
given "fair notice" or warning as to what is criminal conduct and
what is lawful conduct. When a case is filed, how will the court
ascertain whether or not one netizen’s comment aided and
abetted a cybercrime while another comment did not?
Of course, if the "Comment" does not merely react to the original
posting but creates an altogether new defamatory story against
Armand like "He beats his wife and children," then that should be
considered an original posting published on the internet. Both the
penal code and the cybercrime law clearly punish authors of
defamatory publications. Make no mistake, libel destroys
reputations that society values. Allowed to cascade in the
internet, it will destroy relationships and, under certain
circumstances, will generate enmity and tension between social
or economic groups, races, or religions, exacerbating existing
tension in their relationships.
In regard to the crime that targets child pornography, when
"Google procures, stores, and indexes child pornography and
facilitates the completion of transactions involving the
dissemination of child pornography," does this make Google and
its users aiders and abettors in the commission of child
67
pornography crimes?  Byars highlights a feature in the American
68
law on child pornography that the Cybercrimes law lacks—the
exemption of a provider or notably a plain user of interactive
computer service from civil liability for child pornography as
follows:
No provider or user of an interactive computer service shall be
treated as the publisher or speaker of any information provided by
another information content provider and cannot be held civilly
liable for any action voluntarily taken in good faith to restrict
access to or availability of material that the provider or user
considers to be obscene...whether or not such material is
constitutionally protected.
69
When a person replies to a Tweet containing child pornography,
he effectively republishes it whether wittingly or unwittingly. Does
this make him a willing accomplice to the distribution of child
pornography? When a user downloads the Facebook mobile
application, the user may give consent to Facebook to access his
contact details. In this way, certain information is forwarded to
third parties and unsolicited commercial communication could be
disseminated on the basis of this information.  As the source of
70
this information, is the user aiding the distribution of this
communication? The legislature needs to address this clearly to
relieve users of annoying fear of possible criminal prosecution.
Section 5 with respect to Section 4(c)(4) is unconstitutional. Its
vagueness raises apprehension on the part of internet users
because of its obvious chilling effect on the freedom of
expression, especially since the crime of aiding or abetting
ensnares all the actors in the cyberspace front in a fuzzy way.
What is more, as the petitioners point out, formal crimes such as
libel are not punishable unless consummated.  In the absence of
71
legislation tracing the interaction of netizens and their level of
responsibility such as in other countries, Section 5, in relation to
Section 4(c)(4) on Libel, Section 4(c)(3) on Unsolicited
Commercial Communications, and Section 4(c)(2) on Child
Pornography, cannot stand scrutiny.
But the crime of aiding or abetting the commission of cybercrimes
under Section 5 should be permitted to apply to Section 4(a)(1)
on Illegal Access, Section 4(a)(2) on Illegal Interception, Section
4(a)(3) on Data Interference, Section 4(a)(4) on System
Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)
(6) on Cyber-squatting, Section 4(b)(1) on Computer-related
Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)
(3) on Computer-related Identity Theft, and Section 4(c)(1) on
Cybersex. None of these offenses borders on the exercise of the
freedom of expression.
The crime of willfully attempting to commit any of these offenses
is for the same reason not objectionable. A hacker may for
instance have done all that is necessary to illegally access
another party’s computer system but the security employed by
the system’s lawful owner could frustrate his effort. Another
hacker may have gained access to usernames and passwords of
others but fail to use these because the system supervisor is
alerted.  If Section 5 that punishes any person who willfully
72
attempts to commit this specific offense is not upheld, the owner
of the username and password could not file a complaint against
him for attempted hacking. But this is not right. The hacker should
not be freed from liability simply because of the vigilance of a
lawful owner or his supervisor.
Petitioners of course claim that Section 5 lacks positive limits and
could cover the innocent.  While this may be true with respect to
73
cybercrimes that tend to sneak past the area of free expression,
any attempt to commit the other acts specified in Section 4(a)(1),
Section 4(a)(2), Section 4(a)(3), Section 4(a)(4), Section 4(a)(5),
Section 4(a)(6), Section 4(b)(1), Section 4(b)(2), Section 4(b)(3),
and Section 4(c)(1) as well as the actors aiding and abetting the
commission of such acts can be identified with some reasonable
certainty through adroit tracking of their works. Absent concrete
proof of the same, the innocent will of course be spared.
Section 6 of the Cybercrime Law
Section 6 provides:
Sec. 6. All crimes defined and penalized by the Revised Penal
Code, as amended, and special laws, if committed by, through
and with the use of information and communications technologies
shall be covered by the relevant provisions of this Act: Provided,
That the penalty to be imposed shall be one (1) degree higher
than that provided for by the Revised Penal Code, as amended,
and special laws, as the case may be.
Section 6 merely makes commission of existing crimes through
the internet a qualifying circumstance. As the Solicitor General
points out, there exists a substantial distinction between crimes
committed through the use of information and communications
technology and similar crimes committed using other means. In
using the technology in question, the offender often evades
identification and is able to reach far more victims or cause
greater harm. The distinction, therefore, creates a basis for higher
penalties for cybercrimes.
Section 7 of the Cybercrime Law
Section 7 provides:
Sec. 7. Liability under Other Laws. — A prosecution under this
Act shall be without prejudice to any liability for violation of any
provision of the Revised Penal Code, as amended, or special
laws.
The Solicitor General points out that Section 7 merely expresses
the settled doctrine that a single set of acts may be prosecuted
and penalized simultaneously under two laws, a special law and
the Revised Penal Code. When two different laws define two
crimes, prior jeopardy as to one does not bar prosecution of the
other although both offenses arise from the same fact, if each
crime involves some important act which is not an essential
element of the other.  With the exception of the crimes of online
74
libel and online child pornography, the Court would rather leave
the determination of the correct application of Section 7 to actual
cases.
Online libel is different. There should be no question that if the
published material on print, said to be libelous, is again posted
online or vice versa, that identical material cannot be the subject
of two separate libels. The two offenses, one a violation of Article
353 of the Revised Penal Code and the other a violation of
Section 4(c)(4) of R.A. 10175 involve essentially the same
elements and are in fact one and the same offense. Indeed, the
OSG itself claims that online libel under Section 4(c)(4) is not a
new crime but is one already punished under Article 353. Section
4(c)(4) merely establishes the computer system as another
means of publication.  Charging the offender under both laws
75
would be a blatant violation of the proscription against double
jeopardy.76
The same is true with child pornography committed online.
Section 4(c)(2) merely expands the ACPA’s scope so as to
include identical activities in cyberspace. As previously
discussed, ACPA’s definition of child pornography in fact already
covers the use of "electronic, mechanical, digital, optical,
magnetic or any other means." Thus, charging the offender under
both Section 4(c)(2) and ACPA would likewise be tantamount to a
violation of the constitutional prohibition against double jeopardy.
Section 8 of the Cybercrime Law
Section 8 provides:
Sec. 8. Penalties. — Any person found guilty of any of the
punishable acts enumerated in Sections 4(a) and 4(b) of this Act
shall be punished with imprisonment of prision mayor or a fine of
at least Two hundred thousand pesos (Ph₱200,000.00) up to a
maximum amount commensurate to the damage incurred or both.
Any person found guilty of the punishable act under Section 4(a)
(5) shall be punished with imprisonment of prision mayor or a fine
of not more than Five hundred thousand pesos (Ph₱500,000.00)
or both.
If punishable acts in Section 4(a) are committed against critical
infrastructure, the penalty of reclusion temporal or a fine of at
least Five hundred thousand pesos (Ph₱500,000.00) up to
maximum amount commensurate to the damage incurred or both,
shall be imposed.
Any person found guilty of any of the punishable acts enumerated
in Section 4(c)(1) of this Act shall be punished with imprisonment
of prision mayor or a fine of at least Two hundred thousand pesos
(Ph₱200,000.00) but not exceeding One million pesos
(Ph₱1,000,000.00) or both.
Any person found guilty of any of the punishable acts enumerated
in Section 4(c)(2) of this Act shall be punished with the penalties
as enumerated in Republic Act No. 9775 or the "Anti-Child
Pornography Act of 2009:" Provided, That the penalty to be
imposed shall be one (1) degree higher than that provided for in
Republic Act No. 9775, if committed through a computer system.
Any person found guilty of any of the punishable acts enumerated
in Section 4(c)(3) shall be punished with imprisonment of arresto
mayor or a fine of at least Fifty thousand pesos (Ph₱50,000.00)
but not exceeding Two hundred fifty thousand pesos
(Ph₱250,000.00) or both.
Any person found guilty of any of the punishable acts enumerated
in Section 5 shall be punished with imprisonment one (1) degree
lower than that of the prescribed penalty for the offense or a fine
of at least One hundred thousand pesos (Ph₱100,000.00) but not
exceeding Five hundred thousand pesos (Ph₱500,000.00) or
both.
Section 8 provides for the penalties for the following crimes:
Sections 4(a) on Offenses Against the Confidentiality, Integrity
and Availability of Computer Data and Systems; 4(b) on
Computer-related Offenses; 4(a)(5) on Misuse of Devices; when
the crime punishable under 4(a) is committed against critical
infrastructure; 4(c)(1) on Cybersex; 4(c)(2) on Child Pornography;
4(c)(3) on Unsolicited Commercial Communications; and Section
5 on Aiding or Abetting, and Attempt in the Commission of
Cybercrime.
The matter of fixing penalties for the commission of crimes is as a
rule a legislative prerogative. Here the legislature prescribed a
measure of severe penalties for what it regards as deleterious
cybercrimes. They appear proportionate to the evil sought to be
punished. The power to determine penalties for offenses is not
diluted or improperly wielded simply because at some prior time
the act or omission was but an element of another offense or
might just have been connected with another crime.  Judges and
77
magistrates can only interpret and apply them and have no
authority to modify or revise their range as determined by the
legislative department.
The courts should not encroach on this prerogative of the
lawmaking body. 78
Section 12 of the Cybercrime Law
Section 12 provides:
Sec. 12. Real-Time Collection of Traffic Data. — Law
enforcement authorities, with due cause, shall be authorized to
collect or record by technical or electronic means traffic data in
real-time associated with specified communications transmitted
by means of a computer system.
Traffic data refer only to the communication’s origin, destination,
route, time, date, size, duration, or type of underlying service, but
not content, nor identities.
All other data to be collected or seized or disclosed will require a
court warrant.
Service providers are required to cooperate and assist law
enforcement authorities in the collection or recording of the
above-stated information.
The court warrant required under this section shall only be issued
or granted upon written application and the examination under
oath or affirmation of the applicant and the witnesses he may
produce and the showing: (1) that there are reasonable grounds
to believe that any of the crimes enumerated hereinabove has
been committed, or is being committed, or is about to be
committed; (2) that there are reasonable grounds to believe that
evidence that will be obtained is essential to the conviction of any
person for, or to the solution of, or to the prevention of, any such
crimes; and (3) that there are no other means readily available for
obtaining such evidence.
Petitioners assail the grant to law enforcement agencies of the
power to collect or record traffic data in real time as tending to
curtail civil liberties or provide opportunities for official abuse.
They claim that data showing where digital messages come from,
what kind they are, and where they are destined need not be
incriminating to their senders or recipients before they are to be
protected. Petitioners invoke the right of every individual to
privacy and to be protected from government snooping into the
messages or information that they send to one another.
The first question is whether or not Section 12 has a proper
governmental purpose since a law may require the disclosure of
matters normally considered private but then only upon showing
that such requirement has a rational relation to the purpose of the
law,  that there is a compelling State interest behind the law, and
79
that the provision itself is narrowly drawn.  In assessing
80
regulations affecting privacy rights, courts should balance the
legitimate concerns of the State against constitutional
guarantees. 81
Undoubtedly, the State has a compelling interest in enacting the
cybercrime law for there is a need to put order to the tremendous
activities in cyberspace for public good.  To do this, it is within the
82
realm of reason that the government should be able to monitor
traffic data to enhance its ability to combat all sorts of
cybercrimes.
Chapter IV of the cybercrime law, of which the collection or
recording of traffic data is a part, aims to provide law enforcement
authorities with the power they need for spotting, preventing, and
investigating crimes committed in cyberspace. Crime-fighting is a
state business. Indeed, as Chief Justice Sereno points out, the
Budapest Convention on Cybercrimes requires signatory
countries to adopt legislative measures to empower state
authorities to collect or record "traffic data, in real time,
associated with specified communications."  And this is precisely
83
what Section 12 does. It empowers law enforcement agencies in
this country to collect or record such data.
But is not evidence of yesterday’s traffic data, like the scene of
the crime after it has been committed, adequate for fighting
cybercrimes and, therefore, real-time data is superfluous for that
purpose? Evidently, it is not. Those who commit the crimes of
accessing a computer system without right,  transmitting
84
viruses,  lasciviously exhibiting sexual organs or sexual activity
85
for favor or consideration;  and producing child
86
pornography  could easily evade detection and prosecution by
87
simply moving the physical location of their computers or laptops
from day to day. In this digital age, the wicked can commit
cybercrimes from virtually anywhere: from internet cafés, from
kindred places that provide free internet services, and from
unregistered mobile internet connectors. Criminals using
cellphones under pre-paid arrangements and with unregistered
SIM cards do not have listed addresses and can neither be
located nor identified. There are many ways the cyber criminals
can quickly erase their tracks. Those who peddle child
pornography could use relays of computers to mislead law
enforcement authorities regarding their places of operations.
Evidently, it is only real-time traffic data collection or recording
and a subsequent recourse to court-issued search and seizure
warrant that can succeed in ferreting them out.
Petitioners of course point out that the provisions of Section 12
are too broad and do not provide ample safeguards against
crossing legal boundaries and invading the people’s right to
privacy. The concern is understandable. Indeed, the Court
recognizes in Morfe v. Mutuc  that certain constitutional
88
guarantees work together to create zones of privacy wherein
governmental powers may not intrude, and that there exists an
independent constitutional right of privacy. Such right to be left
alone has been regarded as the beginning of all freedoms. 89
But that right is not unqualified. In Whalen v. Roe,  the United
90
States Supreme Court classified privacy into two categories:
decisional privacy and informational privacy. Decisional privacy
involves the right to independence in making certain important
decisions, while informational privacy refers to the interest in
avoiding disclosure of personal matters. It is the latter right—the
right to informational privacy—that those who oppose government
collection or recording of traffic data in real-time seek to protect.
Informational privacy has two aspects: the right not to have
private information disclosed, and the right to live freely without
surveillance and intrusion.  In determining whether or not a
91
matter is entitled to the right to privacy, this Court has laid down a
two-fold test. The first is a subjective test, where one claiming the
right must have an actual or legitimate expectation of privacy over
a certain matter. The second is an objective test, where his or her
expectation of privacy must be one society is prepared to accept
as objectively reasonable. 92
Since the validity of the cybercrime law is being challenged, not in
relation to its application to a particular person or group,
petitioners’ challenge to Section 12 applies to all information and
communications technology (ICT) users, meaning the large
segment of the population who use all sorts of electronic devices
to communicate with one another. Consequently, the expectation
of privacy is to be measured from the general public’s point of
view. Without reasonable expectation of privacy, the right to it
would have no basis in fact.
As the Solicitor General points out, an ordinary ICT user who
courses his communication through a service provider, must of
necessity disclose to the latter, a third person, the traffic data
needed for connecting him to the recipient ICT user. For example,
an ICT user who writes a text message intended for another ICT
user must furnish his service provider with his cellphone number
and the cellphone number of his recipient, accompanying the
message sent. It is this information that creates the traffic data.
Transmitting communications is akin to putting a letter in an
envelope properly addressed, sealing it closed, and sending it
through the postal service. Those who post letters have no
expectations that no one will read the information appearing
outside the envelope.
Computer data—messages of all kinds—travel across the internet
in packets and in a way that may be likened to parcels of letters
or things that are sent through the posts. When data is sent from
any one source, the content is broken up into packets and around
each of these packets is a wrapper or header. This header
contains the traffic data: information that tells computers where
the packet originated, what kind of data is in the packet (SMS,
voice call, video, internet chat messages, email, online browsing
data, etc.), where the packet is going, and how the packet fits
together with other packets.  The difference is that traffic data
93
sent through the internet at times across the ocean do not
disclose the actual names and addresses (residential or office) of
the sender and the recipient, only their coded internet protocol
(IP) addresses. The packets travel from one computer system to
another where their contents are pieced back together.
Section 12 does not permit law enforcement authorities to look
into the contents of the messages and uncover the identities of
the sender and the recipient.
For example, when one calls to speak to another through his
cellphone, the service provider’s communication’s system will put
his voice message into packets and send them to the other
person’s cellphone where they are refitted together and heard.
The latter’s spoken reply is sent to the caller in the same way. To
be connected by the service provider, the sender reveals his
cellphone number to the service provider when he puts his call
through. He also reveals the cellphone number to the person he
calls. The other ways of communicating electronically follow the
same basic pattern.
In Smith v. Maryland,  cited by the Solicitor General, the United
94
States Supreme Court reasoned that telephone users in the ‘70s
must realize that they necessarily convey phone numbers to the
telephone company in order to complete a call. That Court ruled
that even if there is an expectation that phone numbers one dials
should remain private, such expectation is not one that society is
prepared to recognize as reasonable.
In much the same way, ICT users must know that they cannot
communicate or exchange data with one another over
cyberspace except through some service providers to whom they
must submit certain traffic data that are needed for a successful
cyberspace communication. The conveyance of this data takes
them out of the private sphere, making the expectation to privacy
in regard to them an expectation that society is not prepared to
recognize as reasonable.
The Court, however, agrees with Justices Carpio and Brion that
when seemingly random bits of traffic data are gathered in bulk,
pooled together, and analyzed, they reveal patterns of activities
which can then be used to create profiles of the persons under
surveillance. With enough traffic data, analysts may be able to
determine a person’s close associations, religious views, political
affiliations, even sexual preferences. Such information is likely
beyond what the public may expect to be disclosed, and clearly
falls within matters protected by the right to privacy. But has the
procedure that Section 12 of the law provides been drawn
narrowly enough to protect individual rights?
Section 12 empowers law enforcement authorities, "with due
cause," to collect or record by technical or electronic means traffic
data in real-time. Petitioners point out that the phrase "due cause"
has no precedent in law or jurisprudence and that whether there
is due cause or not is left to the discretion of the police. Replying
to this, the Solicitor General asserts that Congress is not required
to define the meaning of every word it uses in drafting the law.
Indeed, courts are able to save vague provisions of law through
statutory construction. But the cybercrime law, dealing with a
novel situation, fails to hint at the meaning it intends for the
phrase "due cause." The Solicitor General suggests that "due
cause" should mean "just reason or motive" and "adherence to a
lawful procedure." But the Court cannot draw this meaning since
Section 12 does not even bother to relate the collection of data to
the probable commission of a particular crime. It just says, "with
due cause," thus justifying a general gathering of data. It is akin to
the use of a general search warrant that the Constitution
prohibits.
Due cause is also not descriptive of the purpose for which data
collection will be used. Will the law enforcement agencies use the
traffic data to identify the perpetrator of a cyber attack? Or will it
be used to build up a case against an identified suspect? Can the
data be used to prevent cybercrimes from happening?
The authority that Section 12 gives law enforcement agencies is
too sweeping and lacks restraint. While it says that traffic data
collection should not disclose identities or content data, such
restraint is but an illusion. Admittedly, nothing can prevent law
enforcement agencies holding these data in their hands from
looking into the identity of their sender or receiver and what the
data contains. This will unnecessarily expose the citizenry to
leaked information or, worse, to extortion from certain bad
elements in these agencies.
Section 12, of course, limits the collection of traffic data to those
"associated with specified communications." But this supposed
limitation is no limitation at all since, evidently, it is the law
enforcement agencies that would specify the target
communications. The power is virtually limitless, enabling law
enforcement authorities to engage in "fishing expedition,"
choosing whatever specified communication they want. This
evidently threatens the right of individuals to privacy.
The Solicitor General points out that Section 12 needs to
authorize collection of traffic data "in real time" because it is not
possible to get a court warrant that would authorize the search of
what is akin to a "moving vehicle." But warrantless search is
associated with a police officer’s determination of probable cause
that a crime has been committed, that there is no opportunity for
getting a warrant, and that unless the search is immediately
carried out, the thing to be searched stands to be removed.
These preconditions are not provided in Section 12.
The Solicitor General is honest enough to admit that Section 12
provides minimal protection to internet users and that the
procedure envisioned by the law could be better served by
providing for more robust safeguards. His bare assurance that
law enforcement authorities will not abuse the provisions of
Section 12 is of course not enough. The grant of the power to
track cyberspace communications in real time and determine their
sources and destinations must be narrowly drawn to preclude
abuses. 95
Petitioners also ask that the Court strike down Section 12 for
being violative of the void-for-vagueness doctrine and the
overbreadth doctrine. These doctrines however, have been
consistently held by this Court to apply only to free speech cases.
But Section 12 on its own neither regulates nor punishes any type
of speech. Therefore, such analysis is unnecessary.
This Court is mindful that advances in technology allow the
government and kindred institutions to monitor individuals and
place them under surveillance in ways that have previously been
impractical or even impossible. "All the forces of a technological
age x x x operate to narrow the area of privacy and facilitate
intrusions into it. In modern terms, the capacity to maintain and
support this enclave of private life marks the difference between a
democratic and a totalitarian society."  The Court must ensure
96
that laws seeking to take advantage of these technologies be
written with specificity and definiteness as to ensure respect for
the rights that the Constitution guarantees.
Section 13 of the Cybercrime Law
Section 13 provides:
Sec. 13. Preservation of Computer Data. — The integrity of traffic
data and subscriber information relating to communication
services provided by a service provider shall be preserved for a
minimum period of six (6) months from the date of the
transaction. Content data shall be similarly preserved for six (6)
months from the date of receipt of the order from law enforcement
authorities requiring its preservation.
Law enforcement authorities may order a one-time extension for
another six (6) months: Provided, That once computer data
preserved, transmitted or stored by a service provider is used as
evidence in a case, the mere furnishing to such service provider
of the transmittal document to the Office of the Prosecutor shall
be deemed a notification to preserve the computer data until the
termination of the case.
The service provider ordered to preserve computer data shall
keep confidential the order and its compliance.
Petitioners in G.R. 203391  claim that Section 13 constitutes an
97
undue deprivation of the right to property. They liken the data
preservation order that law enforcement authorities are to issue
as a form of garnishment of personal property in civil forfeiture
proceedings. Such order prevents internet users from accessing
and disposing of traffic data that essentially belong to them.
No doubt, the contents of materials sent or received through the
internet belong to their authors or recipients and are to be
considered private communications. But it is not clear that a
service provider has an obligation to indefinitely keep a copy of
the same as they pass its system for the benefit of users. By
virtue of Section 13, however, the law now requires service
providers to keep traffic data and subscriber information relating
to communication services for at least six months from the date of
the transaction and those relating to content data for at least six
months from receipt of the order for their preservation.
Actually, the user ought to have kept a copy of that data when it
crossed his computer if he was so minded. The service provider
has never assumed responsibility for their loss or deletion while in
its keep.
At any rate, as the Solicitor General correctly points out, the data
that service providers preserve on orders of law enforcement
authorities are not made inaccessible to users by reason of the
issuance of such orders. The process of preserving data will not
unduly hamper the normal transmission or use of the same.
Section 14 of the Cybercrime Law
Section 14 provides:
Sec. 14. Disclosure of Computer Data. — Law enforcement
authorities, upon securing a court warrant, shall issue an order
requiring any person or service provider to disclose or submit
subscriber’s information, traffic data or relevant data in his/its
possession or control within seventy-two (72) hours from receipt
of the order in relation to a valid complaint officially docketed and
assigned for investigation and the disclosure is necessary and
relevant for the purpose of investigation.
The process envisioned in Section 14 is being likened to the
issuance of a subpoena. Petitioners’ objection is that the
issuance of subpoenas is a judicial function. But it is well-settled
that the power to issue subpoenas is not exclusively a judicial
function. Executive agencies have the power to issue subpoena
as an adjunct of their investigatory powers. 98
Besides, what Section 14 envisions is merely the enforcement of
a duly issued court warrant, a function usually lodged in the
hands of law enforcers to enable them to carry out their executive
functions. The prescribed procedure for disclosure would not
constitute an unlawful search or seizure nor would it violate the
privacy of communications and correspondence. Disclosure can
be made only after judicial intervention.
Section 15 of the Cybercrime Law
Section 15 provides:
Sec. 15. Search, Seizure and Examination of Computer Data. —
Where a search and seizure warrant is properly issued, the law
enforcement authorities shall likewise have the following powers
and duties.
Within the time period specified in the warrant, to conduct
interception, as defined in this Act, and:
(a) To secure a computer system or a computer data
storage medium;
(b) To make and retain a copy of those computer data
secured;
(c) To maintain the integrity of the relevant stored
computer data;
(d) To conduct forensic analysis or examination of the
computer data storage medium; and
(e) To render inaccessible or remove those computer data
in the accessed computer or computer and
communications network.
Pursuant thereof, the law enforcement authorities may order any
person who has knowledge about the functioning of the computer
system and the measures to protect and preserve the computer
data therein to provide, as is reasonable, the necessary
information, to enable the undertaking of the search, seizure and
examination.
Law enforcement authorities may request for an extension of time
to complete the examination of the computer data storage
medium and to make a return thereon but in no case for a period
longer than thirty (30) days from date of approval by the court.
Petitioners challenge Section 15 on the assumption that it will
supplant established search and seizure procedures. On its face,
however, Section 15 merely enumerates the duties of law
enforcement authorities that would ensure the proper collection,
preservation, and use of computer system or data that have been
seized by virtue of a court warrant. The exercise of these duties
do not pose any threat on the rights of the person from whom
they were taken. Section 15 does not appear to supersede
existing search and seizure rules but merely supplements them.
Section 17 of the Cybercrime Law
Section 17 provides:
Sec. 17. Destruction of Computer Data. — Upon expiration of the
periods as provided in Sections 13 and 15, service providers and
law enforcement authorities, as the case may be, shall
immediately and completely destroy the computer data subject of
a preservation and examination.
Section 17 would have the computer data, previous subject of
preservation or examination, destroyed or deleted upon the lapse
of the prescribed period. The Solicitor General justifies this as
necessary to clear up the service provider’s storage systems and
prevent overload. It would also ensure that investigations are
quickly concluded.
Petitioners claim that such destruction of computer data subject
of previous preservation or examination violates the user’s right
against deprivation of property without due process of law. But,
as already stated, it is unclear that the user has a demandable
right to require the service provider to have that copy of the data
saved indefinitely for him in its storage system. If he wanted them
preserved, he should have saved them in his computer when he
generated the data or received it. He could also request the
service provider for a copy before it is deleted.
Section 19 of the Cybercrime Law
Section 19 empowers the Department of Justice to restrict or
block access to computer data:
Sec. 19. Restricting or Blocking Access to Computer Data.—
When a computer data is prima facie found to be in violation of
the provisions of this Act, the DOJ shall issue an order to restrict
or block access to such computer data.
Petitioners contest Section 19 in that it stifles freedom of
expression and violates the right against unreasonable searches
and seizures. The Solicitor General concedes that this provision
may be unconstitutional. But since laws enjoy a presumption of
constitutionality, the Court must satisfy itself that Section 19
indeed violates the freedom and right mentioned.
Computer data  may refer to entire programs or lines of code,
99
including malware, as well as files that contain texts, images,
audio, or video recordings. Without having to go into a lengthy
discussion of property rights in the digital space, it is indisputable
that computer data, produced or created by their writers or
authors may constitute personal property. Consequently, they are
protected from unreasonable searches and seizures, whether
while stored in their personal computers or in the service
provider’s systems.
Section 2, Article III of the 1987 Constitution provides that the
right to be secure in one’s papers and effects against
unreasonable searches and seizures of whatever nature and for
any purpose shall be inviolable. Further, it states that no search
warrant shall issue except upon probable cause to be determined
personally by the judge. Here, the Government, in effect, seizes
and places the computer data under its control and disposition
without a warrant. The Department of Justice order cannot
substitute for judicial search warrant.
The content of the computer data can also constitute speech. In
such a case, Section 19 operates as a restriction on the freedom
of expression over cyberspace. Certainly not all forms of speech
are protected. Legislature may, within constitutional bounds,
declare certain kinds of expression as illegal. But for an executive
officer to seize content alleged to be unprotected without any
judicial warrant, it is not enough for him to be of the opinion that
such content violates some law, for to do so would make him
judge, jury, and executioner all rolled into one.
100
Not only does Section 19 preclude any judicial intervention, but it
also disregards jurisprudential guidelines established to
determine the validity of restrictions on speech. Restraints on free
speech are generally evaluated on one of or a combination of
three tests: the dangerous tendency doctrine, the balancing of
interest test, and the clear and present danger rule.  Section 19,
101
however, merely requires that the data to be blocked be found
prima facie in violation of any provision of the cybercrime law.
Taking Section 6 into consideration, this can actually be made to
apply in relation to any penal provision. It does not take into
consideration any of the three tests mentioned above.
The Court is therefore compelled to strike down Section 19 for
being violative of the constitutional guarantees to freedom of
expression and against unreasonable searches and seizures.
Section 20 of the Cybercrime Law
Section 20 provides:
Sec. 20. Noncompliance. — Failure to comply with the provisions
of Chapter IV hereof specifically the orders from law enforcement
authorities shall be punished as a violation of Presidential Decree
No. 1829 with imprisonment of prision correctional in its maximum
period or a fine of One hundred thousand pesos (Php100,000.00)
or both, for each and every noncompliance with an order issued
by law enforcement authorities.
Petitioners challenge Section 20, alleging that it is a bill of
attainder. The argument is that the mere failure to comply
constitutes a legislative finding of guilt, without regard to
situations where non-compliance would be reasonable or valid.
But since the non-compliance would be punished as a violation of
Presidential Decree (P.D.) 1829,  Section 20 necessarily
102
incorporates elements of the offense which are defined therein. If
Congress had intended for Section 20 to constitute an offense in
and of itself, it would not have had to make reference to any other
statue or provision.
P.D. 1829 states:
Section 1. The penalty of prision correccional in its maximum
period, or a fine ranging from 1,000 to 6,000 pesos, or both, shall
be imposed upon any person who knowingly or willfully obstructs,
impedes, frustrates or delays the apprehension of suspects and
the investigation and prosecution of criminal cases by committing
any of the following acts:
x x x.
Thus, the act of non-compliance, for it to be punishable, must still
be done "knowingly or willfully." There must still be a judicial
determination of guilt, during which, as the Solicitor General
assumes, defense and justifications for non-compliance may be
raised. Thus, Section 20 is valid insofar as it applies to the
provisions of Chapter IV which are not struck down by the Court.
Sections 24 and 26(a) of the Cybercrime Law
Sections 24 and 26(a) provide:
Sec. 24. Cybercrime Investigation and Coordinating Center.–
There is hereby created, within thirty (30) days from the effectivity
of this Act, an inter-agency body to be known as the Cybercrime
Investigation and Coordinating Center (CICC), under the
administrative supervision of the Office of the President, for policy
coordination among concerned agencies and for the formulation
and enforcement of the national cybersecurity plan.
Sec. 26. Powers and Functions.– The CICC shall have the
following powers and functions:
(a) To formulate a national cybersecurity plan and extend
immediate assistance of real time commission of cybercrime
offenses through a computer emergency response team (CERT);
x x x.
Petitioners mainly contend that Congress invalidly delegated its
power when it gave the Cybercrime Investigation and
Coordinating Center (CICC) the power to formulate a national
cybersecurity plan without any sufficient standards or parameters
for it to follow.
In order to determine whether there is undue delegation of
legislative power, the Court has adopted two tests: the
completeness test and the sufficient standard test. Under the first
test, the law must be complete in all its terms and conditions
when it leaves the legislature such that when it reaches the
delegate, the only thing he will have to do is to enforce it.  The
1avvphi1
second test mandates adequate guidelines or limitations in the
law to determine the boundaries of the delegate’s authority and
prevent the delegation from running riot. 103
Here, the cybercrime law is complete in itself when it directed the
CICC to formulate and implement a national cybersecurity plan.
Also, contrary to the position of the petitioners, the law gave
sufficient standards for the CICC to follow when it provided a
definition of cybersecurity.
Cybersecurity refers to the collection of tools, policies, risk
management approaches, actions, training, best practices,
assurance and technologies that can be used to protect cyber
environment and organization and user’s assets.  This definition
104
serves as the parameters within which CICC should work in
formulating the cybersecurity plan.
Further, the formulation of the cybersecurity plan is consistent
with the policy of the law to "prevent and combat such [cyber]
offenses by facilitating their detection, investigation, and
prosecution at both the domestic and international levels, and by
providing arrangements for fast and reliable international
cooperation."  This policy is clearly adopted in the interest of law
105
and order, which has been considered as sufficient
standard.  Hence, Sections 24 and 26(a) are likewise valid.
106
WHEREFORE, the Court DECLARES:
1. VOID for being UNCONSTITUTIONAL:
a. Section 4(c)(3) of Republic Act 10175 that
penalizes posting of unsolicited commercial
communications;
 b. Section 12 that authorizes the collection or
recording of traffic data in real-time; and
c. Section 19 of the same Act that authorizes the
Department of Justice to restrict or block access
to suspected Computer Data.
2. VALID and CONSTITUTIONAL:
a. Section 4(a)(1) that penalizes accessing a
computer system without right;
b. Section 4(a)(3) that penalizes data interference,
including transmission of viruses;
c. Section 4(a)(6) that penalizes cyber-squatting
or acquiring domain name over the internet in bad
faith to the prejudice of others;
d. Section 4(b)(3) that penalizes identity theft or
the use or misuse of identifying information
belonging to another;
e. Section 4(c)(1) that penalizes cybersex or the
lascivious exhibition of sexual organs or sexual
activity for favor or consideration;
f. Section 4(c)(2) that penalizes the production of
child pornography;
g. Section 6 that imposes penalties one degree
higher when crimes defined under the Revised
Penal Code are committed with the use of
information and communications technologies;
h. Section 8 that prescribes the penalties for
cybercrimes;
i. Section 13 that permits law enforcement
authorities to require service providers to preserve
traffic data and subscriber information as well as
specified content data for six months;
j. Section 14 that authorizes the disclosure of
computer data under a court-issued warrant;
k. Section 15 that authorizes the search, seizure,
and examination of computer data under a court-
issued warrant;
l. Section 17 that authorizes the destruction of
previously preserved computer data after the
expiration of the prescribed holding periods;
m. Section 20 that penalizes obstruction of justice
in relation to cybercrime investigations;
n. Section 24 that establishes a Cybercrime
Investigation and Coordinating Center (CICC);
o. Section 26(a) that defines the CICC’s Powers
and Functions; and
p. Articles 353, 354, 361, and 362 of the Revised
Penal Code that penalizes libel.
Further, the Court DECLARES:
 1. Section 4(c)(4) that penalizes online libel as VALID and Republic Act 10175 and Republic Act 9775 or the Anti-
CONSTITUTIONAL with respect to the original author of Child Pornography Act of 2009 also constitutes a violation
the post; but VOID and UNCONSTITUTIONAL with of the same proscription, and, in respect to these, is VOID
respect to others who simply receive the post and react to and UNCONSTITUTIONAL.
it; and
SO ORDERED.
2. Section 5 that penalizes aiding or abetting and attempt
in the commission of cybercrimes as VA L I D and
CONSTITUTIONAL only in relation to Section 4(a)(1) on
Illegal Access, Section 4(a)(2) on Illegal Interception,
Section 4(a)(3) on Data Interference, Section 4(a)(4) on
System

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

(6) on Cyber-squatting, Section 4(b)(1) on Computer-related
Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)
(3) on Computer-related Identity Theft, and Section 4(c)(1) on
Cybersex; but VOID and UNCONSTITUTIONAL with respect to
Sections 4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited
Commercial Communications, and 4(c)(4) on online Libel. 1âwphi1

Lastly, the Court RESOLVES to LEAVE THE DETERMINATION

of the correct application of Section 7 that authorizes prosecution
of the offender under both the Revised Penal Code and Republic
Act 10175 to actual cases, WITH THE EXCEPTION of the crimes
of:

1. Online libel as to which, charging the offender under

both Section 4(c)(4) of Republic Act 10175 and Article
353 of the Revised Penal Code constitutes a violation of
the proscription against double jeopardy; as well as

2. Child pornography committed online as to which,

charging the offender under both Section 4(c)(2) of
G.R. No. 104768               July 21, 2003
REPUBLIC OF THE PHILIPPINES, Petitioner,  this order" and the power "(h) to promulgate such rules and
vs.
SANDIGANBAYAN, MAJOR GENERAL JOSEPHUS Q.
RAMAS and ELIZABETH DIMAANO, Respondents.
DECISION
CARPIO, J.:
The Case
Before this Court is a petition for review on certiorari seeking to
set aside the Resolutions of the Sandiganbayan (First
Division) dated 18 November 1991 and 25 March 1992 in Civil
1 
Case No. 0037. The first Resolution dismissed petitioner’s
Amended Complaint and ordered the return of the confiscated
items to respondent Elizabeth Dimaano, while the second
Resolution denied petitioner’s Motion for Reconsideration.
Petitioner prays for the grant of the reliefs sought in its Amended
Complaint, or in the alternative, for the remand of this case to the
Sandiganbayan (First Division) for further proceedings allowing
petitioner to complete the presentation of its evidence.
Antecedent Facts  estimated modestly at ₱700,000.00.
Immediately upon her assumption to office following the
successful EDSA Revolution, then President Corazon C. Aquino
issued Executive Order No. 1 ("EO No. 1") creating the
Presidential Commission on Good Government ("PCGG"). EO
No. 1 primarily tasked the PCGG to recover all ill-gotten wealth of
former President Ferdinand E. Marcos, his immediate family,
relatives, subordinates and close associates. EO No. 1 vested the
PCGG with the power "(a) to conduct investigation as may be
necessary in order to accomplish and carry out the purposes of
regulations as may be necessary to carry out the purpose of this
order." Accordingly, the PCGG, through its then Chairman Jovito
R. Salonga, created an AFP Anti-Graft Board ("AFP Board")
tasked to investigate reports of unexplained wealth and corrupt
practices by AFP personnel, whether in the active service or
retired.
2 
Based on its mandate, the AFP Board investigated various
reports of alleged unexplained wealth of respondent Major
General Josephus Q. Ramas ("Ramas"). On 27 July 1987, the
AFP Board issued a Resolution on its findings and
recommendation on the reported unexplained wealth of Ramas.
The relevant part of the Resolution reads:
III. FINDINGS and EVALUATION:
Evidence in the record showed that respondent is the owner of a
house and lot located at 15-Yakan St., La Vista, Quezon City. He
is also the owner of a house and lot located in Cebu City. The lot
has an area of 3,327 square meters.
The value of the property located in Quezon City may be
The equipment/items and communication facilities which were
found in the premises of Elizabeth Dimaano and were confiscated
by elements of the PC Command of Batangas were all covered
by invoice receipt in the name of CAPT. EFREN SALIDO, RSO
Command Coy, MSC, PA. These items could not have been in
the possession of Elizabeth Dimaano if not given for her use by
respondent Commanding General of the Philippine Army.
Aside from the military equipment/items and communications
equipment, the raiding team was also able to confiscate money in
the amount of ₱2,870,000.00 and $50,000 US Dollars in the
house of Elizabeth Dimaano on 3 March 1986.
Affidavits of members of the Military Security Unit, Military
Security Command, Philippine Army, stationed at Camp Eldridge,
Los Baños, Laguna, disclosed that Elizabeth Dimaano is the
mistress of respondent. That respondent usually goes and stays
and sleeps in the alleged house of Elizabeth Dimaano in
Barangay Tengga, Itaas, Batangas City and when he arrives,
Elizabeth Dimaano embraces and kisses respondent. That on
February 25, 1986, a person who rode in a car went to the
residence of Elizabeth Dimaano with four (4) attache cases filled
with money and owned by MGen Ramas.
Sworn statement in the record disclosed also that Elizabeth
Dimaano had no visible means of income and is supported by
respondent for she was formerly a mere secretary.
Taking in toto the evidence, Elizabeth Dimaano could not have
used the military equipment/items seized in her house on March
3, 1986 without the consent of respondent, he being the
Commanding General of the Philippine Army. It is also impossible
for Elizabeth Dimaano to claim that she owns the ₱2,870,000.00
and $50,000 US Dollars for she had no visible source of income.
This money was never declared in the Statement of Assets and
Liabilities of respondent. There was an intention to cover the
existence of these money because these are all ill-gotten and
unexplained wealth. Were it not for the affidavits of the members
of the Military Security Unit assigned at Camp Eldridge, Los
Baños, Laguna, the existence and ownership of these money
would have never been known.
The Statement of Assets and Liabilities of respondent were also
submitted for scrutiny and analysis by the Board’s consultant.
Although the amount of ₱2,870,000.00 and $50,000 US Dollars
were not included, still it was disclosed that respondent has an
unexplained wealth of ₱104,134. 60.
IV. CONCLUSION:
In view of the foregoing, the Board finds that a prima facie case
exists against respondent for ill-gotten and unexplained wealth in
the amount of ₱2,974,134.00 and $50,000 US Dollars.
V. RECOMMENDATION:
Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas
(ret.) be prosecuted and tried for violation of RA 3019, as
amended, otherwise known as "Anti-Graft and Corrupt Practices
Act" and RA 1379, as amended, otherwise known as "The Act for
the Forfeiture of Unlawfully Acquired Property." 3 
Thus, on 1 August 1987, the PCGG filed a petition for forfeiture
under Republic Act No. 1379 ("RA No. 1379")  against Ramas.
4 
Before Ramas could answer the petition, then Solicitor General
Francisco I. Chavez filed an Amended Complaint naming the
Republic of the Philippines ("petitioner"), represented by the
PCGG, as plaintiff and Ramas as defendant. The Amended
Complaint also impleaded Elizabeth Dimaano ("Dimaano") as co-
defendant.
The Amended Complaint alleged that Ramas was the
Commanding General of the Philippine Army until 1986. On the
other hand, Dimaano was a confidential agent of the Military
Security Unit, Philippine Army, assigned as a clerk-typist at the
office of Ramas from 1 January 1978 to February 1979. The
Amended Complaint further alleged that Ramas "acquired funds,
assets and properties manifestly out of proportion to his salary as
an army officer and his other income from legitimately acquired
property by taking undue advantage of his public office and/or
using his power, authority and influence as such officer of the
Armed Forces of the Philippines and as a subordinate and close
associate of the deposed President Ferdinand Marcos." 5 
The Amended Complaint also alleged that the AFP Board, after a
previous inquiry, found reasonable ground to believe that
respondents have violated RA No. 1379. The Amended
6 
Complaint prayed for, among others, the forfeiture of
respondents’ properties, funds and equipment in favor of the
State.
Ramas filed an Answer with Special and/or Affirmative Defenses
and Compulsory Counterclaim to the Amended Complaint. In his
Answer, Ramas contended that his property consisted only of a
residential house at La Vista Subdivision, Quezon City, valued at
₱700,000, which was not out of proportion to his salary and other
legitimate income. He denied ownership of any mansion in Cebu
City and the cash, communications equipment and other items
confiscated from the house of Dimaano.
Dimaano filed her own Answer to the Amended Complaint.
Admitting her employment as a clerk-typist in the office of Ramas
from January-November 1978 only, Dimaano claimed ownership
of the monies, communications equipment, jewelry and land titles
taken from her house by the Philippine Constabulary raiding
team.
After termination of the pre-trial, the court set the case for trial on
7 
the merits on 9-11 November 1988.
On 9 November 1988, petitioner asked for a deferment of the
hearing due to its lack of preparation for trial and the absence of
witnesses and vital documents to support its case. The court
reset the hearing to 17 and 18 April 1989.
On 13 April 1989, petitioner filed a motion for leave to amend the
complaint in order "to charge the delinquent properties with being
subject to forfeiture as having been unlawfully acquired by
defendant Dimaano alone x x x." 8 
Nevertheless, in an order dated 17 April 1989, the
Sandiganbayan proceeded with petitioner’s presentation of
evidence on the ground that the motion for leave to amend
complaint did not state when petitioner would file the amended
complaint. The Sandiganbayan further stated that the subject
matter of the amended complaint was on its face vague and not
related to the existing complaint. The Sandiganbayan also held
that due to the time that the case had been pending in court,
petitioner should proceed to present its evidence.
After presenting only three witnesses, petitioner asked for a
postponement of the trial.
On 28 September 1989, during the continuation of the trial,
petitioner manifested its inability to proceed to trial because of the
absence of other witnesses or lack of further evidence to present.
Instead, petitioner reiterated its motion to amend the complaint to
conform to the evidence already presented or to change the
averments to show that Dimaano alone unlawfully acquired the
monies or properties subject of the forfeiture.
The Sandiganbayan noted that petitioner had already delayed the
case for over a year mainly because of its many postponements.
Moreover, petitioner would want the case to revert to its
preliminary stage when in fact the case had long been ready for
trial. The Sandiganbayan ordered petitioner to prepare for
presentation of its additional evidence, if any.
During the trial on 23 March 1990, petitioner again admitted its
inability to present further evidence. Giving petitioner one more
chance to present further evidence or to amend the complaint to
conform to its evidence, the Sandiganbayan reset the trial to 18
May 1990. The Sandiganbayan, however, hinted that the re-
setting was without prejudice to any action that private
respondents might take under the circumstances.
However, on 18 May 1990, petitioner again expressed its inability
to proceed to trial because it had no further evidence to present.
Again, in the interest of justice, the Sandiganbayan granted
petitioner 60 days within which to file an appropriate pleading.
The Sandiganbayan, however, warned petitioner that failure to
act would constrain the court to take drastic action.
Private respondents then filed their motions to dismiss based on
Republic v. Migrino. The Court held in Migrino that the PCGG
9 
does not have jurisdiction to investigate and prosecute military
officers by reason of mere position held without a showing that
they are "subordinates" of former President Marcos.
On 18 November 1991, the Sandiganbayan rendered a
resolution, the dispositive portion of which states:
WHEREFORE, judgment is hereby rendered dismissing the
Amended Complaint, without pronouncement as to costs. The
counterclaims are likewise dismissed for lack of merit, but the
confiscated sum of money, communications equipment, jewelry
and land titles are ordered returned to Elizabeth Dimaano.
The records of this case are hereby remanded and referred to the
Hon. Ombudsman, who has primary jurisdiction over the forfeiture
cases under R.A. No. 1379, for such appropriate action as the
evidence warrants. This case is also referred to the
Commissioner of the Bureau of Internal Revenue for a
determination of any tax liability of respondent Elizabeth Dimaano
in connection herewith.
SO ORDERED.
On 4 December 1991, petitioner filed its Motion for
Reconsideration.
In answer to the Motion for Reconsideration, private respondents
filed a Joint Comment/Opposition to which petitioner filed its
Reply on 10 January 1992.
On 25 March 1992, the Sandiganbayan rendered a Resolution
denying the Motion for Reconsideration.
Ruling of the Sandiganbayan
The Sandiganbayan dismissed the Amended Complaint on the
following grounds:
(1.) The actions taken by the PCGG are not in
accordance with the rulings of the Supreme Court in Cruz,
Jr. v. Sandiganbayan and Republic v. Migrino which
10  11 
involve the same issues.
(2.) No previous inquiry similar to preliminary
investigations in criminal cases was conducted against
Ramas and Dimaano.
 (3.) The evidence adduced against Ramas does not
constitute a prima facie case against him.
(4.) There was an illegal search and seizure of the items
confiscated.
The Issues
Petitioner raises the following issues:
A. RESPONDENT COURT SERIOUSLY ERRED IN
CONCLUDING THAT PETITIONER’S EVIDENCE
CANNOT MAKE A CASE FOR FORFEITURE AND THAT
THERE WAS NO SHOWING OF CONSPIRACY,
COLLUSION OR RELATIONSHIP BY CONSANGUINITY
OR AFFINITY BY AND BETWEEN RESPONDENT
RAMAS AND RESPONDENT DIMAANO
NOTWITHSTANDING THE FACT THAT SUCH
CONCLUSIONS WERE CLEARLY UNFOUNDED AND
PREMATURE, HAVING BEEN RENDERED PRIOR TO
THE COMPLETION OF THE PRESENTATION OF THE
EVIDENCE OF THE PETITIONER.
B. RESPONDENT COURT SERIOUSLY ERRED IN
HOLDING THAT THE ACTIONS TAKEN BY THE
PETITIONER, INCLUDING THE FILING OF THE
ORIGINAL COMPLAINT AND THE AMENDED
COMPLAINT, SHOULD BE STRUCK OUT IN LINE WITH
THE RULINGS OF THE SUPREME COURT IN CRUZ,
JR. v. SANDIGANBAYAN, 194 SCRA 474 AND
REPUBLIC v. MIGRINO, 189 SCRA 289,
NOTWITHSTANDING THE FACT THAT:
1. The cases of Cruz, Jr. v. Sandiganbayan,
supra, and Republic v. Migrino, supra, are clearly
not applicable to this case;
2. Any procedural defect in the institution of the
complaint in Civil Case No. 0037 was cured
and/or waived by respondents with the filing of
their respective answers with counterclaim; and
3. The separate motions to dismiss were evidently
improper considering that they were filed after
commencement of the presentation of the
evidence of the petitioner and even before the
latter was allowed to formally offer its evidence
and rest its case;
C. RESPONDENT COURT SERIOUSLY ERRED IN
HOLDING THAT THE ARTICLES AND THINGS SUCH
AS SUMS OF MONEY, COMMUNICATIONS
EQUIPMENT, JEWELRY AND LAND TITLES
CONFISCATED FROM THE HOUSE OF RESPONDENT
DIMAANO WERE ILLEGALLY SEIZED AND
THEREFORE EXCLUDED AS EVIDENCE. 12 
The Court’s Ruling
First Issue: PCGG’s Jurisdiction to Investigate Private
Respondents
This case involves a revisiting of an old issue already decided by
this Court in Cruz, Jr. v. Sandiganbayan and Republic v.
13 
Migrino.14 
The primary issue for resolution is whether the PCGG has the
jurisdiction to investigate and cause the filing of a forfeiture
petition against Ramas and Dimaano for unexplained wealth
under RA No. 1379.
We hold that PCGG has no such jurisdiction.
The PCGG created the AFP Board to investigate the unexplained
wealth and corrupt practices of AFP personnel, whether in the
active service or retired. The PCGG tasked the AFP Board to
15  the President assigns their cases to the PCGG. 18
make the necessary recommendations to appropriate
government agencies on the action to be taken based on its
findings. The PCGG gave this task to the AFP Board pursuant to
16  Ramas’ case to the PCGG. Therefore, Ramas’ case should fall
the PCGG’s power under Section 3 of EO No. 1 "to conduct
investigation as may be necessary in order to accomplish and to
carry out the purposes of this order." EO No. 1 gave the PCGG
specific responsibilities, to wit:
SEC. 2. The Commission shall be charged with the task of
assisting the President in regard to the following matters:
(a) The recovery of all ill-gotten wealth accumulated by former
President Ferdinand E. Marcos, his immediate family, relatives,
subordinates and close associates, whether located in the
Philippines or abroad, including the takeover and sequestration of
all business enterprises and entities owned or controlled by them,
during his administration, directly or through nominees, by taking
undue advantage of their public office and/ or using their powers,
authority, influence, connections or relationship.
(b) The investigation of such cases of graft and corruption as the
President may assign to the Commission from time to time.
x x x.
The PCGG, through the AFP Board, can only investigate the
unexplained wealth and corrupt practices of AFP personnel who
fall under either of the two categories mentioned in Section 2 of
EO No. 1. These are: (1) AFP personnel who have accumulated
ill-gotten wealth during the administration of former President
Marcos by being the latter’s immediate family, relative,
subordinate or close associate, taking undue advantage of their
public office or using their powers, influence x x x; or (2) AFP
17 
personnel involved in other cases of graft and corruption provided
 
Petitioner, however, does not claim that the President assigned
under the first category of AFP personnel before the PCGG could
exercise its jurisdiction over him. Petitioner argues that Ramas
was undoubtedly a subordinate of former President Marcos
because of his position as the Commanding General of the
Philippine Army. Petitioner claims that Ramas’ position enabled
him to receive orders directly from his commander-in-chief,
undeniably making him a subordinate of former President
Marcos.
We hold that Ramas was not a "subordinate" of former President
Marcos in the sense contemplated under EO No. 1 and its
amendments.
Mere position held by a military officer does not automatically
make him a "subordinate" as this term is used in EO Nos. 1, 2, 14
and 14-A absent a showing that he enjoyed close association
with former President Marcos. Migrino discussed this issue in this
wise:
A close reading of EO No. 1 and related executive orders will
readily show what is contemplated within the term ‘subordinate.’
The Whereas Clauses of EO No. 1 express the urgent need to
recover the ill-gotten wealth amassed by former President
Ferdinand E. Marcos, his immediate family, relatives, and close
associates both here and abroad.
EO No. 2 freezes ‘all assets and properties in the Philippines in
which former President Marcos and/or his wife, Mrs. Imelda
Marcos, their close relatives, subordinates, business associates,
dummies, agents, or nominees have any interest or participation.’
Applying the rule in statutory construction known as ejusdem
generis that is-
‘[W]here general words follow an enumeration of persons or
things by words of a particular and specific meaning, such
general words are not to be construed in their widest extent, but
are to be held as applying only to persons or things of the same
kind or class as those specifically mentioned [Smith, Bell & Co,
Ltd. vs. Register of Deeds of Davao, 96 Phil. 53, 58, citing Black
on Interpretation of Laws, 2nd Ed., 203].’
[T]he term "subordinate" as used in EO Nos. 1 & 2 refers to one
who enjoys a close association with former President Marcos
and/or his wife, similar to the immediate family member, relative,
and close associate in EO No. 1 and the close relative, business
associate, dummy, agent, or nominee in EO No. 2.
xxx
It does not suffice, as in this case, that the respondent is or was a
government official or employee during the administration of
former President Marcos. There must be a prima facie showing
that the respondent unlawfully accumulated wealth by virtue of his
close association or relation with former Pres. Marcos and/or his
wife. (Emphasis supplied)
Ramas’ position alone as Commanding General of the Philippine
Army with the rank of Major General does not suffice to make
19 
him a "subordinate" of former President Marcos for purposes of
EO No. 1 and its amendments. The PCGG has to provide a prima
facie showing that Ramas was a close associate of former
President Marcos, in the same manner that business associates,
dummies, agents or nominees of former President Marcos were
close to him. Such close association is manifested either by
Ramas’ complicity with former President Marcos in the
accumulation of ill-gotten wealth by the deposed President or by
former President Marcos’ acquiescence in Ramas’ own
accumulation of ill-gotten wealth if any.
This, the PCGG failed to do.
Petitioner’s attempt to differentiate the instant case from Migrino
does not convince us. Petitioner argues that unlike in Migrino, the
AFP Board Resolution in the instant case states that the AFP
Board conducted the investigation pursuant to EO Nos. 1, 2, 14
and 14-A in relation to RA No. 1379. Petitioner asserts that there
is a presumption that the PCGG was acting within its jurisdiction
of investigating crony-related cases of graft and corruption and
that Ramas was truly a subordinate of the former President.
However, the same AFP Board Resolution belies this contention.
Although the Resolution begins with such statement, it ends with
the following recommendation:
V. RECOMMENDATION:
Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas
(ret.) be prosecuted and tried for violation of RA 3019, as
amended, otherwise known as "Anti-Graft and Corrupt Practices
Act" and RA 1379, as amended, otherwise known as "The Act for
the Forfeiture of Unlawfully Acquired Property."20 
Thus, although the PCGG sought to investigate and prosecute
private respondents under EO Nos. 1, 2, 14 and 14-A, the result
yielded a finding of violation of Republic Acts Nos. 3019 and 1379
without any relation to EO Nos. 1, 2, 14 and 14-A. This absence
of relation to EO No. 1 and its amendments proves fatal to
petitioner’s case. EO No. 1 created the PCGG for a specific and
limited purpose, and necessarily its powers must be construed to
address such specific and limited purpose.
Moreover, the resolution of the AFP Board and even the
Amended Complaint do not show that the properties Ramas
allegedly owned were accumulated by him in his capacity as a
"subordinate" of his commander-in-chief. Petitioner merely
enumerated the properties Ramas allegedly owned and
suggested that these properties were disproportionate to his
salary and other legitimate income without showing that Ramas
amassed them because of his close association with former
President Marcos. Petitioner, in fact, admits that the AFP Board
resolution does not contain a finding that Ramas accumulated his
wealth because of his close association with former President
Marcos, thus:
10. While it is true that the resolution of the Anti-Graft Board of
the New Armed Forces of the Philippines did not
categorically find a prima facie evidence showing that
respondent Ramas unlawfully accumulated wealth by virtue
of his close association or relation with former President
Marcos and/or his wife, it is submitted that such omission
was not fatal. The resolution of the Anti-Graft Board should be
read in the context of the law creating the same and the objective
of the investigation which was, as stated in the above, pursuant to
Republic Act Nos. 3019 and 1379 in relation to Executive Order
Nos. 1, 2, 14 and 14-a; (Emphasis supplied)
21 
Such omission is fatal. Petitioner forgets that it is precisely a
prima facie showing that the ill-gotten wealth was accumulated by
a "subordinate" of former President Marcos that vests jurisdiction
on PCGG. EO No. 1 clearly premises the creation of the PCGG
22 
on the urgent need to recover all ill-gotten wealth amassed by
former President Marcos, his immediate family, relatives,
subordinates and close associates. Therefore, to say that such
omission was not fatal is clearly contrary to the intent behind the
creation of the PCGG.
In Cruz, Jr. v. Sandiganbayan, the Court outlined the cases that
23 
fall under the jurisdiction of the PCGG pursuant to EO Nos. 1,
2, 14, 14-A:
24  25  26 
A careful reading of Sections 2(a) and 3 of Executive Order No. 1
in relation with Sections 1, 2 and 3 of Executive Order No. 14,
shows what the authority of the respondent PCGG to investigate
and prosecute covers:
(a) the investigation and prosecution of the civil action for
the recovery of ill-gotten wealth under Republic Act No.
1379, accumulated by former President Marcos, his
immediate family, relatives, subordinates and close
associates, whether located in the Philippines or abroad,
including the take-over or sequestration of all business
enterprises and entities owned or controlled by them,
during his administration, directly or through his
nominees, by taking undue advantage of their public
office and/or using their powers, authority and influence,
connections or relationships; and
(b) the investigation and prosecution of such offenses
committed in the acquisition of said ill-gotten wealth as
contemplated under Section 2(a) of Executive Order No.
1.
However, other violations of the Anti-Graft and Corrupt
Practices Act not otherwise falling under the foregoing
categories, require a previous authority of the President for
the respondent PCGG to investigate and prosecute in
accordance with Section 2 (b) of Executive Order No. 1.
Otherwise, jurisdiction over such cases is vested in the
Ombudsman and other duly authorized investigating
agencies such as the provincial and city prosecutors, their
assistants, the Chief State Prosecutor and his assistants and
the state prosecutors. (Emphasis supplied)
The proper government agencies, and not the PCGG, should
investigate and prosecute forfeiture petitions not falling under EO
No. 1 and its amendments. The preliminary investigation of
unexplained wealth amassed on or before 25 February 1986 falls
under the jurisdiction of the Ombudsman, while the authority to
file the corresponding forfeiture petition rests with the Solicitor
General. The Ombudsman Act or Republic Act No. 6770 ("RA
27 
No. 6770") vests in the Ombudsman the power to conduct
preliminary investigation and to file forfeiture proceedings
involving unexplained wealth amassed after 25 February 1986. 28 
After the pronouncements of the Court in Cruz, the PCGG still
pursued this case despite the absence of a prima facie finding
that Ramas was a "subordinate" of former President Marcos. The
petition for forfeiture filed with the Sandiganbayan should be
dismissed for lack of authority by the PCGG to investigate
respondents since there is no prima facie showing that EO No. 1
and its amendments apply to respondents. The AFP Board
Resolution and even the Amended Complaint state that there are
violations of RA Nos. 3019 and 1379. Thus, the PCGG should
have recommended Ramas’ case to the Ombudsman who has
jurisdiction to conduct the preliminary investigation of ordinary
unexplained wealth and graft cases. As stated in Migrino:
[But] in view of the patent lack of authority of the PCGG to
investigate and cause the prosecution of private respondent for
violation of Rep. Acts Nos. 3019 and 1379, the PCGG must also
be enjoined from proceeding with the case, without prejudice to
any action that may be taken by the proper prosecutory agency.
The rule of law mandates that an agency of government be
allowed to exercise only the powers granted to it.
Petitioner’s argument that private respondents have waived any
defect in the filing of the forfeiture petition by submitting their
respective Answers with counterclaim deserves no merit as well.
Petitioner has no jurisdiction over private respondents. Thus,
there is no jurisdiction to waive in the first place. The PCGG
cannot exercise investigative or prosecutorial powers never
granted to it. PCGG’s powers are specific and limited. Unless
given additional assignment by the President, PCGG’s sole task
is only to recover the ill-gotten wealth of the Marcoses, their
relatives and cronies. Without these elements, the PCGG cannot
29 
claim jurisdiction over a case.
Private respondents questioned the authority and jurisdiction of
the PCGG to investigate and prosecute their cases by filing their
Motion to Dismiss as soon as they learned of the pronouncement
of the Court in Migrino. This case was decided on 30 August
1990, which explains why private respondents only filed their
Motion to Dismiss on 8 October 1990. Nevertheless, we have
held that the parties may raise lack of jurisdiction at any stage of
the proceeding. Thus, we hold that there was no waiver of
30 
jurisdiction in this case. Jurisdiction is vested by law and not by
the parties to an action. 31 
Consequently, the petition should be dismissed for lack of
jurisdiction by the PCGG to conduct the preliminary investigation.
The Ombudsman may still conduct the proper preliminary
investigation for violation of RA No. 1379, and if warranted, the
Solicitor General may file the forfeiture petition with the
Sandiganbayan. The right of the State to forfeit unexplained
32 
wealth under RA No. 1379 is not subject to prescription, laches or
estoppel.33 
Second Issue: Propriety of Dismissal of Case
Before Completion of Presentation of Evidence
Petitioner also contends that the Sandiganbayan erred in
dismissing the case before completion of the presentation of
petitioner’s evidence.
We disagree.
Based on the findings of the Sandiganbayan and the records of
this case, we find that petitioner has only itself to blame for non-
completion of the presentation of its evidence. First, this case has
been pending for four years before the Sandiganbayan dismissed
it. Petitioner filed its Amended Complaint on 11 August 1987, and
only began to present its evidence on 17 April 1989. Petitioner
had almost two years to prepare its evidence. However, despite
this sufficient time, petitioner still delayed the presentation of the
rest of its evidence by filing numerous motions for postponements
and extensions. Even before the date set for the presentation of
its evidence, petitioner filed, on 13 April 1989, a Motion for Leave
to Amend the Complaint. The motion sought "to charge the
34  investigation. The Sandiganbayan granted this request and
delinquent properties (which comprise most of petitioner’s
evidence) with being subject to forfeiture as having been
unlawfully acquired by defendant Dimaano alone x x x."
The Sandiganbayan, however, refused to defer the presentation
of petitioner’s evidence since petitioner did not state when it
would file the amended complaint. On 18 April 1989, the
Sandiganbayan set the continuation of the presentation of
evidence on 28-29 September and 9-11 October 1989, giving
petitioner ample time to prepare its evidence. Still, on 28
September 1989, petitioner manifested its inability to proceed
with the presentation of its evidence. The Sandiganbayan issued
an Order expressing its view on the matter, to wit:
The Court has gone through extended inquiry and a narration of
the above events because this case has been ready for trial for
over a year and much of the delay hereon has been due to the
inability of the government to produce on scheduled dates for pre-
trial and for trial documents and witnesses, allegedly upon the
failure of the military to supply them for the preparation of the
presentation of evidence thereon. Of equal interest is the fact that
this Court has been held to task in public about its alleged failure
to move cases such as this one beyond the preliminary stage,
when, in view of the developments such as those of today, this
Court is now faced with a situation where a case already in
progress will revert back to the preliminary stage, despite a five-
month pause where appropriate action could have been
undertaken by the plaintiff Republic.35 
On 9 October 1989, the PCGG manifested in court that it was
conducting a preliminary investigation on the unexplained wealth
of private respondents as mandated by RA No. 1379. The PCGG
36 
prayed for an additional four months to conduct the preliminary
scheduled the presentation of evidence on 26-29 March 1990.
However, on the scheduled date, petitioner failed to inform the
court of the result of the preliminary investigation the PCGG
supposedly conducted. Again, the Sandiganbayan gave petitioner
until 18 May 1990 to continue with the presentation of its
evidence and to inform the court of "what lies ahead insofar as
the status of the case is concerned x x x." Still on the date set,
37 
petitioner failed to present its evidence. Finally, on 11 July 1990,
petitioner filed its Re-Amended Complaint. The Sandiganbayan
38 
correctly observed that a case already pending for years would
revert to its preliminary stage if the court were to accept the Re-
Amended Complaint.
Based on these circumstances, obviously petitioner has only itself
to blame for failure to complete the presentation of its evidence.
The Sandiganbayan gave petitioner more than sufficient time to
finish the presentation of its evidence. The Sandiganbayan
overlooked petitioner’s delays and yet petitioner ended the long-
string of delays with the filing of a Re-Amended Complaint, which
would only prolong even more the disposition of the case.
Moreover, the pronouncements of the Court in Migrino and Cruz
prompted the Sandiganbayan to dismiss the case since the
PCGG has no jurisdiction to investigate and prosecute the case
against private respondents. This alone would have been
sufficient legal basis for the Sandiganbayan to dismiss the
forfeiture case against private respondents.
Thus, we hold that the Sandiganbayan did not err in dismissing
the case before completion of the presentation of petitioner’s
evidence.
Third Issue: Legality of the Search and Seizure
Petitioner claims that the Sandiganbayan erred in declaring the
properties confiscated from Dimaano’s house as illegally seized
and therefore inadmissible in evidence. This issue bears a
significant effect on petitioner’s case since these properties
comprise most of petitioner’s evidence against private
respondents. Petitioner will not have much evidence to support its
case against private respondents if these properties are
inadmissible in evidence.
On 3 March 1986, the Constabulary raiding team served at
Dimaano’s residence a search warrant captioned "Illegal
Possession of Firearms and Ammunition." Dimaano was not
present during the raid but Dimaano’s cousins witnessed the raid.
The raiding team seized the items detailed in the seizure receipt
together with other items not included in the search warrant. The
raiding team seized these items: one baby armalite rifle with two
magazines; 40 rounds of 5.56 ammunition; one pistol, caliber .45;
communications equipment, cash consisting of ₱2,870,000 and
US$50,000, jewelry, and land titles.
Petitioner wants the Court to take judicial notice that the raiding
team conducted the search and seizure "on March 3, 1986 or five
days after the successful EDSA revolution." Petitioner argues
39 
that a revolutionary government was operative at that time by
virtue of Proclamation No. 1 announcing that President Aquino
and Vice President Laurel were "taking power in the name and by
the will of the Filipino people." Petitioner asserts that the
40 
revolutionary government effectively withheld the operation of the
1973 Constitution which guaranteed private respondents’
exclusionary right.
Moreover, petitioner argues that the exclusionary right arising
from an illegal search applies only beginning 2 February 1987,
the date of ratification of the 1987 Constitution. Petitioner
contends that all rights under the Bill of Rights had already
reverted to its embryonic stage at the time of the search.
Therefore, the government may confiscate the monies and items
taken from Dimaano and use the same in evidence against her
since at the time of their seizure, private respondents did not
enjoy any constitutional right.
Petitioner is partly right in its arguments.
The EDSA Revolution took place on 23-25 February 1986. As
succinctly stated in President Aquino’s Proclamation No. 3 dated
25 March 1986, the EDSA Revolution was "done in defiance of
the provisions of the 1973 Constitution." The resulting
41 
government was indisputably a revolutionary government bound
by no constitution or legal limitations except treaty obligations that
the revolutionary government, as the de jure government in the
Philippines, assumed under international law.
The correct issues are: (1) whether the revolutionary government
was bound by the Bill of Rights of the 1973 Constitution during
the interregnum, that is, after the actual and effective take-over of
power by the revolutionary government following the cessation of
resistance by loyalist forces up to 24 March 1986 (immediately
before the adoption of the Provisional Constitution); and (2)
whether the protection accorded to individuals under the
International Covenant on Civil and Political Rights ("Covenant")
and the Universal Declaration of Human Rights ("Declaration")
remained in effect during the interregnum.
We hold that the Bill of Rights under the 1973 Constitution was
not operative during the interregnum. However, we rule that the
protection accorded to individuals under the Covenant and the
Declaration remained in effect during the interregnum.
During the interregnum, the directives and orders of the
revolutionary government were the supreme law because no
constitution limited the extent and scope of such directives and
orders. With the abrogation of the 1973 Constitution by the
successful revolution, there was no municipal law higher than the
directives and orders of the revolutionary government. Thus,
during the interregnum, a person could not invoke any
exclusionary right under a Bill of Rights because there was
neither a constitution nor a Bill of Rights during the interregnum.
As the Court explained in Letter of Associate Justice Reynato S.
Puno: 42 
A revolution has been defined as "the complete overthrow of the
established government in any country or state by those who
were previously subject to it" or as "a sudden, radical and
fundamental change in the government or political system,
usually effected with violence or at least some acts of violence."
In Kelsen's book, General Theory of Law and State, it is defined
as that which "occurs whenever the legal order of a community is
nullified and replaced by a new order . . . a way not prescribed by
the first order itself."
It was through the February 1986 revolution, a relatively peaceful
one, and more popularly known as the "people power revolution"
that the Filipino people tore themselves away from an existing
regime. This revolution also saw the unprecedented rise to power
of the Aquino government.
From the natural law point of view, the right of revolution has
been defined as "an inherent right of a people to cast out their
rulers, change their policy or effect radical reforms in their system
of government or institutions by force or a general uprising when
the legal and constitutional methods of making such change have
proved inadequate or are so obstructed as to be unavailable." It
has been said that "the locus of positive law-making power lies
with the people of the state" and from there is derived "the right of
the people to abolish, to reform and to alter any existing form of
government without regard to the existing constitution."
xxx
It is widely known that Mrs. Aquino’s rise to the presidency
was not due to constitutional processes; in fact, it was
achieved in violation of the provisions of the 1973
Constitution as a Batasang Pambansa resolution had earlier
declared Mr. Marcos as the winner in the 1986 presidential
election. Thus it can be said that the organization of Mrs.
Aquino’s Government which was met by little resistance and her
control of the state evidenced by the appointment of the Cabinet
and other key officers of the administration, the departure of the
Marcos Cabinet officials, revamp of the Judiciary and the Military
signaled the point where the legal system then in effect, had
ceased to be obeyed by the Filipino. (Emphasis supplied)
To hold that the Bill of Rights under the 1973 Constitution
remained operative during the interregnum would render void all
sequestration orders issued by the Philippine Commission on
Good Government ("PCGG") before the adoption of the Freedom
Constitution. The sequestration orders, which direct the freezing
and even the take-over of private property by mere executive
issuance without judicial action, would violate the due process
and search and seizure clauses of the Bill of Rights.
During the interregnum, the government in power was
concededly a revolutionary government bound by no constitution.
No one could validly question the sequestration orders as
violative of the Bill of Rights because there was no Bill of Rights
during the interregnum. However, upon the adoption of the
Freedom Constitution, the sequestered companies assailed the
sequestration orders as contrary to the Bill of Rights of the
Freedom Constitution.
In Bataan Shipyard & Engineering Co. Inc. vs. Presidential
Commission on Good Government, petitioner Baseco, while
43 
conceding there was no Bill of Rights during the interregnum,
questioned the continued validity of the sequestration orders
upon adoption of the Freedom Constitution in view of the due
process clause in its Bill of Rights. The Court ruled that the
Freedom Constitution, and later the 1987 Constitution, expressly
recognized the validity of sequestration orders, thus:
If any doubt should still persist in the face of the foregoing
considerations as to the validity and propriety of sequestration,
freeze and takeover orders, it should be dispelled by the fact that
these particular remedies and the authority of the PCGG to issue
them have received constitutional approbation and sanction. As
already mentioned, the Provisional or "Freedom" Constitution
recognizes the power and duty of the President to enact
"measures to achieve the mandate of the people to . . . (r)ecover
ill-gotten properties amassed by the leaders and supporters of the
previous regime and protect the interest of the people through
orders of sequestration or freezing of assets or accounts." And as
also already adverted to, Section 26, Article XVIII of the 1987
Constitution treats of, and ratifies the "authority to issue
sequestration or freeze orders under Proclamation No. 3 dated
March 25, 1986."
The framers of both the Freedom Constitution and the 1987
Constitution were fully aware that the sequestration orders would
clash with the Bill of Rights. Thus, the framers of both
constitutions had to include specific language recognizing the
validity of the sequestration orders. The following discourse by
Commissioner Joaquin G. Bernas during the deliberations of the
Constitutional Commission is instructive:
FR. BERNAS: Madam President, there is something
schizophrenic about the arguments in defense of the present
amendment.
For instance, I have carefully studied Minister Salonga’s lecture in
the Gregorio Araneta University Foundation, of which all of us
have been given a copy. On the one hand, he argues that
everything the Commission is doing is traditionally legal. This is
repeated by Commissioner Romulo also. Minister Salonga
spends a major portion of his lecture developing that argument.
On the other hand, almost as an afterthought, he says that in the
end what matters are the results and not the legal niceties, thus
suggesting that the PCGG should be allowed to make some legal
shortcuts, another word for niceties or exceptions.
Now, if everything the PCGG is doing is legal, why is it asking the
CONCOM for special protection? The answer is clear. What they
are doing will not stand the test of ordinary due process, hence
they are asking for protection, for exceptions. Grandes malos,
grandes remedios, fine, as the saying stands, but let us not say
grandes malos, grande y malos remedios. That is not an
allowable extrapolation. Hence, we should not give the
exceptions asked for, and let me elaborate and give three
reasons:
First, the whole point of the February Revolution and of the work
of the CONCOM is to hasten constitutional normalization. Very
much at the heart of the constitutional normalization is the full
effectivity of the Bill of Rights. We cannot, in one breath, ask for
constitutional normalization and at the same time ask for a
temporary halt to the full functioning of what is at the heart of
constitutionalism. That would be hypocritical; that would be a
repetition of Marcosian protestation of due process and rule of
law. The New Society word for that is "backsliding." It is tragic
when we begin to backslide even before we get there.
Second, this is really a corollary of the first. Habits tend to
become ingrained. The committee report asks for extraordinary
exceptions from the Bill of Rights for six months after the
convening of Congress, and Congress may even extend this
longer.
Good deeds repeated ripen into virtue; bad deeds repeated
become vice. What the committee report is asking for is that we
should allow the new government to acquire the vice of
disregarding the Bill of Rights.
Vices, once they become ingrained, become difficult to shed. The
practitioners of the vice begin to think that they have a vested
right to its practice, and they will fight tooth and nail to keep the
franchise. That would be an unhealthy way of consolidating the
gains of a democratic revolution.
Third, the argument that what matters are the results and not the
legal niceties is an argument that is very disturbing. When it
comes from a staunch Christian like Commissioner Salonga, a
Minister, and repeated verbatim by another staunch Christian like
Commissioner Tingson, it becomes doubly disturbing and even
discombobulating. The argument makes the PCGG an
auctioneer, placing the Bill of Rights on the auction block. If the
price is right, the search and seizure clause will be sold. "Open
your Swiss bank account to us and we will award you the search
and seizure clause. You can keep it in your private safe."
Alternatively, the argument looks on the present government as
hostage to the hoarders of hidden wealth. The hoarders will
release the hidden health if the ransom price is paid and the
ransom price is the Bill of Rights, specifically the due process in
the search and seizure clauses. So, there is something positively
revolving about either argument. The Bill of Rights is not for sale
to the highest bidder nor can it be used to ransom captive dollars.
This nation will survive and grow strong, only if it would become
convinced of the values enshrined in the Constitution of a price
that is beyond monetary estimation.
For these reasons, the honorable course for the Constitutional
Commission is to delete all of Section 8 of the committee report
and allow the new Constitution to take effect in full vigor. If
Section 8 is deleted, the PCGG has two options. First, it can
pursue the Salonga and the Romulo argument — that what the
PCGG has been doing has been completely within the pale of the
law. If sustained, the PCGG can go on and should be able to go
on, even without the support of Section 8. If not sustained,
however, the PCGG has only one honorable option, it must bow
to the majesty of the Bill of Rights.
The PCGG extrapolation of the law is defended by staunch
Christians. Let me conclude with what another Christian replied
when asked to toy around with the law. From his prison cell,
Thomas More said, "I'll give the devil benefit of law for my
nation’s safety sake." I ask the Commission to give the devil
benefit of law for our nation’s sake. And we should delete Section
8.
Thank you, Madam President. (Emphasis supplied)
Despite the impassioned plea by Commissioner Bernas against
the amendment excepting sequestration orders from the Bill of
Rights, the Constitutional Commission still adopted the
amendment as Section 26, Article XVIII of the 1987 Constitution.
44  the Declaration during the interregnum. Whether the revolutionary
The framers of the Constitution were fully aware that absent
Section 26, sequestration orders would not stand the test of due
process under the Bill of Rights.
Thus, to rule that the Bill of Rights of the 1973 Constitution
remained in force during the interregnum, absent a constitutional
provision excepting sequestration orders from such Bill of Rights,
would clearly render all sequestration orders void during the
interregnum. Nevertheless, even during the interregnum the
Filipino people continued to enjoy, under the Covenant and the
Declaration, almost the same rights found in the Bill of Rights of
the 1973 Constitution.
The revolutionary government, after installing itself as the de jure
government, assumed responsibility for the State’s good faith
compliance with the Covenant to which the Philippines is a
signatory. Article 2(1) of the Covenant requires each signatory
State "to respect and to ensure to all individuals within its territory
and subject to its jurisdiction the rights recognized in the present
45 
Covenant." Under Article 17(1) of the Covenant, the revolutionary
government had the duty to insure that "[n]o one shall be
subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence."
The Declaration, to which the Philippines is also a signatory,
provides in its Article 17(2) that "[n]o one shall be arbitrarily
deprived of his property." Although the signatories to the
Declaration did not intend it as a legally binding document, being
only a declaration, the Court has interpreted the Declaration as
part of the generally accepted principles of international law and
binding on the State. Thus, the revolutionary government was
46 
also obligated under international law to observe the rights of47 
individuals under the Declaration.
The revolutionary government did not repudiate the Covenant or
government could have repudiated all its obligations under the
Covenant or the Declaration is another matter and is not the issue
here. Suffice it to say that the Court considers the Declaration as
part of customary international law, and that Filipinos as human
beings are proper subjects of the rules of international law laid
down in the Covenant. The fact is the revolutionary government
did not repudiate the Covenant or the Declaration in the same
way it repudiated the 1973 Constitution. As the de jure
government, the revolutionary government could not escape
responsibility for the State’s good faith compliance with its treaty
obligations under international law.
It was only upon the adoption of the Provisional Constitution on
25 March 1986 that the directives and orders of the revolutionary
government became subject to a higher municipal law that, if
contravened, rendered such directives and orders void. The
Provisional Constitution adopted verbatim the Bill of Rights of the
1973 Constitution. The Provisional Constitution served as a self-
48 
limitation by the revolutionary government to avoid abuses of the
absolute powers entrusted to it by the people.
During the interregnum when no constitution or Bill of Rights
existed, directives and orders issued by government officers were
valid so long as these officers did not exceed the authority
granted them by the revolutionary government. The directives
and orders should not have also violated the Covenant or the
Declaration. In this case, the revolutionary government
presumptively sanctioned the warrant since the revolutionary
government did not repudiate it. The warrant, issued by a judge
upon proper application, specified the items to be searched and
seized. The warrant is thus valid with respect to the items
specifically described in the warrant.
However, the Constabulary raiding team seized items not
included in the warrant. As admitted by petitioner’s witnesses, the
raiding team confiscated items not included in the warrant, thus:
Direct Examination of Capt. Rodolfo Sebastian
AJ AMORES
Q. According to the search warrant, you are supposed to seize
only for weapons. What else, aside from the weapons, were
seized from the house of Miss Elizabeth Dimaano?
A. The communications equipment, money in Philippine currency
and US dollars, some jewelries, land titles, sir.
Q. Now, the search warrant speaks only of weapons to be seized
from the house of Elizabeth Dimaano. Do you know the reason
why your team also seized other properties not mentioned in said
search warrant?
A. During the conversation right after the conduct of said raid, I
was informed that the reason why they also brought the other
items not included in the search warrant was because the money
and other jewelries were contained in attaché cases and cartons
with markings "Sony Trinitron", and I think three (3) vaults or steel
safes. Believing that the attaché cases and the steel safes were
containing firearms, they forced open these containers only to
find out that they contained money.
xxx
Q. You said you found money instead of weapons, do you know
the reason why your team seized this money instead of
weapons?
A. I think the overall team leader and the other two officers
assisting him decided to bring along also the money because at
that time it was already dark and they felt most secured if they will
bring that because they might be suspected also of taking money
out of those items, your Honor. 49 
Cross-examination
Atty. Banaag
Q. Were you present when the search warrant in connection with Q. But they did not mention to you, the applicant for the search
this case was applied before the Municipal Trial Court of warrant, any other properties or contraband which could be found
Batangas, Branch 1? in the residence of Miss Elizabeth Dimaano?

A. Yes, sir.
Q. And the search warrant applied for by you was for the search
and seizure of five (5) baby armalite rifles M-16 and five (5) boxes
of ammunition?
A. They just gave us still unconfirmed report about some hidden
items, for instance, the communications equipment and money.
However, I did not include that in the application for search
warrant considering that we have not established concrete
evidence about that. So when…

A. Yes, sir. Q. So that when you applied for search warrant, you had reason
to believe that only weapons were in the house of Miss Elizabeth
xxx Dimaano?

AJ AMORES A. Yes, your Honor. 50 

Q. Before you applied for a search warrant, did you conduct
surveillance in the house of Miss Elizabeth Dimaano?
A. The Intelligence Operatives conducted surveillance together
with the MSU elements, your Honor.
Q. And this party believed there were weapons deposited in the
house of Miss Elizabeth Dimaano?
A. Yes, your Honor.
xxx
Q. You stated that a .45 caliber pistol was seized along with one
armalite rifle M-16 and how many ammunition?
A. Forty, sir.
Q. And this became the subject of your complaint with the issuing
Court, with the fiscal’s office who charged Elizabeth Dimaano for
Illegal Possession of Firearms and Ammunition?

Q. And they so swore before the Municipal Trial Judge? A. Yes, sir.

A. Yes, your Honor. Q. Do you know what happened to that case?

A. I think it was dismissed, sir.

Q. In the fiscal’s office?
A. Yes, sir.
Q. Because the armalite rifle you seized, as well as the .45
caliber pistol had a Memorandum Receipt in the name of Felino
Melegrito, is that not correct?
A. I think that was the reason, sir.
Q. There were other articles seized which were not included in
the search warrant, like for instance, jewelries. Why did you seize
the jewelries?
A. I think it was the decision of the overall team leader and his
assistant to bring along also the jewelries and other items, sir. I
do not really know where it was taken but they brought along also
these articles. I do not really know their reason for bringing the
same, but I just learned that these were taken because they
might get lost if they will just leave this behind.
xxx
Q. How about the money seized by your raiding team, they were
not also included in the search warrant?
A. Yes sir, but I believe they were also taken considering that the
money was discovered to be contained in attaché cases.  These
1âwphi1
attaché cases were suspected to be containing pistols or other
high powered firearms, but in the course of the search the
contents turned out to be money. So the team leader also
decided to take this considering that they believed that if they will
just leave the money behind, it might get lost also.
Q. That holds true also with respect to the other articles that were
seized by your raiding team, like Transfer Certificates of Title of
lands?
A. Yes, sir. I think they were contained in one of the vaults that
were opened. 51 
It is obvious from the testimony of Captain Sebastian that the
warrant did not include the monies, communications equipment,
jewelry and land titles that the raiding team confiscated. The
search warrant did not particularly describe these items and the
raiding team confiscated them on its own authority. The raiding
team had no legal basis to seize these items without showing that
these items could be the subject of warrantless search and
seizure. Clearly, the raiding team exceeded its authority when it
52 
seized these items.
The seizure of these items was therefore void, and unless these
items are contraband per se, and they are not, they must be
53 
returned to the person from whom the raiding seized them.
However, we do not declare that such person is the lawful owner
of these items, merely that the search and seizure warrant could
not be used as basis to seize and withhold these items from the
possessor. We thus hold that these items should be returned
immediately to Dimaano.
WHEREFORE, the petition for certiorari is DISMISSED. The
questioned Resolutions of the Sandiganbayan dated 18
November 1991 and 25 March 1992 in Civil Case No. 0037,
remanding the records of this case to the Ombudsman for such
appropriate action as the evidence may warrant, and referring this
case to the Commissioner of the Bureau of Internal Revenue for a
determination of any tax liability of respondent Elizabeth
Dimaano, are AFFIRMED. SO ORDERED.
G.R. No. 99327 May 27, 1993
ATENEO DE MANILA UNIVERSITY, FATHER JOAQUIN
BERNAS, S. J., DEAN CYNTHIA ROXAS-DEL CASTILLO,
JUDGE RUPERTO KAPUNAN, JR., JUSTICE VENICIO
ESCOLIN, FISCAL MIGUEL ALBAR, ATTYS. MARCOS
HERRAS, FERDINAND CASIS, JOSE CLARO TESORO,
RAMON CAGUIOA, and RAMON ERENETA. petitioners,  In support of its decision, the Court invoked academic freedom of
vs.
HON. IGNACIO M. CAPULONG, Presiding Judge of the RTC-
Makati, Br. 134, ZOSIMO MENDOZA, JR. ERNEST
MONTECILLO, ADEL ABAS, JOSEPH LLEDO AMADO
SABBAN, DALMACIO LIM JR., MANUEL ESCONA and JUDE
FERNANDEZ, respondents.
Bengzon, Zarraga, Narciso, Cudala, Pecson, Benson & Jimenes
for petitioners.
Romulo, Mabanta, Buenaventura, Sayoc & De Los Angeles for
petitioner Cynthia Roxas-del Castillo.
Fabregas, Calida & Remollo for private respondents.
ROMERO, J.:
In 1975, the Court was confronted with a mandamus proceeding
to compel the Faculty Admission Committee of the Loyola School
of Theology, a religious seminary which has a working
arrangement with the Ateneo de Manila University regarding
accreditation of common students, to allow petitioner who had
taken some courses therein for credit during summer, to continue
her studies.  Squarely meeting the issue, we dismissed the
1
petition on the ground that students in the position of petitioner
possess, not a right, but a privilege, to be admitted to the
institution. Not having satisfied the prime and indispensable
requisite of a mandamus proceeding since there is no duty, much
less a clear duty, on the part of the respondent to admit the
petitioner, the petition did not prosper.
institutions of higher learning, as recognized by the Constitution,
the concept encompassing the right of a school to choose its
students.
Eighteen (18) years later, the right of a University to refuse
admittance to its students, this time in Ateneo de Manila
University proper, is again challenged.
Whereas, in the Garcia case referred to in the opening
paragraph, the individual concerned was not a regular student,
the respondents in the case at bar, having been previously
enrolled in the University, seek re-admission. Moreover, in the
earlier case, the petitioner was refused admittance, not on such
considerations as personality traits and character orientation, or
even inability to meet the institution's academic or intellectual
standards, but because of her behavior in the classroom. The
school pointedly informed her that ". . . it would seem to be in
your best interest to work with a Faculty that is more compatible
with your orientations."
On the other hand, students who are now being refused
admission into petitioner University have been found guilty of
violating Rule No. 3 of the Ateneo Law School Rules on Discipline
which prohibits participation in hazing activities. The case
attracted much publicity due to the death of one of the neophytes
and serious physical injuries inflicted on another.
Herein lies an opportunity for the Court to add another dimension
to the concept of academic freedom of institutions of higher
learning, this time a case fraught with social and emotional
overtones.
The facts which gave rise to this case which is far from novel, are
as follows:
As a requisite to membership, the Aquila Legis, a fraternity
organized in the Ateneo Law School, held its initiation rites on
February 8, 9 and 10, 1991, for students interested in joining its
ranks. As a result of such initiation rites, Leonardo "Lennie" H.
Villa, a first year student of petitioner university, died of serious
physical injuries at Chinese General Hospital on February 10,
1991. He was not the lone victim, though, for another freshman
by the name of Bienvenido Marquez was also hospitalized at the
Capitol Medical Center for acute renal failure occasioned by the
serious physical injuries inflicted upon him on the same occasion.
In a notice dated February 11, 1991, petitioner Dean Cynthia del
Castillo created a Joint Administration-Faculty-Student
Investigating Committee  which was tasked to investigate and
2
submit a report within 72 hours on the circumstances surrounding
the death of Lennie Villa. Said notice also required respondent
students to submit their written statements within twenty-four (24)
hours from receipt. Although respondent students received a
copy of the written notice, they failed to file a reply. In the
meantime, they were placed on preventive suspension.  Through
3
their respective counsels, they requested copies of the charges
and pertinent documents or affidavits.
In a notice dated February 14, 1991, the Joint Administration-
Faculty-Student Investigating Committee, after receiving the
written statements and hearing the testimonies of several
witness, found a prima facie case against respondent students for
violation of Rule 3 of the Law School Catalogue entitled
"Discipline."
4
Respondent students were then required to file their written
answers to the formal charge on or before February 18, 1991;
otherwise, they would be deemed to have waived their right to
present their defenses.
On February 20, 1991, petitioner Dean created a Disciplinary
Board composed of petitioners Judge Ruperto Kapunan, Justice
Venicio Escolin, Atty. Marcos Herras, Fiscal Miguel Albar and
Atty. Ferdinand Casis, to hear the charges against respondent
students.
In a letter dated February 20, 1991, respondent students were
informed that they had violated Rule No. 3 of the Rules on
Discipline contained in the Law School Catalogue. Said letter also
states: "The complaint/charge against you arose from initiations
held on February 8-10, 1991. The evidence against you consist of
testimonies of students, showing your participation in acts
prohibited by the School regulations." Finally, it ordered
respondent students to file their written answers to the above
charge on or before February 22 1991, otherwise they would be
deemed to have waived their defenses. 5
In a motion dated February 21, 1991, respondent students,
through counsel, requested that the investigation against them be
held in abeyance, pending action on their request for copies of
the evidence against them. 6
Respondent students were then directed by the Board to appear
before it at a hearing on February 28, 1991 to clarify their answer
with regard to the charges filed by the investigating committee for
violation of Rule No. 3. However, in a letter to a petitioners dated
February 27, 1991, counsel for respondent students moved to
postpone the hearing from February 28, 1991 to March 1, 1991.
Subsequently, respondent students were directed to appear on
March 2, 1991 for clarificatory questions.  They were also
8
informed that:
a) The proceedings will be summary in nature in
accordance with the rules laid down in the case
of Guzman vs. National University; 9
b) Petitioners have no right to cross-examine the
affiants-neophytes;
c) Hazing which is not defined in the School
catalogue shall be defined in accordance with the
proposed bill of Sen. Jose Lina, Senate Bill No.
3815;
d) The Board will take into consideration the
degree of participation of the petitioners in the
alleged hazing incident in imposing the penalty;
e) The Decision of the Board shall be appealable
to the President of the University, i. e.,
Respondent Joaquin Bernas S. J.
On March 5, 1991, petitioner Bernas wrote Dean Castillo that, "in
cases where the Disciplinary Board is not prepared to impose the
penalty of dismissal, I would prefer that the Board leave the
decision on the penalty to the Administration so that this case be
decided not just on the Law School level but also on the
University level." 10
In a resolution dated March 9, 1991, the Board found respondent
7
students guilty of violating Rule No. 3 of the Ateneo Law School
Rules on Discipline which prohibits participation in hazing
activities. The Board found that respondent students acted as
master auxiliaries or "auxies" during the initiation rites of Aquila
Legis, and exercised the "auxies privilege," which allows them to
participate in the physical hazing. Although respondent students
claim that they were there to assist and attend to the needs of the
neophytes, actually they were assigned a definite supportive role
to play in the organized activity. Their guilt was heightened by the
fact that they made no effort to prevent the infliction of further
physical punishment on the neophytes under their care. The
Board considered respondent students part and parcel of the
integral process of hazing. In conclusion, the Board pronounced
respondents guilty of hazing, either by active participation or
through acquiescence. However, in view of the lack of unanimity
among the members of the Board on the penalty of dismissal, the
Board left the imposition of the penalty to the University
Administration.  Petitioner Dean del Castillo waived her
11
prerogative to review the decision of the Board and left to the
President of the University the decision of whether to expel
respondents or not.
Consequently, in a resolution dated March 10, 1991, petitioner Fr.
Joaquin G. Bernas, as President of the Ateneo de Manila
University, accepted the factual findings of the Board, thus: "that
as Master Auxiliaries they exercised the 'auxie's privilege;' that
even assuming they did not lay hands on the neophytes,"
respondents students are still guilty in accordance with the
principle that "where two or more persons act together in the
commission of a crime, whether they act through the physical
volition of one or of all, proceeding severally or collectively, each
individual whose will contributes to the wrongdoing is responsible
for the whole." Fr. Bernas, in describing the offense which led to
the death of Leonardo Villa, concluded that the "offense of the
respondents can be characterized as grave and serious,
subversive of the goals of Christian education and contrary to
civilized behavior." Accordingly, he imposed the penalty of
dismissal on all respondent students. 12
In a resolution dated March 18, 1991 and concurred in by
petitioner Fr. Bernas,  the Board excluded respondent students
13
Abas and Mendoza from the coverage of the resolution of March
10, 1991, inasmuch as at the time the latter resolution was
promulgated, neither had as yet submitted their case to the
Board. Said resolution also set the investigation of the two
students on March 21, 1991.
On March 18, 1991, respondent students filed with the Regional
Trial Court of Makati, a petition for certiorari, prohibition
and mandamus with prayer for temporary restraining order and
preliminary injunction  alleging that they were currently enrolled
14
as students for the second semester of school year 1990-91.
Unless a temporary restraining order is issued, they would be
prevented from taking their examinations. The petition principally
centered on the alleged lack of due process in their dismissal.
On the same day, Judge Madayag issued a temporary restraining
order the enjoining petitioners from dismissing respondent
students and stopping the former from conducting hearings
relative to the hazing incident.
15
Hearings in connection with the issuance of the temporary
restraining order were then held. On April 7, 1991, the temporary
restraining order were issued on March 18, 1991 lapsed.
Consequently, a day after the expiration of the temporary
restraining order, Dean del Castillo created a Special Board
composed of Atty.(s) Jose Claro Tesoro, Ramon Caguioa, and
Ramon Ereñeta to investigate the charges of hazing against
respondent students Abas and Mendoza.
Respondent students reacted immediately by filing a
Supplemental Petition of certiorari, prohibition and mandamuswith
prayer for a temporary restraining order and preliminary
injunction, to include the aforesaid members of the Special Board,
as additional respondents to the original petition.
16
Petitioners moved to strike out the Supplement Petition arguing
that the creation of the Special Board was totally unrelated to the
original petition which alleged lack of due process in the conduct
of investigations by the Disciplinary Board against respondent
students; that a supplemental petition cannot be admitted without
the same being set for hearing and that the supplemental petition
for the issuance of a temporary restraining order will, in effect,
extend the previous restraining order beyond its mandatory 20-
day lifetime.  Acting on the urgent motion to admit the
17
supplemental petition with prayer for a temporary restraining
order, Judge Amin, as pairing judge of respondents Judge
Capulong, granted respondent students' prayer on April 10,
1991.18
On May 17, 1991, respondent Judge ordered petitioners to
reinstate respondent students. Simultaneously, the court ordered
petitioners to conduct special examinations in lieu of the final
examinations which allegedly the students were not allowed to
take, and enjoined them to maintain the status quo with regard to
the cases of Adel Abas and Zosimo Mendoza pending final
determination of the issue of the instant case. Lastly, it directed
respondent students to file a bond in the amount of P50,000.00. 19
On the same date, May 17, 1991, the Special Board investigating
petitioners Abas and Mendoza and directed the dropping of their
names from its roll of students. 20
The following day or on May 21, 1991, respondent judge issued
the writ of preliminary injunction upon posting by respondents of a
bond dated May 17, 1991 in the amount of P50,000.00.
Hence, this special civil action of certiorari under Rule 65 with
prayer for the issuance of a temporary restraining order enjoining
the enforcement of the May 17, 1991 order of respondent judge. 21
In the case at bar, we come to grips with two relevant issues on
academic freedom, namely: (1) whether a school is within its
rights in expelling students from its academic community
pursuant to its disciplinary rules and moral standards; and (2)
whether or not the penalty imposed by the school administration
is proper under the circumstances.
We grant the petition and reverse the order of respondent judge
ordering readmission of respondent students. Respondent judge
committed grave abuse of discretion when he ruled that
respondent students had been denied due process in the
investigation of the charges against them.
It is the threshold argument of respondent students that the
decision of petitioner Fr. Joaquin Bernas, S. J., then President of
the Ateneo de Manila University, to expel them was arrived at
without affording them their right to procedural due process. We
are constrained to disagree as we find no indication that such
right has been violated. On the contrary, respondent students'
rights in a school disciplinary proceeding, as enunciated in the
cases of Guzman v. National University,  Alcuaz v. PSBA, Q.C.
22
Branch  and Non v. Dames II  have been meticulously respected
23 24
by petitioners in the various investigative proceedings held before
they were expelled.
Corollary to their contention of denials of due process is their
argument that it is Ang Tibay case  and not the Guzman case
25
which is applicable in the case at bar. Though both cases
essentially deal with the requirements of due process,
the Guzman case is more apropos to the instant case, since the
latter deals specifically with the minimum standards to be
satisfied in the imposition of disciplinary sanctions in academic
institutions, such as petitioner university herein, thus:
(1) the students must be informed in writing of the
nature and cause of any accusation against them;
(2) that they shall have the right to answer the
charges against them with the assistance of
counsel, if desired: (3) they shall be informed of
the evidence against them (4) they shall have the
right to adduce evidence in their own behalf; and
(5) the evidence must be duly considered by the
investigating committee or official designated by
the school authorities to hear and decide the
case.26
It cannot seriously be asserted that the above requirements were
not met. When, in view of the death of Leonardo Villa, petitioner
Cynthia del Castillo, as Dean of the Ateneo Law School, notified
and required respondent students on February 11, 1991 to submit
within twenty-four hours their written statement on the
incident,  the records show that instead of filing a reply,
27
respondent students requested through their counsel, copies of
the charges.  While of the students mentioned in the February
28
11, 1991 notice duly submitted written statements, the others
failed to do so. Thus, the latter were granted an extension of up to
February 18, 1991 to file their statements. 29
Indubitably, the nature and cause of the accusation were
adequately spelled out in petitioners' notices dated February 14
and 20, 1991.  It is to be noted that the February 20, 1991 letter
30
which quoted Rule No. 3 of its Rules of Discipline as contained in
the Ateneo Law School Catalogue was addressed individually to
respondent students. Petitioners' notices/letters dated February
11, February 14 and 20 clearly show that respondent students
were given ample opportunity to adduce evidence in their behalf
and to answer the charges leveled against them.
The requisite assistance of counsel was met when, from the very
start of the investigations before the Joint Administration Faculty-
Student Committee, the law firm of Gonzales Batiler and Bilog
and Associates put in its appearance and filed pleadings in behalf
of respondent students.
Respondent students may not use the argument that since they
were not accorded the opportunity to see and examine the written
statements which became the basis of petitioners' February 14,
1991 order, they were denied procedural due process.  Granting
31
that they were denied such opportunity, the same may not be
said to detract from the observance of due process, for
disciplinary cases involving students need not necessarily include
the right to cross examination. An administrative proceeding
conducted to investigate students' participation in a hazing activity
need not be clothed with the attributes of a judicial proceeding. A
closer examination of the March 2, 1991 hearing which
characterized the rules on the investigation as being summary in
nature and that respondent students have no right to examine
affiants-neophytes, reveals that this is but a reiteration of our
previous ruling in Alcuaz.32
Respondent students' contention that the investigating committee
failed to consider their evidence is far from the truth because the
February 14, 1992 ordered clearly states that it was reached only
after receiving the written statements and hearing the testimonies
of several witnesses.  Similarly, the Disciplinary Board's
33
resolution dated March 10, 1991 was preceded by a hearing on
March 2, 1991 wherein respondent students were summoned to
answer clarificatory questions.
With regard to the charge of hazing, respondent students fault
petitioners for not explicitly defining the word "hazing" and allege
that there is no proof that they were furnished copies of the 1990-
91 Ateneo Law School Catalogue which prohibits hazing. Such
flawed sophistry is not worthy of students who aspire to be future
members of the Bar. It cannot be overemphasized that the charge
filed before the Joint Administration-Faculty-Student Investigating
Committee and the Disciplinary Board is not a criminal case
requiring proof beyond reasonable doubt but is merely
administrative in character. As such, it is not subject to the
rigorous requirements of criminal due process, particularly with
respect to the specification of the charge involved. As we have
had occasion to declare in previous cases a similar nature, due
process in disciplinary cases involving students does not entail
proceedings and hearings identical to those prescribed for actions
and proceedings in courts of justice.  Accordingly, disciplinary
34
charges against a student need not be drawn with the precision of
a criminal information or complaint. Having given prior notice to
the students involved that "hazing" which is not defined in the
School Catalogue shall be defined in accordance with Senate Bill
No. 3815, the proposed bill on the subject of Sen. Jose Lina,
petitioners have said what needs to be said. We deem this
sufficient for purposes of the investigation under scrutiny.
Hazing, as a ground for disciplining a students, to the extent of
dismissal or expulsion, finds its raison d' etre in the increasing
frequency of injury, even death, inflicted upon the neophytes by
their insensate "masters." Assuredly, it passes the test of
reasonableness and absence of malice on the part of the school
authorities. Far from fostering comradeship and esprit d' corps, it
has merely fed upon the cruel and baser instincts of those who
aspire to eventual leadership in our country.
Respondent students argue that petitioners are not in a position
to file the instant petition under Rule 65 considering that they
failed to file a motion for reconsideration first before the trial court,
thereby by passing the latter and the Court of Appeals. 35
It is accepted legal doctrine that an exception to the doctrine of
exhaustion of remedies is when the case involves a question of
law,  as in this case, where the issue is whether or not
36
Socrates, the "first of the great moralists of Greece," proud to
claim the title "gadfly of the State" has deservedly earned for
himself a respected place in the annals of history as a martyr to
the cause of free intellectual inquiry. To Plato, this great teacher
of his was the "best, the most sensible, and the most sensible,
and the most just man of his age." In 399 B.C., he willingly
quaffed the goblet of hemlock as punishment for alleged
"corruption" of the youth of Athens. He describes in his own
words how this charge of "corruption," the forerunner of the
concept of academic freedom, came about:

respondent students have been afforded procedural due process

prior to their dismissal from petitioner university.

Lastly, respondent students argue that we erred in issuing a

Temporary Restraining Order since petitioners do not stand to
suffer irreperable damage in the event that private respondents
are allowed to re-enroll. No one can be so myopic as to doubt
that the immediate reinstatement of respondent students who
have been investigated and found by the Disciplinary Board to
have violated petitioner university's disciplinary rules and
standards will certainly undermine the authority of the
administration of the school. This we would be most loathe to do.

More importantly, it will seriously impair petitioner university's

academic freedom which has been enshrined in the 1935, 1973
and the present 1987 Constitutions.

At this juncture, it would be meet to recall the essential freedoms

subsumed by Justice Felix Frankfurter in the term "academic
freedom" cited in the case of Sweezy v. New Hampshire,  thus: 37

(1) who may teach: (2) what may be taught; (3) how it shall be
taught; and (4) who may be admitted to study.
 Young men of the richer classes, who have not
much to do, come about me of their own accord:
they like to heart the pretenders examined, and
they often imitate me, and examine others
themselves; there are plenty of person, as they
soon discover, who think that they know
something, but really know little or nothing; and
then those who are examined by them instead of
being angry with themselves are angry with me.
This confounded Socrates, they say; this
villainous misleader of youth. And then if
somebody asks them, Why, what evil does he
practice or teach? they do not know, and cannot
tell; but in order that they may not appear to be at
a loss, they repeat the ready-made charges which
are used against all philosophers about teaching
things up in the clouds and under the earth, and
having no gods, and making the worse appear the
better cause; for they do not like to confess that
their pretense of knowledge has been detected —
which is the truth; and as they are numerous and
ambitious and energetic, and are all in battle array
and have persuasive tongues, they have filled
your ears with their loud and inveterate
calumnies. 38
Since Socrates, numberless individuals of the same heroic mold
have similarly defied the stifling strictures of authority, whether
State, Church, or various interest groups, to be able to give free
rein to their ideas. Particularly odious were the insidious and
blatant attempts at thought control during the time of the
Inquisition until even the Medieval universities, renowned as
intellectual centers in Europe, gradually lost their autonomy.
In time, such noble strivings, gathering libertarian encrustations
along the way, were gradually crystallized in the cluster of
freedoms which awaited the champions and martyrs of the
dawning modern age. This was exemplified by the professors of
the new German universities in the 16th and 17th centuries such
as the Universities of Leiden (1554), Helmstatdt (1574) and
Heidelberg (1652). The movement back to freedom of inquiry
gained adherents among the exponents of fundamental human
rights of the 19th and 20th centuries. "Academic freedom", the
term as it evolved to describe the emerging rights related to
intellectual liberty, has traditionally been associated with freedom
of thought, speech, expression and the press; in other words, with
the right of individuals in university communities, such as
professors, researchers and administrators, to investigate,
pursue, discuss and, in the immortal words of Socrates, "to follow
the argument wherever it may lead," free from internal and
external interference or pressure.
But obviously, its optimum impact is best realized where the
freedom is exercised judiciously and does not degenerate into
unbridled license. Early cases on this individual aspect of
academic freedom have been stressed the need for assuring to
such individuals a measure of independence through the
guarantees of autonomy and security of tenure. The components
of this aspect of academic freedom have been categorized under
the areas of: (1) who may teach and (2) how to teach.
It is to be realized that this individual aspects of academic
freedom could have developed only pari passu with its
institutional counterpart. As corporate entities, educational
institutions of higher learning are inherently endowed with the
right to establish their policies, academic and otherwise,
unhampered by external controls or pressure. In
theFrankfurter formulation, this is articulated in the areas of: (1)
what shall be taught, e.g., the curriculum and (2) who may be
admitted to study.
In the Philippines, the Acts which are passed with the change of
sovereignty from the Spanish to the American government,
namely, the Philippine Bill of 1902 and the Philippine Autonomy
Act of 1916 made no mention of the rights now subsumed under
the catch-all term of "academic freedom." This is most especially
true with respect to the institutional aspect of the term. It had to
await the drafting of the Philippine Constitutions to be recognized
as deserving of legal protection.
The breakthrough for the concept itself was found in Section 5 of
the 1935 Constitution which stated: "Universities established by
the State shall enjoy academic freedom." The only State
University at that time, being the University of the Philippines, the
Charter was perceived by some as exhibiting rank favoritism for
the said institution at the expense of the rest.
In attempt to broaden the coverage of the provision, the 1973
Constitution provided in its Section 8(2): "All institutions of higher
learning shall enjoy academic freedom." In his interpretation of
the provision, former U.P. President Vicente G. Sinco, who was
also a delegate to the 1971 Constitutional Convention, declared
that it "definitely grants the right of academic freedom to the
University as an institution as distinguished from the academic
freedom of a university professor." 39
Has the right been carried over the to the present Constitution? In
an attempt to give an explicit definition with an expanded
coverage, the Commissioners of the Constitutional Commission
of the 1986 came up with this formulation: "Academic freedom
shall be enjoyed by students, by teachers, and by researchers."
After protracted debate and ringing speeches, the final version
which was none too different from the way it was couched in the
previous two (2) Constitutions, as found in Article XIV, Section
5(2) states: "Academic freedom shall be enjoyed in all institutions
of higher learning." In anticipation of the question as to whether
and what aspects of academic freedom are included herein,
ConCom Commissioner Adolfo S. Azcuna explained: "Since
academic freedom is a dynamic concept, we want to expand the
frontiers of freedom, especially in education, therefore, we shall
leave it to the courts to develop further the parameters of
academic freedom." 40
More to the point, Commissioner Jose Luis Martin C. Gascon
asked: "When we speak of the sentence 'academic freedom shall
be enjoyed in all institutions of higher learning,' do we mean that
academic freedom shall be enjoyed by the institution itself?"
Azcuna replied: "Not only that, it also includes . . . . " Gascon
finished off the broken thought,— "the faculty and the students."
Azcuna replied: "Yes."
Since Garcia v. Loyola School of Theology,  we have consistently
41
upheld the salutary proposition that admission to an institution of
higher learning is discretionary upon a school, the same being a
privilege on the part of the student rather than a right. While
under the education Act of 1982, students have a right "to freely
choose their field of study, subject to existing curricula and to
continue their course therein up to graduation," such right is
subject, as all rights are, to the established academic and
disciplinary standards laid down by the academic institution.42
"For private schools have the right to establish reasonable rules
and regulations for the admission, discipline and promotion of
students. This . . . extends as well to parents . . . as parents are
under a social and moral (if not legal) obligation, individually and
collectively, to assist and cooperate with the schools."43
Such rules are "incident to the very object of incorporation and
indispensable to the successful management of the college. The
rules may include those governing student discipline."  Going a
44
step further, the establishment of rules governing university-
student relations, particularly those pertaining to student
discipline, may be regarded as vital, not merely to the smooth and
efficient operation of the institution, but to its very survival.
Within memory of the current generation is the eruption of
militancy in the academic groves as collectively, the students
demanded and plucked for themselves from the ponoply of
academic freedom their own rights encapsulized under the rubric
of "right to education" forgetting that, in Holfeldian terms, they
have a concomitant duty, and that is, their duty to learn under the
rules laid down by the school.
Considering that respondent students are proud to claim as their
own a Christian school that includes Theology as part of its
curriculum and assidously strives to turn out individuals of
unimpeachable morals and integrity in the mold of the founder of
the order of the Society of Jesus, St. Ignatius of Loyola, and their
God-fearing forbears, their barbaric and ruthless acts are the
more reprehensible. It must be borne in mind that universities are
established, not merely to develop the intellect and skills of the
studentry, but to inculcate lofty values, ideals and attitudes; nay,
the development, or flowering if you will, of the total man.
In essence, education must ultimately be religious — not in the
sense that the founders or charter members of the institution are
sectarian or profess a religious ideology. Rather, a religious
education, as the renowned philosopher Alfred North Whitehead
said, is "an education which inculcates duty and reverence."  It
45
appears that the particular brand of religious education offered by
the Ateneo de Manila has been lost on the respondent students.
Certainly, they do not deserve to claim such a venerable
institution as the Ateneo de Manila University as their own a
minute longer, for they may foreseeably cast a malevolent
influence on the students currently enrolled, as well as those who
come after them.
Quite applicable to this case is our pronouncement in Yap Chin
Fah v. Court of Appeals that: "The maintenance of a morally
conducive and orderly educational environment will be seriously
imperiled if, under the circumstances of this case, Grace Christian
is forced to admit petitioner's children and to reintegrate them to
the student body."  Thus, the decision of petitioner university to
46
expel them is but congruent with the gravity of their misdeeds.
That there must be such a congruence between the offense
committed and the sanction imposed was stressed in Malabanan
v. Ramento. 47
Having carefully reviewed the records and the procedure followed
by petitioner university, we see no reason to reverse its decision
founded on the following undisputed facts: that on February 8, 9
and 10, 1991, the Aquila Legis Fraternity conducted hazing
activities; that respondent students were present at the hazing as
auxiliaries, and that as a result of the hazing, Leonardo Villa died
from serious physical injuries, while Bienvenido Marquez was
hospitalized. In light of the vicious acts of respondent students
upon those whom ironically they would claim as "brothers" after
the initiation rites, how can we countenance the imposition of
such nominal penalties as reprimand or even suspension? We,
therefore, affirm petitioners' imposition of the penalty of dismissal
upon respondent students. This finds authority and justification in
Section 146 of the Manual of Regulations for Private Schools. 48
WHEREFORE, the instant petition is GRANTED; the order of
respondent Judge dated May 17, 1991 reinstating respondents
students into petitioner university is hereby REVERSED. The
resolution of petitioner Joaquin Bernas S. J., then President of
Ateneo de Manila University dated March 1991, is REINSTATED
and the decision of the Special Board DISMISSING respondent
students ADEL ABAS and ZOSIMO MENDOZA dated May 20,
1991 is hereby AFFIRMED.
G.R. No. 127444               September 13, 2000
PEOPLE OF THE PHILIPPINES, petitioner, 
vs.
HON. TIRSO D. C. VELASCO in his capacity as the Presiding
Judge, RTC-Br. 88, Quezon City, and HONORATO
GALVEZ, respondents.
DECISION
BELLOSILLO, J.:
This case nudges the Court to revisit the doctrine on double
jeopardy, a revered constitutional safeguard against exposing the
accused to the risk of answering twice for the same offense. In
this case, after trial on the merits, the accused was acquitted for
insufficiency of the evidence against him in the cases for murder
and frustrated murder (although his co-accused was convicted),
and finding in the illegal carrying of firearm that the act charged
did not constitute a violation of law. But the State through this
petition for certiorari would want his acquittal reversed.
We narrate a brief factual backdrop.
The idyllic morning calm in San Ildefonso, Bulacan, a small town
north of Manila, was shattered by gunshots fired in rapid
succession. The shooting claimed the life of young Alex
Vinculado and seriously maimed his twin brother Levi who
permanently lost his left vision. Their uncle, Miguel Vinculado, Jr.
was also shot. A slug tunneled through his right arm, pierced the
right side of his body and burrowed in his stomach where it
remained until extracted by surgical procedure.
As a consequence, three (3) criminal Informations - one (1) for
homicide and two (2) for frustrated homicide - were originally filed
before the Regional Trial Court of Malolos, Bulacan, against
Honorato Galvez, Mayor of San Ildefonso, and Godofredo Diego,
a municipal employee and alleged bodyguard of the mayor. On
14 December 1993, however, the charges were withdrawn and a
new set filed against the same accused upgrading the crimes to
murder (Crim. Case No. 4004-M-93) and frustrated murder (Crim.
Cases Nos. 4005-M-93 and 4006-M-93). Mayor Galvez was
charged, in addition, with violation of PD 1866 (Crim. Case No.
4007-M-94) for unauthorized carrying of firearm outside his
residence; hence, a fourth Information had to be filed.
After a series of legal maneuvers by the parties, venue of the
cases was transferred to the Regional Trial Court of Quezon City,
Metro Manila. There the cases were stamped with new docket
numbers (Nos. Q-94-55484, Q-94-55485, Q-94-55486 and Q-94-
55487, respectively), and raffled to Branch 103 presided over by
Judge Jaime Salazar, Jr. In the course of the proceedings, the
judge inhibited himself and the cases were re-raffled to
respondent Judge Tirso D.C. Velasco of Branch 89.
On 8 October 1996 a consolidated decision on the four (4) cases
was promulgated. The trial court found the accused Godofredo
Diego guilty beyond reasonable doubt of the crimes of murder
and double frustrated murder. However, it acquitted Mayor
Honorato Galvez of the same charges due to insufficiency of
evidence. It also absolved him from the charge of illegal carrying
of firearm upon its finding that the act was not a violation of law.
The acquittal of accused Honorato Galvez is now vigorously
challenged by the Government before this Court in a Petition for
Certiorari under Rule 65 of the Rules of Court and Sec. 1, Art.
VIII, of the Constitution. It is the submission of petitioner that the
exculpation of the accused Galvez from all criminal responsibility
by respondent Judge Tirso Velasco constitutes grave abuse of
discretion amounting to lack of jurisdiction. Allegedly, in holding in
favor of Galvez, the judge deliberately and wrongfully disregarded
certain facts and evidence on record which, if judiciously
considered, would have led to a finding of guilt of the accused
beyond reasonable doubt. Petitioner proposes that this patently
gross judicial indiscretion and arbitrariness should be rectified by
a re-examination of the evidence by the Court upon a
determination that a review of the case will not transgress the
constitutional guarantee against double jeopardy. It is urged that
this is necessary because the judgment of acquittal should be
nullified and substituted with a verdict of guilt.
The main hypothesis of the Government is that elevating the
issue of criminal culpability of private respondent Galvez before
this Tribunal despite acquittal by the trial court should not be
considered violative of the constitutional right of the accused
against double jeopardy, for it is now settled constitutional
doctrine in the United States that the Double Jeopardy Clause
permits a review of acquittals decreed by US trial magistrates
where, as in this case, no retrial is required should judgment be
overturned. Since Philippine concepts on double jeopardy have
1 
been sourced from American constitutional principles, statutes
and jurisprudence, particularly the case of Kepner v. United
States, and because similarly in this jurisdiction a retrial does not
2 
follow in the event an acquittal on appeal is reversed, double
jeopardy should also be allowed to take the same directional
course. Petitioner in this regard urges the Court to take a second
look at Kepner, it being the "cornerstone of the battlement of the
Double Jeopardy Clause" in the Philippines and seriously
3 
examine whether the precedents it established almost a century
ago are still germane and useful today in view of certain
modifications wrought on the doctrine by the succeeding
American cases of United States v. Wilson and United States v.
4 
Scott.5 
Two (2) threshold issues therefore, interlocked as they are, beg to
be addressed. One is the propriety of certiorari as an
extraordinary mode of review under Rule 65 of the Rules of Court
where the result actually intended is the reversal of the acquittal
of private respondent Galvez. The other is the permissibility of a
review by the Court of a judgment of acquittal in light of the
constitutional interdict against double jeopardy.
The recent untimely demise of respondent Galvez at the hands of
alleged assassins (not discounting too the earlier dismissal of
respondent judge from the service) may arguably have rendered
these matters moot and academic, thus calling for a dismissal of
the petition on this basis alone. The Court however is not
insensitive to nor oblivious of the paramount nature and object of
the pleas forcefully presented by the Government considering
especially the alleged new directions in American jurisprudence
taken by the doctrine of double jeopardy. We are thus impelled to
respond to the issues advanced by petitioner for these bear
unquestionably far-reaching contextual significance and
implications in Philippine juristic philosophy and experience,
demanding no less, explicit and definitive rulings.
For it may be argued from a historico-analytical perspective that
perhaps none of the constitutionally ensconced rights of men has
followed a more circuitous and tortuous route in the vast sea of
jurisprudence than the right of a person not to be tried or
prosecuted a second time for the same offense. This prohibition
6  destiny. But this prevailing view was not to be taken in the sense
does not consist merely of one rule but several, each rule
applying to a different situation, each rule marooned in a sea of
exceptions. It must have been this unique transpiration that
7  expressed a universal concept of catharsis or vindication that
prompted even the redoubtable Mr. Justice Rehnquist of the U.S.
Supreme Court to remark in Albernaz v. United States that "the
8  persecution, into freedom and liberation. To suffer twice for the
decisional law (in the area of double jeopardy) is a veritable
Sargasso Sea which could not fail to challenge the most intrepid
judicial navigator." It is therefore necessary that, in forming a
correct perspective and full understanding of the doctrine on
double jeopardy and the rules so far established relative to the
effect thereon of appeals of judgments of acquittal, a
compendious review of its historical growth and development be
undertaken. This approach is particularly helpful in properly
situating and analyzing landmark interpretive applications of the
doctrine in light of the varying legal and factual milieu under which
it evolved.
Jeopardy, itself "a fine poetic word," derives from the Latin "jocus"
9 
meaning joke, jest or game, and also from the French term "jeu
10 
perdre" which denotes a game that one might lose. Similarly, the
Middle English word "iuparti" or "jupartie" means an uncertain
game. The genesis of the concept itself however rests deep in
11 
the ancient Grecian view of tragedy and suffering and in the old
Roman legal concepts of punishment. Greek law bound
prosecutor and judge to the original verdict as can be seen in the
remark of Demosthenes in 355 B. C. that "the laws forbid the
same man to be tried twice on the same issue." The Justinian
12 
Digest providing that "(a) governor should not permit the same
13 
person to be again accused of crime of which he has been
acquitted," suggests certain philosophical underpinnings believed
14 
to have been influenced by works of the great Greek tragedians
of the 5th century B.C. reflecting man’s "tragic vision" or the tragic
view of life. For the ancient Greeks believed that man was
continuously pitted against a superior force that dictated his own
of man passing from one misfortune to another without relief, as
this idea was repugnant to Greek sensibilities. Rather, it
meant misfortune resolving itself into a final triumph, and
same misfortune was anathema to ancient thought.
The 18th century B. C. Babylonian king and lawgiver Hammurabi
recognized that humans could err in prosecuting and rendering
judgment, thus limits were needed on prosecutors and judges. A
gruesome but effective way of preventing a second trial by the Rome and another at Athens, one now and another in the future,
same prosecutor after an acquittal can be found in the first law of but among all nations, it is the same." But even as early as the
21 

the Hammurabic Code: "If a man has accused a man and has
charged him with manslaughter and then has not proved [it
against him], his accuser shall be put to death."
15 
15th century, the English courts already began to use the term
"jeopardy" in connection with the doctrine against multiple
trials. Thereafter, the principle appeared in the writings of Hale
22 

(17th c.), Lord Coke (17th c.) and Blackstone (18th c.). Lord
23 

The repugnance to double trials strongly expressed by the Coke for instance described the protection afforded by the rule as
Catholic Church is consistent with the interpretation by St. a function of three (3) related common law pleas: autrefois
Jerome in 391 A. D. of the promise by God to his people through acquit, autrefois convict and pardon. In Vaux’s Case, it was
24  25 

the prophet Nahum that "(a)ffliction shall not rise up the second accepted as established that "the life of a man shall not be twice
time" and "(t)hough I have afflicted thee, I will afflict thee no
16  put in jeopardy for one and the same offense, and that is the
more." Taken to mean that God does not punish twice for the
17  reason and cause that autrefois acquitted or convicted of the
same act, the maxim insinuated itself into canon law as early as same offense is a good plea x x x x" Blackstone likewise
847 A. D., succintly phrased as "(n)ot even God judges twice for observed that the plea of autrefois acquit or a formal acquittal is
the same act." 18  grounded on the universal maxim of the common law of England
that "(n)o man is to be brought into jeopardy of his life more than
The most famous cause célèbre on double jeopardy in the Middle once for the same offense. And hence, it is allowed as a
Ages was the dispute between the English King Henry II and his consequence that when a man is once fairly found not guilty upon
good friend, Thomas á Becket, Archbishop of Canterbury. Henry any indictment, or other prosecution before any court having
wished to continue the observance of certain customs initiated by competent jurisdiction of the offense, he may plead such acquittal
his predecessors called "avitae consuetudines," one of the known in bar of any subsequent accusation for the same crime." 26 

purposes of which was that clerics convicted of crimes before

Church courts be delivered to lay tribunals for punishment. He The English dogma on double jeopardy, recognized as an
asserted in the Constitutions of Clarendon that the clergy were "indispensable requirement of a civilized criminal procedure,"
also subject to the king’s punishment. This was met with stinging became an integral part of the legal system of the English
criticism and stiff opposition by the Archbishop who believed that colonies in America. The Massachusetts Body of Liberties of
allowing this practice would expose the clergy to double jeopardy. 1641, an early compilation of principles drawn from the statutes
The issue between the two erstwhile friends was never resolved and common law of England, grandly proclaimed that "(n)o man
and remained open-ended, for Thomas was later on mercilessly shall be twise sentenced by Civill Justice for one and the same
murdered in his cathedral, allegedly at the instance of his king. 19  crime, offence or Trespasse" and that "(e)verie Action betweene
partie and partie, and proceedings against delinquents in
It was in England though, a century ago, that double jeopardy Criminall causes shall be briefly and destinctly entered on the
was formally institutionalized "as a maxim of common law" based
20  Rolles of every Court by the Recorder thereof." Ineluctably, this
27 

on the universal principles of reason, justice and conscience, pronouncement became the springboard for the proposal of the
about which the Roman Cicero commented: "Nor is it one thing at First Congress of the United States that double jeopardy be
included in the Bill of Rights. It acknowledged that the tradition
against placing an individual twice in danger of a second
prosecution for the same offense followed ancient precedents in
English law and legislation derived from colonial experiences and
necessities. Providing abundant grist for impassioned debate in
the US Congress, the proposal was subsequently ratified as part
of the Fifth Amendment to the Constitution.
In 1817 the Supreme Court of Tennessee dismissed an appeal by
the State after an acquittal from perjury, declaring that: "A writ of
error, or appeal in the nature of a writ of error, will not lie for the
State in such a case. It is a rule of common law that no one shall
be brought twice into jeopardy for one and the same offense.
Were it not for this salutary rule, one obnoxious to the
government might be harassed and run down by repeated
attempts to carry on a prosecution against him. Because of this
rule, a new trial cannot be granted in a criminal case where the
defendant is acquitted. A writ of error will lie for the defendant, but
not against him." Verily, these concepts were founded upon that
28 
great fundamental rule of common law, "Nemo debet bis vexari
pro una et eadem causa," in substance expressed in the
Constitution of the United States as: "Nor shall any person be
subject for the same offense, to be twice put into jeopardy of life
or limb." It is in the spirit of this benign rule of the common law,
embodied in the Federal Constitution - a spirit of liberty and
justice, tempered with mercy - that, in several states of the Union,
in criminal cases, a writ of error has been denied to the State. 29 
The relationship between the prohibition against second jeopardy
and the power to order a new trial following conviction or
dismissal stirred a no small amount of controversy in United
States v. Gibert. There, Mr. Justice Story, on circuit, declared
30 
that "the court had no power to grant a new trial when the first trial
had been duly had on a valid indictment before a court of
competent jurisdiction." The opinion formulated was that the
prohibition against double jeopardy applied equally whether the
defendant had been acquitted or convicted.
But it must be noted that even in those times, the power to grant
a new trial in the most serious cases was already being exercised
by many American courts, the practice having been observed
from an early date, in spite of provisions of law against double
jeopardy. For this reason, the rule in Gibert was stoutly
31 
resisted. As if to taunt Gibert, the 1839 case of United States v.
32 
Keen declared that the constitutional provision did not prohibit a
33 
new trial on defendant’s motion after a conviction. In Hopt v.
Utah, the defendant was retried three (3) times following
34 
reversals of his convictions.
Then in 1896 the U.S. Supreme Court in United States v.
Ball affirmed that the double jeopardy rule did not prevent a
35 
second trial when, on appeal, a conviction had been set aside. It
declared that a defendant who procured on appeal a reversal of a
judgment against him could be tried anew upon the same
indictment or upon another indictment for the same offense of
which he had been convicted. This principle of autrefois
convict was expanded nine (9) years later in Trono v. United
States where the Court affirmed the judgment of the Supreme
36 
Court of the Philippines by holding that "since the plaintiffs in error
had appealed their convictions of the lower offense in order to
secure a reversal, there was no bar to convicting them of the
higher offense in proceedings in the appellate court that were
tantamount to a new trial." Mr. Justice Peckham, holding for the
Court, concluded that "the better doctrine is that which does not
limit the court or the jury upon a new trial, to a consideration of
the question of guilt of the lower offense of which the accused
was convicted on the first trial, but that the reversal of the
judgment of conviction opens up the whole controversy and acts
upon the original judgment as if it had never been." It was
37 
ratiocinated that the result was justified not only on the theory that
the accused had waived their right not to be retried but also on
the ground that "the constitutional provision was really never
intended to x x x cover the case of a judgment x x x which has
been annulled at the request of the accused x x x x"
It must be stressed though that Ball also principally ruled that it
had long been settled under the Fifth Amendment that a verdict of
acquittal is final, ending a defendant’s jeopardy, and, even when
"not followed by any judgment, is a bar to a subsequent
prosecution for the same offense. It is one of the elemental
principles of our criminal law that the Government cannot secure
a new trial by means of an appeal, even though an acquittal may
appear to be erroneous."
In 1891 the United States Judiciary Act was passed providing that
appeals or writs of error may be taken from the district court or
from the existing circuit courts direct to the Supreme Court in any
case that involved the construction of the Constitution. The
following year an issue was raised in United States v. Sanges on 38  by the Government to cases in which the ground of the District
whether this Act conferred upon the government the right to sue
out a writ of error in any criminal case. In that case, existing rules
on double jeopardy took a significant turn when the United States
Supreme Court observed that while English law was vague on the
matter, it had been settled by overwhelming American authority
that the State had no right to sue out a writ of error upon a
judgment in favor of the defendant in a criminal case, except
under and in accordance with express statutes, whether that
judgment was rendered upon a verdict of acquittal, or upon the
determination by the court of a question of law. The Court noted
that in a few states, decisions denying a writ of error to the State
after a judgment for the defendant on a verdict of acquittal
proceeded upon the ground that to grant it would be to put him
twice in jeopardy, in violation of the constitutional
provision. Sanges therefore fixed the rule that absent explicit
39 
legislative authority, the United States Government had no right
of appeal in criminal cases in case of an acquittal as it would
expose the defendant twice to jeopardy.
Notably, however, in 1892 the Attorneys General of the United
States began to recommend the passage of legislation allowing
the Government to appeal in criminal cases. Their primary
objective was to resist the power of a single district judge (under
the law then obtaining) by dismissing an indictment to defeat any
criminal prosecution instituted by the Government. No action was
taken on the proposal until 1906 when President Theodore
Roosevelt in his annual message to the US Congress demanded
the enactment of legislation on the matter. Consequently, on 2
March 1907 such legislative authority was provided when the
Criminal Appeals Act became a law Ch. 2564, 34 Stat. 1246.40
40 
permitting the United States to seek a writ of error from the
Supreme Court from any decision dismissing all indictment on the
basis of the "invalidity or construction of the statute upon which
the indictments is founded." The law narrowed the right to appeal
41 
Court’s decision was invalidity or construction of the statute upon
which the charge was founded, and that a verdict in favor of the
defendant based on evidence could not be set aside on appeal
no matter how erroneous the legal theory upon which it may be
based. For these purposes, it made no difference whether the
verdict be the result of the jury’s decision or that of the judge. In
other words, Government could appeal from a decision
dismissing an indictment or arresting judgment on the basis of the
statutory invalidity or misconstruction of the pertinent criminal
statute and from a decision sustaining a special plea in bar, so
long as the defendant would not be put in jeopardy. 42 
On 10 December 1898 the Philippine Islands was ceded by Spain
to the United States by virtue of the Treaty of Paris of 1898 which
was ratified by the State Parties on 11 April 1899. The Islands
was placed under military rule until the establishment of the
Philippine Commission in 1902. On 23 April 1900 the military
government issued General Order No. 58 which amended the
Code of Criminal Procedure then in force by, among others,
extending to the Islands the double jeopardy provision under the
Fifth Amendment of the US Constitution. This was pursuant to the
7 April 1900 Instructions of President McKinley issued to the
Philippine Commission headed by William Howard Taft. The
Instructions read in part: "x x x the Commission should bear in
mind, and the people of the Islands should be made to
understand, that there are certain great principles of government
which have been made the basis of our governmental system,
which we deem essential to the rule of law x x x and maintained
in their islands for the sake of their liberty and happiness,
however much they may conflict with the customs or laws of
procedure with which they are familiar x x x x Upon every division
and branch of the Government of the Philippines therefore must
be imposed these inviolable rules: x x x that x x x no person shall
be put twice in jeopardy for the same offense x x x x"43 
General Order No. 58 was amended by Act No. 194 which
permitted an appeal by the government after acquittal. The
Philippine Civil Government Act of 1 July 1902 of the U.S.
Congress repealed the Act, adopted and restored the same
principle in Gen. Order No. 58 as enunciated in the Fifth
Amendment and in McKinley’s Instructions by providing immunity
from second jeopardy for the same criminal offense. It did not
take long however for the meaning and significance of the
doctrine held forth in McKinley’s Instructions to be placed under
severe test and scrutiny.
In 1901 Mr. Thomas E. Kepner, a practicing lawyer in Manila,
Philippines, was charged with embezzlement of funds (estafa).
He was tried by a court of first instance, minus a jury, and was
acquitted of the crime. The U.S. Government appealed to the
Supreme Court of the Philippine Islands and judgment was
reversed. Kepner was sentenced with imprisonment and
suspended from public office or place of trust.
Questioning his conviction before the US Supreme Court, Kepner
argued that the appeal by the US government to the Philippine
Supreme Court of his judgment of acquittal constituted double
jeopardy construed in light of existing US jurisprudence. On the
other hand, the Attorney General for the Philippines and the
Solicitor General of the United States jointly contended that the
Philippine Bill of 1 July 1902 which included the prohibition
against double jeopardy should be construed from the
perspective of the system of laws prevailing in the Philippines
prior to its cession to the United States. Under this system,
the Audiencia (Supreme Court) could entertain an appeal of a
judgment of acquittal since the proceedings before it were
regarded not as a new trial but an extension of preliminary
proceedings in the court of first instance. The entire proceedings
constituted one continuous trial and the jeopardy that attached in
the court of first instance did not terminate until final judgment
had been rendered by the Audiencia. Double jeopardy was
described not only in the Spanish law Fuero Real as: "After a
44 
man accused of any crime has been acquitted by the court, no
one can afterwards accuse him of the same offense (except in
certain specified cases), but also in the Siete Partidas which
45 
provided that: "If a man is acquitted by a valid judgment of any
offense of which he has been accused, no other person can
afterwards accuse him of the offense x x x x" Under this system
of law, a person was not regarded as jeopardized in the legal
sense until there had been a final judgment in the court of last
resort. The lower courts then were deemed examining courts,
exercising preliminary jurisdiction only, and the accused was not
finally convicted or acquitted until the case had been passed
upon in the Audiencia or Supreme Court, whose judgment was
subject to review by the Supreme Court in Madrid (Spain) for
errors of law, with power to grant a new trial.
The U.S. Supreme Court however threw out the Government’s
argument and held that the proceedings after acquittal had placed
the accused Kepner twice in jeopardy. It declared in no uncertain
terms that the appeal of the judgment of conviction was in
essence a trial de novo and that, whatever the Spanish tradition
was, the purpose of Congress was to carry some at least of the
essential principles of American constitutional jurisprudence to
the Islands and to engraft them upon the law of these people
newly subject to its jurisdiction. There was little question therefore
that Kepner soldered into American jurisprudence the precedent
that as to the defendant who had been acquitted by the verdict
duly returned and received, the court could take no other action
than to order his discharge. "x x x (I)t is then the settled law of this
court that former jeopardy includes one who has been acquitted
by a verdict duly rendered, although no judgment be entered on
the verdict, and it was found upon a defective indictment. The
protection is not x x x against the peril of second punishment, but
against being tried again for the same offense." 46 
This doctrine was echoed in United States v. Wills where the
47 
Court further clarified that "jeopardy implies an exposure to a
lawful conviction for an offense of which a person has already
been acquitted x x x x" It was reiterated in 1957 in Green v.
United States in which Mr. Justice Black, writing for the Court,
48 
professed that the constitutional prohibition against double
jeopardy was designed to protect an individual from being
subjected to the hazards of trial and possible conviction more
than once for an alleged offense. Thus, under the Fifth
Amendment, a verdict of acquittal was considered final, ending
the accused’s jeopardy and that once a person has been
acquitted of an offense, he cannot be prosecuted again on the
same charge.
American jurisprudence on the effect of appealed acquittals on
double jeopardy since then sailed on, following the main sea
lanes charted by Kepner, but not without encountering
perturbance along the way. For it may be mentioned, albeit en
passant, that the case of Bartkus v. Illinois did cause some
49 
amount of judicial soul-shaking in 1959 when it burst into the
scene. Alfonse Bartkus was tried before a federal district court in
Illinois and was later acquitted by the jury. Less than a year later,
Bartkus was indicted this time by an Illinois grand jury on facts
substantially identical to those of the federal charge and was
subsequently convicted. His conviction was affirmed by the Illinois
Supreme Court.
On certiorari, the U.S. Supreme Court, by a close vote of 5 to 4,
affirmed the conviction. The Court, speaking through Mr. Justice
Frankfurter, declared that the Fifth Amendment’s double jeopardy
provision was inapplicable to states so that an acquittal of a
federal indictment was no bar to a prosecution by a state based
on the same charge. Since there was no proof offered to show
that the participation of the federal authorities in the Illinois state
prosecution was of such nature as to render the state
proceedings a mere cover for a federal prosecution to render the
state indictment essentially a constitutionally prohibited second
prosecution, no double jeopardy attached.
Mr. Justice Black dissented, joined in by Mr. Chief Justice Warren
and Mr. Justice Douglas, with Mr. Justice Brennan writing a
separate dissenting opinion. Black rued that the Court’s ruling by
a majority of one only resulted in "further limiting the already
weakened constitutional guarantees against double prosecution,"
citing the earlier case of United States v. Lanza, where the Court
50 
allowed the federal conviction and punishment of a man
previously convicted and punished for identical acts by a state
court. The dissent called attention to the fact that in Bartkus, for
the first time in its history, the Court allowed the state conviction
of a defendant already acquitted of the same offense in the
federal court. This, Mr. Justice Black asserted, was unacceptable,
for as the Court previously found in Palko v. Connecticut, "double51 
prosecutions for the same offense are so contrary to the spirit of
our free country that they violate even the prevailing view of the
Fourteenth Amendment since some of the privileges and
immunities of the Bill of Rights . . . have been taken over and
brought within the Fourteenth Amendment by process of
absorption x x x x One may infer, from the fewness of the cases,
that retrials after acquittal have been considered particularly
obnoxious, worse even, in the eyes of many, than retrials after
conviction."
Whether such forceful pronouncements steered back into course
meandering views on double jeopardy is open to question.
Nonetheless, the case of Fong Foo v. United States, decided per
52 
curiam, reaffirmed the pronouncements in Ball and Kepner that
"the verdict of acquittal was final, and could not be reviewed x x x
without putting (the petitioners) twice in jeopardy, and thereby
violating the Constitution."
In the meantime, from 1907 up to 1970 the Criminal Appeals Act
underwent significant alterations. The 1942 amendment of its
Section 682 permitted for the first time appeals to the circuit
appeals court from orders sustaining demurrer to indictment in
cases not directly appealable to the Supreme Court. However,
53  from these cases that the policy of avoiding multiple trials has
due to the many modifications the law was subjected to,
construction and interpretation became more laborious,
effectively transforming appeals into highly technical procedures.
As such, the Criminal Appeals Act developed into a judicial "bete
noire," for even the U.S. Supreme Court itself had "to struggle in
a number of occasions with the vagaries of the said Act." In one 54 
of those unhappy efforts, it concluded that the Act was "a failure x
x x a most unruly child that has not improved with age." 55 
The U.S. Congress finally got rid of the dismal statute in 1970
and replaced it with a new Criminal Appeals Act intended to
broaden the right of Government to appeal whenever the
Constitution would permit. It was apparent that the legislative
body left to the courts the prerogative to draw the constitutional
limits of double jeopardy rather than define them itself. Since
then, pronouncements by the courts on the jouble jeopardy
guarantee of the Fifth Amendment focused on three (3) related
protections: against a second prosecution for the same offense
after acquittal; against a second prosecution for the same offense
after conviction; and, against multiple punishments for the same
offense.56 
In Wilson, the Court expressed that the interests underlying
57 
these three (3) protections are quite similar. Thus, when a
defendant has been once convicted and punished for a particular
crime, principles of fairness and finality require that he be not
subjected to the possibility of further punishment by being tried or
sentenced for the same offense. And when a defendant has
58 
been acquitted of an offense, the Clause guarantees that the
State shall not be permitted to make repeated attempts to convict
him, "thereby subjecting him to embarrassment, expense and
ordeal and compelling him to live in a continuing state of anxiety
and insecurity, as well as enhancing the possibility that even
though innocent he may be found guilty." It can thus be inferred
59 
been considered paramount so that exceptions to the rule have
been permitted only in few instances and under rigid conditions.
Accordingly, in United States v. Scott the US Supreme Court
60 
synthesized two (2) venerable principles of double jeopardy
jurisprudence: first, the successful appeal of a judgment of
conviction on any ground other than the insufficiency of the
evidence to support the verdict poses no bar to further
prosecution on the same charge; and second, a judgment of
acquittal, whether based on a jury verdict of not guilty or on a
ruling by the court that the evidence is insufficient to convict, may
not be appealed and terminates the prosecution when a second
trial would be necessitated by a reversal. It would seem that the
61 
conditionality of "when a second trial would be necessitated by a
reversal" was attached thereto because ordinarily, the procedure
obtaining was that if on appeal a judgment of acquittal
is reversed, i. e., a finding is had against the defendant, a remand
of the case for another trial may be allowed if needed.
At this juncture, it must be explained that under existing American
law and jurisprudence, appeals may be had not only from criminal
convictions but also, in some limited instances, from dismissals of
criminal charges, sometimes loosely termed "acquittals." But this
is so as long as the judgments of dismissals do not involve
determination of evidence, such as when the judge: (a) issues a
post-verdict acquittal, i.e., acquits the defendant on a matter of
law after a verdict of guilty has been entered by a trier of facts (a
jury); (b) orders the dismissal on grounds other than insufficiency
of evidence, as when the statute upon which the indictment was
based is defective; (c) conducts a judicial process that is
defective or flawed in some fundamental respect, such as
incorrect receipt or rejection of evidence, incorrect instructions, or
prosecutorial misconduct; (d) issues an order arresting judgment,
i.e., an act of a trial judge refusing to enter judgment on the
verdict because of an error appearing on the face of the record
that rendered the judgment; or, (e) pronounces judgment on a
62 
special plea in bar (a non obstante plea) - one that does not
relate to the guilt or innocence of the defendant, but which is set
up as a special defense relating to an outside matter but which
may have been connected with the case. Interestingly, the
63 
common feature of these instances of dismissal is that they all
bear on questions of law or matters unrelated to a factual
resolution of the case which consequently, on appeal, will not
involve a review of evidence. Its logical effect in American law is
to render appeals therefrom non-repugnant to the Double
Jeopardy Clause.
This contextual situation in which appeals from dismissals of
criminal cases are allowed under American rules of procedure
does not obtain in the Philippines. To be sure, United States v.
Scott positively spelled out that if an acquittal was based on an
appreciation of the evidence adduced, no appeal would lie. Mr.
Justice Rehnquist explained that what may seem superficially to
be a "disparity in the rules governing a defendant’s liability to be
tried again" refers to the underlying purposes of the Double
Jeopardy Clause. He elaborated that "(a)s Kepner and Fong
Foo illustrate, the law attaches particular significance to an
acquittal. To permit a second trial after an acquittal however
mistaken x x x would present an unacceptably high risk that the
Government, with its vastly superior resources, might wear down
the defendant so that even though innocent he may be found
guilty. x x x x On the other hand, to require a criminal defendant
to stand trial again after he has successfully invoked the statutory
right of appeal to upset his first conviction is not an act of
governmental oppression of the sort against which the x x x
Clause was intended to protect."
In proposing a re-evaluation of Philippine jurisprudence on double
jeopardy, petitioner insists that Wilson and Scott have
unquestionably altered the seascape of double jeopardy
previously navigated by Kepner and Ball. Using as its flagship the
pronouncement in Wilson that appeals of acquittal are possible
provided the accused will not be subjected to a second trial, it
argues that this should apply to the case at bar because, anyway,
a review of the acquittal of private respondent Honorato Galvez
will not result in another trial inasmuch as the Court will only have
to examine the evidence adduced below to pass final judgment
on the culpability of the accused.
Petitioner’s own hermeneutic sense of the phrase "another
trial" is that which solely adverts to a proceeding before a
competent trial court that rehears the case and receives evidence
anew to establish the facts after the case has been finally
disposed of by the Supreme Court. Obviously, it adheres to the
Holmesian hypothesis in Kepner and, for that matter, the concept
under Spanish law then applicable in the Philippines before the
American colonization, that a trial consists of one whole
continuing process from reception of evidence by a trier of facts
up to its final disposition by the Supreme Court. But petitioner
conveniently forgets that this theory has been consistently
spurned by both American and Philippine jurisprudence that has
faithfully adhered to the doctrine that an appeal of a judgment
after the defendant had been acquitted by the court in a bench
trial is, quintessentially, a new trial. In Kepner, the Court regarded
the two (2) events, i. e., trial by the lower court and the appellate
proceedings, as equivalent to two (2) separate trials, and the evil
that the Court saw in the procedure was plainly that of multiple
prosecutions. Although Kepner technically involved only one
64 
proceeding, the Court deemed the second factfinding, that is, the
review by the appellate court, as the equivalent of a second trial.
Accordingly, in subsequent cases, the Court has treated the
Kepner principle as being addressed to the evil
of successive trials.
65 
No less than the case of Wilson, petitioner’s main anchor for its
66  order the jury’s guilty verdict reinstated, no new factfinding would
propositions, affirms this rule. There, the Court emphasized that it
has, up to the present, rejected the theory espoused by the
dissenting Mr. Justice Holmes in Kepner that " a man cannot be
said to be more than once in jeopardy in the same cause
however often he may be tried. The jeopardy is one continuing
jeopardy, from its beginning to the end of the cause." It declared
unequivocally that "we continue to be of the view that the policies
underlying the Double Jeopardy Clause militate against permitting
the Government to appeal after a verdict of
acquittal." Wilson therefore pronounced that if acquittal is
declared on the basis of evidence adduced, double jeopardy
attaches for that particular cause.
To explain further, Wilson involved an appeal by Government of
a post-verdict ruling of law issued by the trial judge resulting in
the acquittal of the defendant due to pre-indictment delay (a delay
between the offense and the indictment prejudiced the
defendant) after a verdict of guilty had been entered by the
jury. But it was not an acquittal that involved "factual resolution." It
was one anchored on an extraneous cause. Factual resolution is
defined in United States v. Sorenson following the rulings in Ball,
67 
Fong Foo and Sisson as "the finding that government failed to
prove all the elements of the offense." It is clear therefore that the
acquittal of Wilson, not being based on evidence, could be
appealed. The rule therefore fixed in Wilson is that where a judge
holds for the defendant on a ruling of law, and not on the basis of
evidence, after a jury entered a verdict of guilty, the prosecution
may appeal the acquittal without violating double jeopardy, as this
is allowed under the pertinent law. This is so since no second
68 
trial will ensue, as a reversal on appeal would merely reinstate
the jury’s verdict. And if the prosecution is upheld, the case
69 
simply goes back to the trial court for disposition of the remaining
matters. It bears emphasis that in Wilson, no double jeopardy
problem was presented because the appellate court, upon
reviewing the asserted legal errors of the trial judge, could simply
be necessary, and the defendant would not be put twice in
jeopardy. 70 
The case of Scott, also considerably relied upon by petitioner,
involved an accused who, having been indicted for several
offenses, himself moved for the dismissal of two (2) counts of the
charges on the ground that his defense was prejudiced by pre-
indictment delay. The trial judge granted the motion. Government
appealed the dismissals but the appellate court rejected the
appeal on the basis of double jeopardy. This time the US
Supreme Court reversed, holding that "(w)here a defendant
himself seeks to avoid his trial prior to its conclusion by a motion
for a mistrial, the Double Jeopardy Clause is not offended by a
second prosecution. Such a motion by the defendant is deemed
to be a deliberate election on his part to forego his valued right to
have his guilt or innocence determined by the first trier of facts."
The inapplicability of this ruling to the case at bar is at once
discernible. The dismissal of the charges against private
respondent Galvez was not upon his own instance; neither did he
seek to avoid trial, as it was in Scott, to be considered as having
waived his right to be adjudged guilty or innocent. Here, trial on
the merits was held during which both government and accused
had their respective day in court.
We are therefore insufficiently persuaded to adopt petitioner’s
concept of "another trial" because, as discussed above, it
disregards the contextual interpretation of the term in light of the
legal and factual morphology of the double jeopardy principle
obtaining in Wilson and Scott. To sum up, in the cause before us,
the records show that respondent trial judge based his finding of
acquittal, no matter how erroneous it might seem to petitioner,
upon the evidence presented by both parties. The judgment here
was no less than a factual resolution of the case. Thus, to the
extent that the post-verdict acquittal in Wilson was based on a
ruling of law and not on a resolution of facts, Wilson is not, to
reiterate, pertinent to nor persuasive in the case at bar. The same
observation holds true for Scott. That it was the defendant who
secured the dismissal of the charges against him without any
submission to either judge or jury as to his guilt or innocence, but
on a ground totally outside evidentiary considerations, i.e., pre-
indictment delay, definitely forecloses the applicability, if not
relevance, of Scott to the instant case.
Wilson, Scott and all other pertinent American case law
considered, it still behooves us to examine if at this time there is
need to rethink our juristic philosophy on double jeopardy vis-à-
vis acquittals. In this respect, it would be instructive to see how
Philippine law and jurisprudence have behaved
since Kepner. Has the principle since then beneficially evolved, or
has it remained an "unruly child that has not improved with age?"
The moorings of double jeopardy in the Philippines, as Mr.
Justice Manuel Moran observed in People v. Tarok, are not 71 
indigenous but are a matter of constitutional or statutory history.
Enunciated in the Constitution of the United States, from there it
found its way into this country, first, in the Philippine Bill of 1902,
then in the Jones Law of 1916, and finally, in the 1935 Philippine
Constitution. Being thus a mere recognition of the maxim of the
common law, and adopted from the Constitution of the United
States, the principle of double jeopardy followed in this jurisdiction
the same line of development - no narrower nor wider - as in the
Anglo-Saxon jurisprudence.
While some reservations may be had about the contemporary
validity of this observation considering the variety of offsprings
begotten, at least in the United States, by the mother rule since
then, perhaps it is safer to say that not much deviation has
occurred from the general rule laid out in Kepner.
For Kepner may be said to have been the lighthouse for the
floundering issues on the effect of acquittals on jeopardy as they
sail safely home. The cases of People v. Bringas, People v.
72 
Hernandez, People v. Montemayor, City Fiscal of Cebu v.
73  74 
Kintanar, Republic v. Court of Appeals, and Heirs of Tito Rillorta
75  76 
v. Firme, to name a few, are illustrative. Certainly, the reason
77 
behind this has not been due to a stubborn refusal or reluctance
to "keep up with the Joneses," in a manner of speaking, but to
maintain fidelity to the principle carefully nurtured by our
Constitution, statutes and jurisprudence. As early as Julia v.
Sotto the Court warned that without this safeguard against
78 
double jeopardy secured in favor of the accused, his fortune,
safety and peace of mind would be entirely at the mercy of the
complaining witness who might repeat his accusation as often as
dismissed by the court and whenever he might see fit, subject to
no other limitation or restriction than his own will and pleasure.
The 1935 Philippine Constitution provided in its Sec. 20, Art. III,
that "(n)o person shall be twice put in jeopardy of punishment for
the same offense. If an act is punished by a law and an
ordinance, conviction or acquittal under either shall constitute a
bar to another prosecution for the same act." The discussions by
the members of the Constitutional Convention of 1934 on the
effect on double jeopardy of an appeal from a judgment of
acquittal are enlightening. Foreclosing appeal on a judgment of
acquittal was recognized by the Convention and the proposal to
make an appeal from acquittal permissible even only "on
questions of law provided that a verdict in favor of the defendant
shall not be set aside by reason thereof" was strongly voted
down. Thus -
MR. GULLAS: Dear Colleagues x x x x I wish to summarize our
points. The amendment is commendable, but we submit that the
reason against far outweighs the reason in favor of it. In the first
place, it would tend to multiplicity of suits and thus increase the
burden of the Supreme Court. Second, suits will be expensive if
we meet fiscals who have an exaggerated opinion of themselves,
who have more ego than gray matter or more amor propio. In the
third place, as has been stated by a certain Gentleman, the
provision would convert the Supreme Court into a sort of
academy of consulting body. In the fourth place, as pointed out
by Mr. Sevilla, fights in the Supreme Court would be one-sided. In
the fifth place, as demonstrated by Delegate Labrador, the matter
should be procedural rather than constitutional. And lastly, as
explained by Delegate Singson Encarnacion, should the
Supreme Court reverse the judgment of the lower court, the
defendant would suffer morally for the rest of his life. He would
walk around under a veil of humiliation, carrying with him a
stigma.
For all these reasons, Mr. President, we oppose the amendment.
PRESIDENT: We can vote on the amendment. (Various
delegates: YES). Those who are in favor of the amendment
please say YES. (A minority: YES). Those against the
amendment say NO. (A majority: NO). The amendment is
rejected x x x x
(1934 Constitutional Convention Record, Journal No. 95,
November 24, 1934, p. 361)
The case of People v. Bringas was the first case to be decided
79 
under this Constitution pertinent to the matter at hand. There the
Supreme Court, guided by Kepner, cited its finding in United
States v. Tam Yung Way against the right of appeal by the
80 
government from a judgment discharging the defendant in a
criminal case after he has been brought to trial, whether
defendant was acquitted on the merits or whether his discharge
was based upon the trial court’s conclusion of law that the trial
had failed for some reason to establish his guilt as charged.
The Bill of Rights of the 1973 Constitution, specifically Sec. 22,
Art. IV thereof, reproduced verbatim the same double jeopardy
provision of the 1935 Constitution. So did the 1987 Freedom
Constitution drafted by the 1986 Constitutional Commission.
Noteworthy is that during the deliberations by the 1986
Constitutional Commission attempts were made to introduce into
the Fundamental Law the right of government to appeal verdicts
of acquittal promulgated by trial courts. The proposed text for
Sec. 14, Art. VIII, on the Judicial Department read as follows -
Sec. 12. - x x x x An appeal by the State and/or offended party
from a judgment of acquittal may be allowed in the discretion of
the Supreme Court by a petition for review on certiorari on the
ground that it is manifestly against the evidence with grave abuse
of discretion amounting to lack of jurisdiction.81 
This proposal was strongly opposed, the controlling consideration
as expressed by Commissioner Rustico de los Reyes being the
"inequality of the parties in power, situation and advantage in
criminal cases where the government, with its unlimited
resources, trained detectives, willing officers and counsel learned
in the law, stands arrayed against a defendant unfamiliar with the
practice of the courts, unacquainted with their officers or
attorneys, often without means and frequently too terrified to
make a defense, if he had one, while his character and his life,
liberty or property rested upon the result of the trial." 82 
Commissioner Joaquin Bernas likewise articulated his fear that
"we could be subjecting an accused individual to a very serious
danger of harassment from a prosecutor x x x x The harm,
however, which will follow from waving this flag of possibility of
appeal x x x could be much more than letting a guilty person
go." Put to a vote, the proposal was defeated.
83  84 
Then again, during the debates on double jeopardy under Sec.
23, Art. III, on the Bill of Rights of the Constitution, Commissioner
Ambrosio B. Padilla reopened the matter already settled at the
deliberations on the article on the Judiciary. The following
exchanges ensued:
MR. PADILLA. x x x On Section 23, on double jeopardy, there
was Davide resolution which allowed an appeal in a judgment of
acquittal in a criminal case that states: An acquittal by a trial court
is, however, appealable provided that in such event, the accused
shall not be detained or put up bail. This has been deleted by the
Commission x x x x
FR. BERNAS. Yes.
MR. PADILLA. I recall that when this same idea, but in different
phraseology, was presented and approved by the Committee on
the Judiciary, the great objection was that it would violate the
immunity against double jeopardy. But I recall, the sponsor
admitted, after I had explained the day before, that it did not
violate double jeopardy but it was unnecessary and harmful.
What is the real position, Mr. Presiding Officer? Is it in violation of
double jeopardy or is it just because it need not be stated in the
Bill of Rights nor in the Article on the Judiciary?
FR. BERNAS: I explained my position on that, Mr. Presiding
Officer, when we considered the matter in the Article on the
Judiciary. The position I took was that it was not a departure from
existing jurisprudence. In fact, it was more strict than existing
jurisprudence in that it required not just abuse of discretion but it
also required that the judgment be clearly against the evidence.
MR. PADILLA. That is correct, Mr. Presiding Officer, because we
want to make the exercise of that right by the state or offended
party restrictive not only through a petition for review on certiorari
in the discretion of the Supreme Court which may dismiss it
outright, but also on certain grounds that are really covered by "in
excess or lack of jurisdiction."
But my common impression, Mr. Presiding Officer, is that most
lawyers are of the opinion that when a judgment of acquittal is
rendered by a trial court, that is final, executory and not
appealable.
Does not the sponsor think, Mr. Presiding Officer, an appeal from
an arbitrary judgment of acquittal rendered by a few corrupt
judges of the offended party or the state will improve the
administration of justice?
FR. BERNAS. Mr. Presiding Officer, I have expressed my
position on this when we voted on Third Reading on the Article
on the Judiciary. But if the Commissioner wants to raise the
matter for reconsideration, he can present a motion on the floor.
Padilla did not ask for a reconsideration. 85 
The Rules of Court on Criminal Procedure relative to double
jeopardy and the effect thereon of acquittals adhere strictly to
constitutional provisions. The pertinent portions of Sec. 7 of Rule
117 thereof provide -
Sec. 7. Former conviction or acquittal; double jeopardy. - When
an accused has been convicted or acquitted, or the case against
him dismissed or otherwise terminated without his express
consent by a court of competent jurisdiction, upon a valid
complaint or information or other formal charge sufficient in form
and substance to sustain a conviction and after the accused had
pleaded to the charge, the conviction or acquittal of the accused
or the dismissal of the case shall be a bar to another prosecution
for the offense charged, or for any attempt to commit the same or
frustration thereof, or for any offense which necessarily includes
or is necessarily included in the offense charged in the former
complaint or information x x x x
From this procedural prescription alone, there can be no
mistaking the requisites for invoking double jeopardy: (a) a valid
complaint or information; (b) before a competent court before
which the same is filed; (c) the defendant had pleaded to the
charge; and, (d) the defendant was acquitted, or convicted, or the
case against him dismissed or otherwise terminated without his
express consent. It bears repeating that where acquittal is
86 
concerned, the rules do not distinguish whether it occurs at the
level of the trial court or on appeal from a judgment of conviction.
This firmly establishes the finality-of-acquittal rule in our
jurisdiction. Therefore, as mandated by our Constitution, statutes
and cognate jurisprudence, an acquittal is final and unappealable
on the ground of double jeopardy, whether it happens at the trial
court level or before the Court of Appeals.
In general, the rule is that a remand to a trial court of a judgment
of acquittal brought before the Supreme Court
on certiorari cannot be had unless there is a finding of mistrial, as
in Galman v. Sandiganbayan. Condemning the trial before the
87 
Sandiganbayan of the murder of former Senator
Benigno "Ninoy" Aquino, which resulted in the acquittal of all the
accused, as a sham, this Court minced no words in declaring that
"[i]t is settled doctrine that double jeopardy cannot be invoked
against this Court's setting aside of the trial court's judgment of
acquittal where the prosecution which represents the sovereign
people in criminal cases is denied due process x x x x [T]he sham
trial was but a mock trial where the authoritarian president
ordered respondents Sandiganbayan and Tanodbayan to rig the
trial, and closely monitored the entire proceedings to assure the
predetermined final outcome of acquittal and absolution as
innocent of all the respondent-accused x x x x Manifestly, the
prosecution and the sovereign people were denied due process
of law with a partial court and biased Tanodbayan under the
constant and pervasive monitoring and pressure exerted by the
authoritarian president to assure the carrying out of his
instructions. A dictated, coerced and scripted verdict of acquittal,
such as that in the case at bar, is a void judgment. In legal
contemplation, it is no judgment at all. It neither binds nor bars
anyone. Such a judgment is ‘a lawless thing which can be treated
as an outlaw.’ It is a terrible and unspeakable affront to the
society and the people. 'To paraphrase Brandeis: If the
authoritarian head of government becomes the lawbreaker, he
breeds contempt for the law; he invites every man to become a
law unto himself; he invites anarchy.’ The contention of
respondent-accused that the Sandiganbayan judgment of
acquittal ended the case and could not be appealed or reopened
without being put in double jeopardy was forcefully disposed of by
the Court in People v. Court of Appeals: 88 
x x x x That is the general rule and presupposes a valid judgment.
As earlier pointed out, however, respondent Court's Resolution of
acquittal was a void judgment for having been issued without
jurisdiction. No double jeopardy attaches, therefore. A void
judgment is, in legal effect, no judgment at all. By it no rights are
divested. Through it, no rights can be attained. Being worthless,
all proceedings founded upon it are equally worthless. It neither
binds nor bars anyone. All acts performed under it and all claims
flowing out of it are void x x x x Private respondents invoke
'justice for the innocent.' For justice to prevail the scales must
balance. It is not to be dispensed for the accused alone. The
interests of the society which they have wronged, must also be
equally considered. A judgment of conviction is not necessarily a
denial of justice. A verdict of acquittal neither necessarily spells a
triumph of justice. To the party wronged, to the society offended,
1âwphi1
it could also mean injustice. This is where the Courts play a vital
role. They render justice where justice is due.
Thus, the doctrine that "double jeopardy may not be invoked after
trial" may apply only when the Court finds that the "criminal trial
was a sham" because the prosecution representing the sovereign
people in the criminal case was denied due process. The Court
89 
in People v. Bocar rationalized that the "remand of the criminal
90 
case for further hearing and/or trial before the lower courts
amounts merely to a continuation of the first jeopardy, and does
not expose the accused to a second jeopardy." 91 
The fundamental philosophy highlighting the finality of an
acquittal by the trial court cuts deep into "the humanity of the laws
and in a jealous watchfulness over the rights of the citizen, when
brought in unequal contest with the State x x x
x" Thus Green expressed the concern that "(t)he underlying idea,
92 
one that is deeply ingrained in at least the Anglo-American
system of jurisprudence, is that the State with all its resources
and power should not be allowed to make repeated attempts to
convict an individual for an alleged offense, thereby subjecting
him to embarrassment, expense and ordeal and compelling him
to live in a continuing state of anxiety and insecurity, as well as
enhancing the possibility that even though innocent, he may be
found guilty." 93 
It is axiomatic that on the basis of humanity, fairness and justice,
an acquitted defendant is entitled to the right of repose as a direct
consequence of the finality of his acquittal. The philosophy
underlying this rule establishing the absolute nature of acquittals
is "part of the paramount importance criminal justice system
attaches to the protection of the innocent against wrongful
conviction." The interest in the finality-of-acquittal rule, confined
94 
exclusively to verdicts of not guilty, is easy to understand: it is a
need for "repose," a desire to know the exact extent of one's
liability. With this right of repose, the criminal justice system has
95 
built in a protection to insure that the innocent, even those whose
innocence rests upon a jury’s leniency, will not be found guilty in
a subsequent proceeding. 96 
Related to his right of repose is the defendant’s interest in his
right to have his trial completed by a particular tribunal. This
97 
interest encompasses his right to have his guilt or innocence
determined in a single proceeding by the initial jury empanelled to
try him, for society’s awareness of the heavy personal strain
which the criminal trial represents for the individual defendant is
manifested in the willingness to limit Government to a single
criminal proceeding to vindicate its very vital interest in
enforcement of criminal laws. The ultimate goal is prevention of
98 
government oppression; the goal finds its voice in the finality of
the initial proceeding. As observed in Lockhart v. Nelson, "(t)he
99  100 
fundamental tenet animating the Double Jeopardy Clause is that
the State should not be able to oppress individuals through the
abuse of the criminal process." Because the innocence of the
accused has been confirmed by a final judgment, the Constitution
conclusively presumes that a second trial would be unfair. 101 
Petitioner resists the applicability of the finality-of-acquittal
doctrine to the Philippine adjudicative process on the ground that
the principle is endemic to the American justice system as it has
specific application only to jury verdicts of acquittal, and thus finds
no valid use in our jurisdiction since the "underlying rationale of
jury acquittals, a special feature of American constitutional law,
has no parallel nor analogy in the Philippine legal system." This is
a rather strained if not facile approach to the issue at hand, for it
attempts to introduce the theory that insofar as the objective of
factfinding is concerned, factfinding forming the core of the
philosophy behind double jeopardy, there exists a difference
between a jury acquittal and a "judge acquittal, Philippine
version." To support its contention, petitioner sedulously explains
that in the United States there is an "emerging consensus to
differentiate the constitutional impact of jury verdicts of
acquittal vis-à-vis judgments of acquittal rendered by the bench."
While this consensus may have emerged in the United States, it
is not difficult to surmise that it must have been so because of
countless instances of conflict between jury verdicts and
judgments of trial judges in the same case. Resultantly,
procedural statutes and jurisprudence have been wont to draw
lines of distinction between the two, hopefully to keep each other
at bay. Since this phenomenon does not occur in our jurisdiction,
as we have no juries to speak of, petitioner’s hypothesis is
inappropriate.
Be that as it may, the invalidity of petitioner’s argument lies in its
focus on the instrumentality empowered to rule against the
evidence, i.e., the American jury versus the Philippine judge, no
matter how emphatic it qualifies its proposition with the phrase
"underlying rationale of jury acquittals," rather than on the
essential function of factfinding itself which consists of reception,
sifting and evaluation of evidence. Where the main task of
factfinding is concerned, there exists no difference between the
American jury and the Philippine trial judge. Both are triers of
facts. This much petitioner has to concede. The attempt therefore
to close the door on the applicability of the finality rule to our legal
system abjectly fails when one considers that, universally, the
principal object of double jeopardy is the protection from
being tried for the second time, whether by jury or judge. Thus,
"emerging American consensus on jury acquittals"
notwithstanding, on solid constitutional bedrock is well engraved
our own doctrine that acquittals by judges on evidentiary
considerations cannot be appealed by government. The
jurisprudential metes and bounds of double jeopardy having been
clearly defined by both constitution and statute, the issue of the
effect of an appeal of a verdict of acquittal upon a determination
of the evidence on the constitutionally guaranteed right of an
accused against being twice placed in jeopardy should now be
finally put to rest.
Petitioner assails the decision rendered by the court a quo as
blatantly inconsistent with the material facts and evidence on
record, reason enough to charge respondent judge with grave
abuse of discretion amounting to lack of jurisdiction resulting in a
denial of due process. Citing People v. Pablo, it alleges that
102 
"respondent aggravated his indiscretion by not x x x reviewing the
evidence already presented for a proper assessment x x x x It is
in completely ignoring the evidence already presented x x x that
the respondent judge committed a grave abuse of discretion." It
adds that "discretion must be exercised regularly, legally and
within the confines of procedural due process, i.e., after
evaluation of the evidence submitted by the prosecution. Any
order issued in the absence thereof is not a product of sound
judicial discretion but of whim and caprice and outright
arbitrariness."
103 
Private respondent remonstrates against the propriety of
petitioner’s certiorari as a mode of impugning the judgment of
acquittal not only as a strategy to camouflage the issue of double
jeopardy but also for the fact that, contrary to petitioner’s
assertions, evidence in the case at bar was subjected to scrutiny,
review, assessment and evaluation by respondent trial judge. By
reason thereof, there cannot be perceived grave abuse of
discretion on the part of the judge to warrant issuance of the great
writ of certiorari.
We agree. The office of the common law writ of certiorari is to
bring before the court for inspection the record of the proceedings
of an inferior tribunal in order that the superior court may
determine from the face of the record whether the inferior court
has exceeded its jurisdiction, or has not proceeded according to
the essential requirements of the law. However, the original
function and purpose of the writ have been so modified by
statutes and judicial decisions. It is particularly so in the field of
criminal law when the state is applying for the writ and problems
arise concerning the right of the state to appeal in a criminal case.
As a general rule, the prosecution cannot appeal or bring error
proceedings from a judgment in favor of the defendant in a
criminal case in the absence of a statute clearly conferring that
right. The problem comes into sharper focus when the defendant
contends, in effect, that the prosecution is attempting to
accomplish by the writ what it could not do by appeal, and that his
constitutional rights are being thus encroached upon. 104 
Generally, under modern constitutions and statutes, provisions
are available as guides to the court in determining the standing of
the prosecution to secure by certiorari a review of a lower court
decision in a criminal case which has favored the defendant. In
most instances, provisions setting forth the scope and function
of certiorari are found together with those relating to the right of
the state to appeal or bring error in criminal matters. There is
some indication that courts view the writ of certiorari as an appeal
in itself where the applicant shows that there is no other adequate
remedy available, and it is not uncommon to find language in
105 
cases to the effect that the state should not be permitted to
accomplish by certiorari what it cannot do by appeal. Thus, if a
106 
judgment sought to be reviewed was one entered after an
acquittal by a jury or the discharge of the accused on the merits
by the trial court, the standing of the prosecution to review it
by certiorari is far more likely to be denied than if it were such an
order as one sustaining a demurrer to, or quashing the
indictment, or granting a motion for arrest of judgment after a
verdict of guilty.
107 
Philippine jurisprudence has been consistent in its application of
the Double Jeopardy Clause such that it has viewed with
suspicion, and not without good reason, applications for the
extraordinary writ questioning decisions acquitting an accused on
ground of grave abuse of discretion.
The petition at hand which seeks to nullify the decision of
respondent judge acquitting the accused Honorato Galvez goes
deeply into the trial court's appreciation and evaluation in esse of
the evidence adduced by the parties. A reading of the questioned
decision shows that respondent judge considered the evidence
received at trial. These consisted among others of the testimonies
relative to the positions of the victims vis-à-vis the accused and
the trajectory, location and nature of the gunshot wounds, and the
opinion of the expert witness for the prosecution. While the
appreciation thereof may have resulted in possible lapses in
evidence evaluation, it nevertheless does not detract from the fact
that the evidence was considered and passed upon. This
consequently exempts the act from the writ’s limiting requirement
of excess or lack of jurisdiction. As such, it becomes an improper
object of and therefore non-reviewable by certiorari. To reiterate,
errors of judgment are not to be confused with errors in the
exercise of jurisdiction.
WHEREFORE, the instant petition for certiorari is DISMISSED.
[G.R. NO. 167017 : June 22, 2009]
SERAFIN CHENG, Petitioner, v. SPOUSES VITTORIO and MA.
HELEN DONINI, Respondents.
DECISION
CORONA, J.:
The subject of this petition is an oral lease agreement that went sour.
Petitioner Serafin Cheng agreed to lease his property located at 479
Shaw Blvd., Mandaluyong City to respondents, Spouses Vittorio and
Ma. Helen Donini, who intended to put up a restaurant thereon. They
agreed to a monthly rental of P17,000, to commence in December
1990. 
Bearing an Interim Grant of Authority executed by petitioner,
respondents proceeded to introduce improvements in the premises.
The authority read:
I, Serafin Cheng, of legal age and with office address at Room 310
Federation Center Building Muelle de Binondo, Manila, owner of the
building/structure located at 479 Shaw Boulevard, Mandaluyong, Metro
Manila, pursuant to a lease agreement now being finalized and to take
effect December 1, 1990, hereby grants VITTORIO DONINI
(Prospective Lessee) and all those acting under his orders to make all
the necessary improvements on the prospective leased premises
located at 479 Shaw Blvd., Mandaluyong, Metro Manila, and for this
purpose, to enter said premises and perform, all such works and
activities to make the leased premises operational as a restaurant or
similar purpose.
Manila, 31 October 1990.1
However, before respondents' business could take off and before any
final lease agreement could be drafted and signed, the parties began
to have serious disagreements regarding its terms and conditions.
Petitioner thus wrote respondents on January 28, 1991, demanding
payment of the deposit and rentals, and signifying that he had no
intention to continue with the agreement should respondents fail to
pay. Respondents, however, ignoring petitioner's demand, continued
to occupy the premises until April 17, 1991 when their caretaker
voluntarily surrendered the property to petitioner.
Respondents then filed an action for specific performance and
damages with a prayer for the issuance of a writ of preliminary
injunction in the Regional Trial Court (RTC) of Pasig City, Branch 67,
docketed as Civil Case No. 60769. Respondents prayed that petitioner
be ordered to execute a written lease contract for five years, deducting
from the deposit and rent the cost of repairs in the amount
of P445,000, or to order petitioner to return their investment in the
amount of P964,000 and compensate for their unearned net income
of P200,000 with interest, plus attorney's fees.2
Petitioner, in his answer, denied respondents' claims and sought the
award of moral and exemplary damages, and attorney's fees.3
After trial, the RTC rendered its decision in favor of petitioner, the
dispositive portion of which provided:
WHEREFORE, in view of all the foregoing, this Court finds the
preponderance of evidence in favor of the [petitioner] and hereby
renders judgment as follows:
1. The Complaint is dismissed.
2. On the counterclaim, [respondents] are ordered, jointly and
severally, to pay the [petitioner] P500,000.00 as moral
damages; P100,000.00 as exemplary damages; and P50,000.00 as
attorney's fees.
3. [Respondents] are likewise ordered to pay the costs.
SO ORDERED. 4
Respondents appealed to the Court of Appeals (CA) which, in its
decision5 dated March 31, 2004, recalled and set aside the RTC
decision, and entered a new one ordering petitioner to pay
respondents the amount of P964,000 representing the latter's
expenses incurred for the repairs and improvements of the premises.6
Petitioner filed a motion for reconsideration on the ground that the
award of reimbursement had no factual and legal bases,7 but this was
denied by the CA in its resolution dated February 21, 2005.8
Hence, this petition for certiorari under Rule 45 of the Rules of Court,
with petitioner arguing that:
THE COURT OF APPEALS DECIDED THIS CASE NOT IN ACCORD WITH
LAW AND WITH APPLICABLE DECISIONS OF THIS HONORABLE
COURT. PUT OTHERWISE:
A. BY ORDERING PETITIONER TO REIMBURSE RESPONDENTS THE
FULL VALUE OF EXPENSES FOR THEIR ALLEGED REPAIRS AND
IMPROVEMENTS OF THE LEASED PREMISES, THE COURT OF APPEALS
ERRONEOUSLY CONSIDERED RESPONDENTS NOT AS MERE LESSEES
BUT POSSESSORS IN GOOD FAITH UNDER ARTICLES 448 AND 546 OF
THE CIVIL CODE.
B. THE COURT OF APPEALS DECIDED THIS CASE NOT IN ACCORD
WITH ARTICLE 1678 OF THE CIVIL CODE WHICH GIVES THE LESSOR
THE OPTION TO REIMBURSE THE LESSEE ONE-HALF OF THE VALUE OF
USEFUL IMPROVEMENTS OR, IF HE DOES NOT WANT TO, ALLOW THE
LESSEE TO REMOVE THE IMPROVEMENTS.
C. LIKEWISE, BY ORDERING PETITIONER TO REIMBURSE THE VALUE
OF ORNAMENTAL EXPENSES, THE COURT OF APPEALS CONTRAVENED
THE SECOND PARAGRAPH OF ARTICLE 1678.
D. THE COURT OF APPEALS ERRED IN APPLYING THE PRINCIPLE OF
EQUITY IN FAVOR OF THE RESPONDENTS.
E. THE COURT OF APPEALS ERRED IN NOT AFFIRMING THE DECISION
OF THE TRIAL COURT AWARDING DAMAGES TO PETITIONER.
F. THE COURT OF APPEALS SERIOUSLY ERRED AND/OR GRAVELY
ABUSED ITS DISCRETION IN FIXING THE AMOUNT
OF P961,000.009 CONTRARY TO RESPONDENTS' OWN
REPRESENTATION AND EVIDENCE.10
Respondents were required to file their comment on the petition but
their counsel manifested that he could not file one since his clients'
whereabouts were unknown to him.11 Counsel also urged the Court to
render a decision on the basis of the available records and
documents.12 Per resolution dated August 30, 2006, copies of the
resolutions requiring respondents to file their comment were sent to
their last known address and were deemed served. The order requiring
respondents' counsel to file a comment in their behalf was reiterated.13
In their comment, respondents argued that they were possessors in
good faith, hence, Articles 448 and 546 of the Civil Code applied and
they should be indemnified for the improvements introduced on the
leased premises. Respondents bewailed the fact that petitioner was
going to benefit from these improvements, the cost of which amounted
to P1.409 million, in contrast to respondents' rental/deposit obligation
amounting to only P34,000. Respondents also contended that
petitioner's rescission of the agreement was in bad faith and they were
thus entitled to a refund.14
In settling the appeal before it, the CA made the following findings and
conclusions:
1. there was no agreement that the deposit and rentals accruing to
petitioner would be deducted from the costs of repairs and renovation
incurred by respondents;
2. respondents committed a breach in the terms and conditions of the
agreement when they failed to pay the rentals;
3. there was no valid rescission on the part of petitioner;
4. respondents were entitled to reimbursement for the cost of
improvements under the principle of equity and unjust enrichment;
andcralawlibrary
5. the award of damages in favor of petitioner had no basis in fact and
law.15
As the correctness of the CA's ruling regarding (1) the lack of
agreement on the deposit and rentals; (2) respondents' breach of the
terms of the verbal agreement and (3) the lack of valid rescission by
petitioner was never put in issue, this decision will be confined only to
the issues raised by petitioner, that is, the award of reimbursement
and the deletion of the award of damages. It need not be stressed that
an appellate court will not review errors that are not assigned before
it, save in certain exceptional circumstances and those affecting
jurisdiction over the subject matter as well as plain and clerical errors,
none of which is present in this case.16
Remarkably, in ruling that respondents were entitled to
reimbursement, the CA did not provide any statutory basis therefor
and instead applied the principles of equity and unjust enrichment,
stating: 
It would be inequitable to allow the defendant-appellee, as owner of
the property to enjoy perpetually the improvements introduced by the
plaintiffs-appellants without reimbursing them for the value of the said
improvements. Well-settled is the rule that no one shall be unjustly
enriched or benefitted at the expense of another.17
Petitioner, however, correctly argued that the principle of equity did
not apply in this case. Equity, which has been aptly described as
"justice outside legality," is applied only in the absence of, and never
against, statutory law or judicial rules of procedure.18 Positive rules
prevail over all abstract arguments based on equity contra
legem.19 Neither is the principle of unjust enrichment applicable since
petitioner (who was to benefit from it) had a valid claim.20
The relationship between petitioner and respondents was explicitly
governed by the Civil Code provisions on lease, which clearly provide
for the rule on reimbursement of useful improvements and ornamental
expenses after termination of a lease agreement. Article 1678 states:
If the lessee makes, in good faith, useful improvements which are
suitable to the use for which the lease is intended, without altering the
form or substance of the property leased, the lessor upon the
termination of the lease shall pay the lessee one-half of the value of
the improvements at that time. Should the lessor refuse to reimburse
said amount, the lessee may remove the improvements, even though
the principal thing may suffer damage thereby. He shall not, however,
cause any more impairment upon the property leased than is
necessary.
With regard to ornamental expenses, the lessee shall not be entitled to
any reimbursement, but he may remove the ornamental objects,
provided no damage is caused to the principal thing, and the lessor
does not choose to retain them by paying their value at the time the
lease is extinguished.  If the rule were otherwise, 'it would always be in the power of the
Article 1678 modified the (old) Civil Code provision on reimbursement
where the lessee had no right at all to be reimbursed for the
improvements introduced on the leased property, he being entitled
merely to the rights of a usufructuary - the right of removal and set-
off but not to reimbursement.21
Contrary to respondents' position, Articles 448 and 546 of the Civil
Code did not apply. Under these provisions, to be entitled to
reimbursement for useful improvements introduced on the property,
respondents must be considered builders in good faith. Articles 448
and 546, which allow full reimbursement of useful improvements and
retention of the premises until reimbursement is made, apply only to a
possessor in good faith or one who builds on land in the belief that he
is the owner thereof. A builder in good faith is one who is unaware of
any flaw in his title to the land at the time he builds on it.22
But respondents cannot be considered possessors or builders in good
faith. As early as 1956, in Lopez v. Philippine & Eastern Trading Co.,
Inc.,23 the Court clarified that a lessee is neither a builder nor a
possessor in good faith' 
x x x This principle of possessor in good faith naturally cannot apply to
a lessee because as such lessee he knows that he is not the owner of
the leased property. Neither can he deny the ownership or title of his
lessor. Knowing that his occupation of the premises continues only
during the life of the lease contract and that he must vacate the
property upon termination of the lease or upon the violation by him of
any of its terms, he introduces improvements on said property at
his own risk in the sense that he cannot recover their value
from the lessor, much less retain the premises until such
reimbursement. (Emphasis supplied) cralawlibrary
Being mere lessees, respondents knew that their right to occupy the
premises existed only for the duration of the lease.24Cortez v.
Manimbo25 went further to state that:
tenant to improve his landlord out of his property. 
These principles have been consistently adhered to and applied by the
Court in many cases.26
Under Article 1678 of the Civil Code, the lessor has the primary right
(or the first move) to reimburse the lessee for 50% of the value of the
improvements at the end of the lease. If the lessor refuses to make
the reimbursement, the subsidiary right of the lessee to remove the
improvements, even though the principal thing suffers damage, arises.
Consequently, on petitioner rests the primary option to pay for one-
half of the value of the useful improvements. It is only when petitioner
as lessor refuses to make the reimbursement that respondents, as
lessees, may remove the improvements. Should petitioner refuse to
exercise the option of paying for one-half of the value of the
improvements, he cannot be compelled to do so. It then lies on
respondents to insist on their subsidiary right to remove the
improvements even though the principal thing suffers damage but
without causing any more impairment on the property leased than is
necessary.
As regards the ornamental expenses, respondents are not entitled to
reimbursement. Article 1678 gives respondents the right to remove
the ornaments without damage to the principal thing. But if petitioner
appropriates and retains said ornaments, he shall pay for their value
upon the termination of the lease.
The fact that petitioner will benefit from the improvements introduced
by respondents is beside the point. In the first place, respondents
introduced these improvements at their own risk as lessees.
Respondents were not forced or obliged to splurge on the leased
premises as it was a matter of necessity as well as a business Labor P 19,995.00 Exhibi
strategy.27 In fact, had respondents only complied with their obligation
to pay the deposit/rent, there would have been no dispute to begin
Total  P513,301.90
with. If they were able to shell out more than a million pesos to
improve the property, the measly P34,000 deposit demanded by Accordingly, the 50% value of the useful improvements to be
petitioner was a mere "drop in the bucket," so to speak. More reimbursed by petitioner, if he chose to do so, should be based
importantly, the unequivocal terms of Article 1678 of the Civil Code on P513,301.90. Since petitioner did not exercise his option to retain
should be the foremost consideration. these useful improvements, then respondents could have removed the
same. This was the legal consequence of the application of Article
The Court notes that the CA pegged the total value of the 1678 under ordinary circumstances. 
improvements made on the leased premises at P964,000, which was
apparently based on the allegation in respondents' complaint that it The reality on the ground ought to be recognized. For one, as disclosed
was their total investment cost.28 The CA lumped together all of by respondents' counsel, he no longer knows the exact whereabouts of
respondents' expenses, which was a blatant error. A qualification his clients, only that they are now in Europe and he has no
should have been made as to how much was spent for useful communication with them at all.44 For another, it appears that as soon
improvements (or those which were suitable to the use for which the as respondents vacated the premises, petitioner immediately
lease was intended) and how much was for ornamental expenses. reclaimed the property and barred respondents from entering it.
Respondent Vittorio Donini testified that he spent P450,000 for Respondents also alleged, and petitioner did not deny, that the
necessary repairs, while P500,000 was spent for adornments.29 The property subject of this case had already been leased to another entity
evidence on record, however, showed respondents' expenses for useful since 1991.45 This is where considerations of equity should come into
improvements to be as follows: play. It is obviously no longer feasible for respondents to remove the
improvements from the property, if they still exist. The only equitable
alternative then, given the circumstances, is to order petitioner to pay
Expense Amount respondents one-half of the value of the useful improvements (50%
Electrical  P31,893.65 of P513,301.90) introduced on the property, or P256,650.95. To be
Roofing  P14,856.00 off-set against this amount are respondents' unpaid P17,000 monthly
rentals for the period of December 1990 to April
Labor P19,909.75 1991,46 or P85,000. Petitioner should, therefore, indemnify
Ceiling P65,712.00 respondents the amount of P171,650.95. This is in accord with the
Labor P38,689.20 law's intent of preventing unjust enrichment of a lessor who now has
to pay one-half of the value of the useful improvements at the end of
Electrical (phase 2) P76,539.10
the lease because the lessee has already enjoyed the same, whereas
Door P41,371.75 the lessor can enjoy them indefinitely thereafter.47
Labor P25,126.00
Water P 8,031.00 Respondents are not entitled to reimbursement for the ornamental
expenses under the express provision of Article 1678. Moreover, since
Gutters P 35,550.05
they failed to remove these ornaments despite the opportunity to do
Outside Wall P 24,744.00 so when they vacated the property, then they were deemed to have
Inside Wall P 22,186.10 waived or abandoned their right of removal.
Electrical (phase 3) P 88,698.30
The CA also erred when it deleted the awards of moral and exemplary (2) respondents, spouses Vittorio and Ma. Helen Donini,
damages and attorney's fees.  are ORDERED to pay petitioner Serafin Cheng the following sums:

Petitioner is entitled to moral damages but not in the amount a) P100,000.00 moral damages;
of P500,000 awarded by the RTC, which the Court finds to be
excessive. While trial courts are given discretion to determine` the b) P50,000.00 exemplary damages and
amount of moral damages, it "should not be palpably and scandalously
excessive."48 Moral damages are not meant to enrich a person at the
expense of the other but are awarded only to allow the former to c) P25,000.00 attorney's fees.
obtain means, diversion or amusements that will serve to alleviate the
moral suffering he has undergone due to the other person's culpable Let copies of this decision be furnished respondents, spouses Vittorio
action.49 It must always reasonably approximate the extent of injury and Ma. Helen Donini, at their last known address, and their counsel of
and be proportional to the wrong committed.50 The award of P100,000 record.
as moral damages is sufficient and reasonable under the
circumstances.
SO ORDERED.

The award of P100,000 as exemplary damages is likewise excessive.

Exemplary damages are imposed not to enrich one party or impoverish
another but to serve as a deterrent against or as a negative incentive
to curb socially deleterious actions.51 We think P50,000 is reasonable in
this case.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

Finally, Article 2208 of the Civil Code allows recovery of attorney's fees
when exemplary damages are awarded or when the defendant's act or
omission has compelled the plaintiff to litigate with third persons or to
incur expenses to protect his interest.52 Petitioner is entitled to it since
exemplary damages were awarded in this case and respondents' act in
filing Civil Case No. 60769 compelled him to litigate. The amount
of P25,000 is in accord with prevailing jurisprudence.53

WHEREFORE, the petition is PARTIALLY GRANTED. The decision

dated March 31, 2004 rendered by the Court of Appeals in CA-G.R. CV
No. 54430 is hereby MODIFIED in that '

(1) petitioner Serafin Cheng is ORDERED to pay respondents, spouses

Vittorio and Ma. Helen Donini, the amount of P171,650.95 as
indemnity for the useful improvements; and cralawlibrary
 CONRADO CRUZ, SANTIAGO P. GO, RENATO F. BORBON,
LEVVINO CHING, CARLOS C. FLORENTINO, RUBEN G.
BALLEGA, LOIDA ALCEDO, MARIO M. CAJUCOM,
EMMANUEL M. CALMA, MANUEL A. RAYOS, WILMA L.
CHUA, EUFEMIO S. ALFONSO, JESUS M. LACANILAO,
BONIFACIO N. ALCAPA, JOSE H. SILVERIO, RODRIGO
DEVELLES, NIDA R. PAUNAN, MARIANO B. ESTUYE, JR.,
RAFAEL C. AREVALO, ARTURO T. MANABAT, RICARDO O.
LIZARONDO, LETICIA C. MATURAN, RODRIGO A. ALAYAN,
LEONILO N. MIRANDA, DESEDERIO O. MONREAL,
FRANCISCO M. BAHIA, NESTOR R. FORONDA, VICENTE B.
QUE, JR., AURELIO A. BILUAN, DANILO R. GATCHALIAN,
LOURDES R. DEL MUNDO, EMMA O. CALZADO, FELIMON
DE LEON, TANY V. CATACUTAN, AND CONCEPCION P.
JAO, Respondents. 

DECISION

BRION, J.:

We resolve in this Decision the constitutional challenge, originally

filed before the Regional Trial Court of Caloocan City, Branch 128
(RTC), against the following highlighted portion of Section 2 of
Republic Act (RA) No. 9164 (entitled "An Act Providing for
Synchronized Barangay and Sangguniang Kabataan Elections,
amending RA No. 7160, as amended, otherwise known as the
Local Government Code of 1991"):

Sec. 2. Term of Office. – The term of office of

all barangay and sangguniang kabataan officials after the
effectivity of this Act shall be three (3) years. 
G.R. No. 186616               November 20, 2009
No barangay elective official shall serve for more than three (3)
COMMISSION ON ELECTIONS, Petitioner,  consecutive terms in the same position: Provided, however, That
vs.
the term of office shall be reckoned from the
1994 barangay elections. Voluntary renunciation of office for any
length of time shall not be considered as an interruption in the
continuity of service for the full term for which the elective official
was elected.
The RTC granted the petition and declared the challenged
proviso constitutionally infirm. The present petition, filed by the
Commission on Elections (COMELEC), seeks a review of the
RTC decision.1
THE ANTECEDENTS
Before the October 29, 2007
Synchronized Barangay and Sangguniang Kabataan (SK)
Elections, some of the then incumbent officials of
several barangays of Caloocan City2 filed with the RTC a petition
for declaratory relief to challenge the constitutionality of the
above-highlighted proviso, based on the following arguments:
I. The term limit of Barangay officials should be applied
prospectively and not retroactively.
II. Implementation of paragraph 2 Section 2 of RA No.
9164 would be a violation of the equal protection of the
law.
III. Barangay officials have always been apolitical. 
The RTC agreed with the respondents’ contention that the
challenged proviso retroactively applied the three-term limit
for barangay officials under the following reasoning: 
When the Local Government Code of 1991 took effect abrogating
all other laws inconsistent therewith, a different term was
ordained. Here, this Court agrees with the position of the
petitioners that Section 43 of the Code specifically
exempted barangay elective officials from the coverage of the
three (3) consecutive term limit rule considering that the provision
applicable to these (sic) class of elective officials was significantly
separated from the provisions of paragraphs (a) and (b) thereof.
Paragraph (b) is indeed intended to qualify paragraph (a) of
Section 43 as regards to (sic) all local elective officials
except barangay officials. Had the intention of the framers of the
Code is (sic) to include barangay elective officials, then no
excepting proviso should have been expressly made in paragraph
(a) thereof or, by implication, the contents of paragraph (c) should
have been stated ahead of the contents of paragraph (b).
xxxx
Clearly, the intent of the framers of the constitution (sic) is to
exempt the barangay officials from the three (3) term limits (sic)
which are otherwise applicable to other elected public officials
from the Members of the House of Representatives down to the
members of the sangguniang bayan/panlungsod. It is up for the
Congress whether the three (3) term limit should be applied by
enacting a law for the purpose.
The amendment introduced by R.A. No. 8524 merely increased
the term of office of barangay elective officials from three (3)
years to five (5) years. Like the Local Government Code, it can be
noted that no consecutive term limit for the election
of barangay elective officials was fixed therein.
The advent of R.A. 9164 marked the revival of the consecutive
term limit for the election of barangay elective officials after the
Local Government Code took effect. Under the assailed provision
of this Act, the term of office of barangay elective officials
reverted back to three (3) years from five (5) years, and, this time,
the legislators expressly declared that no barangay elective
official shall serve for more than three (3) consecutive terms in
the same position. The petitioners are very clear that they are not
assailing the validity of such provision fixing the three (3)
consecutive term limit rule for the election of barangay elective
officials to the same position. The particular provision the
constitutionality of which is under attack is that portion providing
for the reckoning of the three (3) consecutive term limit
of barangay elective officials beginning from the
1994 barangay elections. GIVING IT A RETROACTIVE EFFECT
x x x  officials, the exercise of the authority granted shall not otherwise
Section 2, paragraph 2 of R.A. 9164 is not a mere restatement of
Section 43(c) of the Local Government Code. As discussed
above, Section 43(c) of the Local Government Code does not
provide for the consecutive term limit rule of barangay elective
officials. Such specific provision of the Code has in fact amended
the previous enactments (R.A. 6653 and R.A. 6679) providing for
the consecutive term limit rule of barangay elective officials. But,
such specific provision of the Local Government Code was
amended by R.A. 9164, which reverted back to the previous
policy of fixing consecutive term limits of barangay elective
officials." 3
In declaring this retroactive application unconstitutional, the RTC
explained that:
By giving a retroactive reckoning of the three (3) consecutive term
limit rule for barangay officials to the 1994 barangay elections,
Congress has violated not only the principle of prospective
application of statutes but also the equal protection clause of the
Constitution inasmuch as the barangay elective officials were
singled out that their consecutive term limit shall be counted
retroactively. There is no rhyme or reason why the consecutive
limit for these barangay officials shall be counted retroactively
while the consecutive limit for other local and national elective
officials are counted prospectively. For if the purpose of Congress
is [sic] to classify elective barangay officials as belonging to the
same class of public officers whose term of office are limited to
three (3) consecutive terms, then to discriminate them by
applying the proviso retroactively violates the constitutionally
enshrined principle of equal protection of the laws.
Although the Constitution grants Congress the power to
determine such successive term limit of barangay elective
transgress other constitutional and statutory privileges.
This Court cannot subscribe to the position of the respondent that
the legislature clearly intended that the provision of RA No. 9164
be made effective in 1994 and that such provision is valid and
constitutional. If we allow such premise, then the term of office for
those officials elected in the 1997 barangay elections should have
ended in year 2000 and not year 2002 considering that RA No.
9164 provides for a three-year term of barangay elective officials.
The amendment introduced by R.A. No. 8524 would be rendered
nugatory in view of such retroactive application. This is absurd
and illusory.
True, no person has a vested right to a public office, the same not
being property within the contemplation of constitutional
guarantee. However, a cursory reading of the petition would show
that the petitioners are not claiming vested right to their office but
their right to be voted upon by the electorate without being
burdened by the assailed provision of the law that, in effect,
rendered them ineligible to run for their incumbent positions. Such
right to run for office and be voted for by the electorate is the right
being sought to be protected by assailing the otherwise
unconstitutional provision.
Moreover, the Court likewise agrees with the petitioners that the
law violated the one-act-one subject rule embodied in the
Constitution. x x x x The challenged law’s title is "AN ACT
PROVIDING FOR THE
SYNCHRONIZED BARANGAY AND SANGGUNIANG KABATAA
N ELECTIONS, AMENDING REPUBLIC ACT 7160 OTHERWISE
KNOWN AS THE LOCAL GOVERNMENT CODE OF 1991 AND
FOR OTHER PURPOSES." x x x x  when expressly so provided and when it does not impair vested
x x x x  elective post, there can be no valid objection to the alleged
To this court, the non-inclusion in the title of the act on the
retroactivity of the reckoning of the term limits posed a serious
constitutional breach, particularly on the provision of the
constitution [sic] that every bill must embrace only one subject to
be expressed in the title thereof.
x x x the Court is of the view that the affected barangay officials
were not sufficiently given notice that they were already
disqualified by a new act, when under the previous enactments
no such restrictions were imposed.
Even if this Court would apply the usual test in determining the
sufficiency of the title of the bill, the challenged law would still be
insufficient for how can a retroactivity of the term limits be
germane to the synchronization of an election x x x x.4
The COMELEC moved to reconsider this decision but the RTC
denied the motion. Hence, the present petition on a pure question
of law.
The Petition
The COMELEC takes the position that the assailed law is valid
and constitutional. RA No. 9164 is an amendatory law to RA No.
7160 (the Local Government Code of 1991 or LGC) and is not a
penal law; hence, it cannot be considered an ex post facto law.
The three-term limit, according to the COMELEC, has been
specifically provided in RA No. 7160, and RA No. 9164 merely
restated the three-term limitation. It further asserts that laws
which are not penal in character may be applied retroactively
rights. As there is no vested right to public office, much less to an
retroactive application of RA No. 9164.
The COMELEC also argues that the RTC’s invalidation of RA No.
9164 essentially involves the wisdom of the law – the aspect of
the law that the RTC has no right to inquire into under the
constitutional separation of powers principle. The COMELEC
lastly argues that there is no violation of the one subject-one title
rule, as the matters covered by RA No. 9164 are related; the
assailed provision is actually embraced within the title of the law.
THE COURT’S RULING
We find the petition meritorious. The RTC legally erred when it
declared the challenged proviso unconstitutional.
Preliminary Considerations
We find it appropriate, as a preliminary matter, to hark back to the
pre-1987 Constitution history of the barangaypolitical system as
outlined by this Court in David v. COMELEC,5 and we quote: 
As a unit of government, the barangay antedated the Spanish
conquest of the Philippines. The word "barangay" is derived from
the Malay "balangay," a boat which transported them (the
Malays) to these shores. Quoting from Juan de Plasencia, a
Franciscan missionary in 1577, Historian Conrado Benitez wrote
that the barangay was ruled by a dato who exercised absolute
powers of government. While the Spaniards kept the barangay as
the basic structure of government, they stripped
the dato or rajah of his powers. Instead, power was centralized
nationally in the governor general and locally in
the encomiendero and later, in the alcalde mayor and
the gobernadorcillo. The datoor rajah was much later
renamed cabeza de barangay, who was elected by the local
citizens possessing property. The position degenerated from a
title of honor to that of a "mere government employee. Only the
poor who needed a salary, no matter how low, accepted the
post."
After the Americans colonized the Philippines,
the barangays became known as "barrios." For some time, the
laws governing barrio governments were found in the Revised
Administrative Code of 1916 and later in the Revised
Administrative Code of 1917. Barrios were granted autonomy by
the original Barrio Charter, RA 2370, and formally recognized as
quasi-municipal corporations by the Revised Barrio Charter, RA
3590. During the martial law regime, barrios were "declared" or
renamed "barangays" -- a reversion really to their pre-Spanish
names -- by PD. No. 86 and PD No. 557. Their basic organization
and functions under RA 3590, which was expressly "adopted as
the Barangay Charter," were retained. However, the titles of the
officials were changed to "barangay captain,"
"barangaycouncilman," "barangay secretary" and
"barangay treasurer."
Pursuant to Sec. 6 of Batas Pambansa Blg. 222,
"a Punong Barangay (Barangay Captain) and
six Kagawads ngSangguniang Barangay (Barangay Councilmen),
who shall constitute the presiding officer and members of
the Sangguniang Barangay (Barangay Council) respectively"
were first elected on May 17, 1982. They had a term of six years
which began on June 7, 1982.
The Local Government Code of 1983 also fixed the term of office
of local elective officials at six years. Under this Code, the chief
officials of the barangay were the punong barangay, six
elective sangguniang barangay members,
the kabataang barangay chairman, a barangay secretary and
a barangay treasurer.
B.P. Blg. 881, the Omnibus Election Code, reiterated
that barangay officials "shall hold office for six years," and stated
that their election was to be held "on the second Monday of May
nineteen hundred and eighty eight and on the same day every six
years thereafter." [Emphasis supplied.]
The 1987 Philippine Constitution extended constitutional
recognition to barangays under Article X, Section 1 by
specifying barangays as one of the territorial and political
subdivisions of the country, supplemented by Section 8 of the
same Article X, which provides:
SEC. 8. The term of office of elective local officials,
except barangay officials, which shall be determined by law, shall
be three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any
length of time shall not be considered as an interruption in the
continuity of his service for the full term for which he was elected.
[Emphasis supplied.]
The Constitutional Commission’s deliberations on Section 8 show
that the authority of Congress to legislate relates not only to the
fixing of the term of office of barangay officials, but also to the
application of the three-term limit. The following deliberations of
the Constitutional Commission are particularly instructive on this
point:
MR. NOLLEDO: One clarificatory question, Madam
President. What will be the term of the office
of barangayofficials as provided for?
MR. DAVIDE: As may be determined by law.
MR. NOLLEDO: As provided for in the Local Government
Code?
MR. DAVIDE: Yes.
x x x           x x x          x x x
THE PRESIDENT: Is there any other comment? Is there
any objection to this proposed new section as submitted
by Commissioner Davide and accepted by the
Committee?
MR. RODRIGO: Madam President, does this prohibition
to serve for more than three consecutive terms apply
to barangay officials?
MR. DAVIDE: Madam President, the voting that we had
on the terms of office did not include the barangayofficials
because it was then the stand of the Chairman of the
Committee on Local Governments that the term
of barangay officials must be determined by law. So it is
now for the law to determine whether the restriction on the
number of reelections will be included in the Local
Government Code.
MR. RODRIGO: So that is up to Congress to decide.
MR. DAVIDE: Yes.
MR. RODRIGO: I just wanted that clear in the
record."6 [Emphasis supplied.]
After the effectivity of the 1987 Constitution,
the barangay election originally scheduled by Batas Pambansa
Blg. 8817 on the second Monday of May 1988 was reset to "the
second Monday of November 1988 and every five years
thereafter by RA No. 6653."8 Section 2 of RA No. 6653 changed
the term of office of barangay officials and introduced a term
limitation as follows:
SEC. 2. The term of office of barangay officials shall be for five
(5) years from the first day of January following their
election. Provided, however, That no kagawad shall serve for
more than two (2) consecutive terms. [Emphasis supplied]
Under Section 5 of RA No. 6653, the punong barangay was to be
chosen by seven kagawads from among themselves, and they in
turn, were to be elected at large by the barangay electorate.
The punong barangay, under Section 6 of the law, may be
recalled for loss of confidence by an absolute majority vote of
the Sangguniang Barangay, embodied in a resolution that shall
necessarily include the punong barangay’s successor.
The election date set by RA No. 6653 on the second Monday of
November 1988 was postponed yet again to March 28, 1989 by
RA No. 6679 whose pertinent provision states:  voters" therein.
SEC. 1. The elections of barangay officials set on the second
Monday of November 1988 by Republic Act No. 6653 are hereby
postponed and reset to March 28, 1989. They shall serve a term
which shall begin on the first day of May 1989 and ending on the
thirty-first day of May 1994.
There shall be held a regular election of barangay officials on the
second Monday of May 1994 and on the same day every five (5)
years thereafter. Their term shall be for five (5) years which shall
begin on the first day of June following the election and until their
successors shall have been elected and qualified: Provided, That
no barangayofficial shall serve for more than three (3)
consecutive terms.
The barangay elections shall be nonpartisan and shall be
conducted in an expeditious and inexpensive manner.
Significantly, the manner of election of the punong barangay was
changed –
Section 5 of the law provided that while the seven kagawads
were to be elected by the registered voters of the barangay, "(t)he
candidate who obtains the highest number of votes shall be the
punong barangay and in the event of a tie, there shall be a
drawing of lots under the supervision of the Commission on
Elections."
More than two (2) years after the 1989 barangay elections, RA
No. 7160 (the LGC) introduced the following changes in the law:
SEC. 41. Manner of Election. -- (a) The x x
x punong barangay shall be elected at large x x x by the qualified
 
SEC. 43. Term of Office. - (a) The term of office of all local
elective officials elected after the effectivity of this Code shall be
three (3) years, starting from noon of June 30, 1992 or such date
as may be provided for by law, except that of
elective barangay officials: Provided, That all local officials first
elected during the local elections immediately following the
ratification of the 1987 Constitution shall serve until noon of June
30, 1992. 
(b) No local elective official shall serve for more than three
(3) consecutive terms in the same position. Voluntary
renunciation of the office for any length of time shall not
be considered as an interruption in the continuity of
service for the full term for which the elective official
concerned was elected. 
(c) The term of office of barangay officials and members
of the sangguniang kabataan shall be for three (3) years,
which shall begin after the regular election
of barangay officials on the second Monday of May 1994.
SEC. 387. Chief Officials and Offices. -- (a) There shall be in
each barangay a punong barangay, seven (7) sangguniang
barangay members, the sangguniang kabataan chairman,
a barangay secretary and a barangaytreasurer.
xxxxxxxxx
SEC. 390. Composition. -- The Sangguniang barangay, the
legislative body of the barangay, shall be composed of
the punong barangay as presiding officer, and the seven (7)
regular sanguniang barangay members elected at large and
the sanguniang kabataan chairman as members. [Emphasis
supplied.]
This law started the direct and separate election of
the punong barangay by the "qualified voters" in the barangayand
not by the seven (7) kagawads from among themselves.9
Subsequently or on February 14, 1998, RA No. 8524 changed the
three-year term of office of barangay officials under Section 43 of
the LGC to five (5) years. On March 19, 2002, RA No. 9164
introduced the following significant changes: (1) the term of office
of barangay officials was again fixed at three years on the
reasoning that the barangay officials should not serve a longer
term than their supervisors;10 and (2) the challenged proviso,
which states that the 1994 election shall be the reckoning point
for the application of the three-term limit, was introduced. Yet
another change was introduced three years after or on July 25,
2005 when RA No. 9340 extended the term of the then
incumbent barangay officials – due to expire at noon of
November 30, 2005 under RA No. 9164 – to noon of November
30, 2007. The three-year term limitation provision survived all
these changes.
Congress’ Plenary Power to Legislate Term Limits for Barangay
Officials and Judicial Power  Article VIII. Estrada v. Desierto14 best describes this constitutional
In passing upon the issues posed to us, we clarify at the outset
the parameters of our powers.
As reflected in the above-quoted deliberations of the 1987
Constitution, Congress has plenary authority under the
Constitution to determine by legislation not only the duration of
the term of barangay officials, but also the application to them of
a consecutive term limit. Congress invariably exercised this
authority when it enacted no less than six (6) barangay-related
laws since 1987.
Through all these statutory changes, Congress had determined at
its discretion both the length of the term of office
of barangay officials and their term limitation. Given the textually
demonstrable commitment by the 1987 Constitution to Congress
of the authority to determine the term duration and limition
of barangay officials under the Constitution, we consider it
established that whatever Congress, in its wisdom, decides on
these matters are political questions beyond the pale of judicial
scrutiny,11 subject only to the certiorari jurisdiction of the courts
provided under Section 1, Article VIII of the Constitution and to
the judicial authority to invalidate any law contrary to the
Constitution.12
Political questions refer "to those questions which, under the
Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has
been delegated to the legislative or executive branch of the
government; it is concerned with issues dependent upon
the wisdom, not legality of a particular measure."13 These
questions, previously impervious to judicial scrutiny can now be
inquired into under the limited window provided by Section 1,
development, and we quote: 
To a great degree, the 1987 Constitution has narrowed the reach
of the political doctrine when it expanded the power of judicial
review of this court not only to settle actual controversies
involving rights which are legally demandable and enforceable
but also to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of government. a. Interpretative / Historical Consideration
Heretofore, the judiciary has focused on the "thou shalt not’s" of
the Constitution directed against the exercise of its jurisdiction. The respondents’ first objection to the challenged proviso’s
With the new provision, however, courts are given a greater constitutionality is its purported retroactive application of the
prerogative to determine what it can do to prevent grave abuse of three-term limit when it set the 1994 barangay elections as a
discretion amounting to lack or excess of jurisdiction on the part reckoning point in the application of the three-term limit. 
of any branch or instrumentality of government. Clearly, the new
provision did not just grant the Court power of doing nothing. In The respondents argued that the term limit, although present in
sync and symmetry with this intent are other provisions of the the previous laws, was not in RA No. 7160 when it amended all
1987 Constitution trimming the so called political thicket. xxxx  previous barangay election laws. Hence, it was re-introduced for
the first time by RA No. 9164 (signed into law on March 19, 2002)
Thus, we can inquire into a congressional enactment despite the and was applied retroactively when it made the term limitation
political question doctrine, although the window provided us is effective from the 1994 barangay elections. As the appealed
narrow; the challenge must show grave abuse of discretion to ruling quoted above shows, the RTC fully agreed with the
justify our intervention.  respondents’ position.

Other than the Section 1, Article VIII route, courts can declare a Our first point of disagreement with the respondents and with the
law invalid when it is contrary to any provision of the Constitution. RTC is on their position that a retroactive application of the term
This requires the appraisal of the challenged law against the legal limitation was made under RA No. 9164. Our own reading shows
standards provided by the Constitution, not on the basis of the that no retroactive application was made because the three-term
wisdom of the enactment. To justify its nullification, the breach of limit has been there all along as early as the
the Constitution must be clear and unequivocal, not a doubtful or second barangay law (RA No. 6679) after the 1987 Constitution
equivocal one, as every law enjoys a strong presumption of took effect; it was continued under the LGC and can still be found
constitutionality.15 These are the hurdles that those challenging in the current law. We find this obvious from a reading of the
the constitutional validity of a law must overcome.  historical development of the law. 

The present case, as framed by the respondents, poses no The first law that provided a term limitation for barangay officials
challenge on the issue of grave abuse of discretion. The legal was RA No. 6653 (1988); it imposed a two-consecutive term limit.
issues posed relate strictly to compliance with constitutional After only six months, Congress, under RA No. 6679 (1988),
standards. It is from this prism that we shall therefore resolve this changed the two-term limit by providing for a three-consecutive
case.  term limit. This consistent imposition of the term limit gives no hint
of any equivocation in the congressional intent to provide a term
The Retroactive Application Issue  limitation. Thereafter, RA No. 7160 – the LGC – followed, bringing
with it the issue of whether it provided, as originally worded, for a
three-term limit for barangay officials. We differ with the RTC
analysis of this issue.  did, that paragraphs (a) and (b) of Section 43 are the general law
Section 43 is a provision under Title II of the LGC on Elective
Officials. Title II is divided into several chapters dealing with a
wide range of subject matters, all relating to local elective
officials, as follows: a. Qualifications and Election (Chapter I); b.
Vacancies and Succession (Chapter II), c. Disciplinary Actions
(Chapter IV) and d. Recall (Chapter V). Title II likewise contains a
chapter on Local Legislation (Chapter III).  First, reading Section 43(a) and (b) together to the exclusion of
These Title II provisions are intended to apply to all local elective
officials, unless the contrary is clearly provided. A contrary
application is provided with respect to the length of the term of
office under Section 43(a); while it applies to all local elective
officials, it does not apply to barangay officials whose length of
term is specifically provided by Section 43(c). In contrast to this
clear case of an exception to a general rule, the three-term limit
under Section 43(b) does not contain any exception; it applies to
all local elective officials who must perforce
include barangay officials.
An alternative perspective is to view Sec. 43(a), (b) and (c)
separately from one another as independently standing and self-
contained provisions, except to the extent that they expressly
relate to one another. Thus, Sec. 43(a) relates to the term of local
elective officials, except barangay officials whose term of office is
separately provided under Sec. 43(c). Sec. 43(b), by its express
terms, relates to all local elective officials without any exception.
Thus, the term limitation applies to all local elective officials
without any exclusion or qualification.
Either perspective, both of which speak of the same resulting
interpretation, is the correct legal import of Section 43 in the
context in which it is found in Title II of the LGC.
1avvphi1
To be sure, it may be argued, as the respondents and the RTC
for elective officials (other than barangay officials); and paragraph
(c) is the specific law on barangayofficials, such that the silence
of paragraph (c) on term limitation for barangay officials indicates
the legislative intent to exclude barangay officials from the
application of the three-term limit. This reading, however, is
flawed for two reasons. 
Section 43(c), is not justified by the plain texts of these
provisions. Section 43(a) plainly refers to local elective officials,
except elective barangay officials. In comparison, Section 43(b)
refers to all local elective officials without exclusions or
exceptions. Their respective coverages therefore vary so that one
cannot be said to be of the same kind as the other. Their
separate topics additionally strengthen their distinction; Section
43(a) refers to the term of office while Section 43(b) refers to the
three-term limit. These differences alone indicate that Sections
43(a) and (b) cannot be read together as one organic whole in the
way the RTC suggested. Significantly, these same distinctions
apply between Sec. 43(b) and (c). 
Second, the RTC interpretation is flawed because of its total
disregard of the historical background of Section 43(c) – a
backdrop that we painstakingly outlined above. 
From a historical perspective of the law, the inclusion of Section
43(c) in the LGC is an absolute necessity to clarify the length of
term of barangay officials. Recall that under RA No. 6679, the
term of office of barangay officials was five (5) years. The real
concern was how Section 43 would interface with RA No. 6679.
Without a categorical statement on the length of the term of office
of barangay officials, a general three-year term for all local
elective officials under Section 43(a), standing alone, may not
readily and completely erase doubts on the intended abrogation
of the 5-year term for barangay officials under RA No. 6679.
Thus, Congress added Section 43(c) which provided a
categorical three-year term for these officials. History tells us, of
course, that the unequivocal provision of Section 43(c)
notwithstanding, an issue on what is the exact term of office
of barangay officials was still brought to us via a petition filed by
no less than the President of the Liga ng Mga Barangay in 1997.
We fully resolved the issue in the cited David v. Comelec.  term should be reckoned from election of what year, Mr.
Section 43(c) should therefore be understood in this context and
not in the sense that it intended to provide the complete rule for
the election of barangay officials, so that in the absence of any
term limitation proviso under this subsection, no term limitation
applies to barangay officials. That Congress had the LGC’s three-
term limit in mind when it enacted RA No. 9164 is clear from the
following deliberations in the House of Representatives (House)
on House Bill No. 4456 which later became RA No. 9164: 
MARCH 5, 2002:
THE DEPUTY SPEAKER (Rep. Espinosa, E.R.). Majority Leader.
REP. ESCUDERO. Mr. Speaker, next to interpellate is the
Gentleman from Zamboanga City. I ask that the Honorable
Lobregat be recognized.
THE DEPUTY SPEAKER (Rep. Espinosa, E.R.). The Honorable
Lobregat is recognized.
REP. LOBREGAT. Thank you very much, Mr. Speaker. Mr.
Speaker, this is just …
REP. MACIAS. Willingly to the Gentleman from Zamboanga City.
REP. LOBREGAT. … points of clarification, Mr. Speaker, the
term of office. It says in Section 4, "The term of office of all
Barangay and sangguniang kabataan officials after the effectivity
of this Act shall be three years." Then it says,
"No Barangay elective official shall serve for more than three (3)
consecutive terms in the same position."
Mr. Speaker, I think it is the position of the committee that the first
Speaker?
REP. MACIAS. After the adoption of the Local Government Code,
Your Honor. So that the first election is to be reckoned on, would
be May 8, 1994, as far as the Barangay election is concerned.
REP. LOBREGAT. Yes, Mr. Speaker. So there was an election in
1994.
REP. MACIAS. Then an election in 1997.
REP. LOBREGAT. There was an election in 1997. And there will
be an election this year …
REP. LOBREGAT. … election this year.
REP. MACIAS. That is correct. This will be the third.
x x x           x x x          x x x
REP. SUMULONG. Mr. Speaker.
THE DEPUTY SPEAKER (Rep. Espinosa, E.R.) The Honorable
Sumulong is recognized. 
REP. SUMULONG. Again, with the permission of my Chairman, I
would like to address the question of Congressman Lobregat.
THE DEPUTY SPEAKER (Rep. Espinosa, E.R.). Please proceed.
REP. SUMULONG. With respect to the three-year consecutive
term limits of Barangay Captains that is not provided for in the
Constitution and that is why the election prior to 1991 during the
enactment of the Local Government Code is not counted because
it is not in the Constitution but in the Local Government Code
where the three consecutive term limits has been placed.
[Emphasis supplied.]
which led to the following exchanges in the House Committee on
Amendments:
March 6, 2002
COMMITTEE ON AMENDMENTS
REP. GONZALES. May we now proceed to committee
amendment, if any, Mr. Speaker.
THE DEPUTY SPEAKER (Rep. Gonzalez). The Chair recognizes
the distinguished Chairman of the Committee on Suffrage and
Electoral Reforms.
REP. SYJUCO. Mr. Speaker, on page 2, line 7, after the word
"position", substitute the period (.) and add the following:
PROVIDED HOWEVER THAT THE TERM OF OFFICE SHALL
BE RECKONED FROM THE 1994 BARANGAY ELECTIONS. So
that the amended Section 4 now reads as follows:
"SEC. 4. Term of Office. – The term of office of all barangay and
sangguniang kabataan officials after the effectivity of this Act shall
be three (3) years. 
No barangay elective local official shall serve for more than three
(3) consecutive terms in the same position COLON (:)
PROVIDED, HOWEVER, THAT THE TERM OF OFFICE SHALL
BE RECKONED FROM THE 1994 BARANGAY ELECTIONS.
Voluntary renunciation of office for any length of time shall not be
considered as an interruption in the continuity of service for the
full term for which the elective official was elected.
The House therefore clearly operated on the premise that the
LGC imposed a three-term limit for barangay officials, and the
challenged proviso is its way of addressing any confusion that
may arise from the numerous changes in the law. 
All these inevitably lead to the conclusion that the challenged
proviso has been there all along and does not simply retroact the
application of the three-term limit to the barangay elections of
1994. Congress merely integrated the past statutory changes into
a seamless whole by coming up with the challenged proviso. 
With this conclusion, the respondents’ constitutional challenge to
the proviso – based on retroactivity – must fail. 
b. No Involvement of Any Constitutional Standard
Separately from the above reason, the constitutional challenge
must fail for a more fundamental reason – the respondents’
retroactivity objection does not involve a violation of any
constitutional standard.
Retroactivity of laws is a matter of civil law, not of a constitutional
law, as its governing law is the Civil Code,16 not the Constitution.
Article 4 of the Civil Code provides that laws shall have no
retroactive effect unless the contrary is provided. The application
of the Civil Code is of course self-explanatory – laws enacted by
Congress may permissibly provide that they shall have retroactive
effect. The Civil Code established a statutory norm, not a
constitutional standard. 
The closest the issue of retroactivity of laws can get to a genuine
constitutional issue is if a law’s retroactive application will impair
vested rights. Otherwise stated, if a right has already vested in an
individual and a subsequent law effectively takes it away, a
genuine due process issue may arise. What should be involved,
however, is a vested right to life, liberty or property, as these are
the ones that may be considered protected by the due process
clause of the Constitution. 1 a vv p h i 1
In the present case, the respondents never raised due process as
an issue. But even assuming that they did, the respondents
themselves concede that there is no vested right to public
office.17 As the COMELEC correctly pointed out, too, there is no
vested right to an elective post in view of the uncertainty inherent
in electoral exercises.
Aware of this legal reality, the respondents theorized instead that
they had a right to be voted upon by the electorate without being
burdened by a law that effectively rendered them ineligible to run
for their incumbent positions. Again, the RTC agreed with this
contention.  guaranties of due process of law, but is a public trust or
We do not agree with the RTC, as we find no such right under the
Constitution; if at all, this claimed right is merely a restatement of
a claim of vested right to a public office. What the Constitution
clearly provides is the power of Congress to prescribe the
qualifications for elective local posts;18 thus, the question of
eligibility for an elective local post is a matter for Congress, not for
the courts, to decide. We dealt with a strikingly similar issue in
Montesclaros v. Commission on Elections19 where we ruled that
SK membership – which was claimed as a property right within
the meaning of the Constitution – is a mere statutory right
conferred by law. Montesclaros instructively tells us:
Congress exercises the power to prescribe the qualifications for
SK membership. One who is no longer qualified because of an
amendment in the law cannot complain of being deprived of a
proprietary right to SK membership. Only those who qualify as SK
members can contest, based on a statutory right, any act
disqualifying them from SK membership or from voting in the SK
elections. SK membership is not a property right protected by the
Constitution because it is a mere statutory right conferred by law.
Congress may amend at any time the law to change or even
withdraw the statutory right.
A public office is not a property right. As the Constitution
expressly states, a "[P]ublic office is a public trust." No one has a
vested right to any public office, much less a vested right to an
expectancy of holding a public office. In Cornejo v. Gabriel,
decided in 1920, the Court already ruled:
Again, for this petition to come under the due process of law
prohibition, it would be necessary to consider an office a
"property." It is, however, well settled x x x that a public office
is not property within the sense of the constitutional
agency. x x x The basic idea of the government x x x is that of a
popular representative government, the officers being mere
agents and not rulers of the people, one where no one man or set
of men has a proprietary or contractual right to an office, but
where every officer accepts office pursuant to the provisions of
the law and holds the office as a trust for the people he
represents.  a mere statutory norm.
Petitioners, who apparently desire to hold public office, should
realize from the very start that no one has a proprietary right to
public office. While the law makes an SK officer an ex-
officio member of a local government legislative council, the law
does not confer on petitioners a proprietary right or even a
proprietary expectancy to sit in local legislative councils. The
constitutional principle of a public office as a public trust
precludes any proprietary claim to public office. Even the State
policy directing "equal access to opportunities for public service"
cannot bestow on petitioners a proprietary right to SK
membership or a proprietary expectancy to ex-officio public
offices.
Moreover, while the State policy is to encourage the youth’s
involvement in public affairs, this policy refers to those who
belong to the class of people defined as the youth. Congress has
the power to define who are the youth qualified to join the SK,
which itself is a creation of Congress. Those who do not qualify
because they are past the age group defined as the youth cannot
insist on being part of the youth. In government service, once an
employee reaches mandatory retirement age, he cannot invoke
any property right to cling to his office. In the same manner, since
petitioners are now past the maximum age for membership in the
SK, they cannot invoke any property right to cling to their SK
membership. [Emphasis supplied.]  only does this disparate treatment recognize substantial
To recapitulate, we find no merit in the respondents’ retroactivity
arguments because: (1) the challenged proviso did not provide for
the retroactive application to barangay officials of the three-term
limit; Section 43(b) of RA No. 9164 simply continued what had
been there before; and (2) the constitutional challenge based on
retroactivity was not anchored on a constitutional standard but on
 
The Equal Protection Clause Issue
The equal protection guarantee under the Constitution is found
under its Section 2, Article III, which provides: "Nor shall any
person be denied the equal protection of the laws." Essentially,
the equality guaranteed under this clause is equality under the
same conditions and among persons similarly situated. It is
equality among equals, not similarity of treatment of persons who
are different from one another on the basis of substantial
distinctions related to the objective of the law; when things or
persons are different in facts or circumstances, they may be
treated differently in law.20
Appreciation of how the constitutional equality provision applies
inevitably leads to the conclusion that no basis exists in the
present case for an equal protection challenge. The law can
treat barangay officials differently from other local elective officials
because the Constitution itself provides a significant distinction
between these elective officials with respect to length of term and
term limitation. The clear distinction, expressed in the Constitution
itself, is that while the Constitution provides for a three-year term
and three-term limit for local elective officials, it left the length of
term and the application of the three-term limit or any form of term
limitation for determination by Congress through legislation. Not
distinctions, it recognizes as well that the Constitution itself allows
a non-uniform treatment. No equal protection violation can exist
under these conditions. 
From another perspective, we see no reason to apply the equal
protection clause as a standard because the challenged proviso
did not result in any differential treatment
between barangay officials and all other elective officials. This
conclusion proceeds from our ruling on the retroactivity issue that
the challenged proviso does not involve any retroactive
application.  subject, indicated in the title, may contain any number of
Violation of the Constitutional
One Subject- One Title Rule
Every bill passed by the Congress shall embrace only one subject
which shall be expressed in the title thereof. Fariñas v. Executive
Secretary21 provides the reasons for this constitutional
requirement and the test for its application, as follows:  that the subject of a bill should be embraced in its title is to
The proscription is aimed against the evils of the so-called
omnibus bills and log-rolling legislation as well as surreptitious
and/or unconsidered encroaches. The provision merely calls for
all parts of an act relating to its subject finding expression in its
title.  We find, under these settled parameters, that the challenged
To determine whether there has been compliance with the
constitutional requirement that the subject of an act shall be
expressed in its title, the Court laid down the rule that –
Constitutional provisions relating to the subject matter and titles of
statutes should not be so narrowly construed as to cripple or
impede the power of legislation. The requirement that the subject
of an act shall be expressed in its title should receive a
reasonable and not a technical construction. It is sufficient if the
title be comprehensive enough reasonably to include the general
object which a statute seeks to effect, without expressing each
and every end and means necessary or convenient for the
accomplishing of that object. Mere details need not be set forth.
The title need not be an abstract or index of the Act.
x x x x 
x x x This Court has held that an act having a single general
provisions, no matter how diverse they may be, so long as they
are not inconsistent with or foreign to the general subject, and
may be considered in furtherance of such subject by providing for
the method and means of carrying out the general subject.
xxxx
x x x Moreover, the avowed purpose of the constitutional directive
apprise the legislators of the purposes, the nature and scope of
its provisions, and prevent the enactment into law of matters
which have not received the notice, action and study of the
legislators and the public. 
proviso does not violate the one subject-one title rule. 
First, the title of RA No. 9164, "An Act Providing for
Synchronized Barangay and Sangguniang Kabataang Elections,
amending Republic Act No. 7160, as amended, otherwise known
as the Local Government Code of 1991," states the law’s general
subject matter – the amendment of the LGC to synchronize
the barangay and SK elections and for other purposes. To
achieve synchronization of the barangay and SK elections, the
reconciliation of the varying lengths of the terms of office
of barangay officials and SK officials is necessary. Closely related
with length of term is term limitation which defines the total
number of terms for which a barangay official may run for and
hold office. This natural linkage demonstrates that term limitation
is not foreign to the general subject expressed in the title of the
law.  vs.
Second, the congressional debates we cited above show that the
legislators and the public they represent were fully informed of the
purposes, nature and scope of the law’s provisions. Term
limitation therefore received the notice, consideration, and action
from both the legislators and the public. 
Finally, to require the inclusion of term limitation in the title of RA
No. 9164 is to make the title an index of all the subject matters
dealt with by law; this is not what the constitutional requirement
contemplates.  25 January 2002.
WHEREFORE, premises considered, we GRANT the petition and
accordingly AFFIRM the constitutionality of the challenged
proviso under Section 2, paragraph 2 of Republic Act No. 9164.
Costs against the respondents.
SO ORDERED.
G.R. No. 167684             July 31, 2006
JAIME O.SEVILLA, petitioner, 
CARMELITA N. CARDENAS, respondent.
DECISION
CHICO-NAZARIO, J.:
This Petition for Review on Certiorari seeks the reversal of the
Decision1 of the Court of Appeals in CA-G.R. CV No. 74416 dated
20 December 2004 which set aside the Decision2 of the Regional
Trial Court (RTC) of Makati City, in Civil Case No. 94-1285 dated
In a Complaint3 dated 28 March 1994 filed by Jaime O. Sevilla
before the RTC, he claimed that on 19 May 1969, through
machinations, duress and intimidation employed upon him by
Carmelita N. Cardenas and the latter's father, retired Colonel
Jose Cardenas of the Armed forces of the Philippines, he and
Carmelita went to the City Hall of Manila and they were
introduced to a certain Reverend Cirilo D. Gonzales, a supposed
Minister of the Gospel. On the said date, the father of Carmelita
caused him and Carmelita to sign a marriage contract before the
said Minister of the Gospel. According to Jaime, he never applied
for a marriage license for his supposed marriage to Carmelita and
never did they obtain any marriage license from any Civil
Registry, consequently, no marriage license was presented to the
solemnizing officer.
For her part, Carmelita refuted these allegations of Jaime, and
claims that she and Jaime were married civilly on 19 May
1969,4 and in a church ceremony thereafter on 31 May 19695 at
the Most Holy Redeemer Parish in Quezon City. Both marriages
were registered with the local civil registry of Manila and the
National Statistics Office. He is estopped from invoking the lack of
marriage license after having been married to her for 25 years.
The trial court made the following findings:
In support of his complaint, plaintiff [Jaime] testified that
on May 19, 1969, he and defendant [Carmelita] appeared
before a certain Rev. Cirilo D. Gonzales, a Minister of the
Gospel, at the city hall in Manila where they executed a
Marriage Contract (Exh. "A") in civil rites. A certain
Godofredo Occena who, plaintiff alleged, was an aide of
defendant's father accompanied them, and who, together
with another person, stood as witness to the civil wedding.
That although marriage license no. 2770792 allegedly
issued in San Juan, Rizal on May 19, 1969 was indicated
in the marriage contract, the same was fictitious for he
never applied for any marriage license, (Ibid., p. 11).
Upon verifications made by him through his lawyer, Atty.
Jose M. Abola, with the Civil Registry of San Juan, a
Certification dated March 11, 1994 (Exh. "E") was issued
by Rafael D. Aliscad, Jr., Local Civil Registrar of San
Juan, that "no marriage license no. 2770792 was ever
issued by said office." On May 31, 1969, he and
defendant were again wed, this time in church rites,
before Monsignor Juan Velasco at the Most Holy
Redeemer Parish Church in Brixton Hills, Quezon City,
where they executed another marriage contract (Exh. "F")
with the same marriage license no. 2770792 used and
indicated. Preparations and expenses for the church
wedding and reception were jointly shared by his and
defendant's parents. After the church wedding, he and
defendant resided in his house at Brixton Hills until their
first son, Jose Gabriel, was born in March 1970. As his
parents continued to support him financially, he and
defendant lived in Spain for some time, for his medical
studies. Eventually, their marital relationship turned bad
because it became difficult for him to be married he being
a medical student at that time. They started living apart in
1976, but they underwent family counseling before they
eventually separated in 1978. It was during this time when
defendant's second son was born whose paternity plaintiff
questioned. Plaintiff obtained a divorce decree against
defendant in the United States in 1981 and later secured
a judicial separation of their conjugal partnership in 1983.
Atty. Jose M. Abola, then counsel for the plaintiff, himself
manifested that when his service was engaged by
plaintiff, and after the latter narrated to him the
circumstances of his marriage, he made inquiries with the
Office of Civil Registry of San Juan where the supposed
marriage license was obtained and with the Church of the
Most Holy Redeemer Parish where the religious wedding
ceremony was celebrated. His request letters dated
March 3, 1994 (Exh. "J"), March 7, 1994 (Exh. "L"), March
9, 1994 (Exh. "M") and March 11, 1994 (Exh. "K") were all
sent to and received by the Civil Registrar of San Juan,
who in reply thereto, issued Certifications dated March 4,
1994 (Exh. "I"), and March 11, 1994 (Exh. "E") and
September 20, 1994 (Exh. "C"), that "no marriage license
no. 2770792 was ever issued by that office." Upon his
inquiry, the Holy Redeemer Parish Church issued him a
certified copy of the marriage contract of plaintiff and
defendant (Exh. "F") and a Certificate of Marriage dated
April 11, 1994 (Exh. "G"), wherein it noted that it was a
"purely religious ceremony, having been civilly married on
May 19, 1969 at the City Hall, Manila, under Marriage
License No. 2770792 issued at San Juan, Rizal on May
19, 1969."
Perlita Mercader, Registration Officer III of the Local
Registry of San Juan, identified the Certificates dated
March 4, 1994, March 11, 1994 and September 20, 1994
issued by Rafael Aliscad, Jr., the Local Civil Registrar,
and testified that their office failed to locate the book
wherein marriage license no. 2770792 may have been
registered (TSN, 8-6-96, p. 5).
Defendant Carmelita Cardenas testified that she and
plaintiff had a steady romantic relationship after they met
and were introduced to each other in October 1968. A
model, she was compelled by her family to join the Mutya
ng Pilipinas beauty pageant when plaintiff who was afraid
to lose her, asked her to run away with him to Baguio.
Because she loved plaintiff, she turned back on her family
and decided to follow plaintiff in Baguio. When they came
back to Manila, she and plaintiff proceeded to the latter's
home in Brixton Hills where plaintiff's mother, Mrs. Sevilla,
told her not to worry. Her parents were hostile when they
learned of the elopement, but Mrs. Sevilla convinced them
that she will take care of everything, and promised to
support plaintiff and defendant. As plaintiff was still fearful
he may lose her, he asked her to marry him in civil rites,
without the knowledge of her family, more so her father
(TSN, 5-28-98, p. 4) on May 19, 1969, before a minister
and where she was made to sign documents. After the
civil wedding, they had lunch and later each went home
separately. On May 31, 1969, they had the church
wedding, which the Sevilla family alone prepared and
arranged, since defendant's mother just came from
hospital. Her family did not participate in the wedding
preparations. Defendant further stated that there was no
sexual consummation during their honeymoon and that it
was after two months when they finally had sex. She
learned from Dr. Escudero, plaintiff's physician and one of
their wedding sponsors that plaintiff was undergoing
psychiatric therapy since age 12 (TSN, 11-2-98, p. 15) for
some traumatic problem compounded by his drug habit.
She found out plaintiff has unusual sexual behavior by his
obsession over her knees of which he would take endless
pictures of. Moreover, plaintiff preferred to have sex with
her in between the knees which she called "intrafemural
sex," while real sex between them was far and between
like 8 months, hence, abnormal. During their marriage,
plaintiff exhibited weird sexual behavior which defendant
attributed to plaintiff's drug addiction (TSN, 11-5-98, pp. 5-
8). A compulsive liar, plaintiff has a bad temper who
breaks things when he had tantrums. Plaintiff took drugs
like amphetamines, benzedrine and the like, "speed"
drugs that kept him from sleep and then would take
barbiturates or downers, like "mogadon." Defendant tried
very hard to keep plaintiff away from drugs but failed as it
has become a habit to him. They had no fixed home since
they often moved and partly lived in Spain for about four
and a half years, and during all those times, her mother-
in-law would send some financial support on and off,
while defendant worked as an English teacher. Plaintiff,
who was supposed to be studying, did nothing. Their
marriage became unbearable, as plaintiff physically and
verbally abused her, and this led to a break up in their
marriage. Later, she learned that plaintiff married one
Angela Garcia in 1991 in the United States.
Jose Cardenas, father of defendant, testified that he was
not aware of the civil wedding of his daughter with the
plaintiff; that his daughter and grandson came to stay with
him after they returned home from Spain and have lived
with him and his wife ever since. His grandsons practically
grew up under his care and guidance, and he has
 supported his daughter's expenses for medicines and
hospital confinements (Exhs. "9" and "10").
Victoria Cardenas Navarro, defendant's sister, testified
and corroborated that it was plaintiff's family that attended
to all the preparations and arrangements for the church
wedding of her sister with plaintiff, and that she didn't
know that the couple wed in civil rites some time prior to
the church wedding. She also stated that she and her
parents were still civil with the plaintiff inspite of the
marital differences between plaintiff and defendant.
As adverse witness for the defendant, plaintiff testified
that because of irreconcilable differences with defendant
and in order for them to live their own lives, they agreed to
divorce each other; that when he applied for and obtained
a divorce decree in the United States on June 14, 1983
(Exh. "13"), it was with the knowledge and consent of
defendant who in fact authorized a certain Atty.
Quisumbing to represent her (TSN, 12-7-2000, p. 21).
During his adverse testimony, plaintiff identified a recent
certification dated July 25, 2000 (Exh. "EE") issued by the
Local Civil Registrar of San Juan, that the marriage
license no. 2770792, the same marriage license
appearing in the marriage contract (Exh. "A"), is
inexistent, thus appears to be fictitious.6
In its Decision dated 25 January 2002, declaring the nullity of the
marriage of the parties, the trial court made the following
justifications:
Thus, being one of the essential requisites for the validity
of the marriage, the lack or absence of a license renders
the marriage void ab initio. It was shown under the
various certifications (Exhs. "I", "E", and "C") earlier
issued by the office of the Local Civil Registrar of the
Municipality of San Juan, and the more recent one issued
on July 25, 2000 (Exh. "EE") that no marriage license no.
2770792 was ever issued by that office, hence, the
marriage license no. 2770792 appearing on the marriage
contracts executed on May 19, 1969 (Exh. "A") and on
May 31, 1969 (Exh. "F") was fictitious. Such a certification
enjoys probative value under the rules on evidence,
particularly Section 28, Rule 132 of the Rules of Court, x x
x.
xxxx
WHEREFORE, the Court hereby declares the civil
marriage between Jaime O. Sevilla and Carmelita N.
Cardenas solemnized by Rev. Cirilo D. Gonzales at the
Manila City Hall on May 19, 1969 as well as their contract
of marriage solemnized under religious rites by Rev. Juan
B. Velasco at the Holy Redeemer Parish on May 31,
1969, NULL and VOID for lack of the requisite marriage
license. Let the marriage contract of the parties under
Registry No. 601 (e-69) of the registry book of the Local
Civil Registry of Manila be cancelled.
Let copies of this Decision be duly recorded in the proper
civil and property registries in accordance with Article 52
of the Family Code. Likewise, let a copy hereof be
forwarded the Office of the Solicitor General for its record
and information.7
Carmelita filed an appeal with the Court of Appeals. In a Decision
dated 20 December 2004, the Court of Appeals disagreed with
the trial court and held:
In People v. De Guzman (G.R. No. 106025, February 9, Jaime filed a Motion for Reconsideration dated 6 January 2005
1994), the Supreme Court explained that: "The which the Court of Appeals denied in a Resolution dated 6 April
presumption of regularity of official acts may be rebutted 2005.
by affirmative evidence of irregularity or failure to
perform a duty. The presumption, however, prevails until This denial gave rise to the present Petition filed by Jaime.
it is overcome by no less than clear and convincing
evidence to the contrary. Thus, unless the presumption is He raises the following issues for Resolution.
rebutted, it becomes conclusive."
1. Whether or not a valid marriage license was issued in
In this case, We note that a certain Perlita Mercader of accordance with law to the parties herein prior to the
the local civil registry of San Juan testified that celebration of the marriages in question;
they "failed to locate the book wherein marriage
license no. 2770792 is registered," for the reason that
2. Whether or not the Court of Appeals correctly applied
"the employee handling is already retired." With said
and relied on the presumption of regularity of officials
testimony We cannot therefore just presume that the
acts, particularly the issuance of a marriage license,
marriage license specified in the parties' marriage
arising solely from the contents of the marriage contracts
contract was not issued for in the end the failure of the
in question which show on their face that a marriage
office of the local civil registrar of San Juan to produce a
license was purportedly issued by the Local Civil Registry
copy of the marriage license was attributable not to the
of San Juan, Metro Manila, and
fact that no such marriage license was issued but rather,
because it "failed to locate the book wherein marriage
license no. 2770792 is registered." Simply put, if the 3. Whether or not respondent could validly invoke/rely
pertinent book were available for scrutiny, there is a upon the presumption of validity of a marriage arising
strong possibility that it would have contained an entry on from the admitted "fact of marriage."9
marriage license no. 2720792.
At the core of this controversy is the determination of whether or
xxxx not the certifications from the Local Civil Registrar of San Juan
stating that no Marriage License No. 2770792 as appearing in the
marriage contract of the parties was issued, are sufficient to
Indeed, this Court is not prepared to annul the parties'
declare their marriage as null and void ab initio.
marriage on the basis of a mere perception of plaintiff that
his union with defendant is defective with respect to an
essential requisite of a marriage contract, a perception We agree with the Court of Appeals and rule in the negative.
that ultimately was not substantiated with facts on record.8
Pertinent provisions of the Civil Code which was the law in force
at the time of the marriage of the parties are Articles 53,10 5811 and
80.12
Based on the foregoing provisions, a marriage license is an
essential requisite for the validity of marriage. The marriage
between Carmelita and Jaime is of no exception.
At first glance, this case can very well be easily dismissed as one
involving a marriage that is null and void on the ground of
absence of a marriage license based on the certifications issued
by the Local Civil Registar of San Juan. As ruled by this Court in
the case of Cariño v. Cariño13:
[A]s certified by the Local Civil Registrar of San Juan,
Metro Manila, their office has no record of such marriage
license. In Republic v. Court of Appeals, the Court held
that such a certification is adequate to prove the non-
issuance of a marriage license. Absent any circumstance
of suspicion, as in the present case, the certification
issued by the local civil registrar enjoys probative value,
he being the officer charged under the law to keep a
record of all date relative to the issuance of a marriage
license.
Such being the case, the presumed validity of the
marriage of petitioner and the deceased has been
sufficiently overcome. It then became the burden of
petitioner to prove that their marriage is valid and that
they secured the required marriage license. Although she
was declared in default before the trial court, petitioner
could have squarely met the issue and explained the
absence of a marriage license in her pleadings before the
Court of Appeals and this Court. But petitioner
conveniently avoided the issue and chose to refrain from
pursuing an argument that will put her case in jeopardy.
Hence, the presumed validity of their marriage cannot
stand.
It is beyond cavil, therefore, that the marriage between
petitioner Susan Nicdao and the deceased, having been
solemnized without the necessary marriage license, and
not being one of the marriages exempt from the marriage
license requirement, is undoubtedly void ab initio.
The foregoing Decision giving probative value to the certifications
issued by the Local Civil Registrar should be read in line with the
decision in the earlier case of Republic v. Court of
Appeals,14 where it was held that:
The above Rule authorized the custodian of
documents to certify that despite diligent search, a
particular document does not exist in his office or
that a particular entry of a specified tenor was not to
be found in a register. As custodians of public
documents, civil registrars are public officers charged with
the duty, inter alia, of maintaining a register book where
they are required to enter all applications for marriage
licenses, including the names of the applicants, the date
the marriage license was issued and such other relevant
data. (Emphasis supplied.)
Thus, the certification to be issued by the Local Civil Registrar
must categorically state that the document does not exist in his
office or the particular entry could not be found in the register
despite diligent search. Such certification shall be sufficient proof
of lack or absence of record as stated in Section 28, Rule 132 of
the Rules of Court:
 SEC. 28. Proof of lack of record. – a written statement
signed by an officer having the custody of an official
record or by his deputy that after diligent search, no
record or entry of a specified tenor is found to exist in the
records of his office, accompanied by a certificate as
above provided, is admissible as evidence that the
records of his office contain no such record or entry.
We shall now proceed to scrutinize whether the certifications by
the Local Civil Registrar of San Juan in connection with Marriage
License No. 2770792 complied with the foregoing requirements
and deserved to be accorded probative value.
The second certification17 was dated 20 September 1994 and
provides:
TO WHOM IT MAY CONCERN:
This is to certify that no marriage license Number
2770792 were ever issued by this Office with regards to
Marriage License Number 2880792, we exert all effort but
we cannot find the said number.
Hope and understand our loaded work cannot give you
our full force locating the above problem.

The first Certification15 issued by the Local Civil Registrar of San San Juan, Metro Manila
Juan, Metro Manila, was dated 11 March 1994. It reads:
September 20, 1994
TO WHOM IT MAY CONCERN:

No Marriage License Number 2770792 were (sic) ever (SGD)RAFAEL D. ALISCAD, JR.
issued by this Office. With regards (sic) to Marriage     Local Civil Registrar
License Number 2880792,16 we exert all effort but we
cannot find the said number.
The third Certification,18 issued on 25 July 2000, states:
Hope and understand our loaded work cannot give you
our full force locating the above problem. TO WHOM IT MAY CONCERN:

San Juan, Metro Manila This is to certify that according to the records of this
office, no Marriage License Application was filed and no
Marriage License No. 2770792 allegedly dated May 19,
March 11, 1994
1969 was issued by this Office to MR. JAIME O. SEVILLA
and MS. CARMELITA CARDENAS-SEVILLA.
(SGD)RAFAEL D. ALISCAD, JR.
            Local Civil Registrar
 This is to further certify that the said application and
license do not exist in our Local Civil Registry Index and,
therefore, appear to be fictitious.
This certification is being issued upon the request of the
interested party for whatever legal intent it may serve.
San Juan, Metro Manila
July 25, 2000
(SGD)RAFAEL D. ALISCAD, JR.
            Local Civil Registrar
Note that the first two certifications bear the statement that "hope
and understand our loaded work cannot give you our full force
locating the above problem." It could be easily implied from the
said statement that the Office of the Local Civil Registrar could
not exert its best efforts to locate and determine the existence of
Marriage License No. 2770792 due to its "loaded work." Likewise,
both certifications failed to state with absolute certainty whether
or not such license was issued.
This implication is confirmed in the testimony of the
representative from the Office of the Local Civil Registrar of San
Juan, Ms. Perlita Mercader, who stated that they cannot locate
the logbook due to the fact that the person in charge of the said
logbook had already retired. Further, the testimony of the said
person was not presented in evidence. It does not appear on
record that the former custodian of the logbook was deceased or
missing, or that his testimony could not be secured. This belies
the claim that all efforts to locate the logbook or prove the
material contents therein, had been exerted.
As testified to by Perlita Mercader:
Q Under the subpoena duces tecum, you were required to
bring to this Court among other things the register of
application of/or (sic) for marriage licenses received by
the Office of the :Local Civil Registrar of San Juan,
Province of Rizal, from January 19, 1969 to May 1969.
Did you bring with you those records?
A I brought may 19, 1969, sir.
Q Is that the book requested of you under no. 3 of the
request for subpoena?
A Meron pang January. I forgot, January . . .
Q Did you bring that with you?
A No, sir.
Q Why not?
A I cannot locate the book. This is the only book.
Q Will you please state if this is the register of marriage of
marriage applications that your office maintains as
required by the manual of the office of the Local Civil
Registrar?
COURT
May I see that book and the portion marked by the
witness.
 xxxx
COURT
Why don't you ask her direct question whether
marriage license 2880792 is the number issued
by their office while with respect to license no.
2770792 the office of the Local Civil Registrar of
San Juan is very definite about it it was never
issued. Then ask him how about no. 2880792 if
the same was ever issued by their office. Did you
ask this 2887092, but you could not find the
record? But for the moment you cannot locate the
books? Which is which now, was this issued or
not?
A The employee handling it is already retired, sir.19
Given the documentary and testimonial evidence to the effect that
utmost efforts were not exerted to locate the logbook where
Marriage License No. 2770792 may have been entered, the
presumption of regularity of performance of official function by the
Local Civil Registrar in issuing the certifications, is effectively
rebutted.
According to Section 3(m),20 Rule 131 of the Rules of Court, the
presumption that official duty has been regularly performed is
among the disputable presumptions.
In one case, it was held:
A disputable presumption has been defined as a species
of evidence that may be accepted and acted on where
there is no other evidence to uphold the contention for
which it stands, or one which may be overcome by other
evidence. One such disputable/rebuttable presumption is
that an official act or duty has been regularly performed. x
x x.21
The presumption of regularity of official acts may be rebutted by
affirmative evidence of irregularity or failure to perform a duty.22
The presumption of regularity of performance of official duty is
disputable and can be overcome by other evidence as in the case
at bar where the presumption has been effectively defeated by
the tenor of the first and second certifications.
Moreover, the absence of the logbook is not conclusive proof of
non-issuance of Marriage License No. 2770792. It can also
mean, as we believed true in the case at bar, that the logbook just
cannot be found. In the absence of showing of diligent efforts to
search for the said logbook, we cannot easily accept that
absence of the same also means non-existence or falsity of
entries therein.
Finally, the rule is settled that every intendment of the law or fact
leans toward the validity of the marriage, the indissolubility of the
marriage bonds.23 The courts look upon this presumption with
great favor. It is not to be lightly repelled; on the contrary, the
presumption is of great weight.24
The Court is mindful of the policy of the 1987 Constitution to
protect and strengthen the family as the basic autonomous social
institution and marriage as the foundation of the family. Thus, any
doubt should be resolved in favor of the validity of the marriage.25
The parties have comported themselves as husband and wife
and lived together for several years producing two
offsprings,26 now adults themselves. It took Jaime several years
before he filed the petition for declaration of nullity. Admittedly, he
married another individual sometime in 1991.27 We are not ready
to reward petitioner by declaring the nullity of his marriage and
give him his freedom and in the process allow him to profit from
his own deceit and perfidy.28
Our Constitution is committed to the policy of strengthening the
family as a basic social institution. Our family law is based on the
policy that marriage is not a mere contract, but a social institution
in which the State is vitally interested. The State can find no
stronger anchor than on good, solid and happy families. The
break-up of families weakens our social and moral fabric; hence,
their preservation is not the concern of the family members
alone.29
themselves as husband and wife have entered into a lawful
contract of marriage.31
By our failure to come to the succor of Jaime, we are not trifling
with his emotion or deepest sentiments. As we have said
in Carating-Siayngco v. Siayngco,32 regrettably, there are
situations like this one, where neither law nor society can provide
the specific answers to every individual problem.
WHEREFORE, premises considered, the instant Petition
is DENIED. The Decision of the Court of Appeals dated 20
December 2004 and the Resolution dated 6 April 2005
are AFFIRMED. Costs against the petitioner.
SO ORDERED.

"The basis of human society throughout the civilized world is x x x

marriage. Marriage in this jurisdiction is not only a civil contract,
but it is a new relation, an institution in the maintenance of which
the public is deeply interested. Consequently, every intendment
of the law leans toward legalizing matrimony. Persons dwelling
together in apparent matrimony are presumed, in the absence of
any counterpresumption or evidence special to the case, to be in
fact married. The reason is that such is the common order of
society, and if the parties were not what they thus hold
themselves out as being, they would be living in the constant
violation of decency and of law. A presumption established by our
Code of Civil Procedure is `that a man and a woman deporting
themselves as husband and wife have entered into a lawful
contract of marriage.' Semper praesumitur pro matrimonio –
Always presume marriage."30

This jurisprudential attitude towards marriage is based on

the prima facie presumption that a man and a woman deporting
G.R. No. 148220               June 15, 2005

ROSENDO HERRERA, petitioner, 
vs.
ROSENDO ALBA, minor, represented by his mother ARMI A.
ALBA, and HON. NIMFA CUESTA-VILCHES, Presiding Judge,
Branch 48, Regional Trial Court, Manila, respondents.

DECISION

CARPIO, J.:

The Case

This is a petition for review1 to set aside the Decision2 dated 29

November 2000 of the Court of Appeals ("appellate court") in CA-
G.R. SP No. 59766. The appellate court affirmed two
Orders3 issued by Branch 48 of the Regional Trial Court of Manila
("trial court") in SP No. 98-88759. The Order dated 3 February
2000 directed Rosendo Herrera ("petitioner") to submit to
deoxyribonucleic acid ("DNA") paternity testing, while the Order
dated 8 June 2000 denied petitioner’s motion for reconsideration.

The Facts

On 14 May 1998, then thirteen-year-old Rosendo Alba

("respondent"), represented by his mother Armi Alba, filed before
the trial court a petition for compulsory recognition, support and
damages against petitioner. On 7 August 1998, petitioner filed his
answer with counterclaim where he denied that he is the
biological father of respondent. Petitioner also denied physical
contact with respondent’s mother.
Respondent filed a motion to direct the taking of DNA paternity
testing to abbreviate the proceedings. To support the motion,
respondent presented the testimony of Saturnina C. Halos, Ph.D.
When she testified, Dr. Halos was an Associate Professor at De
La Salle University where she taught Cell Biology. She was also
head of the University of the Philippines Natural Sciences
Research Institute ("UP-NSRI"), a DNA analysis laboratory. She
was a former professor at the University of the Philippines in
Diliman, Quezon City, where she developed the Molecular
Biology Program and taught Molecular Biology. In her testimony,
Dr. Halos described the process for DNA paternity testing and
asserted that the test had an accuracy rate of 99.9999% in
establishing paternity.4
Petitioner opposed DNA paternity testing and contended that it
has not gained acceptability. Petitioner further argued that DNA
paternity testing violates his right against self-incrimination.
The Ruling of the Trial Court
In an Order dated 3 February 2000, the trial court granted
respondent’s motion to conduct DNA paternity testing on
petitioner, respondent and Armi Alba. Thus:
In view of the foregoing, the motion of the petitioner
is GRANTED and the relevant individuals, namely: the petitioner,
the minor child, and respondent are directed to undergo DNA
paternity testing in a laboratory of their common choice within a
period of thirty (30) days from receipt of the Order, and to submit
the results thereof within a period of ninety (90) days from
completion. The parties are further reminded of the hearing set on
24 February 2000 for the reception of other evidence in support of
the petition.
IT IS SO ORDERED.5 (Emphasis in the original)
Petitioner filed a motion for reconsideration of the 3 February
2000 Order. He asserted that "under the present circumstances,
the DNA test [he] is compelled to take would be inconclusive,
irrelevant and the coercive process to obtain the requisite
specimen…, unconstitutional."
In an Order dated 8 June 2000, the trial court denied petitioner’s
motion for reconsideration.6
On 18 July 2000, petitioner filed before the appellate court a
petition for certiorari under Rule 65 of the 1997 Rules of Civil
Procedure. He asserted that the trial court rendered the Orders
dated 3 February 2000 and 8 June 2000 "in excess of, or without
jurisdiction and/or with grave abuse of discretion amounting to
lack or excess of jurisdiction." Petitioner further contended that
there is "no appeal nor any [other] plain, adequate and speedy
remedy in the ordinary course of law." Petitioner maintained his
previous objections to the taking of DNA paternity testing. He
submitted the following grounds to support his objection:
1. Public respondent misread and misapplied the ruling in
Lim vs. Court of Appeals (270 SCRA 2).
2. Public respondent ruled to accept DNA test without
considering the limitations on, and conditions precedent
for the admissibility of DNA testing and ignoring the
serious constraints affecting the reliability of the test as
admitted by private respondent’s "expert" witness.
3. Subject Orders lack legal and factual support, with
public respondent relying on scientific findings and
 conclusions unfit for judicial notice and unsupported by
experts in the field and scientific treatises.
4. Under the present circumstances the DNA testing
petitioner [is] compelled to take will be inconclusive,
irrelevant and the coercive process to obtain the requisite
specimen from the petitioner, unconstitutional.7
The Ruling of the Court of Appeals
On 29 November 2000, the appellate court issued a decision
denying the petition and affirming the questioned Orders of the
trial court. The appellate court stated that petitioner merely
desires to correct the trial court’s evaluation of evidence. Thus,
appeal is an available remedy for an error of judgment that the
court may commit in the exercise of its jurisdiction. The appellate
court also stated that the proposed DNA paternity testing does
not violate his right against self-incrimination because the right
applies only to testimonial compulsion. Finally, the appellate court
pointed out that petitioner can still refute a possible adverse result
of the DNA paternity testing. The dispositive portion of the
appellate court’s decision reads:
WHEREFORE, foregoing premises considered, the Petition is
hereby DENIED DUE COURSE, and ordered dismissed, and the
challenged orders of the Trial Court AFFIRMED, with costs to
Petitioner.
SO ORDERED.8
Petitioner moved for reconsideration, which the appellate court
denied in its Resolution dated 23 May 2001.9
Issues
Petitioner raises the issue of whether a DNA test is a valid
probative tool in this jurisdiction to determine filiation. Petitioner
asks for the conditions under which DNA technology may be
integrated into our judicial system and the prerequisites for the
admissibility of DNA test results in a paternity suit.10
Petitioner further submits that the appellate court gravely abused
its discretion when it authorized the trial court "to embark in [sic] a
new procedure xxx to determine filiation despite the absence of
legislation to ensure its reliability and integrity, want of official
recognition as made clear in Lim vs. Court of Appeals and the
presence of technical and legal constraints in respect of [sic] its
implementation."11 Petitioner maintains that the proposed DNA
paternity testing violates his right against self-incrimination.12
The Ruling of the Court
The petition has no merit.
Before discussing the issues on DNA paternity testing, we deem
it appropriate to give an overview of a paternity suit and apply it to
the facts of this case. We shall consider the requirements of the
Family Code and of the Rules of Evidence to establish paternity
and filiation.
An Overview of the Paternity and Filiation Suit
Filiation proceedings are usually filed not just to adjudicate
paternity but also to secure a legal right associated with paternity,
such as citizenship,13 support (as in the present case), or
inheritance. The burden of proving paternity is on the person who
alleges that the putative father is the biological father of the child.
There are four significant procedural aspects of a traditional
paternity action which parties have to face: a prima facie case,
affirmative defenses, presumption of legitimacy, and physical
resemblance between the putative father and child.14
A prima facie case exists if a woman declares that she had
sexual relations with the putative father. In our jurisdiction,
corroborative proof is required to carry the burden forward and
shift it to the putative father.15
There are two affirmative defenses available to the putative
father. The putative father may show incapability of sexual
relations with the mother, because of either physical absence or
impotency.16 The putative father may also show that the mother
had sexual relations with other men at the time of conception.
A child born to a husband and wife during a valid marriage is
presumed legitimate.17 The child’s legitimacy may be impugned
only under the strict standards provided by law.18
Finally, physical resemblance between the putative father and
child may be offered as part of evidence of paternity.
Resemblance is a trial technique unique to a paternity
proceeding. However, although likeness is a function of heredity,
there is no mathematical formula that could quantify how much a
child must or must not look like his biological father.19 This kind of
evidence appeals to the emotions of the trier of fact.
In the present case, the trial court encountered three of the four
aspects. Armi Alba, respondent’s mother, put forward a prima
facie case when she asserted that petitioner is respondent’s
biological father. Aware that her assertion is not enough to
convince the trial court, she offered corroborative proof in the
form of letters and pictures. Petitioner, on the other hand, denied
Armi Alba’s assertion. He denied ever having sexual relations
with Armi Alba and stated that respondent is Armi Alba’s child
with another man. Armi Alba countered petitioner’s denial by
submitting pictures of respondent and petitioner side by side, to
show how much they resemble each other.
Paternity and filiation disputes can easily become credibility
contests. We now look to the law, rules, and governing
jurisprudence to help us determine what evidence of incriminating
acts on paternity and filiation are allowed in this jurisdiction.
Laws, Rules, and Jurisprudence Establishing Filiation
The relevant provisions of the Family Code provide as follows:
ART. 175. Illegitimate children may establish their illegitimate
filiation in the same way and on the same evidence as legitimate
children.
xxx
ART. 172. The filiation of legitimate children is established by any
of the following:
(1) The record of birth appearing in the civil register or a
final judgment; or
(2) An admission of legitimate filiation in a public
document or a private handwritten instrument and signed
by the parent concerned.
In the absence of the foregoing evidence, the legitimate filiation
shall be proved by:
(1) The open and continuous possession of the status of
a legitimate child; or
 (2) Any other means allowed by the Rules of Court and
special laws.
The Rules on Evidence include provisions on pedigree. The
relevant sections of Rule 130 provide:
SEC. 39. Act or declaration about pedigree.—The act or
declaration of a person deceased, or unable to testify, in respect
to the pedigree of another person related to him by birth or
marriage, may be received in evidence where it occurred before
the controversy, and the relationship between the two persons is
shown by evidence other than such act or declaration. The word
"pedigree" includes relationship, family genealogy, birth,
marriage, death, the dates when and the places where these
facts occurred, and the names of the relatives. It embraces also
facts of family history intimately connected with pedigree.
SEC. 40. Family reputation or tradition regarding pedigree.—The
reputation or tradition existing in a family previous to the
controversy, in respect to the pedigree of any one of its members,
may be received in evidence if the witness testifying thereon be
also a member of the family, either by consanguinity or affinity.
Entries in family bibles or other family books or charts, engraving
on rings, family portraits and the like, may be received as
evidence of pedigree.
This Court’s rulings further specify what incriminating acts are
acceptable as evidence to establish filiation. In Pe Lim v. CA,20 a
case petitioner often cites, we stated that the issue of paternity
still has to be resolved by such conventional evidence as the
relevant incriminating verbal and written acts by the putative
father. Under Article 278 of the New Civil Code, voluntary
recognition by a parent shall be made in the record of birth, a will,
a statement before a court of record, or in any authentic writing.
To be effective, the claim of filiation must be made by the putative
father himself and the writing must be the writing of the putative
father.21 A notarial agreement to support a child whose filiation is
admitted by the putative father was considered acceptable
evidence.22 Letters to the mother vowing to be a good father to
the child and pictures of the putative father cuddling the child on
various occasions, together with the certificate of live birth,
proved filiation.23 However, a student permanent record, a written
consent to a father’s operation, or a marriage contract where the
putative father gave consent, cannot be taken as authentic
writing.24 Standing alone, neither a certificate of baptism25 nor
family pictures26 are sufficient to establish filiation.
So far, the laws, rules, and jurisprudence seemingly limit
evidence of paternity and filiation to incriminating acts alone.
However, advances in science show that sources of evidence of
paternity and filiation need not be limited to incriminating acts.
There is now almost universal scientific agreement that blood
grouping tests are conclusive on non-paternity, although
inconclusive on paternity.27
In Co Tao v. Court of Appeals,28 the result of the blood grouping
test showed that the putative father was a "possible father" of the
child. Paternity was imputed to the putative father after the
possibility of paternity was proven on presentation during trial of
facts and circumstances other than the results of the blood
grouping test.
In Jao v. Court of Appeals,29 the child, the mother, and the
putative father agreed to submit themselves to a blood grouping
test. The National Bureau of Investigation ("NBI") conducted the
test, which indicated that the child could not have been the
possible offspring of the mother and the putative father. We held
that the result of the blood grouping test was conclusive on the
non-paternity of the putative father.
The present case asks us to go one step further. We are now
asked whether DNA analysis may be admitted as evidence to
prove paternity.
DNA Analysis as Evidence
DNA is the fundamental building block of a person’s entire
genetic make-up. DNA is found in all human cells and is the same
in every cell of the same person. Genetic identity is unique.
Hence, a person’s DNA profile can determine his identity.30
DNA analysis is a procedure in which DNA extracted from a
biological sample obtained from an individual is examined. The
DNA is processed to generate a pattern, or a DNA profile, for the
individual from whom the sample is taken. This DNA profile is
unique for each person, except for identical twins.31 We quote
relevant portions of the trial court’s 3 February 2000 Order with
approval:
Everyone is born with a distinct genetic blueprint called DNA
(deoxyribonucleic acid). It is exclusive to an individual (except
in the rare occurrence of identical twins that share a single,
fertilized egg), and DNA is unchanging throughout life. Being a
component of every cell in the human body, the DNA of an
individual’s blood is the very DNA in his or her skin cells, hair
follicles, muscles, semen, samples from buccal swabs, saliva, or
other body parts.
The chemical structure of DNA has four bases. They are known
as A (adenine), G (guanine), C (cystosine) and T(thymine). The
order in which the four bases appear in an individual’s DNA
determines his or her physical makeup. And since DNA is a
double-stranded molecule, it is composed of two specific paired
bases, A-T or T-A and G-C or C-G. These are called "genes."
Every gene has a certain number of the above base pairs
distributed in a particular sequence. This gives a person his or
her genetic code. Somewhere in the DNA framework,
nonetheless, are sections that differ. They are known
as "polymorphic loci," which are the areas analyzed in DNA typing
(profiling, tests, fingerprinting, or analysis/DNA
fingerprinting/genetic tests or fingerprinting). In other words, DNA
typing simply means determining the "polymorphic loci."
How is DNA typing performed? From a DNA sample obtained or
extracted, a molecular biologist may proceed to analyze it in
several ways. There are five (5) techniques to conduct DNA
typing. They are: the RFLP (restriction fragment length
polymorphism); "reverse dot blot" or HLA DQ a/Pm loci which was
used in 287 cases that were admitted as evidence by 37 courts in
the U.S. as of November 1994; mtDNA process; VNTR (variable
number tandem repeats); and the most recent which is known as
the PCR-([polymerase] chain reaction) based STR (short tandem
repeats) method which, as of 1996, was availed of by most
forensic laboratories in the world. PCR is the process of
replicating or copying DNA in an evidence sample a million times
through repeated cycling of a reaction involving the so-called
DNA polymerize enzyme. STR, on the other hand, takes
measurements in 13 separate places and can match two (2)
samples with a reported theoretical error rate of less than one (1)
in a trillion.
Just like in fingerprint analysis, in DNA typing, "matches" are
determined. To illustrate, when DNA or fingerprint tests are done
to identify a suspect in a criminal case, the evidence collected
from the crime scene is compared with the "known" print. If a
substantial amount of the identifying features are the same, the
DNA or fingerprint is deemed to be a match. But then, even if
only one feature of the DNA or fingerprint is different, it is
deemed not to have come from the suspect.
As earlier stated, certain regions of human DNA show variations
between people. In each of these regions, a person possesses
two genetic types called "allele", one inherited from each parent.
In [a] paternity test, the forensic scientist looks at a number of
these variable regions in an individual to produce a DNA profile.
Comparing next the DNA profiles of the mother and child, it is
possible to determine which half of the child’s DNA was inherited
from the mother. The other half must have been inherited from
the biological father. The alleged father’s profile is then examined
to ascertain whether he has the DNA types in his profile, which
match the paternal types in the child. If the man’s DNA types do
not match that of the child, the man is excluded as the father. If
the DNA types match, then he is not excluded as the
father.32 (Emphasis in the original)
Although the term "DNA testing" was mentioned in the 1995 case
of People v. Teehankee, Jr.,33 it was only in the 2001 case
of Tijing v. Court of Appeals34 that more than a passing mention
was given to DNA analysis. In Tijing,we issued a writ of habeas
corpus against respondent who abducted petitioners’ youngest
son. Testimonial and documentary evidence and physical
resemblance were used to establish parentage. However, we
observed that:
Parentage will still be resolved using conventional methods
unless we adopt the modern and scientific ways available.
Fortunately, we have now the facility and expertise in using DNA
test for identification and parentage testing. The University of the
Philippines Natural Science Research Institute (UP-NSRI) DNA
Analysis Laboratory has now the capability to conduct DNA typing
using short tandem repeat (STR) analysis. xxx For it was said,
that courts should apply the results of science when completely
obtained in aid of situations presented, since to reject said result
is to deny progress. Though it is not necessary in this case to
resort to DNA testing, in [the] future it would be useful to all
concerned in the prompt resolution of parentage and identity
issues.
Admissibility of DNA Analysis as Evidence
The 2002 case of People v. Vallejo35 discussed DNA analysis as
evidence. This may be considered a 180 degree turn from the
Court’s wary attitude towards DNA testing in the
1997 Pe Lim case,36 where we stated that "DNA, being a
relatively new science, xxx has not yet been accorded official
recognition by our courts." In Vallejo, the DNA profile from the
vaginal swabs taken from the rape victim matched the accused’s
DNA profile. We affirmed the accused’s conviction of rape with
homicide and sentenced him to death. We declared:
In assessing the probative value of DNA evidence, therefore,
courts should consider, among other things, the following data:
how the samples were collected, how they were handled, the
possibility of contamination of the samples, the procedure
followed in analyzing the samples, whether the proper standards
and procedures were followed in conducting the tests, and the
qualification of the analyst who conducted the tests.37
Vallejo discussed the probative value, not admissibility, of DNA
evidence. By 2002, there was no longer any question on the
validity of the use of DNA analysis as evidence. The Court moved
from the issue of according "official recognition" to DNA analysis
as evidence to the issue of observance of procedures in
conducting DNA analysis.
In 2004, there were two other cases that had a significant impact
on jurisprudence on DNA testing: People v. Yatar38 and In re:
The Writ of Habeas Corpus for Reynaldo de Villa.39 In Yatar, a
match existed between the DNA profile of the semen found in the
victim and the DNA profile of the blood sample given by appellant
in open court. The Court, following Vallejo’s footsteps, affirmed
the conviction of appellant because the physical evidence,
corroborated by circumstantial evidence, showed appellant guilty
of rape with homicide. In De Villa, the convict-petitioner
presented DNA test results to prove that he is not the father of the
child conceived at the time of commission of the rape. The Court
ruled that a difference between the DNA profile of the convict-
petitioner and the DNA profile of the victim’s child does not
preclude the convict-petitioner’s commission of rape.
In the present case, the various pleadings filed by petitioner and
respondent refer to two United States cases to support their
respective positions on the admissibility of DNA analysis as
evidence: Frye v. U.S.40 and Daubert v. Merrell Dow
Pharmaceuticals.41 In Frye v. U.S., the trial court convicted Frye
of murder. Frye appealed his conviction to the Supreme Court of
the District of Columbia. During trial, Frye’s counsel offered an
expert witness to testify on the result of a systolic blood pressure
deception test42 made on defendant. The state Supreme Court
affirmed Frye’s conviction and ruled that "the systolic blood
pressure deception test has not yet gained such standing and
scientific recognition among physiological and psychological
authorities as would justify the courts in admitting expert
testimony deduced from the discovery, development, and
experiments thus far made." The Fryestandard of general
acceptance states as follows:
Just when a scientific principle or discovery crosses the line
between the experimental and demonstrable stages is difficult to
define. Somewhere in this twilight zone the evidential force of the
principle must be recognized, and while courts will go a long way
in admitting expert testimony deduced from a well recognized
scientific principle or discovery, the thing from which the
deduction is made must be sufficiently established to have gained
general acceptance in the particular field in which it belongs.
In 1989, State v. Schwartz43 modified the Frye standard.
Schwartz was charged with stabbing and murder. Bloodstained
articles and blood samples of the accused and the victim were
submitted for DNA testing to a government facility and a private
facility. The prosecution introduced the private testing facility’s
results over Schwartz’s objection. One of the issues brought
before the state Supreme Court included the admissibility of DNA
test results in a criminal proceeding. The state Supreme Court
concluded that:
While we agree with the trial court that forensic DNA typing has
gained general acceptance in the scientific community, we hold
that admissibility of specific test results in a particular case hinges
on the laboratory’s compliance with appropriate standards and
controls, and the availability of their testing data and results.44
In 1993, Daubert v. Merrell Dow Pharmaceuticals, Inc.45 further
modified the Frye-Schwartz standard. Daubertwas a product
liability case where both the trial and appellate courts denied the
admissibility of an expert’s testimony because it failed to meet
the Frye standard of "general acceptance." The United States
Supreme Court ruled that in federal trials, the Federal Rules of
Evidence have superseded the Frye standard. Rule 401 defines
relevant evidence, while Rule 402 provides the foundation for
admissibility of evidence. Thus:
Rule 401. "Relevant evidence" is defined as that which has any
"tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or
less probable than it would be without the evidence.
Rule 402. All relevant evidence is admissible, except as
otherwise provided by the Constitution of the United States, by
Act of Congress, by these rules, or by other rules prescribed by
the Supreme Court pursuant to statutory authority. Evidence
which is not relevant is not admissible.
Rule 702 of the Federal Rules of Evidence governing expert
testimony provides:
If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form
of an opinion or otherwise.
Daubert cautions that departure from the Frye standard of
general acceptance does not mean that the Federal Rules do not
place limits on the admissibility of scientific evidence. Rather, the
judge must ensure that the testimony’s reasoning or method is
scientifically valid and is relevant to the issue. Admissibility would
depend on factors such as (1) whether the theory or technique
can be or has been tested; (2) whether the theory or technique
has been subjected to peer review and publication; (3) the known
or potential rate of error; (4) the existence and maintenance of
standards controlling the technique’s operation; and (5) whether
the theory or technique is generally accepted in the scientific
community.
Another product liability case, Kumho Tires Co. v.
Carmichael,46 further modified the Daubert standard. This led to
the amendment of Rule 702 in 2000 and which now reads as
follows:
If scientific, technical or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form
of an opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.
We now determine the applicability in this jurisdiction of these
American cases. Obviously, neither the Frye-Schwartz standard
nor the Daubert-Kumho standard is controlling in the
Philippines.47 At best, American jurisprudence merely has a
persuasive effect on our decisions. Here, evidence is admissible
when it is relevant to the fact in issue and is not otherwise
excluded by statute or the Rules of Court.48 Evidence is relevant
when it has such a relation to the fact in issue as to induce belief
in its existence or non-existence.49 Section 49 of Rule 130, which
governs the admissibility of expert testimony, provides as follows:
The opinion of a witness on a matter requiring special knowledge,
skill, experience or training which he is shown to possess may be
received in evidence.
This Rule does not pose any legal obstacle to the admissibility of
DNA analysis as evidence. Indeed, even evidence on collateral
matters is allowed "when it tends in any reasonable degree to
establish the probability or improbability of the fact in issue."50
Indeed, it would have been convenient to merely refer petitioner
to our decisions in Tijing, Vallejo and Yatar to illustrate that DNA
analysis is admissible as evidence. In our jurisdiction, the
restrictive tests for admissibility established by Frye-
Schwartz and Daubert-Kumho go into the weight of the
evidence.
Probative Value of DNA Analysis as Evidence
Despite our relatively liberal rules on admissibility, trial courts
should be cautious in giving credence to DNA analysis as
evidence. We reiterate our statement in Vallejo:
In assessing the probative value of DNA evidence, therefore,
courts should consider, among other things, the following data:
how the samples were collected, how they were handled, the
possibility of contamination of the samples, the procedure
followed in analyzing the samples, whether the proper standards
and procedures were followed in conducting the tests, and the
qualification of the analyst who conducted the tests.51]
We also repeat the trial court’s explanation of DNA analysis used
in paternity cases:
In [a] paternity test, the forensic scientist looks at a number of
these variable regions in an individual to produce a DNA profile.
Comparing next the DNA profiles of the mother and child, it is
possible to determine which half of the child’s DNA was inherited
from the mother. The other half must have been inherited from
the biological father. The alleged father’s profile is then examined
to ascertain whether he has the DNA types in his profile, which
match the paternal types in the child. If the man’s DNA types do
not match that of the child, the man is excluded as the father. If
the DNA types match, then he is not excluded as the father.52
It is not enough to state that the child’s DNA profile matches that
of the putative father. A complete match between the DNA profile
of the child and the DNA profile of the putative father does not
necessarily establish paternity. For this reason, following the
highest standard adopted in an American jurisdiction,53 trial courts
should require at least 99.9% as a minimum value of the
Probability of Paternity ("W") prior to a paternity inclusion. W is a
numerical estimate for the likelihood of paternity of a putative
father compared to the probability of a random match of two
unrelated individuals. An appropriate reference population
database, such as the Philippine population database, is required
to compute for W. Due to the probabilistic nature of paternity
inclusions, W will never equal to 100%. However, the accuracy of
W estimates is higher when the putative father, mother and child
are subjected to DNA analysis compared to those conducted
between the putative father and child alone.54
DNA analysis that excludes the putative father from paternity
should be conclusive proof of non-paternity. If the value of W is
less than 99.9%, the results of the DNA analysis should be
considered as corroborative evidence. If the value of W is 99.9%
or higher, then there is refutable presumption of paternity.55 This
refutable presumption of paternity should be subjected to
the Vallejo standards.
Right Against Self-Incrimination
Section 17, Article 3 of the 1987 Constitution provides that "no
person shall be compelled to be a witness against himself."
Petitioner asserts that obtaining samples from him for DNA
testing violates his right against self-incrimination. Petitioner
ignores our earlier pronouncements that the privilege is
applicable only to testimonial evidence. Again, we quote relevant
portions of the trial court’s 3 February 2000 Order with approval:
Obtaining DNA samples from an accused in a criminal case or
from the respondent in a paternity case, contrary to the belief of
respondent in this action, will not violate the right against self-
incrimination. This privilege applies only to evidence that
is "communicative" in essence taken under duress (People vs.
Olvis, 154 SCRA 513, 1987). The Supreme Court has ruled that
the right against self-incrimination is just a prohibition on the use
of physical or moral compulsion to extort communication
(testimonial evidence) from a defendant, not an exclusion of
evidence taken from his body when it may be material. As such, a
defendant can be required to submit to a test to extract virus from
his body (as cited in People vs. Olvis, Supra); the substance
emitting from the body of the accused was received as evidence
for acts of lasciviousness (US vs. Tan Teng, 23 Phil. 145);
morphine forced out of the mouth was received as proof (US vs.
Ong Siu Hong, 36 Phil. 735); an order by the judge for the
witness to put on pair of pants for size was allowed (People vs.
Otadora, 86 Phil. 244); and the court can compel a woman
accused of adultery to submit for pregnancy test (Villaflor vs.
Summers, 41 Phil. 62), since the gist of the privilege is the
restriction on "testimonial compulsion."56
The policy of the Family Code to liberalize the rule on the
investigation of the paternity and filiation of children, especially of
illegitimate children, is without prejudice to the right of the putative
parent to claim his or her own defenses.57 Where the evidence to
aid this investigation is obtainable through the facilities of modern
science and technology, such evidence should be considered
subject to the limits established by the law, rules, and
jurisprudence.
WHEREFORE, we DISMISS the petition. We AFFIRM the
Decision of the Court of Appeals dated 29 November 2000 in CA-
G.R. SP No. 59766. We also AFFIRM the Orders dated 3
February 2000 and 8 June 2000 issued by Branch 48 of the
Regional Trial Court of Manila in Civil Case No. SP-98-88759.
SO ORDERED
G.R. No. 130487               June 19, 2000
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, 
vs.
ROBERTO ESTRADA, accused-appellant.
PUNO, J.:
This is an automatic review of the death penalty imposed on
accused-appellant by the Regional Trial Court, Branch 44,
Dagupan City in Criminal Case No. 94-00860-D.  We nullify the
1 
proceedings in the court a quo and remand the case for proper
disposition.
In an Information dated December 29, 1994, accused-appellant
Roberto Estrada y Lopez was charged with the crime of murder
for the killing of one Rogelio P. Mararac, a security guard. The
Information reads:
That on or about the 27th day of December 1994 in the
City of Dagupan, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused,
ROBERTO ESTRADA Y LOPEZ, being then armed with a
butcher's knife, with intent to kill one ROGELIO P.
MARARAC with treachery and committed in a holy place
of worship, did then and there, wilfully, unlawfully and
criminally, attack, assault and use personal violence upon
the latter by stabbing him, hitting him on vital parts of his
body with the said weapon, thereby causing his death
shortly thereafter due to "Cardiorespiratory Arrest,
Massive Intrathoracic Hemorrhage, Stab Wound" as per
Autopsy Report and Certificate of Death both issued by
 Dr. Tomas G. Cornel, Assistant City Health Officer, this
City, to the damage and prejudice of the legal heirs of
said deceased ROGELIO P. MARARAC in the amount of
not less than FIFTY THOUSAND PESOS (P50,000.00),
Philippine currency, and other consequential damages.
Contrary to Article 248 of the Revised Penal Code.
Dagupan City, Philippines December 29, 1994.  2  thousand people. At 11:00 A.M., nearing the close of the rites, the
At the arraignment on January 6, 1995, accused-appellant's
counsel, the Public Attorney's Office, filed an "Urgent Motion to
Suspend Arraignment and to Commit Accused to Psychiatric
Ward at Baguio General Hospital." It was alleged that accused-
appellant could not properly and intelligently enter a plea because
he was suffering from a mental defect; that before the
commission of the crime, he was confined at the psychiatric ward
of the Baguio General Hospital in Baguio City. He prayed for the
suspension of his arraignment and the issuance of an order
confining him at the said hospital. 
3  will not move out!" Hearing this, Santillan moved away.  6
The motion was opposed by the City Prosecutor. The trial
court, motu proprio, propounded several questions on accused-
appellant. Finding that the questions were understood and
answered by him "intelligently," the court denied the motion that
same day.  4  nightstick and used it to tap accused-appellant's hand on the
The arraignment proceeded and a plea of not guilty was entered
by the court on accused-appellant's behalf. 5 
The prosecution presented four (4) witnesses, namely: (1) Dr.
Tomas Cornel, the Assistant Health Officer of Dagupan City who
issued the death certificate and conducted the autopsy on the
victim; (2) Crisanto Santillan, an eyewitness to the incident; (3)
SPO1 Conrado Francisco, one of the policemen who
apprehended accused-appellant; and (4) Rosalinda Sobremonte,
the victim's sister. The prosecution established the following facts:
In the morning of December 27, 1994, at the St. John's Cathedral,
Dagupan City, the sacrament of confirmation was being
performed by the Roman Catholic Bishop of Dagupan City on the
children of Dagupan. The cathedral was filled with more than a
Bishop went down the altar to give his final blessing to the
children in the front rows. While the Bishop was giving his
blessing, a man from the crowd went up and walked towards the
center of the altar. He stopped beside the Bishop's chair, turned
around and, in full view of the Catholic faithful, sat on the Bishop's
chair. The man was accused-appellant. Crisanto Santillan, who
was assisting the Bishop at the rites, saw accused-appellant.
Santillan approached accused-appellant and requested him to
vacate the Bishop's chair. Gripping the chair's armrest, accused-
appellant replied in Pangasinese: "No matter what will happen, I
 
Some of the churchgoers summoned Rogelio Mararac, the
security guard at the cathedral. Mararac went near accused-
appellant and told him to vacate the Bishop's chair. Accused-
appellant stared intensely at the guard. Mararac grabbed his
armrest. Appellant did not budge. Again, Mararac tapped the
latter's hand. Still no reaction. Mararac was about to strike again
when suddenly accused-appellant drew a knife from his back,
lunged at Mararac and stabbed him, hitting him below his left
throat. Mararac fell. Accused-appellant went over the victim and
tried to stab him again but Mararac parried his thrust. Accused-
appellant looked up and around him. He got up, went to the
microphone and shouted: "Anggapuy nayan dia!" (No one can
beat me here!). He returned to the Bishop's chair and sat on it
again. Mararac, wounded and bleeding, slowly dragged himself
down the altar.  7 
Meanwhile, SPO1 Conrado Francisco, who was directing traffic
outside, received a report of a commotion inside the cathedral.
Rushing to the cathedral, SPO1 Francisco saw a man, accused-
appellant, with red stains on his shirt and a knife in one hand
sitting on a chair at the center of the altar. He ran to accused-
appellant and advised him to drop the knife. Accused-appellant
obeyed. He dropped the knife and raised his hands. Thereupon,
Chief Inspector Wendy Rosario, Deputy Police Chief, Dagupan
City, who was attending the confirmation rites at the Cathedral,
went near accused-appellant to pick up the knife. Suddenly,
accused-appellant embraced Chief Inspector Rosario and the two
wrestled with each other. Chief Inspector Rosario was able to
subdue accused-appellant. The police came and when they
frisked appellant, they found a leather scabbard tucked around
his waist.  He was brought to the police station and placed in jail.
8 
In the meantime, Mararac, the security guard, was brought to the
hospital where he expired a few minutes upon arrival. He died of
cardio-respiratory arrest, massive, intra-thoracic hemorrhage,
stab wound."  He was found to have sustained two (2) stab
9 
wounds: one just below the left throat and the other on the left
arm. The autopsy reported the following findings:
EXTERNAL FINDINGS
1. Stab wound, along the parasternal line, level of
the 2nd intercostal space, left, 1 1/2" x 1 1/2"
penetrating. The edge of one side of the wound is
sharp and pointed.
2. Stab wound, antero-lateral aspect, distal 3rd,
arm, left, 1/2" x 1/4" x 1/2". The edge of one side
of the wound is sharp and pointed.
INTERNAL FINDINGS
Massive intrathoracic, left, hemorrhage with perforation of
the upper and lower lobe of the left lung. The left
pulmonary blood vessel was severely cut.  10 
After the prosecution rested its case, accused-appellant, with
leave of court, filed a "Demurrer to Evidence." He claimed that the
prosecution failed to prove the crime of murder because there
was no evidence of the qualifying circumstance of treachery; that
there was unlawful aggression by the victim when he tapped
accused-appellant's hand with his nightstick; and that accused-
appellant did not have sufficient ability to calculate his defensive
acts because he was of unsound mind.  11 
The "Demurrer to Evidence" was opposed by the public
prosecutor. He alleged that the accused "pretended to be weak,
tame and of unsound mind;" that after he made the first stab, he
"furiously continued stabbing and slashing the victim to finish him
off undeterred by the fact that he was in a holy place where a
religious ceremony was being conducted;" and the plea of
unsound mind had already been ruled upon by the trial court in its
order of January 6, 1995. 12 
On February 21, 1995, a letter was sent by Inspector Wilfredo F.
Valdez, Jail Warden of Dagupan City to the trial court. Inspector
Valdez requested the court to allow accused-appellant, who was
confined at the city jail, to be treated at the Baguio General
Hospital to determine whether he should remain in jail or be
transferred to some other institution. The other prisoners were
allegedly not comfortable with appellant because he had been
exhibiting unusual behavior. He tried to climb up the jail roof so
he could escape and see his family.  13 
As ordered by the trial court, the public prosecutor filed a
Comment to the jail warden's letter. He reiterated that the mental
condition of accused-appellant to stand trial had already been
determined; unless a competent government agency certifies
otherwise, the trial should proceed; and the city jail warden was
not the proper person to determine whether accused-appellant
was mentally ill or not. 
14 
In an order dated August 21, 1995, the trial court denied the
"Demurrer to Evidence".  Accused-appellant moved for
15 
reconsideration.
While the motion for reconsideration was pending, on February
26, 1996, counsel for accused-appellant filed a "Motion to Confine
Accused for Physical, Mental and Psychiatric Examination."
Appellant's counsel informed the court that accused-appellant
had been exhibiting abnormal behavior for the past weeks; he
would shout at the top of his voice and cause panic among the jail
inmates and personnel; that appellant had not been eating and
sleeping; that his co-inmates had been complaining of not getting
enough sleep for fear of being attacked by him while asleep; that
once, while they were sleeping, appellant took out all his personal
effects and waste matter and burned them inside the cell which
again caused panic among the inmates. Appellant's counsel
prayed that his client be confined at the National Center for
Mental Health in Manila or at the Baguio General
Hospital.  Attached to the motion were two (2) letters. One, dated
16  Record;  (5) the Consent for Discharge signed by appellant's
February 19, 1996, was from Inspector Pedrito Llopis, Jail
Warden, Dagupan City, addressed to the trial court judge
informing him of appellant's irrational behavior and seeking the
issuance of a court order for the immediate psychiatric and
mental examination of accused-appellant.  The second letter, 17 
dated February 21, 1996, was addressed to Inspector Llopis from
the Bukang Liwayway Association, an association of inmates in
the Dagupan City Jail. The letter, signed by the president,
secretary and adviser of said association, informed the jail
warden of appellant's unusual behavior and requested that
immediate action be taken against him to avoid future violent
incidents in the jail.  18 
On September 18, 1996, the trial court denied reconsideration of
the order denying the "Demurrer to Evidence." The court ordered
accused-appellant to present his evidence on October 15, 1996.  19 
Accused-appellant did not take the witness stand. Instead, his
counsel presented the testimony of Dr. Maria Soledad
Gawidan,  a resident physician in the Department of Psychiatry
20 
at the Baguio General Hospital, and accused-appellant's medical
and clinical records at the said hospital.  Dr. Gawidan testified
21 
that appellant had been confined at the BGH from February 18,
1993 to February 22, 1993 and that he suffered from
"Schizophrenic Psychosis, Paranoid Type—schizophrenia,
paranoid, chronic, paranoid type;"  and after four (4) days of
22 
confinement, he was discharged in improved physical and mental
condition.  The medical and clinical records consisted of the
23 
following: (1) letter of Dr. Alfredo Sy, Municipal Health Officer,
Calasiao, Pangasinan to Dr. Jesus del Prado, Director, BGH
referring accused-appellant for admission and treatment after "a
relapse of his violent behavior;"  (2) the clinical cover sheet of
24 
appellant at the BGH;  (3) the consent slip of appellant's wife
25 
voluntarily entrusting appellant to the BGH;  (4) the Patient's 26 
27 
wife;  (6) the Summary and Discharges of appellant;  (7)
28  29 
appellant's clinical case history;  (8) the admitting notes;  (9)
30  31 
Physician's Order Form;  (10) the Treatment Form/medication
32 
sheet;  and (11) Nurses' Notes. 
33  34 
The trial court rendered a decision on June 23, 1997. It upheld APPELLANT'S PLEA OF INSANITY CANNOT BE
the prosecution evidence and found accused-appellant guilty of CONSIDERED AN EXEMPTING CIRCUMSTANCE.  36 

the crime charged and thereby sentenced him to death, viz:

The basic principle in our criminal law is that a person is
WHEREFORE, the court finds accused Roberto Estrada y criminally liable for a felony committed by him.  Under the 37 

Lopez guilty beyond reasonable doubt of the crime of classical theory on which our penal code is mainly based, the
Murder and in view of the presence of the aggravating basis of criminal liability is human free Will.  Man is essentially a
38 

circumstance of cruelty which is not offset by any moral creature with an absolutely free will to choose between
mitigating circumstance, the accused is sentenced to good and evil.  When he commits a felonious or criminal act
39 

suffer the Death Penalty and to indemnify the heirs of the (delito doloso), the act is presumed to have been done
deceased in the amount of P50,000.00. 1âwphi1.nêt voluntarily,  i.e., with freedom, intelligence and intent.  Man,
40  41 

therefore, should be adjudged or held accountable for wrongful

The accused is ordered to pay the sum of P18,870.00 acts so long as free will appears unimpaired.  42 

representing actual expenses and P100,000.00 as moral

damages. In the absence of evidence to the contrary, the law presumes that
every person is of sound mind  and that all acts are
43 

SO ORDERED.  25  voluntary.  The moral and legal presumption under our law is that
44 

freedom and intelligence constitute the normal condition of a

In this appeal, accused-appellant assigns the following errors: person.  This presumption, however, may be overthrown by other
45 

factors; and one of these is insanity which exempts the actor from
criminal liability.  46 

I
The Revised Penal Code in Article 12 (1) provides:
THE LOWER COURT ERRED IN FINDING ACCUSED-
APPELLANT GUILTY OF THE CRIME CHARGED,
DESPITE CLEAR AND CONVINCING EVIDENCE ON Art. 12. Circumstances which exempt from criminal
RECORD, SUPPORTING HIS PLEA OF INSANITY. liability. — The following are exempt from criminal liability:

II 1. An imbecile or an insane person, unless the

latter has acted during a lucid interval.
THE LOWER COURT LIKEWISE ERRED IN HOLDING
THAT THE STABBING TO DEATH OF ROGELIO When the imbecile or an insane person has
MARARAC WAS ATTENDED WITH TREACHERY AND committed an act which the law defines as a
AGGRAVATED BY CRUELTY, felony (delito), the court shall order his
GRANTING ARGUENDO THAT ACCUSED- confinement in one of the hospitals or asylums
 established for persons thus afflicted, which he acts. A person's thoughts, motives, and emotions may be
shall not be permitted to leave without first evaluated only by outward acts to determine whether these
obtaining the permission of the same court. conform to the practice of people of sound mind.  56 

An insane person is exempt from criminal liability unless
he has acted during a lucid interval. If the court therefore
finds the accused insane when the alleged crime was
committed, he shall be acquitted but the court shall order
his confinement in a hospital or asylum for treatment until
In the case at bar, there is no direct proof that accused-appellant
was afflicted with insanity at the time he killed Mararac. The
absence of direct proof, nevertheless, does not entirely discount
the probability that appellant was not of sound mind at that time.
From the affidavit of Crisanto Santillan  attached to the
57 

he may be released without danger. An acquittal of the Information, there are certain circumstances that should have
accused does not result in his outright release, but rather placed the trial court on notice that appellant may not have been
in a verdict which is followed by commitment of the in full possession of his mental faculties when he attacked
accused to a mental institution.  47 
Mararac. It was highly unusual for a sane person to go up to the
altar and sit in the Bishop's chair while the Bishop was
In the eyes of the law, insanity exists when there is a complete administering the Holy Sacrament of Confirmation to children in a
deprivation of intelligence in committing the act. Mere abnormality jampacked cathedral. It goes against normal and ordinary
of the mental faculties will not exclude imputability.  The accused
48  behavior for appellant, without sufficient provocation from the
must be "so insane as to be incapable of entertaining a criminal security guard, to stab the latter at the altar, during sacramental
intent."  He must be deprived of reason and act without the least
49  rites and in front of all the Catholic faithful to witness. Appellant
discernment because there is a complete absence of the power did not flee, or at least attempt to flee after the stabbing. He
to discern or a total deprivation of freedom of the will.  50  nonchalantly approached the microphone and, over the public
address system, uttered words to the faithful which the rational
Since the presumption is always in favor of sanity, he who person would have been made. He then returned to the Bishop's
invokes insanity as an exempting circumstance must prove it by chair and sat there as if nothing happened.
clear and positive evidence.  And the evidence on this point must
51 

refer to the time preceding the act under prosecution or to the Accused-appellant's history of mental illness was brought to the
very moment of its execution.  52  court's attention on the day of arraignment. Counsel for accused-
appellant moved for suspension of the arraignment on the ground
To ascertain a person's mental condition at the time of the act, it that his client could not properly and intelligently enter a plea due
is permissible to receive evidence of the condition of his mind to his mental condition. The Motion for Suspension is authorized
within a reasonable period both before and after that time.  Direct53  under Section 12, Rule 116 of the 1985 Rules on Criminal
testimony is not required.  Neither are specific acts of
54  Procedure which provides:
derangement essential to establish insanity as a
defense.  Circumstantial evidence, if clear and convincing,
55  Sec. 12. Suspension of arraignment. — The arraignment
suffices; for the unfathomable mind can only be known by overt shall be suspended, if at the time thereof:
 (a) The accused appears to be suffering from an unsound
mental condition which effectively renders him unable to
fully understand the charge against him and to plead
intelligently thereto. In such case, the court shall order his
mental examination and, if necessary, his confinement for
such purpose.
(b) x x x           x x x          x x x
The arraignment of an accused shall be suspended if at the time
thereof he appears to be suffering from an unsound mental
condition of such nature as to render him unable to fully
understand the charge against him and to plead intelligently
thereto. Under these circumstances, the court must suspend the
proceedings and order the mental examination of the accused,
and if confinement be necessary for examination, order such
confinement and examination. If the accused is not in full
possession of his mental faculties at the time he is informed at
the arraignment of the nature and cause of the accusation against
him, the process is itself a felo de se, for he can neither
comprehend the full import of the charge nor can he give an
intelligent plea thereto.  58  it merely postpones the trial.  63
The question of suspending the arraignment lies within the
discretion of the trial court.  And the test to determine whether
59  whether he has the capacity to comprehend his position,
the proceedings will be suspended depends on the question of
whether the accused, even with the assistance of counsel, would
have a fair trial. This rule was laid down as early as 1917, thus:
In passing on the question of the propriety of suspending
the proceedings against an accused person on the
ground of present insanity, the judges should bear in mind
that not every aberration of the mind or exhibition of
mental deficiency is sufficient to justify such suspension.
The test is to be found in the question whether the
accused would have a fair trial, with the assistance which
the law secures or gives; and it is obvious that under a
system of procedure like ours where every accused
person has legal counsel, it is not necessary to be so
particular as it used to be in England where the accused
had no advocate but himself.  60 
In the American jurisdiction, the issue of the accused's "present
insanity" or insanity at the time of the court proceedings is
separate and distinct from his criminal responsibility at the time of
commission of the act. The defense of insanity in a criminal trial
concerns the defendant's mental condition at the time of the
crime's commission. "Present insanity" is commonly referred to as
"competency to stand trial"  and relates to the appropriateness of
61 
conducting the criminal proceeding in light of the defendant's
present inability to participate meaningfully and effectively.  In
62 
competency cases, the accused may have been sane or insane
during the commission of the offense which relates to a
determination of his guilt. However, if he is found incompetent to
stand trial, the trial is simply postponed until such time as he may
be found competent. Incompetency to stand trial is not a defense;
 
In determining a defendant's competency to stand trial, the test is
understand the nature and object of the proceedings against him,
to conduct his defense in a rational manner, and to cooperate,
communicate with, and assist his counsel to the end that any
available defense may be interposed.  This test is prescribed by
64 
state law but it exists generally as a statutory recognition of the
rule at common law.  Thus:
65 
[I]f is not enough for the . . . judge to find that the
defendant [is] oriented to time and place, and [has] some
recollection of events, but that the test must be whether
 he has sufficient present ability to consult with his lawyer disrupted, for an incompetent defendant is likely to conduct
with a reasonable degree of rational understanding—and himself in the courtroom in a manner which may destroy the
whether he has a rational as well as factual decorum of the court. Even if the defendant remains passive, his
understanding of the proceedings against him.  66 
lack of comprehension fundamentally impairs the functioning of
the trial process. A criminal proceeding is essentially an
There are two distinct matters to be determined under this test: adversarial proceeding. If the defendant is not a conscious and
(1) whether the defendant is sufficiently coherent to provide his intelligent participant, the adjudication loses its character as a
counsel with information necessary or relevant to constructing a reasoned interaction between an individual and his community
defense; and (2) whether he is able to comprehend the and becomes an invective against an insensible object. Fourth, it
significance of the trial and his relation to it.  The first requisite is
67  is important that the defendant knows why he is being punished,
the relation between the defendant and his counsel such that the a comprehension which is greatly dependent upon his
defendant must be able to confer coherently with his counsel. The understanding of what occurs at trial. An incompetent defendant
second is the relation of the defendant vis-a-vis the court may not realize the moral reprehensibility of his conduct. The
proceedings, i.e., that he must have a rational as well as a factual societal goal of institutionalized retribution may be frustrated
understanding of the proceedings.  68  when the force of the state is brought to bear against one who
cannot comprehend its significance.  74 

The rule barring trial or sentence of an insane person is for the

protection of the accused, rather than of the public.  It has been
69  The determination of whether a sanity investigation or hearing
held that it is inhuman to require an accused disabled by act of should be ordered rests generally in the discretion of the trial
God to make a just defense for his life or liberty.  To put a legally
70  court.  Mere allegation of insanity is insufficient. There must be
75 

incompetent person on trial or to convict and sentence him is a evidence or circumstances that raise a "reasonable doubt"  or a
76 

violation of the constitutional rights to a fair trial  and due process

71  "bona fide doubt"  as to defendant's competence to stand trial.
77 

of law;  and this has several reasons underlying it.  For one, the
72  73  Among the factors a judge may consider is evidence of the
accuracy of the proceedings may not be assured, as an defendant's irrational behavior, history of mental illness or
incompetent defendant who cannot comprehend the proceedings behavioral abnormalities, previous confinement for mental
may not appreciate what information is relevant to the proof of his disturbance, demeanor of the defendant, and psychiatric or even
innocence. Moreover, he is not in a position to exercise many of lay testimony bearing on the issue of competency in a particular
the rights afforded a defendant in a criminal case, e.g., the right to case. 78 

effectively consult with counsel, the right to testify in his own

behalf, and the right to confront opposing witnesses, which rights
are safeguards for the accuracy of the trial result. Second, the
fairness of the proceedings may be questioned, as there are
certain basic decisions in the course of a criminal proceeding
which a defendant is expected to make for himself, and one of
these is his plea. Third, the dignity of the proceedings may be
In the case at bar, when accused-appellant moved for suspension
of the arraignment on the ground of accused's mental condition,
the trial court denied the motion after finding that the questions
propounded on appellant were intelligently answered by him. The
court declared:
 x x x           x x x          x x x
It should be noted that when this case was called, the
Presiding Judge asked questions on the accused, and he
(accused) answered intelligently. As a matter of fact,
when asked where he was born, he answered, in Tayug.
The accused could answer intelligently. He could
understand the questions asked of him.
WHEREFORE, for lack of merit, the Urgent Motion to
Suspend Arraignment and to Commit Accused to
Psychiatric Ward at Baguio General Hospital, is hereby
DENIED.
SO ORDERED.  79 
The fact that accused-appellant was able to answer the questions
asked by the trial court is not conclusive evidence that he was
competent enough to stand trial and assist in his defense. Section
12, Rule 116 speaks of an unsound mental condition that
"effectively renders [the accused] unable to fully understand the
charge against him and to plead intelligently thereto." It is not
clear whether accused-appellant was of such sound mind as to
fully understand the charge against him. It is also not certain
whether his plea was made intelligently. The plea of "not guilty"
was not made by accused-appellant but by the trial court
"because of his refusal to plead."  80 
The trial court took it solely upon itself to determine the sanity of
accused-appellant. The trial judge is not a psychiatrist or
psychologist or some other expert equipped with the specialized
knowledge of determining the state of a person's mental health.
To determine the accused-appellants competency to stand trial,
the court, in the instant case, should have at least ordered the
examination of accused-appellant, especially in the light of the
latter's history of mental illness.
If the medical history was not enough to create a reasonable
doubt in the judge's mind of accused-appellants competency to
stand trial, subsequent events should have done so. One month
after the prosecution rested its case, the Jail Warden of Dagupan
City wrote the trial judge informing him of accused-appellant's
unusual behavior and requesting that he be examined at the
hospital to determine whether he should remain in jail or be
placed in some other institution. The trial judge ignored this letter.
One year later, accused-appellant's counsel filed a "Motion to
Confine Accused for Physical, Mental and Psychiatric
Examination." Attached to this motion was a second letter by the
new Jail Warden of Dagupan City accompanied by a letter-
complaint of the members of the Bukang Liwayway Association of
the city jail. Despite the two (2) attached letters,  the judge
81 
ignored the "Motion to Confine Accused for Physical, Mental and
Psychiatric Examination." The records are barren of any order
disposing of the said motion. The trial court instead ordered
accused-appellant to present his evidence.  82 
Dr. Gawidan, testified that the illness of accused-appellant, i.e.,
schizophrenia, paranoid type, is a "lifetime illness" and that this
requires maintenance medication to avoid relapses.  After 83 
accused-appellant was discharged on February 22, 1993, he
never returned to the hospital, not even for a check-up.  84 
Accused-appellant did not take the witness stand. His counsel
manifested that accused-appellant was waiving the right to testify
in his own behalf because he was "suffering from mental
illness."  This manifestation was made in open court more than
85 
two (2) years after the crime, and still, the claim of mental illness
was ignored by the trial court. And despite all the overwhelming
indications of accused-appellant's state of mind, the judge By depriving appellant of a mental examination, the trial court
persisted in his personal assessment and never even considered effectively deprived appellant of a fair trial.  The trial court's
1awphil

subjecting accused-appellant to a medical examination. To top it negligence was a violation of the basic requirements of due
all, the judge found appellant guilty and sentenced him to death! process; and for this reason, the proceedings before the said
court must be nullified. In People v. Serafica,  we ordered that
92 

Sec. 12, Rule 116 of the 1985 Rules on Criminal Procedure the joint decision of the trial court be vacated and the cases
speaks of a "mental examination."  The human mind is an entity,
86  remanded to the court a quo for proper proceeding. The accused,
and understanding it is not purely an intellectual process but who was charged with two (2) counts of murder and one (1) count
depends to a large degree upon emotional and psychological of frustrated murder, entered a plea of "guilty" to all three charges
appreciation.  Thus, an intelligent determination of an accused's
87  and was sentenced to death. We found that the accused's plea
capacity for rational understanding ought to rest on a deeper and was not an unconditional admission of guilt because he was "not
more comprehensive diagnosis of his mental condition than in full possession of his mental faculties when he killed the
laymen can make through observation of his overt behavior. victim;" and thereby ordered that he be subjected to the
Once a medical or psychiatric diagnosis is made, then can the necessary medical examination to determine his degree of
legal question of incompetency be determined by the trial court. insanity at the time of commission of the crime.  93 

By this time, the accused's abilities may be measured against the

specific demands a trial will make upon him.  88 
IN VIEW WHEREOF, the decision of the Regional Trial Court,
Branch 44, Dagupan City in Criminal Case No. 94-00860-D
If the mental examination on accused-appellant had been convicting accused-appellant Roberto Estrada and sentencing
promptly and properly made, it may have served a dual him to death is vacated and the case is remanded to the court a
purpose  by determining both his competency to stand trial and
89  quo for the conduct of a proper mental examination on accused-
his sanity at the time of the offense. In some Philippine cases, the appellant, a determination of his competency to stand trial, and
medical and clinical findings of insanity made immediately after for further proceedings.1âwphi1.nêt

the commission of the crime served as one of the bases for the
acquittal of the accused.  The crime in the instant case was
90 
SO ORDERED.
committed way back in December 1994, almost six (6) years ago.
At this late hour, a medical finding alone may make it impossible
for us to evaluate appellant's mental condition at the time of the
crime's commission for him to avail of the exempting
circumstance of insanity.  Nonetheless, under the present
91 

circumstances, accused-appellant's competence to stand trial

must be properly ascertained to enable him to participate, in his
trial meaningfully.
 THE HONORABLE COURT OF APPEALS AND JULIA
ROSARIO BEDIA-SANTOS, respondents.

VITUG, J.:

Concededly a highly, if not indeed the most likely, controversial

provision introduced by the Family Code is Article 36 (as
amended by E.O. No. 227 dated 17 July 1987), which declares:

Art. 36. A marriage contracted by any party who,

at the time of the celebration, was psychologically
incapacitated to comply with the essential marital
obligations of marriage, shall likewise be void
even if such incapacity becomes manifest only
after its solemnization.

The present petition for review on certiorari, at the

instance of Leouel Santos ("Leouel"), brings into fore the
above provision which is now invoked by him. Undaunted
by the decisions of the court a quo  and the Court of
1

Appeal,  Leouel persists in beseeching its application in

2

his attempt to have his marriage with herein private

respondent, Julia Rosario Bedia-Santos ("Julia"), declared
a nullity.

It was in Iloilo City where Leouel, who then held the rank of First
Lieutenant in the Philippine Army, first met Julia. The meeting
later proved to be an eventful day for Leouel and Julia. On 20
September 1986, the two exchanged vows before Municipal Trial
G.R. No. 112019 January 4, 1995
Court Judge Cornelio G. Lazaro of Iloilo City, followed, shortly
thereafter, by a church wedding. Leouel and Julia lived with the
LEOUEL SANTOS, petitioner,  latter's parents at the J. Bedia Compound, La Paz, Iloilo City. On
vs.
18 July 1987, Julia gave birth to a baby boy, and he was
christened Leouel Santos, Jr. The ecstasy, however, did not last
long. It was bound to happen, Leouel averred, because of the
frequent interference by Julia's parents into the young spouses
family affairs. Occasionally, the couple would also start a
"quarrel" over a number of other things, like when and where the
couple should start living independently from Julia's parents or
whenever Julia would express resentment on Leouel's spending a
few days with his own parents.
On 18 May 1988, Julia finally left for the United Sates of America
to work as a nurse despite Leouel's pleas to so dissuade her.
Seven months after her departure, or on 01 January 1989, Julia
called up Leouel for the first time by long distance telephone. She
promised to return home upon the expiration of her contract in
July 1989. She never did. When Leouel got a chance to visit the
United States, where he underwent a training program under the
auspices of the Armed Forces of the Philippines from 01 April up
to 25 August 1990, he desperately tried to locate, or to somehow
get in touch with, Julia but all his efforts were of no avail.
Having failed to get Julia to somehow come home, Leouel filed
with the regional trial Court of Negros Oriental, Branch 30, a
complaint for "Voiding of marriage Under Article 36 of the Family
Code" (docketed, Civil Case No. 9814). Summons was served by
publication in a newspaper of general circulation in Negros
Oriental.
On 31 May 1991, respondent Julia, in her answer (through
counsel), opposed the complaint and denied its allegations,
claiming, in main, that it was the petitioner who had, in fact, been
irresponsible and incompetent.
A possible collusion between the parties to obtain a decree of
nullity of their marriage was ruled out by the Office of the
Provincial Prosecutor (in its report to the court).
On 25 October 1991, after pre-trial conferences had repeatedly
been set, albeit unsuccessfully, by the court, Julia ultimately filed
a manifestation, stating that she would neither appear nor submit
evidence.
On 06 November 1991, the court a quo finally dismissed the
complaint for lack of merit. 3
Leouel appealed to the Court of Appeal. The latter affirmed the
decision of the trial court.
4
The petition should be denied not only because of its non-
compliance with Circular 28-91, which requires a certification of
non-shopping, but also for its lack of merit.
Leouel argues that the failure of Julia to return home, or at the
very least to communicate with him, for more than five years are
circumstances that clearly show her being psychologically
incapacitated to enter into married life. In his own words, Leouel
asserts:
. . . (T)here is no leave, there is no affection for
(him) because respondent Julia Rosario Bedia-
Santos failed all these years to communicate with
the petitioner. A wife who does not care to inform
her husband about her whereabouts for a period
of five years, more or less, is psychologically
incapacitated.
The family Code did not define the term "psychological
incapacity." The deliberations during the sessions of the Family
Code Revision Committee, which has drafted the Code, can,
however, provide an insight on the import of the provision.
Art. 35. The following marriages shall be void
from the beginning:
xxx xxx xxx
Art. 36. . . .
(7) Those marriages contracted by any party who,
at the time of the celebration, was wanting in the
sufficient use of reason or judgment to understand
the essential nature of marriage or was
psychologically or mentally incapacitated to
discharge the essential marital obligations, even if
such lack of incapacity is made manifest after the
celebration.
On subparagraph (7), which as lifted from the
Canon Law, Justice (Jose B.L.) Reyes suggested
that they say "wanting in sufficient use," but
Justice (Eduardo) Caguioa preferred to say
"wanting in the sufficient use." On the other hand,
Justice Reyes proposed that they say "wanting in
sufficient reason." Justice Caguioa, however,
pointed out that the idea is that one is not lacking
in judgment but that he is lacking in the exercise
of judgment. He added that lack of judgment
would make the marriage voidable. Judge (Alicia
Sempio-) Diy remarked that lack of judgment is
more serious than insufficient use of judgment
and yet the latter would make the marriage null
and void and the former only voidable. Justice
Caguioa suggested that subparagraph (7) be
modified to read:
"That contracted by any party who,
at the time of the celebration, was
psychologically incapacitated to
discharge the essential marital
obligations, even if such lack of
incapacity is made manifest after
the celebration."
Justice Caguioa explained that the phrase "was
wanting in sufficient use of reason of judgment to
understand the essential nature of marriage"
refers to defects in the mental faculties vitiating
consent, which is not the idea in subparagraph
(7), but lack of appreciation of one's marital
obligations.
Judge Diy raised the question: Since "insanity" is
also a psychological or mental incapacity, why is
"insanity" only a ground for annulment and not for
declaration or nullity? In reply, Justice Caguioa
explained that in insanity, there is the appearance
of consent, which is the reason why it is a ground
for voidable marriages, while subparagraph (7)
does not refer to consent but to the very essence
of marital obligations.
Prof. (Araceli) Baviera suggested that, in
subparagraph (7), the word "mentally" be deleted,
with which Justice Caguioa concurred. Judge Diy,
however, prefers to retain the word "mentally."
Justice Caguioa remarked that subparagraph (7)
refers to psychological impotence. Justice
(Ricardo) Puno stated that sometimes a person
may be psychologically impotent with one but not
with another. Justice (Leonor Ines-) Luciano said
that it is called selective impotency.
Dean (Fortunato) Gupit stated that the confusion
lies in the fact that in inserting the Canon Law
annulment in the Family Code, the Committee
used a language which describes a ground for
voidable marriages under the Civil Code. Justice
Caguioa added that in Canon Law, there are
voidable marriages under the Canon Law, there
are no voidable marriages Dean Gupit said that
this is precisely the reason why they should make
a distinction.
Justice Puno remarked that in Canon Law, the
defects in marriage cannot be cured.
Justice Reyes pointed out that the problem is:
Why is "insanity" a ground for void ab
initio marriages? In reply, Justice Caguioa
explained that insanity is curable and there are
lucid intervals, while psychological incapacity is
not.
On another point, Justice Puno suggested that the
phrase "even if such lack or incapacity is made
manifest" be modified to read "even if such lack or
incapacity becomes manifest."
Justice Reyes remarked that in insanity, at the
time of the marriage, it is not apparent.
Justice Caguioa stated that there are two
interpretations of the phrase "psychological or
mentally incapacitated" — in the first one, there is
vitiation of consent because one does not know all
the consequences of the marriages, and if he had
known these completely, he might not have
consented to the marriage.
xxx xxx xxx
Prof. Bautista stated that he is in favor of making
psychological incapacity a ground for voidable
marriages since otherwise it will encourage one
who really understood the consequences of
marriage to claim that he did not and to make
excuses for invalidating the marriage by acting as
if he did not understand the obligations of
marriage. Dean Gupit added that it is a loose way
of providing for divorce.
xxx xxx xxx
Justice Caguioa explained that his point is that in
the case of incapacity by reason of defects in the
mental faculties, which is less than insanity, there
is a defect in consent and, therefore, it is clear
that it should be a ground for voidable marriage
because there is the appearance of consent and it
is capable of convalidation for the simple reason
that there are lucid intervals and there are cases
when the insanity is curable. He emphasized that
psychological incapacity does not refer to mental
faculties and has nothing to do with consent; it
refers to obligations attendant to marriage.
xxx xxx xxx
On psychological incapacity, Prof. (Flerida Ruth
P.) Romero inquired if they do not consider it as
going to the very essence of consent. She asked
if they are really removing it from consent. In
reply, Justice Caguioa explained that, ultimately,
consent in general is effected but he stressed that
his point is that it is not principally a vitiation of
consent since there is a valid consent. He
objected to the lumping together of the validity of
the marriage celebration and the obligations
attendant to marriage, which are completely
different from each other, because they require a
different capacity, which is eighteen years of age,
for marriage but in contract, it is different. Justice
Puno, however, felt that psychological incapacity
is still a kind of vice of consent and that it should
not be classified as a voidable marriage which is
incapable of convalidation; it should be
convalidated but there should be no prescription.
In other words, as long as the defect has not been
cured, there is always a right to annul the
marriage and if the defect has been really cured, it
should be a defense in the action for annulment
so that when the action for annulment is instituted,
the issue can be raised that actually, although one
might have been psychologically incapacitated, at
the time the action is brought, it is no longer true
that he has no concept of the consequence of
marriage.
Prof. (Esteban) Bautista raised the question: Will
not cohabitation be a defense? In response,
Justice Puno stated that even the bearing of
children and cohabitation should not be a sign that
psychological incapacity has been cured.
Prof. Romero opined that psychological incapacity
is still insanity of a lesser degree. Justice Luciano
suggested that they invite a psychiatrist, who is
the expert on this matter. Justice Caguioa,
however, reiterated that psychological incapacity
is not a defect in the mind but in the
understanding of the consequences of marriage,
and therefore, a psychiatrist will not be a help.
Prof. Bautista stated that, in the same manner that
there is a lucid interval in insanity, there are also
momentary periods when there is an
understanding of the consequences of marriage.
Justice Reyes and Dean Gupit remarked that the
ground of psychological incapacity will not apply if
the marriage was contracted at the time when
there is understanding of the consequences of
marriage. 5
xxx xxx xxx
Judge Diy proposed that they include physical
incapacity to copulate among the grounds for void
marriages. Justice Reyes commented that in
some instances the impotence that in some
instances the impotence is only temporary and
only with respect to a particular person. Judge Diy
stated that they can specify that it is incurable.
Justice Caguioa remarked that the term
"incurable" has a different meaning in law and in
medicine. Judge Diy stated that "psychological
incapacity" can also be cured. Justice Caguioa,
however, pointed out that "psychological
incapacity" is incurable.
Justice Puno observed that under the present
draft provision, it is enough to show that at the
time of the celebration of the marriage, one was
psychologically incapacitated so that later on if
already he can comply with the essential marital
obligations, the marriage is still void ab initio.
Justice Caguioa explained that since in divorce,
the psychological incapacity may occur after the
marriage, in void marriages, it has to be at the
time of the celebration of marriage. He, however,
stressed that the idea in the provision is that at the
time of the celebration of the marriage, one is
psychologically incapacitated to comply with the
essential marital obligations, which incapacity
continues and later becomes manifest.
Justice Puno and Judge Diy, however, pointed out
that it is possible that after the marriage, one's
psychological incapacity become manifest but
later on he is cured. Justice Reyes and Justice
Caguioa opined that the remedy in this case is to
allow him to remarry. 6
xxx xxx xxx
Justice Puno formulated the next Article as
follows:
Art. 37. A marriage contracted by
any party who, at the time of the
celebration, was psychologically
incapacitated, to comply with the
essential obligations of marriage
shall likewise be void from the
beginning even if such incapacity
becomes manifest after its
solemnization.
Justice Caguioa suggested that "even if" be
substituted with "although." On the other hand,
Prof. Bautista proposed that the clause "although
such incapacity becomes manifest after its
solemnization" be deleted since it may encourage
one to create the manifestation of psychological
incapacity. Justice Caguioa pointed out that, as in
other provisions, they cannot argue on the basis
of abuse.
Judge Diy suggested that they also include mental
and physical incapacities, which are lesser in
degree than psychological incapacity. Justice
Caguioa explained that mental and physical
incapacities are vices of consent while
psychological incapacity is not a species of vice or
consent.
Dean Gupit read what Bishop Cruz said on the
matter in the minutes of their February 9, 1984
meeting:
"On the third ground, Bishop Cruz
indicated that the phrase
"psychological or mental
 impotence" is an invention of
some churchmen who are
moralists but not canonists, that is
why it is considered a weak
phrase. He said that the Code of
Canon Law would rather express it
as "psychological or mental
incapacity to discharge . . ."
Justice Caguioa remarked that they deleted the
word "mental" precisely to distinguish it from vice
of consent. He explained that "psychological
incapacity" refers to lack of understanding of the
essential obligations of marriage.
Justice Puno reminded the members that, at the
last meeting, they have decided not to go into the
classification of "psychological incapacity"
because there was a lot of debate on it and that
this is precisely the reason why they classified it
as a special case.
At this point, Justice Puno, remarked that, since
there having been annulments of marriages
arising from psychological incapacity, Civil Law
should not reconcile with Canon Law because it is
a new ground even under Canon Law.
Prof. Romero raised the question: With this
common provision in Civil Law and in Canon Law,
are they going to have a provision in the Family
Code to the effect that marriages annulled or
declared void by the church on the ground of
psychological incapacity is automatically annulled
in Civil Law? The other members replied
negatively.
Justice Puno and Prof. Romero inquired if Article
37 should be retroactive or prospective in
application.
Justice Diy opined that she was for its retroactivity
because it is their answer to the problem of
church annulments of marriages, which are still
valid under the Civil Law. On the other hand,
Justice Reyes and Justice Puno were concerned
about the avalanche of cases.
Dean Gupit suggested that they put the issue to a
vote, which the Committee approved.
The members voted as follows:
(1) Justice Reyes, Justice Puno and Prof. Romero
were for prospectivity.
(2) Justice Caguioa, Judge Diy, Dean Gupit, Prof.
Bautista and Director Eufemio were for
retroactivity.
(3) Prof. Baviera abstained.
Justice Caguioa suggested that they put in the
prescriptive period of ten years within which the
action for declaration of nullity of the marriage
should be filed in court. The Committee approved
the suggestion. 7
It could well be that, in sum, the Family Code Revision Committee
in ultimately deciding to adopt the provision with less specificity
than expected, has in fact, so designed the law as to allow some
resiliency in its application. Mme. Justice Alicia V. Sempio-Diy, a
member of the Code Committee, has been quoted by Mr. Justice
Josue N. Bellosillo in Salita vs. Hon. Magtolis (G.R. No. 106429,
13 June 1994); thus: 8
The Committee did not give any examples of
psychological incapacity for fear that the giving of
examples would limit the applicability of the
provision under the principle of ejusdem generis.
Rather, the Committee would like the judge to
interpret the provision on a case-to-case basis,
guided by experience, the findings of experts and
researchers in psychological disciplines, and by
decisions of church tribunals which, although not
binding on the civil courts, may be given
persuasive effect since the provision was taken
from Canon Law.
A part of the provision is similar to Canon 1095 of the New Code
of Canon Law,  which reads:
9
Canon 1095. They are incapable of contracting
marriage:
1. who lack sufficient use of reason;
2. who suffer from a grave defect of discretion of
judgment concerning essentila matrimonial rights
and duties, to be given and accepted mutually;
3. who for causes of psychological nature are
unable to assume the essential obligations of
marriage. (Emphasis supplied.)
Accordingly, although neither decisive nor even perhaps all that
persuasive for having no juridical or secular effect, the
jurisprudence under Canon Law prevailing at the time of the
code's enactment, nevertheless, cannot be dismissed as
impertinent for its value as an aid, at least, to the interpretation or
construction of the codal provision.
One author, Ladislas Orsy, S.J., in his treaties,   giving an
10
account on how the third paragraph of Canon 1095 has been
framed, states:
The history of the drafting of this canon does not
leave any doubt that the legislator intended,
indeed, to broaden the rule. A strict and narrow
norm was proposed first:
Those who cannot assume the
essential obligations of marriage
because of a grave psycho-sexual
anomaly (ob gravem anomaliam
psychosexualem) are unable to
contract marriage (cf. SCH/1975,
canon 297, a new canon, novus);
then a broader one followed:
. . . because of a grave psychological anomaly (ob
gravem anomaliam psychicam) . . .
(cf. SCH/1980, canon 1049);
 then the same wording was retained in the text
submitted to the pope (cf. SCH/1982, canon
1095, 3);
finally, a new version was promulgated:
because of causes of a psychological nature (ob
causas naturae psychiae).
So the progress was from psycho-sexual to
psychological anomaly, then the term anomaly
was altogether eliminated. it would be, however,
incorrect to draw the conclusion that the cause of
the incapacity need not be some kind of
psychological disorder; after all, normal and
healthy person should be able to assume the
ordinary obligations of marriage.
Fr. Orsy concedes that the term "psychological incapacity" defies
any precise definition since psychological causes can be of an
infinite variety.
In a book, entitled "Canons and Commentaries on Marriage,"
written by Ignatius Gramunt, Javier Hervada and LeRoy Wauck,
the following explanation appears:
This incapacity consists of the following: (a) a
true inability to commit oneself to the essentials of
marriage. Some psychosexual disorders and
other disorders of personality can be the psychic
cause of this defect, which is here described in
legal terms. This particular type of incapacity
consists of a real inability to render what is due by
the contract. This could be compared to the
incapacity of a farmer to enter a binding contract
to deliver the crops which he cannot possibly
reap; (b) this inability to commit oneself must refer
to the essential obligations of marriage: the
conjugal act, the community of life and love, the
rendering of mutual help, the procreation and
education of offspring; (c) the inability must be
tantamount to a psychological abnormality. The
mere difficulty of assuming these obligations,
which could be overcome by normal effort,
obviously does not constitute incapacity. The
canon contemplates a true psychological disorder
which incapacitates a person from giving what is
due (cf. John Paul II, Address to R. Rota, Feb. 5,
1987). However, if the marriage is to be declared
invalid under this incapacity, it must be proved not
only that the person is afflicted by a psychological
defect, but that the defect did in fact deprive the
person, at the moment of giving consent, of the
ability to assume the essential duties of marriage
and consequently of the possibility of being bound
by these duties.
Justice Sempio-Diy   cites with approval the work of Dr. Gerardo
11
Veloso, a former Presiding Judge of the Metropolitan Marriage
Tribunal of the Catholic Archdiocese of Manila (Branch 1), who
opines that psychological incapacity must be characterized by (a)
gravity, (b) juridical antecedence, and (c) incurability. The
incapacity must be grave or serious such that the party would be
incapable of carrying out the ordinary duties required in marriage;
it must be rooted in the history of the party antedating the
marriage, although the overt manifestations may emerge only
after the marriage; and it must be incurable or, even if it were
otherwise, the cure would be beyond the means of the party
involved.
It should be obvious, looking at all the foregoing disquisitions,
including, and most importantly, the deliberations of the Family
Code Revision Committee itself, that the use of the phrase
"psychological incapacity" under Article 36 of the Code has not
been meant to comprehend all such possible cases of psychoses
as, likewise mentioned by some ecclesiastical authorities,
extremely low intelligence, immaturity, and like circumstances
(cited in Fr. Artemio Baluma's "Void and Voidable Marriages in
the Family Code and their Parallels in Canon Law," quoting from
the Diagnostic Statistical Manual of Mental Disorder by the
American Psychiatric Association; Edward Hudson's "Handbook II
for Marriage Nullity Cases"). Article 36 of the Family Code cannot
be taken and construed independently of, but must stand in
conjunction with, existing precepts in our law on marriage. Thus
correlated, "psychological incapacity" should refer to no less than
a mental (not physical) incapacity that causes a party to be truly
incognitive of the basic marital covenants that concomitantly must
be assumed and discharged by the parties to the marriage which,
as so expressed by Article 68 of the Family Code, include their
mutual obligations to live together, observe love, respect and
fidelity and render help and support. There is hardly any doubt
that the intendment of the law has been to confine the meaning of
"psychological incapacity" to the most serious cases of
personality disorders clearly demonstrative of an utter intensitivity
or inability to give meaning and significance to the marriage. This
pschologic condition must exist at the time the marriage is
celebrated. The law does not evidently envision, upon the other
hand, an inability of the spouse to have sexual relations with the
other. This conclusion is implicit under Article 54 of the Family
Code which considers children conceived prior to the judicial
declaration of nullity of the void marriage to be "legitimate."
The other forms of psychoses, if existing at the inception of
marriage, like the state of a party being of unsound mind or
concealment of drug addiction, habitual alcoholism,
homosexuality or lesbianism, merely renders the marriage
contract voidable pursuant to Article 46, Family Code. If drug
addiction, habitual alcholism, lesbianism or homosexuality should
occur only during the marriage, they become mere grounds for
legal separation under Article 55 of the Family Code. These
provisions of the Code, however, do not necessarily preclude the
possibility of these various circumstances being themselves,
depending on the degree and severity of the disorder, indicia of
psychological incapacity.
Until further statutory and jurisprudential parameters are
established, every circumstance that may have some bearing on
the degree, extent, and other conditions of that incapacity must,
in every case, be carefully examined and evaluated so that no
precipitate and indiscriminate nullity is peremptorily decreed. The
well-considered opinions of psychiatrists, psychologists, and
persons with expertise in psychological disciplines might be
helpful or even desirable.
Marriage is not an adventure but a lifetime commitment. We
should continue to be reminded that innate in our society, then
enshrined in our Civil Code, and even now still indelible in Article
1 of the Family Code, is that —
Art. 1. Marriage is a special contract of permanent
union between a man a woman entered into in
accordance with law for the establishment of
conjugal and family life. It is the foundation of the
family and an inviolable social institution whose
nature, consequences, and incidents are
governed by law and not subject to stipulation,
except that marriage settlements may fix the
property relations during the marriage within the
limits provided by this Code. (Emphasis supplied.)
Our Constitution is no less emphatic:

Sec. 1. The State recognizes the Filipino family as

the foundation of the nation. Accordingly, it shall
strengthen its solidarity and actively promote its
total development.

Sec. 2. Marriage, as an inviolable social

institution, is the foundation of the family and shall
be protected by the State. (Article XV, 1987
Constitution).

The above provisions express so well and so distinctly the basic

nucleus of our laws on marriage and the family, and they are
doubt the tenets we still hold on to.

The factual settings in the case at bench, in no measure at all,

can come close to the standards required to decree a nullity of
marriage. Undeniably and understandably, Leouel stands
aggrieved, even desperate, in his present situation. Regrettably,
neither law nor society itself can always provide all the specific
answers to every individual problem.

WHEREFORE, the petition is DENIED.

SO ORDERED.